before

SENATE JUDICIARY COMMITTEE

"Review of racial profiling"

MEMBERS OF COMMITTEE PRESENT:

Senator William L. Gormley, Chairman

Senator James S. Cafiero, Vice-Chairman

Senator Louis F. Kosco

Senator Robert J. Martin

Senator John J. Matheussen

Senator Norman M. Robertson

Senator Raymond J. Zane

Senator Garry J. Furnari

Senator John A. Girgenti

Senator John A. Lynch

Senator Edward T. O'Connor Jr.

ALSO PRESENT:

John J. Tumulty Christine Shipley, Esq. Jo Astrid Glading, Esq.

Office of Legislative Services Senate Majority Senate Democratic

Committee Aide Staff Counsel Staff Counsel

Michael Chertoff, Esq.

Special Counsel to the Committee

Scott L. Weber, Esq.

Assistant Special Counsel to the Committee

Peter G. Verniero

Associate Justice

New Jersey Supreme Court 1

APPENDIX:

Appendix material, including documents, previous interviews and depositions referenced in the hearing, is available from the Office of Legislative Services, Office of Public Information.

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SENATOR WILLIAM L. GORMLEY (Chairman): The Committee will call Justice Peter Verniero.

I ask you to come forward and stand and raise your right hand.

Be seated.

Justice Verniero has asked to make an opening statement.

Make sure your red light is on. (referring to PA microphone)

A S S O C I A T E J U S T I C E P E T E R G. V E R N I E R O: It's been a while.

Mr. Chairman and members of the Committee, I will get right to the point. I testified truthfully in all prior appearances before this Committee. I directed no person to conceal documents requested by the United States Department of Justice. As Attorney General, I decided all questions on the merits. I'm aware that there are those who have questioned my actions, my judgment, and my motives.

I am here voluntarily, because it is important for members of the Committee, and the public at large, to have a full and accurate understanding of the events that mark my tenure as Attorney General.

Beyond focusing on any one individual or time frame, I hope that we do not lose sight of this essential fact. Racial profiling has existed for many years. I hope we can arrive at the day when this humiliating and illegal practice is stamped out. I continue in my belief that the April 20, 1999 interim report of the State Police Review Team contains a candid assessment of racial profiling that embodies a viable blueprint for reform.

If I sometimes tilted too much in favor of the State Police, it was because I believed that the majority of troopers were acting within legal and regulatory bounds, and deserved our support. I trusted the leadership of the State Police.

I did not begin fully to appreciate the complexity of racial profiling until sometime later in my tenure. At its core, racial profiling is an issue of selective law enforcement. It is the use of law enforcement authority in a way that impermissibly targets a segment of our society.

That selective enforcement can occur in any one of several stages in the law enforcement process. It can occur at the point of a motor vehicle stop, at the point of seeking consent to search, or at the point of arrest. The definition of racial profiling, which seems clear enough today, evolved within the Department over the course of my tenure.

Earlier in my tenure, in 1996 and 1997, my thinking was based on the assumption that statistics alone cannot identify the practice of racial profiling. That assumption was reflected in the State's appeal in State versus Soto. Soto was based on stop data, and the incidents at issue in that case occurred between 1988 and 1991. The hearing in Soto was conducted on various dates between November 1994 and May 1995. And Judge Francis issued his ruling in March 1996. Consent to search numbers were not our focus at that time, because they were not the focus in Soto.

In addition, I was assured by the State Police that profiling was not a problem in any significant or systematic way, and that additional steps had already been taken to address the issue after the Soto decision. We should have viewed consents to search with a more critical eye.

I began to question my assumptions after the April 1998 Turnpike shooting incident. After the investigation commenced, I learned that troopers may have been falsifying data in order to conceal the number of minority motorists that they were stopping. Those events marked the turning point in my thinking.

During my earlier appearances, I used the term crystallize to describe what I began to realize -- to describe when I began to realize that racial profiling was, indeed, a problem in New Jersey.

Although that term was accurate, it was not very descriptive. And it was open to different interpretations. I meant it simply as a shorthand reference to the evolution of my thought process and the fact that intervening events led me to consider, in a much different light, some of the same information that I may have had prior to 1998. In other words, my perceptions concerning certain law enforcement practices changed following the shooting incident. I viewed the issue in a far more critical fashion, one which led me to believe that not only was the prospect of profiling real, but that it would require a forceful response. That response is contained in the interim report.

The Committee has also focused on certain aspects of the investigation of Troopers Hogan and Kenna, and their subsequent indictments. In particular, there has been testimony concerning my decision to proceed with a false filing indictment while the shooting grand jury was ongoing. In my view, it was appropriate for the public to know the results of this important investigation.

Judge Feinberg, the assignment judge, found that the grand jury was not adversely affected by the publicity surrounding the false filing prosecution. I believed that maintaining public confidence was a legitimate law enforcement function. That belief was endorsed by the Appellate Division, which found nothing fundamentally unfair or improper in the timing of the indictments.

During much of my tenure, the State Police was viewed by many law enforcement professionals, including the Federal government, as a model agency. One of my jobs as the State's chief attorney was to cooperate with Federal authorities, while still maintaining the State's legal interests.

On the record before me in 1996 and 1997, I would not have agreed to enter into a Federal consent order if one had been proposed by the Justice Department. The Federal government, however, did not propose such an order at that time. Insofar as I know, we responded to all information requests in a manner satisfactory to the Justice Department.

To reach the conclusions contained in the interim report, I had to confront the entire culture of the State Police and call into question the assurances I had received that discriminatory practices were not a problem. It was not a conclusion I made lightly. Although the basis for reform may have begun to develop earlier, it did not become sufficiently compelling, in my opinion, until 1999.

I take full responsibility for my actions as Attorney General. Reasonable minds may differ regarding the timeliness of my actions or other aspects of my decisions. I believed at the time, and still do, that the reforms of the magnitude announced in 1999 required a clear and compelling basis if they were to be viewed with legitimacy and have any hope of succeeding.

I wish that I had done more, but I would like to think that we made significant accomplishments during my 34-month tenure.

As we sit here today, we all know a great deal more about racial profiling than we did four years ago. This Committee is, itself, creating an additional record. I hope that such a record is viewed in a fair light using fair inferences in its proper context.

Ask me the tough questions that need to be asked, but please do not lose this opportunity to consider the adoption of lasting legislative reforms.

That completes my statement, Mr. Chairman.

SENATOR GORMLEY: Mr. Chertoff.

MR. CHERTOFF (Special Counsel to the Committee): Thank you, Mr. Chairman.

Good morning, Justice Verniero.

JUSTICE VERNIERO: Good morning, Mr. Chertoff.

MR. CHERTOFF: You were sworn in as Attorney General in July of 1996.

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: And you held that position through May of 1999.

JUSTICE VERNIERO: May 15th, 1999, I believe, yes.

MR. CHERTOFF: And in that position, under the Constitution of this State, you were the chief law enforcement official in the State of New Jersey.

JUSTICE VERNIERO: I was, yes. Although some folks have said the Governor, as the Chief Executive, is the chief law enforcement official, but the statutes clearly indicated that I was the chief law enforcement official.

MR. CHERTOFF: Now, you also had supervisory authority over the State Police.

JUSTICE VERNIERO: I did.

MR. CHERTOFF: So it's fair to say that your relationship with the State Police was not merely that of a lawyer to a client, but also that of a supervisor to a body of people who were being supervised.

JUSTICE VERNIERO: That is correct. I had many roles as Attorney General, and I wore many hats, one of which was the State's chief lawyer, another which was the State's chief prosecutor, another which was the administrative head of the Department of Law and Public Safety, which included the Division of State Police and many other divisions.

MR. CHERTOFF: Now, in April of 1998, there was a shooting on the Turnpike, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And in your capacity as chief prosecutor, you had decisions to make with respect to the investigation of that shooting, correct?

JUSTICE VERNIERO: I did, yes.

MR. CHERTOFF: You came to be aware that there was an investigation of the circumstances of the shooting itself, correct?

JUSTICE VERNIERO: Well, that's almost automatic. Whenever you have police shootings, there's executive directives in place that my predecessors have put in place that-- It's almost automatic, when you have a shooting of that kind, for there to be an investigation.

MR. CHERTOFF: You took some degree of personal involvement in supervising the investigation.

JUSTICE VERNIERO: Well, what I did in that case, because I thought it required a State grand jury as opposed to a county grand jury, I had made the decision to convert the case to a State grand jury. And that was done for a number of reasons. I also appointed a special prosecutor, which is a little bit unusual, but I thought the facts warranted it in that case.

MR. CHERTOFF: And that prosecutor reported to you, correct?

JUSTICE VERNIERO: I wouldn't say he reported directly to me. There were times when he and I spoke directly at meetings and so forth. But I'm speaking of Prosecutor Gerrow. He was reporting, I would say, directly to either the Division of Criminal Justice's director or the deputy director, Debra Stone. I believe he had reporting requirements rather than a report to me directly.

MR. CHERTOFF: And then that person reported to you, right?

JUSTICE VERNIERO: Director Zoubek reported to me, yes.

MR. CHERTOFF: Now, you also became aware at a point in time that there was an investigation relating to the question of whether the troopers has falsified records, correct?

JUSTICE VERNIERO: That is correct.

MR. CHERTOFF: When did you become aware of that?

JUSTICE VERNIERO: It was sometime after the Turnpike shooting incident. I don't recall the exact date. It was sometime after April 1998.

MR. CHERTOFF: Is it fair to say by the summer of 1998 you were aware of that?

JUSTICE VERNIERO: That sounds about right.

MR. CHERTOFF: Did you also become aware at around the same time, from Mr. Zoubek, that there was something, which we called the Troop D audit, in which the State Police were looking more generally at the question of falsification of records?

JUSTICE VERNIERO: Yes, because we talked about that. When we began to learn of the possibility that some troopers might be falsifying records, we thought it only appropriate that we review the entire Troop D. And that was-- I don't remember the exact point in time that decision was made, but I certainly was aware of that audit.

MR. CHERTOFF: So you understood, again, in mid-1998, that there was not only an investigation of falsification regarding Hogan and Kenna, but there was an investigation of falsification as it might involve other troopers, correct?

JUSTICE VERNIERO: That's correct.

MR. CHERTOFF: Now-- And-- Did you set a deadline for that general investigation?

JUSTICE VERNIERO: I did not.

MR. CHERTOFF: Now, there comes a time in March of 1999 that you asked for a status report relating to the shooting investigation, correct?

JUSTICE VERNIERO: That is correct.

MR. CHERTOFF: You did that because you anticipated that the anniversary of the shooting was coming up.

JUSTICE VERNIERO: I did that because I just wanted a status report. You know, the investigation was moving along, and I just had some questions. I may have asked some questions prior to a formal meeting. I pretty much had a very good and easy relationship with my first assistant and my criminal director. I might have gotten some feedback prior to that time, Mr. Chertoff, but I wanted a formal briefing with Prosecutor Gerrow and others -- the entire team. I thought it was appropriate that I hear directly from them.

MR. CHERTOFF: That was on March 10th, 1999?

JUSTICE VERNIERO: I can't recall the exact date. That sounds right.

MR. CHERTOFF: Was that the first formal meeting you had with the prosecutorial team since the shooting?

JUSTICE VERNIERO: No. When we decided to convert the shooting from a county to a State grand jury, I recall I met with Prosecutor Gerrow. I wanted to meet him. I had not known him, or if I did, I hadn't recalled him. And I wanted to get a sense of him, and I wanted him to hear directly from me that this was an important investigation. I pledged resources -- any resources that he thought he needed. So we had that meeting in my office sometime after the shooting, before the summer, as I recall. But I don't know the exact date.

MR. CHERTOFF: So is it fair to say that from the time of that meeting, which would have been before the summer of 1998, until early March 1999, you had no formal briefing from the prosecutorial team?

JUSTICE VERNIERO: I don't remember one if I did.

MR. CHERTOFF: And what prompted the formal meeting was your request to have everybody come in and report on the status of the shooting case, correct?

JUSTICE VERNIERO: I don't have an exact recollection of my requesting it. It might have been that I was asking Director Zoubek some questions. And maybe I suggested it. Maybe he suggested -- let's have a meeting. Let's put the team in place. I certainly thought it was a good idea, and it was an appropriate thing to do.

MR. CHERTOFF: Were you conscious of the fact at that point -- at the time of the meeting that the anniversary of the shooting was coming up?

JUSTICE VERNIERO: I'm sure I was conscious of it, but I can't recall me specifically thinking about that.

MR. CHERTOFF: Did you know--

JUSTICE VERNIERO: We all were fairly conscious of the anniversary. It was well publicized. And the shooting itself was well publicized. So I'm sure I was conscious of it.

MR. CHERTOFF: Did you know that on February 10th of 1999 Mr. Zoubek had received a report from people at the State Police concerning the general status of the falsification audit?

JUSTICE VERNIERO: I don't recall that. I'm sure Paul would have mentioned it to me. And he might have. I don't have a specific recollection of receiving a report on that date.

MR. CHERTOFF: Did you ask for a briefing concerning the falsification investigation?

JUSTICE VERNIERO: I may have. And that might have led to the March meeting. I just don't recall.

MR. CHERTOFF: At any point in time, from the time the falsification investigation was initiated in mid-1999 up through the March meeting, did you ever get a meeting or a status conference with the people who were involved in running the falsification investigation?

JUSTICE VERNIERO: I don't recall, other than I might have asked Director Zoubek, "How were things going? Any problems? Do you need any additional help?" And I was always, whenever I asked those general questions, informed that the investigation was ongoing.

MR. CHERTOFF: But you didn't ask for a formal meeting.

JUSTICE VERNIERO: I don't recall. No.

MR. CHERTOFF: Now, at the March meeting, besides yourself, Mr. Zoubek was present?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And again, Mr. Zoubek was an experienced former prosecutor, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Who else was present?

JUSTICE VERNIERO: I recall it was Prosecutor Gerrow, and I recall Debra Stone.

MR. CHERTOFF: Now, Prosecutor Gerrow, again, had a lot of prosecutorial experience?

JUSTICE VERNIERO: He did. That was one of the reasons we selected him. Not only was he a very well-respected prosecutor, but he had done police shooting investigations before. He had a very good reputation in the various communities. And we thought he was the right person.

MR. CHERTOFF: And Ms. Stone had a lot of experience in law enforcement, correct?

JUSTICE VERNIERO: She did, yes.

MR. CHERTOFF: So you were there with these three experienced prosecutors or law enforcement personnel. And what was the first thing that was discussed?

JUSTICE VERNIERO: I do not recall the first thing that was discussed.

MR. CHERTOFF: Did you ask them-- Was the initial purpose of the meeting to have them report to you on whether the shooting case could be indicted by the anniversary date of the shooting?

JUSTICE VERNIERO: I don't recall if I ever put the question in quite that way. I'm sure I would have asked for an update of both the shooting investigation and the falsification. They were separate investigations in my mind, and I'm sure I might have asked for information on the shooting, even though specifically we were there to talk about the falsification. It was the same team, so I'm sure it would have been only natural for me to ask about the shooting.

MR. CHERTOFF: I'm sorry. Are you saying that the reason you called the meeting was to talk about the falsification investigation?

JUSTICE VERNIERO: No, I'm saying that I wanted an update. And falsification was always something that was very critical in my thinking, as I mentioned in my opening statement. And I'm sure I asked for a general overview. Falsification was one item. And we were always talking about the shooting, because there were always updates that I was getting on and off throughout that period.

MR. CHERTOFF: At the meeting, did you ask for a general update on the falsification investigation as it related to all the troopers, or only with respect to two troopers?

JUSTICE VERNIERO: I don't recall. I'm sure I would have asked for the so-called Troop D audit results or the progress made. But I don't recall that specifically.

MR. CHERTOFF: Well, we had testimony yesterday, and also in Mr. Zoubek's deposition, that in this meeting, there was initially discussion about when the shooting investigation would be concluded. Is that consistent with your recollection?

JUSTICE VERNIERO: No, that sounds right.

MR. CHERTOFF: And do you remember being told by the prosecutor that there was no way that shooting investigation could be done until sometime after the spring?

JUSTICE VERNIERO: I do. And I remember in -- being unable to put a date to it -- that it would be several months before the shooting investigation were completed.

MR. CHERTOFF: At the very least, though, you were aware at that point that the shooting indictment, if there was going to be a shooting indictment, would not occur as of the end of April of 1999. Is that fair to say?

JUSTICE VERNIERO: That was my impression. Again, no one put a date to it. But I think that's a fair assumption that I made.

MR. CHERTOFF: Did you then ask the assembled prosecutors whether it would be possible to bring a falsification case by the anniversary date?

JUSTICE VERNIERO: I might have. I asked them what the progress was, whether it was complete. And I believe they indicated to me that it was completed. I can't recall the exact date that they said it was completed. But my recollection, is at that meeting, I was informed that pretty much the investigation, with respect to falsification, focused on the two troopers -- that had been completed.

MR. CHERTOFF: Well, had they told you that it was -- had been presented to the grand jury yet?

JUSTICE VERNIERO: No, no. It was ready to be presented.

MR. CHERTOFF: And what was your response when they indicated to you that the falsification investigation had been completed?

JUSTICE VERNIERO: I don't recall my exact response. I'm sure that I thought it was satisfactory that they were completing the investigation. I always felt that the team was quite hardworking. And they were very earnest in completing their work. And I'm sure I must have said something like, "Thank you for completing it in a timely fashion." I don't recall my exact words.

MR. CHERTOFF: Well, did you then have a discussion about whether it would be possible to bring that falsification immediately because you needed to demonstrate some action?

JUSTICE VERNIERO: I wouldn't say that I phrased it quite like that. I'm sure I said something like, "Well, if it's ready to be presented, we should present it." I mean, to me, that seemed just like a very straightforward thing to do. When you have an investigation that's completed-- I was not in a position where I would have been comfortable holding back or suppressing an investigation. If it was ready to be-- If it was completed and ready to be presented, I would have presented it. That would have been my reaction. I don't recall the exact words that I used.

MR. CHERTOFF: Well, without quoting the exact words, was there-- Did you express the concept that there was criticism of the delay in the shooting investigation, and therefore it would be desirable to demonstrate action?

JUSTICE VERNIERO: I might have said that the Office of the Attorney General and the State Police had come under such public scrutiny that the public's confidence needed to be assured if and when the investigation was complete. I might have said something like that. I don't remember the exact words.

And it was a time in my office where our credibility was at issue. The public had begun to lose faith in law enforcement's ability to police itself and the ability of my office to conduct the investigation. So I'm sure I would have considered public confidence in my deliberations. I just don't recall the exact words that I might have used.

MR. CHERTOFF: And did the assembled prosecutors-- How did they respond to the suggestion of getting the case out now?

JUSTICE VERNIERO: I remember they explained the risks that might occur by virtue of that decision. The main risk that I recall was possible prejudice to the ongoing shooting grand jury. We talked about how to address those risks, how to remedy them. They explained that process to me. And then I made the decision to go forward with the false filing prosecution.

MR. CHERTOFF: Well, did you express to them any reason why you were prepared to take the risks of prejudicing a shooting investigation in order to move a falsification case with respect to two troopers?

JUSTICE VERNIERO: I don't know if I expressed this at the meeting, but I recall that I was satisfied that we could address those risks, particularly in light of the fact that I had previously been advised that the shooting grand jury would be several months later -- or possibly several months later. So any initial burst of publicity, I thought, could have been ameliorated simply by the passage of time.

I mean, the risk of publicity at that point in time-- You have to kind of go back and view it in context. We were getting publicity on just about every aspect of the Turnpike shooting investigation. It was not a point in time where it was very quiet and all of a sudden there would be a burst of publicity if we went forward with the falsification. This issue was in the paper -- I don't want to say every day, but several times a week, several times a month. So I factored all of that in my mind, and I thought, you know, the public has a right to know if -- but only if the investigation is ready, and we can take steps not to prejudice the ongoing shooting.

MR. CHERTOFF: I'm sorry. When you say there was a lot of publicity in the press about the shooting, what aspect of the publicity were you focused on in weighing the risks against the advantages in going forward with this indictment?

JUSTICE VERNIERO: Just the whole issue of racial profiling. I mean, the whole-- The issue of racial profiling and these two troopers. Their pictures were in the paper many, many times since the shooting incident. And anytime there was an article about racial profiling -- or many times when there was an article about racial profiling, there would be a -- their picture was there, whether it had to do with policy or whether it was stop data or various public comments from civil rights leaders and so forth. This issue was in the paper many, many times, almost on a weekly basis, if not a daily basis.

MR. CHERTOFF: So you didn't think-- Am I correct in understanding that your view was that since their picture was in the paper a lot about the shooting, there was a lot of discussion of profiling -- that publicity from this indictment would not materially change their position in terms of the grand jury investigation?

JUSTICE VERNIERO: My thinking at the time was, this is a high-profile investigation. Whatever we do, it's going to generate a great deal of publicity. And it had generated a great deal of publicity. But we still had a job to do. We had to bring the investigations to closure in a timely fashion. We had to release the indictments when they were ready to be released. I can't say that I spent a whole lot of time figuring out all of the various public reactions to it. I was making a decision based on the best information I had at the time.

MR. CHERTOFF: Well, did you understand that the significance of indicting on charges separate and distinct from the issue of the shooting in a way that directly attacked the credibility of the troopers would be a qualitatively different effect on the troopers' position in front of the grand jury than all the newspaper stuff about the shooting itself?

JUSTICE VERNIERO: There was a discussion of the risks. I don't know that the discussion at that meeting went to that kind of detail.

MR. CHERTOFF: But in your own mind, Justice Verniero, did you say to yourself, look, grand jurors considering the issue of a shooting -- there's a credibility issue between the witnesses and the subjects of the grand jury? The grand jury doesn't know anything. There's going to be no presentation at this point concerning falsification -- anything to suggest that the credibility of the troopers is questionable.

If we indict them publicly, with respect to the falsification, essentially branding them as liars, that's going to really affect the way the grand jurors judge the credibility issue if the grand jurors read about that. Did that concept enter into your thinking?

JUSTICE VERNIERO: As I said, I was thinking of the picture as a whole. I was satisfied, and I had confidence in the remedies that would cure any such possible prejudice.

MR. CHERTOFF: I just want to make sure that I was clear in my question. As part of your thinking of the problem as a whole, did you consider -- from the standpoint of the subjects or the targets of the investigation and their rights -- did you consider the fact that a public falsification indictment of them would brand them as liars at a time in which their fate in a credibility contest was very much in the hands of the grand jury? Did you consider that issue?

JUSTICE VERNIERO: I don't recall if I considered it specifically like that. I might have thought, well, if we don't do it this way, if we present it to the entire grand jury, the entire package, if you will, the shooting and falsification, those same grand jurors would have received evidence of falsification. And so--

MR. CHERTOFF: Well, did you discuss that alternative with the assembled experienced prosecutors?

JUSTICE VERNIERO: As I say, I don't recall specifically. I recall that they laid the options on the table for me, and I chose what I thought was the appropriate option.

MR. CHERTOFF: Well, I just want to make sure we understand the complete menu of options and things that were on the table at that point. First of all, am I correct that there was no urgency about indicting the troopers because of any concern they were going to be fugitives?

JUSTICE VERNIERO: I think that's correct, yes.

MR. CHERTOFF: And nobody said we have to indict quickly because we're concerned that they're going to go out and shoot somebody again, and we have to get them under court supervision?

JUSTICE VERNIERO: No, I believe they were on administrative leave at that point, but I'm not certain of that fact.

MR. CHERTOFF: All right. So those traditional considerations for moving an indictment, namely fear of flight and fear of danger of community, were absent here, correct?

JUSTICE VERNIERO: I think that's correct, yes.

MR. CHERTOFF: Now, in addition to that, there was no question of a statute of limitations running, where if you didn't indict by a certain date you would lose the ability to charge the case?

JUSTICE VERNIERO: I think that's correct, yes.

MR. CHERTOFF: So that was not on the table. Again, there was no issue of, perhaps, losing witnesses who might testify on the grand jury if you didn't complete the indictment or any prejudice to the investigation and falsification. That wasn't presented to you?

JUSTICE VERNIERO: I'd prefer, Mr. Chertoff, not to go into things like what witnesses we might have had or might have presented to the grand jury, since this is a pending criminal matter.

MR. CHERTOFF: I didn't mean to get into the specifics. I'm just asking, in general, did anybody say to you that there is an investigative reason we have to conclude the indictment by this point in time or it's going to prejudice our investigation or prejudice our case?

JUSTICE VERNIERO: I don't recall anyone saying we had to indict at that time. We spent time working within the framework of, if we were to indict, what would be the risks, and importantly, how could those risks be cured.

MR. CHERTOFF: Now again, I wanted to just see where -- we'll come to the downside, but I want to talk about the upside part of this -- that you were considering the advantages. So it's fair to say some -- if there's no traditional law enforcement reason to move the indictment quickly in terms of flight, danger, risk of lost evidence, or risk of statute of limitation problems, those were not advanced to you as issues with respect to the decision, correct?

JUSTICE VERNIERO: That's fair to say.

MR. CHERTOFF: Now, was there any-- You indicated a moment ago one of your thoughts was, "Well, if we were to present the falsification information in the same grand jury as the shooting, the grand jurors would hear about it anyway." You said that sort of occurred to you.

JUSTICE VERNIERO: It might have. I said, just so my testimony is clear, I do not recall exactly what my thinking was or what the dialogue may have been. My concern was, we had an investigation that I was informed was ready, was completed, and we were at a point in the Department's history where there was a great deal of skepticism about whether or not we could police ourselves. There also was a risk in my mind that this investigation might leak out. I mean, that was a possibility.

And my feeling at the time was, if you have an investigation that isn't ready, again, that's a very important if. If it is ready and we can present it in such a fashion so as not to prejudice the defendants in the other grand jury setting, I thought that risk was worth taking.

MR. CHERTOFF: When was it ready?

JUSTICE VERNIERO: As I said, I don't recall exactly when they said it was completed, but at that March meeting I was advised that they were ready to go to grand jury. When I say ready, I don't mean it had gone to the grand jury. They had done the background work, the investigative work, and they were at a point where they could present it to the grand jury.

MR. CHERTOFF: But at any previous point prior to March 10th, had you asked when is this falsification case going to be ready?

JUSTICE VERNIERO: As I say, I may have in the kind of a give-and-take of the casual conversations I often have with Director Zoubek. I just don't remember if I said it in any particular way or particular date.

MR. CHERTOFF: Well, is it fair to say you never expressed any urgency about whether that investigation was completed until March of 1999?

JUSTICE VERNIERO: I don't know if that's fair to say. I was very concerned about timeliness of both investigations, and I expressed that concern at many points, not in a formal meeting. But I don't think that's safe to say that it was suddenly on March of that year where I wanted to move forward. I was a bit frustrated at the timeliness of the investigation.

MR. CHERTOFF: Did you know that the investigation by the State Police was actually done by early December of 1998, with respect to Hogan and Kenna?

JUSTICE VERNIERO: As I said, I do not recall when it was completed.

MR. CHERTOFF: You certainly relied on Director Zoubek to answer your questions when you asked him, right?

JUSTICE VERNIERO: I did.

MR. CHERTOFF: So it's fair to say, if the investigation was concluded in December of '98 and you had asked them between December and March for a status update, he would have told you the investigation is done and ready to go to the grand jury.

JUSTICE VERNIERO: I would assume so, yes.

MR. CHERTOFF: So can we infer from that that-- and likely that you didn't ask about the status of the investigation from December of 1998 until March 10th, 1999?

JUSTICE VERNIERO: I don't know. I could have asked him, and he could have said, well, let's get a meeting together, and it could have taken a couple of weeks to put a meeting together. I just don't recall. It's not unusual that I might have asked him every couple of months, and at sometime in January I might have said, how was it going, or early February, and he says, "Well, we're ready. Let's put a meeting together." So I don't want to speculate as to conversations I may have had between December and March.

MR. CHERTOFF: Did you ask Mr. Zoubek, either at the meeting on March 10th or earlier, about whether the other investigations involving the other troopers' falsification allegations were complete?

JUSTICE VERNIERO: No. I had asked for general updates, and I got the sense that they were still quite a ways away from being completed.

MR. CHERTOFF: So your focus on March 10th was Hogan and Kenna, right?

JUSTICE VERNIERO: That's my recollection.

MR. CHERTOFF: Now, I'm going to read you a portion of what Mr. Zoubek told us at his deposition, and tell us whether you disagree with his recollection of this meeting. He indicates at Page 310, Line 7: "Prosecutor Gerrow, I believe, informed the Attorney General that the expectation was that the shooting grand jury would not be done for a number of months. And the question that the Attorney General asked was, 'Can we move the falsification indictment, because we need to demonstrate action on this, because we were getting subject to criticism of delay in this investigation.'" Is that as you remembered?

JUSTICE VERNIERO: As I said, I don't remember those exact words. That sounds like an accurate description of my sentiments at that time.

MR. CHERTOFF: He goes on to say-- Well, let me ask you this question: You'll agree with me that there was no public pressure as of March 1999 about getting any kind of falsification investigation concluded, correct?

JUSTICE VERNIERO: No. The public, fortunately -- and I say fortunately because I didn't want to prejudice the investigation by any premature release or leak of information -- did not know about the falsification investigation, which was one of the reasons why I thought, if it were ready and we could remedy against prejudice, it was in the public interest to release that indictment as soon as it was ready to be released. I did not want to sit on that indictment.

MR. CHERTOFF: So, in terms of the statement, though, which I take it you agreed in substance you told the people at the meeting, which is that you needed to demonstrate action because of the subject to criticism of delay in the investigation, the only criticism of delay at this point in time was the shooting investigation, right, because that's the only investigation the public knew about? Is that right?

JUSTICE VERNIERO: Well, it was -- the criticism was not just delay. The criticism was broader than that. There was a point in time, late in my tenure as Attorney General, where the State Police and the Office of Attorney General were under criticism from many quarters on many different fronts. It was not just the timing. It was our whole ability to even conduct the kind of investigations that we were conducting. It was not just discreetly tied to, you know, timing or one particular investigation. It is true that the impetus of that criticism was the April of 1998 Turnpike event, but I felt that the public was yearning for confidence and a sign or signal of confidence on a broad spectrum of issues.

MR. CHERTOFF: At this point in time in March of 1999, were there calls from the public for the Civil Rights Division to step in and take over the case?

JUSTICE VERNIERO: That's my recollection.

MR. CHERTOFF: And you also were aware at that time that there was an ongoing Civil Rights Division review of racial profiling, in general, at the State Police, right?

JUSTICE VERNIERO: Oh, of course, yes.

MR. CHERTOFF: And you were aware as of late February of 1999 that the Department of Justice had indicated they were going to step up their pace of that inquiry, right?

JUSTICE VERNIERO: I don't recall the exact date when they had indicated they might step up the investigation.

MR. CHERTOFF: And would I be correct that it would -- you would have viewed it as undesirable, and frankly embarrassing, if the Federal government had stepped in and either taken over the trooper investigation or publicly announced that it was investigating the State Police for profiling or both?

JUSTICE VERNIERO: Well, I don't know if would say embarrassing. I would have thought it was unwarranted, because I had great confidence in the review team. And despite the public criticism, I believed we were capable of conducting this investigation. I had confidence in the team. I had confidence, frankly, in the State Police that were helping us conduct the falsification investigation. I had gotten a report. I don't recall whether it was at the March meeting or sometime prior to that. The State Police were being very cooperative and helpful in connection with the Troop D audit. So I don't know if I would use the word embarrassment. It was something that I felt my office had a responsibility to do, and I would have wanted the ability to see that through to closure.

MR. CHERTOFF: Well, but in the context of the particular discussion about whether to bring this indictment, this falsification indictment, did you talk about the fact there was the discussion about the fact that there had been calls to have the investigation of the shooting taken over, because it had taken too long, and was it in a response to that that you said, is there anything we can do to show some action?

JUSTICE VERNIERO: I don't recall the exact tenor of the conversation. The calls for a takeover, if you will, the calls for timeliness and so forth, they were in the newspaper. That was sort of part of the discussions that I had. I can't with my senior staff -- I can't peg it directly to that meeting, Mr. Chertoff. It might have occurred at that meeting.

MR. CHERTOFF: Well, let me see if this refreshes your memory from Mr. Zoubek's sworn deposition in Page 311, Line 4: "And there had been recent calls for that investigation to be taken over, because it was taking too long. And the Attorney General asked if we could move. He was told that there was no way that the shooting grand jury could be moved along any quicker than what Mr. Gerrow anticipated. And then there was a discussion of whether or not there could or should be an indictment, separate indictment, on the falsification portion of the case. The Attorney General asked, 'Let's move the falsification portion of the case.'" Is that accurate?

JUSTICE VERNIERO: Well, it's accurate to the extent that I made the decision to move the falsification and the indictment, certainly. Again, I do not recall the exact words I might have used or Director Zoubek might have used. It sounds like a generally accurate description of my sentiments. I cannot swear to every word that he might have said or I have said. I was concerned that we had an investigation that I was advised was completed at a time when there was great public cynicism and skepticism of my office, and I thought it was appropriate to move forward, if and only if we could address the risks to the ongoing grand jury shooting investigation.

MR. CHERTOFF: So you'll agree with me, at least, or you won't-- Let me withdraw the question. You don't dispute Mr. Zoubek's recollection that this discussion took place in the context of somebody saying that the shooting investigation -- people were asking to have the shooting investigation taken over, because it was taking too long. That was part of the discussion, right?

JUSTICE VERNIERO: Well, I can't dispute a recollection that I don't have myself. I just don't recall the exact words. I'm sure we had a discussion of the shooting investigation alongside the falsification. I do recall Director Gerrow -- excuse me, Prosecutor Gerrow -- informing me that the shooting grand jury was several, I want to say, months, but I don't -- again, these exact words, but there would be quite a delay or quite a time left to complete that investigation, and that bore on my thinking. There's no question about that, but I don't remember the exact words that were said.

MR. CHERTOFF: Well again, putting aside the exact words, did you communicate the sentiment, in light of the fact that there were calls to have the shooting investigation taken over, that we have to show some action with respect to before the anniversary of the shooting? Did you communicate that concept?

JUSTICE VERNIERO: I felt it was important that the public be assured that we had a completed investigation and that we move forward on it.

MR. CHERTOFF: Here's my question: Did you indicate, in substance, we have to show some action with respect to before the anniversary of the shooting?

JUSTICE VERNIERO: I might have. Again, I don't recall my exact words. The sentiment was, if the investigation is ready, we ought to proceed. And once we've made the decision to proceed, to me, the issue of releasing it publicly, that was just part and parcel of the decision to proceed.

MR. CHERTOFF: And after you raised the issue of doing something before the anniversary of the shooting, was that when you were told that there was no way that the shooting investigation could be concluded or indicted for the anniversary? You were told that?

JUSTICE VERNIERO: I believe I heard in the premise of that question, you said once you indicated you wanted to complete it before the anniversary of the shooting, and I believe I testified that I did not recall saying that specifically. It was well known that the anniversary was upcoming and that there had been some degree of delay in that investigation -- the shooting investigation. I do not recall exactly when I was advised in that meeting how much longer it would be for the shooting investigation to be completed.

MR. CHERTOFF: And it was after you were told the shooting investigation couldn't be completed-- Well, let me step back and ask you this. Do you remember, at least, this: Did you ask, at some point, could the shooting investigation be completed by the anniversary of the shooting?

JUSTICE VERNIERO: I don't remember. I doubt whether I did, because I think fairly-- It was fairly certain when that meeting began on March -- this is a little speculation on my part, based on this sort of the give-and-take that I have with Director Zoubek leading up to March -- that there would be quite a ways to go on the shooting Turnpike investigation. So it wouldn't surprise me if we didn't speak very much on that issue, because that was known to us. We knew that was taking time. I knew it was taking time. We had to retain Dr. Lee. There were a lot of preliminaries that had to be done, and it was taking a fairly lengthy period of time to complete.

MR. CHERTOFF: And I'm sorry, perhaps I misunderstood. I thought you said that -- where you agreed that in this meeting on March 10th, you did ask about how quickly the shooting investigation could be completed?

JUSTICE VERNIERO: I asked for a status update of the investigation. I don't know whether I said, which I believe was the very first part of your question, can it be done by the anniversary. I do not recall asking that. I recall asking for a general update. I had a general sense that there was quite some time to go, but this was the meeting in which that could be verified and nailed down, if you will, in the form of a formal status. This was a status meeting about the Hogan and Kenna investigation.

MR. CHERTOFF: And then in that formal status meeting, it was nailed down to your satisfaction that there was no way the shooting could be done by the anniversary date -- shootings?

JUSTICE VERNIERO: That was my impression, yes.

MR. CHERTOFF: And that's when the subject turned to the issue of falsification?

JUSTICE VERNIERO: I don't know whether it was before or after falsification.

MR. CHERTOFF: Well again, if there was testimony by Mr. Zoubek at Page 325, and I quote, "And I said at the beginning, he asked about the status of the shooting, and then he moved off to the other portion of the case," would you be in a position to dispute that recollection?

JUSTICE VERNIERO: I can't dispute it, because I have no recollection of it.

MR. CHERTOFF: Now, in terms of the upside to you bringing out the case with respect to Hogan and Kenna on the falsification, you've indicated that your base for doing so was concern about public confidence?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: You wanted to show that-- You agree with me that charging Hogan and Kenna with falsification would not establish the outcome of the shooting investigation, correct?

JUSTICE VERNIERO: That's correct.

MR. CHERTOFF: So it wouldn't establish a public confidence about the way the shooting investigation was being conducted, correct?

JUSTICE VERNIERO: Well, I take issues slightly with your characterization that I wanted to show public confidence. I wanted to assure the public that we could complete, once it was completed, an investigation of this level. This was an important investigation, and there is a slight suggestion in your question that I indicted two troopers merely for public relations purposes. And that is not the case, Mr. Chertoff. That was not in my mind-set, and that was not the mind-set of anyone in that room.

MR. CHERTOFF: Well, I only want to ask this question, Justice Verniero. The question is this: Would you agree with me that, to the extent there were concerns about the public confidence and the shooting investigation, an indictment with respect to falsification would not indicate how soon a shooting investigation would be resolved or how it would be resolved, correct?

JUSTICE VERNIERO: Well, but there was-- As I said, it was not just the Turnpike shooting, it was racial profiling as a whole. We, as you know -- we do not have a criminal statute with respect to racial profiling, but we do have official misconduct. We do have statutes relating for falsification. And without going into the details of the indictment, falsification is about the closest thing we have, tied to official misconduct, that can equate to racial profiling. And I believe that point was actually made at the time of release of the indictment. So I can't separate them out in my mind as finely as we're doing it today.

At that point in time, we were-- I was -- I put the responsibility on myself. I was attempting to bring to completion a very difficult investigation with respect to two troopers at a point in time when -- the State Police and my office -- there were many questions and there was a lack of confidence in the public. And so I felt that once the investigation was completed, not only should we bring it to the grand jury, but I had a duty to release it once it was completed, so long as we would not prejudice the ongoing grand jury.

MR. CHERTOFF: I'm sorry--

JUSTICE VERNIERO: It's not-- It's no more complicated than that.

MR. CHERTOFF: Did anybody in the room say you have a duty to indict the case as soon as you -- or present the case as soon as you completed the investigation?

JUSTICE VERNIERO: I felt I had this duty. There are decisions that only the Attorney General can make.

MR. CHERTOFF: But based on--

JUSTICE VERNIERO: And that was a decision that I made. I felt that once the investigation was completed, rather than concealing it, rather than having it hang over these troopers' heads, rather than try to camouflage it, rather than risk it being leaked prematurely once it was completed, so long as there would be no prejudice to the subsequent grand jury, or we could manage and hopefully remedy any prejudice, it was an appropriate thing for me to do. And it was my duty. That's how I viewed it at the time.

MR. CHERTOFF: Here's my question, Justice Verniero. It's very simple. In your discussion with your three experienced prosecutors in the room, did any of the members express to you the concept that there is a duty to present a case to a grand jury as soon as the investigation is done?

JUSTICE VERNIERO: No.

MR. CHERTOFF: And so your conception of that duty came based on your own experience?

JUSTICE VERNIERO: That was my understanding of my responsibilities at that point in time in the history of the Department and the Division of State Police.

MR. CHERTOFF: Similarly, you said you expressed the thought that you were concerned that--

JUSTICE VERNIERO: When I say duty, Mr. Chertoff-- Of course, I was not legally obligated to do anything, but I had to -- in the course of my tenure, I had to wear many hats. As I said, one of them is to maintain public confidence in all of law enforcement, and I felt that that was the right thing to do for that reason.

MR. CHERTOFF: You've indicated you were also concerned about not hiding the investigation or not keeping it hidden. Again, did anybody, of those prosecutors in the room with their collective experience in law enforcement, indicate to you that from a legal standpoint there was some problem in terms of hiding an investigation if you don't immediate indict once--

JUSTICE VERNIERO: No.

MR. CHERTOFF: So you didn't get that advice either?

JUSTICE VERNIERO: No. No problem with that. No advice to that. Although if it had leaked out, there could have been, then, greater public cynicism. Peter Verniero is sitting on an indictment, you know, that sort of thing.

MR. CHERTOFF: So you were concerned that--

JUSTICE VERNIERO: The AG's Office, you know, can't handle an indictment, that sort of thing.

MR. CHERTOFF: I see. Well, that wouldn't be public cynicism about the process, that would be public cynicism when you said that there would be public cynicism that Peter Verniero can't handle an indictment. Was that a thought that entered into your mind at that point?

JUSTICE VERNIERO: Well, the Attorney General is a unique public official, and there were a time in my tenure where I sort of became the Office of Attorney General. It was very difficult to separate the two. So it's not that I personalized it, but I felt that once the indictment was ready to go-- As I say, I had a duty to put it forward. That was Peter Verniero's obligation. That's what I felt I had to do.

MR. CHERTOFF: Did you--

JUSTICE VERNIERO: Now, you can disagree with that, and I respect your ability to disagree with that. I made many decisions when I was Attorney General that I was sort of -- it was a lonely place at that point in time. And I made the decisions, and I gave it my best shot.

MR. CHERTOFF: Did you feel this obligation to make sure nothing was hidden with respect to any of the other falsification investigations that were under way as a result of the Troop D audit?

JUSTICE VERNIERO: Could you repeat the question?

MR. CHERTOFF: Did you feel an obligation to get any of the other investigations that were under way regarding falsification, besides Hogan and Kenna, in front of the grand jury promptly?

JUSTICE VERNIERO: I had a general concern about timeliness, but my understanding was, as I indicated to you in an earlier question, they were not far along. At least that was my understanding, so I would not have pushed those into the grand jury if they were not ready.

MR. CHERTOFF: You weren't worried about leaks coming out concerning a wide-ranging audit, suggesting perhaps hundreds of troopers falsified records?

JUSTICE VERNIERO: I was concerned about leaks, but not at the expense of pushing something prematurely. I was concerned that the Hogan and Kenna investigation could leak out, but that was ready. So there was no risk of pushing it forward. I was advised that it was ready or completed.

MR. CHERTOFF: Now, okay, you've explained what you viewed as the positive reason to bring this case out. The prosecutors in the room collectively advised you that there were risks involved, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And the risks were that publicity would taint the grand jury pool and, worse came to worse, the case would have to be represented, right?

JUSTICE VERNIERO: Potentially taint, yes.

MR. CHERTOFF: That would be a bad thing if the case were represented, right? It would delay.

JUSTICE VERNIERO: It would delay. It happens. It's not irreparable to the process. It's something that, obviously, we wanted to avoid if we could.

MR. CHERTOFF: And you were also told that in any event, no matter what the end result was, it would be necessary to hold a hearing -- "the Brook-Murphy hearing" -- if there was a lot of publicity, because it would be necessary to try to see whether the grand jury had been tainted?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And I take it you were also aware that at the end of the day the issue is, are the troopers going to get a fair hearing in front of the grand jury?

JUSTICE VERNIERO: Of course.

MR. CHERTOFF: And you understood again, from your knowledge of the case, that of necessity that hearing would involve credibility issues between a version of events told by witnesses and a version of events told by grand jurors -- I'm sorry, by the troopers?

JUSTICE VERNIERO: Well, I don't know if I knew at that point in time whether the troopers would even testify before the grand jury, so I'm not sure if we would have discussed whether there would have been any credibility calls that the grand jurors would have to make. I don't recall.

MR. CHERTOFF: Did you ask? Did you ask, is there a credibility issue here, such that if we publicly brand the targets as liars and racial profilers, it's going to hurt them? Did you ask whether that was part of the mix in the shooting case?

JUSTICE VERNIERO: I don't recall. My recollection was, it was a bit more general than that -- the discussion.

MR. CHERTOFF: And just to put the shooting case in perspective, I mean, ultimately, when you're talking about shooting, that's very serious charges that are at stake, correct?

JUSTICE VERNIERO: Of course.

MR. CHERTOFF: And did I also understand you to say a little bit earlier that in your mind, when the falsification case was to be presented, you viewed that as kind of the closest you could come to indicting someone for racial profiling?

JUSTICE VERNIERO: Well, my recollection was that of our many criminal statutes, that was one that was similar to racial profiling.

MR. CHERTOFF: So, in your mind, what you were hoping to do by moving the indictment out was to restore public confidence or promote public confidence by showing that, in effect, the State was indicting people for racial profiling.

JUSTICE VERNIERO: I wasn't hoping to indict anyone. I don't think there's an Attorney General alive that would relish indicting a member of law enforcement. It was one of the most difficult decisions that I had to do. It was thrust upon me. We had information for the first time in 1998 that some troopers were falsifying records. That was a startling revelation as far as I was concerned. And that was basically the reaction of most people that I spoke to.

MR. CHERTOFF: But excuse me--

JUSTICE VERNIERO: We moved aggressively to investigate not only the two troopers who were the focus of the inquiry, but to expand to the entire Troop D to ensure we did not have a wide-scale problem. When the investigation was completed with respect to Troopers Hogan and Kenna, I felt it was important to go forward with the indictment.

MR. CHERTOFF: Here's my question. My question to you is, you told us a couple moments ago, and I want to know if you still stand by it, was it your view that a falsification indictment was the closest you could come to indicting someone for racial profiling?

JUSTICE VERNIERO: I disagree with the way you're phrasing that, because again your implication is, I was looking for somebody to indict for racial profiling. That's not what I said. If I implied that, let me state it more clearly than that. I was concerned that the public was losing confidence on a range of issues in my office and in the State Police.

MR. CHERTOFF: Excuse me, Justice Verniero, I have to stop, because I want to focus on this particular point. I understood you to say here in the last five minutes that when you considered this potential indictment against Hogan and Kenna, in your mind you were looking at these statutes as the closest you could come under the laws of New Jersey as they existed at that time to indicting someone or charging someone for racial profiling.

JUSTICE VERNIERO: I--

MR. CHERTOFF: Do you want to step back from that?

JUSTICE VERNIERO: No. I understood that the falsification -- official misconduct could be seen as tied to racial profiling, because-- And again, I can't go into the specifics. And again, this is a general statement. I'm not making this statement with respect to this indictment. I want to be clear. But it's quite obvious when a trooper is falsifying records, particularly hiding race, that is -- could be symptomatic of a problem of racial profiling.

MR. CHERTOFF: So you'll acknowledge then that in making the decision at the time you made the decision to move the falsification case, you had an understanding that the public might perceive a falsification indictment as really being an indictment for being racial profiling?

JUSTICE VERNIERO: I acknowledge that there was a possibility that someone looked at it in that fashion, but that wasn't my motive. I wasn't casting about for someone to indict on racial profiling.

MR. CHERTOFF: But can you--

JUSTICE VERNIERO: That is my testimony.

MR. CHERTOFF: Can you agree with me that in terms of evaluating the prejudice to your target of an investigation involving the shooting of members of a minority group, you could hardly conceive of something more prejudicial to that target than to have them branded publicly, not only as a liar, but as a racist? I mean, is there anything that you could imagine that could be more prejudicial and more blacken the reputation of that target in the eyes of the public, including the grand jurors, than the perception that someone is being indicted as a liar and a racial profiler?

JUSTICE VERNIERO: I don't want to speculate what additional crimes they could have been charged with that would have branded them worse in the public eye. I mean, that was not what we were discussing back in my office in March of 1999.

MR. CHERTOFF: But were you discussing the--

JUSTICE VERNIERO: We were discussing the ability to bring to closure an investigation that I was informed was completed, and whether or not to release the indictment once completed. It was no more complicated than that.

MR. CHERTOFF: So this was a very straightforward judgment from you?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: This was not a hard call for you.

JUSTICE VERNIERO: For me, it was a hard call to the extent that anytime you indict a member of law enforcement, it is a painful and difficult thing to do.

MR. CHERTOFF: But--

JUSTICE VERNIERO: Once we made the decision to indict them, releasing it to the public was not a hard call. To me, that was the natural thing to do under the circumstances.

MR. CHERTOFF: You understood you could seal an indictment, by the way?

JUSTICE VERNIERO: I did, but I also understood that it was not often done in my office, and I would not have considered it here. I don't recall if anyone had made that suggestion, but they might have.

But this was not the time in the history of our Department to conceal or seal information from the public. That was my judgment, as I say, and two years later, three years later, reasonable minds can differ. That was my judgment at the time.

MR. CHERTOFF: Well, just so we're clear about it then. The decision you made in March of 1999 was not only to accelerate and conclude the investigation or conclude the presentation with respect to falsification, but to make sure that that was a subject of a public charge -- to make it public. That was your decision.

JUSTICE VERNIERO: To-- Well, to -- to complete the process. Completing the process in my mind was to release the indictment in the normal course, which is what my experience was in just about every indictment. I might have sealed indictments prior, I just don't remember. That would have been an extraordinary thing in my -- in my view.

MR. CHERTOFF: And in your mind, in fact, one of the positive values of presenting the case to the grand jury was the public announcement of a public indictment that would, as you've indicated, aid in restored public confidence.

JUSTICE VERNIERO: I thought once the indictment was complete it had to be released as a matter of the public's right to know, at a time when the public had lost confidence in my office.

MR. CHERTOFF: And was it your sense that by making this indictment public, the public would perceive that, in fact, action was being taken against the people who were engaged in racial profiling?

JUSTICE VERNIERO: I don't know if I was that specific that they would focus on the actual persons who were charged. I took a broader view, and perhaps I'm just not articulating it to you.

Once the indictment was ready, once the investigation was complete, I felt that I had no choice but to release it. Now, I know I had choices legally, but in terms of the climate and the atmosphere and the level of public cynicism, I did not want to risk inflaming that cynicism by sitting on an indictment or concealing it. I felt that when it was ready, it had to be released. As I say, it was a very straightforward decision that I was making.

MR. CHERTOFF: Now, in this straightforward decision, the three prosecutors involved indicated to you that there was a risk that the publicity would adversely affect the rights of the targets, correct?

JUSTICE VERNIERO: Would conclusively? No. They explained the risks.

MR. CHERTOFF: There was a risk--

JUSTICE VERNIERO: Yes. Yes.

MR. CHERTOFF: --that the rights of the targets, to have their shooting case evaluated by the grand jury, would be compromised. There was a risk in that.

JUSTICE VERNIERO: There was a risk. As it was described to me, there was a risk that the grand jury would be tainted.

MR. CHERTOFF: There was a risk that the grand jury, therefore, would be dismissed with respect to this case, and the matter would have to be represented to a new grand jury. There was a risk of that.

JUSTICE VERNIERO: There was a risk of that, yes.

MR. CHERTOFF: There was a certainty that there would have to be a proceeding in which the grand jurors would be questioned, and a Superior Court judge would have to get involved in evaluating whether there was some taint, correct?

JUSTICE VERNIERO: That was my understanding, yes.

MR. CHERTOFF: And that would be time consuming, not only with respect to the lawyers for the Department, but with respect to a Superior Court judge as well.

JUSTICE VERNIERO: Presumably, yes.

MR. CHERTOFF: And so the three prosecutors laid that out in front of you, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Did any of the prosecutors in the room recommend that you go ahead and present the case and bring the indictment out publicly before the shooting investigation was done?

JUSTICE VERNIERO: I don't recall if anyone said do it or don't do it.

MR. CHERTOFF: Did you ask?

JUSTICE VERNIERO: I might have, I just don't remember.

MR. CHERTOFF: Well, is it fair to say that even as of this point in your career -- having been Attorney General for several years -- your degree of actual criminal law experience was considerably less than those people in the room?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And I take it, it was your habit over the years to consult with people who were expert in certain areas to get the benefit of their expertise, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: So again, I have to ask you, did you ask any of the prosecutors in the room, is it a good idea to indict the falsification case now and make it public while there's a grand jury sitting on the shooting case?

JUSTICE VERNIERO: And again I say I don't recall, I may have.

MR. CHERTOFF: And do you recall whether anybody said to you or suggested to you that you wait?

JUSTICE VERNIERO: I don't recall that. I don't recall anyone forcefully saying please don't do this. Whether they had voiced objections, I do not recall. I remember they laid out the risks, the options to deal with the risks, and I made the decisions.

Yes, they were more experienced than I, but I was the Attorney General, and I had to make this call. I was the guardian of public confidence in my office, they were not. This was a decision that I had to make unique to me, and I made it.

Now, having said that, as it turned out it was the correct decision in my judgment, because we did make a public accounting, and there was no taint to the grand jury process. Judge Feinberg indicated that in a fairly strong opinion, as I recall.

MR. CHERTOFF: So you feel it was a good decision to take the risk, because it turned out at the end of the day that the risk didn't come to fruition?

JUSTICE VERNIERO: Well I -- I--

MR. CHERTOFF: Is that basically what you're telling us?

JUSTICE VERNIERO: I'm saying that now in hindsight, yes, I knew then there were risks.

But, Mr. Chertoff, there were risks and downsides to just about every decision I made as Attorney General.

MR. CHERTOFF: Let me ask you this, in your-- Do you know whether, in the period of time that the prosecutors involved in this meeting had been serving in law enforcement, do you know whether they were aware of there had ever been a situation where you had a pending serious felony case being presented to a grand jury, where the Department of Law and Public Safety deliberately indicted the targets of that investigation while it was pending, thereby causing a Brook-Murphy hearing to be held?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Would it surprise you to learn that Mr. Zoubek testified that in his experience, and to his knowledge, this was the only time that there was a situation where a Brook-Murphy hearing had to held in the middle of a presentation to the grand jury not because of some unforeseen event, like someone gets shot, but because the Department of Law and Public Safety had made a deliberate decision to indict the targets with respect to other felony charges?

JUSTICE VERNIERO: I don't know whether I would say I was -- I would be surprised or not, I just don't recall. I do recall it was a unique time in the history of my Department and of State Police.

MR. CHERTOFF: Did you ask anybody, "What's been the past practice in this situation? What has happened in the past where you've got a big investigation going and you discover along the way some other charges against the targets?"

Did you ask anybody that question?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Well, so as we sit here and in terms of your evaluating or presenting to us what was in your mind and what was discussed, there was no investigative or prosecutorial or statute of limitations or flight or danger reason to bring this indictment out publicly, correct?

JUSTICE VERNIERO: Well, I'm not sure I would agree with that, because you've put prosecutorial in there. I think prosecutors, whether it's the Attorney General or the county prosecutors, have a duty to account to the public, to instill public confidence in law enforcement, and as I said, I saw this as an issue of public confidence and simply bringing to fruition that which I was advised was completed.

MR. CHERTOFF: So the public confidence is what you've identified, at least in your mind, as the advantage or the motive or the reason to get this out quickly.

Is that fair to say?

JUSTICE VERNIERO: I wouldn't use the word motive. That's a fairly charged--

MR. CHERTOFF: I'll strike motive.

JUSTICE VERNIERO: --that's a fairly charged word these days. But my thinking was, if the investigation is ready-- Certainly I didn't want to indict anyone, whether law enforcement or not, unless the indictment was ready, unless the investigation was appropriate and the indictment was appropriate. Once that decision was made, as difficult as it was, to me, releasing it to the public in the normal course was a fairly straightforward decision.

MR. CHERTOFF: And again, striking the word motive, with the advantage being the public confidence element of your job. Is that right to say?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Okay.

On the other side, you also--

JUSTICE VERNIERO: And my office and of State Police, it was not just focused on me.

MR. CHERTOFF: You also understood that the charges themselves were potentially among the most prejudicial charges that can be brought against somebody.

JUSTICE VERNIERO: I don't know if we thought of it in those terms. I knew they were serious charges, and I knew the other charges that were being discussed were serious.

MR. CHERTOFF: I have to ask you this: Is there any doubt in your mind at that time that the issue of racial profiling, with its overtones of bigotry and racism, and the allegation of falsification, which is essentially saying someone lied, that when you combine those two together in an indictment or a charge, it's hard to imagine -- perhaps other than child molesting -- anything that could be more incendiary with respect to the target of an investigation?

JUSTICE VERNIERO: I knew they were serious charges, and I knew there were risks. And in hindsight, I was pleased that those risks did not materialize.

MR. CHERTOFF: And then you--

JUSTICE VERNIERO: They obviously -- those charges were not so great as to taint the process, because the process continued.

MR. CHERTOFF: And then you were warned by the experienced prosecutors that there were risks of tainting involved, correct?

JUSTICE VERNIERO: I was advised. I don't-- I don't think there was an air of warning in that meeting. As I say, it was a fairly calm meeting, as I recall. No one was pounding the table saying, don't do this, warning me not to do it.

You used the word warn. I think I take exception to that. Words are very important here. I was advised of the risks. I deliberated. I made the decision. The decision was uniquely mine. I stand by that decision, and I'm pleased in hindsight that it turned out there was not a risk to the ongoing grand jury process.

MR. CHERTOFF: You were told, in fact, there were significant risks.

JUSTICE VERNIERO: I don't know whether the word was significant or risks. There were risks.

MR. CHERTOFF: Having made the decision to go ahead, notwithstanding the advice you received, what did you do to minimize the risks of publicity as it might taint the grand jury?

JUSTICE VERNIERO: Oh, I don't think it was possible at that point in time to minimize any publicity. I mean, we did what we often do. It was a-- I think it was a press availability, a press release. It was what we often do with indictments.

MR. CHERTOFF: Was it a press availability or press conference?

JUSTICE VERNIERO: They're the same in my mind. You come before the press, and you release something.

MR. CHERTOFF: Well, I mean, you can have a press release, that's one way you can handle it.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: You can make yourself available to the press if they're interested, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Or you can summon the press into a room--

JUSTICE VERNIERO: Yeah. Yeah. I think we felt at the time that we would get very quickly to a roomful of reporters, so there was no point in trying to slow dance our way to a public release of this information.

MR. CHERTOFF: Well, did any of the experienced law enforcement prosecutors in the room say or suggest to you that we ought to have a press release -- a press conference, rather?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Do you know how-- Did you direct somebody in your office to send out a notice and get the TV and the radio and the print media assembled so you could make an announcement?

JUSTICE VERNIERO: Well, I'm sure at some point I advised the Public Information Office that this was occurring. I may have gotten their advice. You know, you think there's going to be enough interest here that we should do a press conference or a press release? I just don't remember.

All I know is, at the time, on the issue, there was no way to avoid -- once the decision was made to release the indictment -- a full-scale press conference. I mean, that was just a reality. That was not a decision I had to make, that was reality.

MR. CHERTOFF: So you're telling us, you understood when you made the decision that not only would this be an indictment and not only would there be a risk of taint, but that you would be holding a press conference which would maximize the dissemination of publicity attendant on the indictment?

JUSTICE VERNIERO: I disagree with the way you phrased the question, sir. You suggest that in that March meeting, when we're discussing options, I said, "Oh, we'll do this, and I'll have a full-scale press conference."

It just didn't work that way, Mr. Chertoff. We made the decision for the reasons that I've outlined, and then I turned it over to the press people, and we came up with a press conference.

MR. CHERTOFF: So--

JUSTICE VERNIERO: It was-- It was nothing as incendiary as you're suggesting.

MR. CHERTOFF: I'm just curious, are you telling us, Justice Verniero, that when you were in the meeting talking about taint -- the risk of taint -- and talking about public confidence, that it never crossed your mind you'd be doing a press conference?

JUSTICE VERNIERO: Mr. Chertoff, I was doing press conferences almost at the drop of a hat at that point in time, whether I wanted to or not. Let me put it this way, I saw no reason to find another way to get my name in the paper. I would have been perfectly fine if we could have just slipped this indictment under the doors of reporters, but I knew that was not going to be possible.

MR. CHERTOFF: Do you remember what you said at that press conference?

JUSTICE VERNIERO: Remember what I said?

MR. CHERTOFF: Do you remember what you said at the press conference?

JUSTICE VERNIERO: I don't, but knowing the way I am, I probably would have expressed regret of having to indict two members of law enforcement. In some sense, this was an indictment of my office. These were employees of the Department of Law and Public Safety. I'm sure I regretted it, but I thought it was my duty. I don't remember my exact words.

MR. CHERTOFF: Did you connect up the indictments with the vigor of the investigation that your office was pursuing with respect to racial profiling?

JUSTICE VERNIERO: As I say, I do not recall what I said at that press conference.

MR. CHERTOFF: Now this issue, with respect to racial profiling, obviously didn't burst on the scene in March of 1999, correct?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: You became aware of it-- Well, I assume you were aware of it even when you were in the Governor's Office, right? Just as a matter of public--

JUSTICE VERNIERO: No, I -- I don't think I was focused on it in the Governor's Office. I recall the first time that I had any real focus to the issue of racial profiling was when the Soto decision was released in March of 1996. I was Chief of Staff at that time.

MR. CHERTOFF: And then there comes a point, and you're sworn in as Attorney General in July of 1996, correct?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: And-- By the way, let me go back to the press conference. When you held the press conference, did you give any thought to-- I mean, your testimony is that you felt it was inevitable that you were going to have to have a press conference, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Did you give any thought to how to minimize in any way the possibility of tainting that next grand jury?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Did you have Mr. Gerrow, who was actually presenting the shooting case before the grand jury, get up in front of the press conference?

JUSTICE VERNIERO: I recall he was at the press conference. I don't-- I don't recall what he said. And that would have not been unusual, because he -- he was in a better position, frankly, than I was to respond to the details of the indictment and so forth. So it would have been quite natural for me to have him there.

MR. CHERTOFF: But did it strike you that there's hardly any way to more forcefully make the point that the falsification issue is linked to the shooting than by putting the same prosecutor who's in front of the grand jurors -- talking to them every day and presenting evidence -- in front of a press conference announcing the indictment?

JUSTICE VERNIERO: Well, even Mr. Gerrow was becoming something of a public figure at that point in time. His name was in the paper quite a lot. I don't recall whether this was before or after we closed the stretch of the Turnpike to do a reenactment, and I know that he had gotten a lot of news publicity at that point in time. It was part of the global set of risks that I was fully aware of when I decided to proceed in the manner I proceeded.

MR. CHERTOFF: So you weighed the additional risk of having the grand jury prosecutor in the shooting case get up and be part of the announcement in the falsification? You weighed that risk, and you decided to take that as well.

JUSTICE VERNIERO: No. As I indicated in my prior testimony, I wasn't making a lot of these fine distinctions that you're now making. I was making a global decision based on the information that I had. I knew there would be a risk of publicity, and I cannot say to you that I discussed or knew on any sort of qualitative terms what that level of publicity would be.

MR. CHERTOFF: Now, getting back to July of 1996, there comes a point in time that you transition in as Attorney General, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And I take it you received some kind of transition report?

JUSTICE VERNIERO: I did.

MR. CHERTOFF: And that indicated to you and notified to you or reminded you of the fact that there was a decision by Judge Francis in Soto, right?

JUSTICE VERNIERO: My recollection is my transition notebook -- I have a recollection of it being like a three-ring binder, a fairly thick notebook. It had many tabs or many chapters to it, and I recall that the Soto case was maybe about a half a page in a fairly lengthy, inches-thick notebook.

MR. CHERTOFF: And you had discussions as well with your predecessor, Chief Justice Poritz, correct?

JUSTICE VERNIERO: I had discussions with then Attorney General Poritz, I know for sure, at the time the decision came down in March. I don't recall whether we had a second discussion in transition. We may have, I just don't recall it.

MR. CHERTOFF: Do you recall that she told you in substance that there was a Soto case, it was one of the issues she was looking at? There were some questions about the studies, you needed to have to better record keeping, and that there ought to be an internal study done concerning profiling.

JUSTICE VERNIERO: I do not recall that, no.

MR. CHERTOFF: Now, I want to just set the stage for where we were in the State of New Jersey when you came in. Would you agree with me that the issue, in general, of relations between minorities and nonminorities was a significant public issue in 1996 when you became Attorney General?

JUSTICE VERNIERO: I think the issue of race in America has been a significant issue for many, many years.

MR. CHERTOFF: And it was a huge issue for this State in the period of the early '90s, right?

JUSTICE VERNIERO: As I say, I don't know if I had a specific recollection or a focus on the racial profiling issue per se. I can't represent to you that I was fully aware of--

MR. CHERTOFF: I'm not talking--

JUSTICE VERNIERO: --the various lawsuits. No, you asked me --

MR. CHERTOFF: I'm not asking about profiling. I'm asking in general, the issue of whether it be employment, whether it be with respect to the issues of elections.

JUSTICE VERNIERO: Well you -- you -- you know from our previous time together that, with respect to the Governor's election campaign, that race became an issue after the election, so--

MR. CHERTOFF: And it became one -- and it remained one afterwards.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And it was one that the administration, quite properly, focused a lot of attention--

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: --healing and bringing together the various ethnic groups in the State of New Jersey, right?

JUSTICE VERNIERO: That is correct.

MR. CHERTOFF: And I assume-- I assume you were involved in that in the Governor's Office. You were involved in trying to promote the effort to bring together various groups and to make sure everybody felt comfortable that they're all equal citizens of New Jersey.

JUSTICE VERNIERO: Whenever I could, I tried to bring together minority groups, leaders of the minority community.

I recall, as Chief of Staff, I often urged the appointment of minority members of our communities to various positions on boards and positions in State government, and the Governor had a -- I forget the exact name of it now -- I think it was One Family, Many -- One State, Many Families (sic). It was her initiative, through the Secretary of State, to create an air of tolerance in this State.

MR. CHERTOFF: So it would be fair to say that at the time that you became aware of the decision by a judge that the State Police were racially profiling, you would have been particularly sensitive to that given your background in trying to work with the administration in promoting diversity and tolerance, right?

JUSTICE VERNIERO: It certainly would have stood out in my mind, of course.

MR. CHERTOFF: What could be more important than making sure that everybody in the State feels that they're getting a fair shake from the State Police, not being oppressed or picked on, right?

JUSTICE VERNIERO: Of course.

MR. CHERTOFF: So I take it then, when you became aware of Soto, and both before you came over and when you had the transition, you would have been sensitive to the fact that racial profiling, if it were to exist, would be a very serious blot on the State, and indeed, on the administration.

JUSTICE VERNIERO: Of course, if it were to exist. And that was the big question, of course.

MR. CHERTOFF: So the question is when you first came in did you think, "What do I do to find out whether this is a problem?"

JUSTICE VERNIERO: Well, I really didn't have to do that, because as I recall -- and I say I can't recall the exact time, whether it was in March or during the transition -- when I learned of the Soto decision, I also learned at some point -- it could have been at that point or immediately into my term -- that the State Police and the Attorney General's Office under General Poritz had put in place what I call the Soto reforms. It's just a shorthand reference to the steps that she took, even though we were appealing the case. She put steps in place to ensure that this practice would not occur. And I--

MR. CHERTOFF: Do you remember-- Do you remember her asking -- suggesting you ought to do an internal study to see -- an audit to see if this was working or not?

JUSTICE VERNIERO: I don't. She might have said, after describing the reforms, to keep an eye on them and make sure that they're working. She did not, as far as I recall, urge me to do the kind of widespread review of State Police that I ultimately came to order. That was not raised in the transition.

MR. CHERTOFF: Did you also understand that even apart from the Soto case, there were other motions pending in other counties in the State to suppress or throw out cases based on allegations of selective enforcement?

JUSTICE VERNIERO: I don't think I knew that at that point in time.

MR. CHERTOFF: Well, wasn't it in your transition notebook?

JUSTICE VERNIERO: It might have been, but I just don't recall that.

MR. CHERTOFF: Would you agree with me that it would be important, if the issues of selective enforcement were serious enough to warrant cases being thrown out -- it would be important for that reason as well -- for a law enforcement reason -- to look at the issue?

JUSTICE VERNIERO: Yes, and I would have assumed that we were looking at it.

MR. CHERTOFF: Now, when you came on board, was there somebody that you delegated -- to whom you delegated the responsibility to follow up on the Soto issue?

JUSTICE VERNIERO: Soto, as I recall, was a criminal case, which made it a little unusual from civil, discriminatory cases. And as I recall, as a criminal case, it was in the Division of Criminal Justice, and Jack Fahy stands out in my mind as the person that I dealt with, at least early on in my tenure. He may have been the one to brief me, when I became Attorney General, as to the case itself, what the Soto reforms were, how they might be working, and so on and so forth. Jack Fahy is one name, there might have been others.

MR. CHERTOFF: Now, you knew Soto was a significant case, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And you knew that a motion for leave to appeal had been filed and that there would be Appellate papers filed in due course, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: I take it you were also familiar with the principle that if the State, in fact, were to discover information or facts that were inconsistent with the positions taken by the State in litigation, there would be an ethical obligation and a continuing discovery obligation to make that known to the court and to the adversary?

JUSTICE VERNIERO: I don't know if I thought about it at the time. I would not have gotten involved with discovery issues as Attorney General.

MR. CHERTOFF: You're saying you didn't get involved with discovery issues as Attorney General?

JUSTICE VERNIERO: By and large. I mean, we had 30,000 cases pending when I became Attorney General. I'm sure many of them had discovery requests, interrogatories, and so forth. It would be fairly unusual, unless I was a defendant in a case, in my official capacity for me to get involved with discovery obligations.

MR. CHERTOFF: So that would be an extraordinary thing for you to get involved with discovery obligations?

JUSTICE VERNIERO: Well, it would be-- I think it would be unusual for me to sign off on discovery requests, that sort of thing. They were mainly handled by my deputies.

MR. CHERTOFF: But whether you thought about it consciously or not, you'll agree with me that you were aware, certainly, that there was an ethical obligation, if the State becomes aware of facts inconsistent with the litigation position, to either adjust the litigation position or to make those facts known?

JUSTICE VERNIERO: As I say, I don't think I thought about it at that point in time. The cases on appeal, I would have assumed if there were obligations, they were being satisfied.

MR. CHERTOFF: Do you doubt that there was such an obligation back in 1997 and 1996?

JUSTICE VERNIERO: Presumably, there's an obligation in a criminal case whenever you have exculpatory evidence to turn that over. But I just didn't think about it, because I assumed it was being handled.

MR. CHERTOFF: Well, I'm-- We'll come to that in a minute, but I'm not asking you right now whether you thought about it then. But would you agree with me now-- Withdraw that.

JUSTICE VERNIERO: I have to be a little careful, as a sitting member of the Supreme Court, to express any legal--

MR. CHERTOFF: That's why I withdrew.

JUSTICE VERNIERO: --doctrine or any legal philosophy.

MR. CHERTOFF: Let me go back to 1999, when you were Attorney General. There was a point in time Paul Zoubek came to you and told you that an Appellate Division judge had, in some form or fashion, made note of the fact that if the State's position -- if the facts underlying the State's position in Soto were different than originally thought, that would have to either be made known or the State would have to adjust its position in the litigation. Do you remember Mr. Zoubek telling you that?

JUSTICE VERNIERO: I vaguely recall that, but I don't -- I don't really remember it specifically.

MR. CHERTOFF: Well, to the extent you vaguely recall it--

JUSTICE VERNIERO: I vaguely recall it, because I seem to recall that Mr. Zoubek filed an affidavit with the court at some point late in the process, or toward late in my tenure, where he may have discussed discovery, but I-- Don't hold me to that, I just don't remember.

MR. CHERTOFF: Well, but to the extent that you vaguely recall this conversation that Mr. Zoubek had with an Appellate Division judge, did you -- was your reaction to disagree with the judge and his view of the State's ethical obligation?

JUSTICE VERNIERO: No, my reaction probably would have been, if we have a discovery obligation, satisfy it. As I say, I was not immersed in discovery discussions as Attorney General.

MR. CHERTOFF: Now, there came a point in time -- and of course, when-- Well, let me back up and say this. Of course, in addition to dealing with Soto, when you came on board in 1996, you had to supervise the State Police. That was another part of your duty, right?

JUSTICE VERNIERO: It was.

MR. CHERTOFF: And then there comes a point in time in November of 1996 when you become informed by Mr. Waugh that the Civil Rights Division is looking to investigate racial profiling in the New Jersey State Police, correct?

JUSTICE VERNIERO: They called, and they wanted to ask us questions, and as I recall, it was keyed mainly to the Soto case.

What was the date you gave me?

MR. CHERTOFF: November of 1996.

JUSTICE VERNIERO: That sounds about right, yes.

MR. CHERTOFF: And you learned from Mr. Waugh that there was going to be an investigation, or the Civil Rights Division wanted to start an investigation of the New Jersey State Police.

JUSTICE VERNIERO: I don't know if he used the word investigation. He said that they had expressed an interest. The call came over, and my reaction, as I recall, was perhaps we ought to sit down and speak face-to-face and see what this is all about.

MR. CHERTOFF: So this was just a casual thing, not a big deal to you?

JUSTICE VERNIERO: Well it was-- It was-- It was very much a big deal to me in the sense that it was the Department of Justice. It's just not every day you get a call from the Department of Justice, at least I didn't. But it was informal, I guess, is the better word than casual. It was a call that came in from -- to one of my deputies from, presumably, his analogue at the DOJ. He brought it to my attention, and I thought enough of it, certainly, to go down to Washington and speak face-to-face with the Civil Rights Division.

MR. CHERTOFF: Well, did you-- Were you concerned, for example, to make sure that the Civil Rights Division didn't send a letter formally notifying you of an investigation, because you didn't want to have a letter to that effect?

JUSTICE VERNIERO: I might have expressed that concern. I thought at the time that since we were appealing Soto, and particularly if their focus was Soto, that New Jersey had to be treated fairly. We did not want to become a sort of an unfair target of the Federal government, so I might have asked the Justice Department to extend that courtesy to a sister state, and as I recall, they had no problems extending that courtesy.

MR. CHERTOFF: So you were concerned about having a document that would label this as an investigation?

JUSTICE VERNIERO: I wouldn't say I was concerned with the document, per se. I was concerned, and felt as the State's lawyer, I had an obligation to ensure that New Jersey was being treated fairly by the Federal government.

MR. CHERTOFF: Well, whether or not you got a letter saying there's an investigation doesn't go to the question of how fair the investigation is, does it?

JUSTICE VERNIERO: Well, it sets us up, instantly, in an adversarial relationship -- or potentially, and I wanted to see what this was all about before we got into letters and calling it an investigation or an inquiry.

I thought I would go down to Washington and just speak face-to-face with the folks involved. I just thought that was a courteous, if not the right thing to do.

MR. CHERTOFF: You didn't want anything in writing, did you?

JUSTICE VERNIERO: If I could avoid having New Jersey being, you know, stigmatized by a premature investigation, I'm sure I would have tried to do that. I don't recall exactly what my sentiments were. That's not -- I would not be surprised if that were my reaction.

MR. CHERTOFF: And again, that's again from a public appearance standpoint. You wouldn't want to have a public stigma--

JUSTICE VERNIERO: From a fairness perspective, Mr. Chertoff.

MR. CHERTOFF: But the concern you had, in terms of a document or a formal notification of an investigation, is the public perception that would stigmatize New Jersey.

JUSTICE VERNIERO: Well, presumably, I didn't have to worry about public perception, because DOJ doesn't leak information about investigations. I was concerned about fairness.

MR. CHERTOFF: And I take it, by the way, from the standpoint that you were sitting in when the State was the subject of an investigation, the concern about avoiding being publicly branded before an investigation is completed seemed particularly acute.

JUSTICE VERNIERO: I don't understand your question.

MR. CHERTOFF: Well, when you were looking at a Civil Rights Division investigation of the State of New Jersey, you were sensitive to the desire to avoid anything that would publicly indicate that the State was being investigated, or might publicly make the State look bad, right?

JUSTICE VERNIERO: I did not think it would have been fair, at that point in time, based on the record as I understood it, which essentially was the Soto record. I mean, that's what prompted the call that it warranted an investigation, public or no, by the Justice Department. So I went down to Washington. They extended me the courtesy and the invitation, and I accepted it. And frankly, we had a very nice dialogue, and I, to this day, consider our relationship with the DOJ to have been a good one.

MR. CHERTOFF: All right. Here's my question: Given your indication you thought it would be unfair, in 1996, to have the label investigation attached, at a time the investigation wasn't completed, because it would make the State stigmatized, did that consideration enter into your mind three years later, with Hogan and Kenna, when the issue arose about public branding of them while there was still an investigation under way?

JUSTICE VERNIERO: No, because I was balancing issues, and they evolved. Those issues evolved over my tenure. And it was not so much the State to be stigmatized, but the State Police. There was a keen awareness of the last time the DOJ had put the State Police in a consent decree situation, or under investigation. And that was in the '70s. I believe it was about personnel issues. I don't recall.

That was fresh in a lot of people's minds, as if it happened yesterday, and I felt that I owed it to the State, and I owed it for the morale of the State Police to ensure that the Division of State Police and the State as a whole be treated fairly. My only objective was to ensure fairness.

MR. CHERTOFF: Did you ask the Department of Justice to defer sending a letter, confirming they're investigating, in order to meet with you first?

JUSTICE VERNIERO: I may have.

MR. CHERTOFF: Well, so there's no doubt about it, let's put W-12 up on the Elmo. (referring to projection device) We're going to give you a copy to look at.

JUSTICE VERNIERO: Okay. My eyesight is not what it used to be.

MR. CHERTOFF: This is a copy of an E-mail from Alexander Waugh to, I believe, your secretary.

JUSTICE VERNIERO: Right.

MR. CHERTOFF: And it says, "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."

Does that refresh your memory?

JUSTICE VERNIERO: Well, as I say, I may have, and this is accurate.

MR. CHERTOFF: Now, in preparation -- now, for the first time, you're dealing not only with Soto as a litigation before the Appellate Division, but you're dealing with a Civil Rights Division potential investigation. And let me step back. You'll agree with me that at least in November, you were aware that, from the standpoint of the Civil Rights Division, they were considering this an investigation, right?

JUSTICE VERNIERO: Let me just go back to this document, W-12. I think it is important the record is clear that part of the message from Alexander Waugh to me was that the U.S. Department of Justice is willing to defer. I take it from that that they were comfortable with -- if I made the request, they were comfortable with it, and certainly they didn't think it was inappropriate to defer sending a letter. So I see this exhibit as underlying proof of what I said earlier, that our relationship with DOJ began, and as far as I know, remained a fairly civil one, in a sense of cooperation and so forth.

MR. CHERTOFF: I'm just asking you this question: Is it clear to you from the E-mail that you had an awareness at this time that there was an actual investigation of profiling under way?

JUSTICE VERNIERO: I don't think they called it an investigation at that time.

MR. CHERTOFF: Well, if it says here, "willing to defer sending a letter, confirming that they are investigating profiling," how could there be a doubt in your mind that they were investigating profiling?

JUSTICE VERNIERO: Well, I take that to mean that they were deferring the confirmation, might mean that they were deferring the investigation. I recall, when we went down to Washington, we talked a little bit about, "Hey, you know, what's happening here? Are you investigating us? Is this an inquiry? Is this an investigation?" And at the end of the day it really doesn't matter what we call this, whether we call it an investigation or an inquiry. But at that point, it was the start of our relationship--

MR. CHERTOFF: But, but--

JUSTICE VERNIERO: --and we sort of -- we were getting to know one another.

MR. CHERTOFF: But it did matter to you, because if we look at the E-mail here, my question to you is this: First of all, isn't it entirely clear that what you were seeking to defer was a written confirmation of investigation?

JUSTICE VERNIERO: I did not want New Jersey to be unfairly designated as under investigation, or the State Police, by the Department of Justice, because I didn't think it was warranted. So I did what any good lawyer does, hopefully, on behalf of his client. I went down and I talked to these folks. And they agreed, it's premature. "We're not going to send you a letter. We'll talk about this first."

I thought it was a good meeting, and I see nothing wrong with this exhibit.

MR. CHERTOFF: Now, you need to prepare for the meeting by familiarizing yourself a little bit more with the facts, right?

JUSTICE VERNIERO: Of course.

MR. CHERTOFF: And you agree with me that this was the first time, to your knowledge, that in all the prior years of dealing with racial profiling, the Civil Rights Division itself had gotten involved out of Washington in investigating profiling in the State of New Jersey?

JUSTICE VERNIERO: Could you repeat the question.

MR. CHERTOFF: You'll agree with me that, to your knowledge, in all the years that profiling has been discussed in New Jersey, this was the first time the Civil Rights Division from Washington inserted itself into this?

JUSTICE VERNIERO: I don't know if I knew that at the time. I had a vague recollection myself of the 1970s consent decree. That could have been Civil Rights. I just don't recall.

MR. CHERTOFF: Was there, to your knowledge, during your tenure or the tenure of your predecessor, any investigation by the Department of Justice of any organ at the Department of Law and Public Safety?

JUSTICE VERNIERO: Other than this one?

MR. CHERTOFF: Other than this.

JUSTICE VERNIERO: Not to my knowledge.

MR. CHERTOFF: So this is a pretty big deal.

JUSTICE VERNIERO: As I said, it was significant whenever the Department of Justice expresses an interest in the State, certainly, or a department.

MR. CHERTOFF: You'll agree with me, at this point, as of November we're dealing with a Department of Justice inquiry, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: We're dealing with an Appellate Division review of an adverse decision by a Superior Court judge, right?

JUSTICE VERNIERO: Well, we're dealing with the State appealing a case that we believe, at the time, was wrongly decided.

MR. CHERTOFF: But you had a Superior Court judge who ruled against you, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And we're dealing, again, with one of the most significant issues to the administration, which was the issue of relations among the races, correct?

JUSTICE VERNIERO: It was an important issue.

MR. CHERTOFF: So this would have commanded your attention?

JUSTICE VERNIERO: It got my attention.

MR. CHERTOFF: Now, did you--

JUSTICE VERNIERO: I went down to Washington.

MR. CHERTOFF: Did you get a memo, or did you ask for a memo from Mr. Fahy, explaining the history of the profiling issue, in preparation for the meeting?

JUSTICE VERNIERO: I don't recall, but I have a feeling it's going to come up on the TV screen.

MR. CHERTOFF: You're probably right. (laughter)

So we're going to put up F-13.

JUSTICE VERNIERO: Thank you.

MR. CHERTOFF: This is a memo to you -- I'm sorry, to Mr. Waugh from Mr. Fahy, re: profiling issue.

JUSTICE VERNIERO: Uh-huh.

MR. CHERTOFF: I'm going to ask you if you'd seen this.

JUSTICE VERNIERO: I don't recall seeing it. I may have.

MR. CHERTOFF: You--

JUSTICE VERNIERO: I don't see -- my name is not on it. At least, I don't see my name on it.

MR. CHERTOFF: Were you made aware at this point that there were cases in other states, including the State of Maryland, that dealt with the issue of racial profiling?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: And you don't know whether you saw this memo?

JUSTICE VERNIERO: I don't. As I say, it doesn't have my name on it, but I might have seen it, I just -- I don't think so. I don't recall it.

MR. CHERTOFF: Let me see if I can help you out. We're going to give you F-14 now. Let's leave F-13 up, but I want to give you F-14, which is a briefing summary from meetings with the Attorney General.

JUSTICE VERNIERO: Uh-huh.

MR. CHERTOFF: Do you recognize this document?

JUSTICE VERNIERO: No.

MR. CHERTOFF: Did you get this kind of document typically in your position as Attorney General?

JUSTICE VERNIERO: I did.

MR. CHERTOFF: You used to get briefing summaries?

JUSTICE VERNIERO: I used to have summaries, or at least a brief description, of meetings that I was about to have as the Attorney General.

MR. CHERTOFF: And--

JUSTICE VERNIERO: This looks like a fairly typical summary.

MR. CHERTOFF: So you would get a copy of this?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And it says here, "attached is backgrounder copies of the decision in the Gloucester County profiling matter and related memos." I take it you would typically get the background material, as well?

JUSTICE VERNIERO: If it were attached, yes.

MR. CHERTOFF: Well, if it says it's attached, you would presume it would be attached.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And you'd read that, right?

JUSTICE VERNIERO: Sometimes I would read it more carefully than other times. Sometimes I just had it as background, in case a document was going to be discussed in the meeting. Typically I would pay more attention to the cover sheet than I would the attachments, unless someone focused my attention to the attachments.

MR. CHERTOFF: And as of this point in time, you were not that conversant with Soto, correct?

JUSTICE VERNIERO: That is correct.

MR. CHERTOFF: But you knew you were going to go down and meet with high ranking members of the Civil Rights Division in Washington to talk about Soto?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: So you wanted to prepare yourself, right?

JUSTICE VERNIERO: Of course.

MR. CHERTOFF: Because you were going to handle this meeting personally?

JUSTICE VERNIERO: Well, I was going to be personally there, yes, and as the ranking member of the State, I didn't see it as my meeting to handle. It was really their meeting, but certainly I would be prominent in the meeting, yes.

MR. CHERTOFF: So we have evidence in the record that F-13, which is up, was one of the attachments to this memo. Does that help you to recall that you reviewed F-13?

JUSTICE VERNIERO: It doesn't. I just don't recall reviewing it. I may have.

MR. CHERTOFF: Now, the last sentence on F-13, from Mr. Fahy, says, "The audit system now undertakes a review of the subject troopers' overall enforcement pattern, rather than concentrating solely on the facts of a particular case."

JUSTICE VERNIERO: I'm sorry. Where are you, Mr. Chertoff?

MR. CHERTOFF: The very last page of that memo -- December 5th.

JUSTICE VERNIERO: Page 5, uh-huh.

MR. CHERTOFF: Says, the last sentence--

JUSTICE VERNIERO: The audit system, yes.

MR. CHERTOFF: "The audit system now undertakes a review of the subject troopers' overall enforcement pattern, rather than concentrating solely on the facts of a particular case." Is it your testimony you had no awareness of this in early December?

JUSTICE VERNIERO: My testimony is I don't recall reading this document. I may have.

MR. CHERTOFF: Now, you went down to the meeting, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And you met with the, I guess at that time, the senior ranking person in the Civil Rights Division, Loretta King?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: As well as Mr. Rosenbaum and Mr. Posner, right?

JUSTICE VERNIERO: I don't recall who else was at the meeting from their side.

MR. CHERTOFF: And what was the discussion?

JUSTICE VERNIERO: As I indicated in my earlier testimony, in part it was a sort of get to know one another meeting, try to put a face behind the name. They indicated that Soto was essentially what brought their attention to New Jersey. I expressed the view that Soto would be appealed, and I expressed the reasons for the appeal. I indicated that I would keep the DOJ updated as to various stages in the appeal. I believe, at that meeting, although I might have to have my memory refreshed, but I believe we spoke a little bit about how the inquiry would go forward from that point, but I don't recall in detail if they had made any particular requests of New Jersey at that meeting. They may have.

MR. CHERTOFF: Did you repeat your request not to have a letter confirming that it was an investigation?

JUSTICE VERNIERO: I might have. I don't recall.

MR. CHERTOFF: And did they agree not to send you a letter to that effect?

JUSTICE VERNIERO: Well, to my knowledge, they didn't send a letter, so they -- if I had agreed -- or asked, they would have agreed to it. I don't recall getting a letter from the Department of Justice.

MR. CHERTOFF: Did they tell you that they were going to send you or give you a document that would lay out the kind of information that they wanted for this inquiry?

JUSTICE VERNIERO: No, I -- as I recall, they gave us, or they were going to send us the typical type of information that they would sometimes ask of a state or a jurisdiction. But it was not specific to New Jersey. It was just sort of a general overview of the kinds of things we would be talking about. And that was consistent with the purpose of the meeting. It was, as I say, a sort of laying out the ground rules, for lack of a better word, of how we were going to proceed.

MR. CHERTOFF: Now, in preparation for the meeting, I assume you had discussion about what Soto was about, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And I take it you knew as of the time you went down that the focus in Soto was on stops on the Turnpike, right?

JUSTICE VERNIERO: On the southern portion of the Turnpike.

MR. CHERTOFF: And that would be the Moorestown and Cranbury barracks, right?

JUSTICE VERNIERO: That is correct.

MR. CHERTOFF: And you also understood that the State's position was that the stop statistics were not meaningful because there was no baseline violator or user study that was accurate?

JUSTICE VERNIERO: That was a concern we always had, yes.

MR. CHERTOFF: So you understood -- you were sufficiently versed in this -- in these concepts, when you went down, so you could have a meeting with the Civil Rights Division and talk about it, right?

JUSTICE VERNIERO: I understood the concepts, yes.

MR. CHERTOFF: And then in this meeting, you came to learn that there would be requests for information, correct?

JUSTICE VERNIERO: Understanding the concept of a violator survey is different than understanding exactly how to construct a violator survey, just so my testimony is clear.

MR. CHERTOFF: My question is: In the meeting you became aware that there would be a request for information, right?

JUSTICE VERNIERO: That there could be requests, and they gave us a general overview of the kinds of things that they would ask for. And as I recall, it was either at that meeting or shortly after that meeting -- they gave us a sort of generic form of the kinds of things that they might be asking for.

MR. CHERTOFF: And did you talk to anybody afterwards about the types of things that the form seemed to be calling for?

JUSTICE VERNIERO: I might have. I don't recall.

MR. CHERTOFF: Did you have an interest in that?

JUSTICE VERNIERO: I would have had an interest, generally, in, you know, where we go from here, that sort of thing. I don't recall specifically going through that form. I have a vague recollection of the form itself. It was, as I say, three or four pages. It was sort of a general overview. I recall it being blank. There's a place where you put the jurisdiction name in, and that -- or the party name. That was blank. It was a guide of things that they might be requesting in the future. I don't recall sitting down with anyone and going through that, line by line, if that's your question.

MR. CHERTOFF: Now, you told us you didn't normally get involved in discovery matters, with respect to the Department of Law and Public Safety, right?

JUSTICE VERNIERO: That's correct.

MR. CHERTOFF: With respect to the issue of the discovery to be provided to the -- or the information to be provided to the Department of Justice in Washington, did you get involved in that?

JUSTICE VERNIERO: I don't know if I would even characterize this as discovery, since there wasn't a lawsuit filed. This was all prelitigation.

MR. CHERTOFF: In connection with the information--

JUSTICE VERNIERO: Yeah.

MR. CHERTOFF: --that was being asked for, did you get personally involved in that?

JUSTICE VERNIERO: I was involved to the extent that I would have been briefed as to the progress, the kinds of things that were being asked, and so forth. I was not, day-to-day, involved in information that was being sent.

MR. CHERTOFF: You didn't want to review the positions being taken with respect to the information requested -- things like that?

JUSTICE VERNIERO: I might have, as I say, from time to time. In preparing for this hearing, I'm aware, of course, of documents where I might have been asked, or at least told, that certain requests were coming in. But I do not recall being involved at the day-to-day level of looking at a piece of paper and deciding whether or not that should be sent.

I just don't recall that level of detail.

MR. CHERTOFF: Well, did you, first of all -- let me ask you this. With respect to any discovery case or any litigation that was ongoing in the Department in your tenure, do you ever remember getting involved at all in reviewing or discussing specific responses to discovery?

JUSTICE VERNIERO: Anywhere? Civil, criminal?

MR. CHERTOFF: Yeah.

JUSTICE VERNIERO: As I say, I might have. I just don't -- I don't recall it. If there were a particular report that might have been at issue, maybe the Division of Law Director would comment to my attention. I just don't remember. I think it was -- it would have been unusual, as I recall, for me to sit down and review interrogatories or review requests for depositions, unless I were centrally involved in the case. I just don't remember.

MR. CHERTOFF: So it would be unusual for you to get involved at a high level of detail.

JUSTICE VERNIERO: In your garden-variety discovery requests, yes.

MR. CHERTOFF: Now, did you have a meeting Christmas Eve with respect to the discovery, or the information requests, by the Civil Rights Division?

JUSTICE VERNIERO: I may have, yes.

MR. CHERTOFF: Well, is there a doubt in your mind that you had it?

JUSTICE VERNIERO: Well, I know I had it because I've reviewed my schedule, but if you were to ask me do I have an independent recollection, I would have to say no. One of the -- one of the difficulties in preparing for today is separating out in my mind what I knew then, and what I know now, given my level of preparation. And it's not always clear. I'm trying to be as clear as I can be.

I understand that I had a meeting on December 24th to discuss some aspect of this inquiry.

MR. CHERTOFF: Was Colonel Williams at the meeting?

JUSTICE VERNIERO: I believe so.

MR. CHERTOFF: And was Mr. Waugh at the meeting?

JUSTICE VERNIERO: I don't recall. He may have. I would have assumed he would have been there, since he was a fairly significant person involved in this inquiry.

MR. CHERTOFF: And was Sergeant Gilbert there?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Now, what did you discuss in this meeting?

JUSTICE VERNIERO: I don't remember.

MR. CHERTOFF: Do you know why you would have had a meeting Christmas Eve with the State Police about a matter to do with the Civil Rights Division?

JUSTICE VERNIERO: It might have been as a follow-up to my meeting down in Washington. I don't recall. Do you know the date? When did I go down to Washington?

MR. CHERTOFF: December 12th.

JUSTICE VERNIERO: December 12th? That sounds about right, a week -- week-and-a-half later. I brought the Colonel up to date on the meeting. He was not with me in Washington. I don't remember.

MR. CHERTOFF: Was it a meeting to talk about, in part, the discovery requests?

JUSTICE VERNIERO: It might have been. That would make sense, that, you know, we wanted to begin the process of responding to any information requests that were being made. That makes sense to me.

SENATOR ROBERTSON: Mr. Chairman?

JUSTICE VERNIERO: I just don't have an independent recollection of what we were saying.

SENATOR GORMLEY: Excuse me.

SENATOR ROBERTSON: Mr. Chairman, just for ease of our following this, discovery normally attends a litigation, and there was one in this case, in the Soto case.

MR. CHERTOFF: That's correct.

SENATOR ROBERTSON: A request for information is generally what was happening with the DOJ. So I would just ask, for clarity, not to use those as if they were interchangeable.

MR. CHERTOFF: Well, actually my question -- I appreciate it -- my question was actually: You never had another situation during your tenure where there was a request for information from the Department of Justice with regard to the Department of Law and Public Safety, right?

JUSTICE VERNIERO: That's right.

MR. CHERTOFF: So there's no precedent for your dealing with requests for information in any other setting but this particular case?

JUSTICE VERNIERO: No. These were -- if your question is were these garden-variety discovery requests, no, because they came from the Department of Justice.

But I still was not involved, to my recollection, to anything approaching a day-to-day turnover of documents. I would have been informed as to particular requests that might have come in and who may have discussed it. But I don't recall actually sifting through information, document by document, to decide what should be turned over or what needed to be turned over. I would have relied on deputies for that purpose.

MR. CHERTOFF: Did you get involved in drafting correspondence with respect to this investigation?

JUSTICE VERNIERO: I remember sending a letter to Ms. King shortly after I went down. I believe it was January '97. I could have the date wrong.

MR. CHERTOFF: Now, let's focus on January '97, because I want to see -- you understand, again, this is one of the important matters you have to deal with, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And I want to talk a little bit about how you set up your staff, in terms of dealing with this issue.

Mr. Fahy, there came a point in very early '97, went back, essentially to resume his duties at the Division of Criminal Justice and became -- and was not involved in this, correct?

JUSTICE VERNIERO: There was a point in time where Jack resumed his normal function, but he was always sort of involved. I mean, he attended various meetings, as I recall. I don't know the level of conversation he might have had with Alex Waugh. But Jack was a resource who we would draw upon from time to time, because he tried the Soto case.

MR. CHERTOFF: Who reported to you directly, with respect to this Civil Rights Division?

JUSTICE VERNIERO: Alex Waugh.

MR. CHERTOFF: And then who was the point person that was working for Alex Waugh on that?

JUSTICE VERNIERO: George Rover, as I recall.

MR. CHERTOFF: Now, did Mr. Waugh have experience in criminal law?

JUSTICE VERNIERO: Not that I recall.

MR. CHERTOFF: Do you know if Mr. Rover did?

JUSTICE VERNIERO: I don't recall if he did.

MR. CHERTOFF: Do you know what Mr. Rover's experience was, in general, as it relates to racial profiling, or similar types of legal issues?

JUSTICE VERNIERO: I believe, if I'm not mistaken, he was at the ABC, Alcoholic Beverage Control. I could be wrong on that, but I think he was there, but had prior experience working with Alex, and Alex felt comfortable with him.

MR. CHERTOFF: So Mr. Waugh discussed with you how he was going to staff up dealing with this case?

JUSTICE VERNIERO: I don't know if we had a formal discussion on staffing. It was clear that we would need some help in dealing with the Justice Department. I'm not sure exactly how George Rover got selected.

MR. CHERTOFF: Well, in terms of the team that dealt with the Department of Justice on this matter, there was Mr. Rover, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And he reported to Mr. Waugh?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: And Mr. Waugh reported to you?

JUSTICE VERNIERO: Correct. And as I say, Jack Fahy was a resource that we would draw on from time to time, as I recall.

MR. CHERTOFF: Who is the head of the Division of Criminal Justice at this point in time?

JUSTICE VERNIERO: What point in time are you asking about?

MR. CHERTOFF: '97.

JUSTICE VERNIERO: 1997, I believe it was Terrence Farley. I don't recall the exact date that Mr. Farley left.

MR. CHERTOFF: Did you get Mr. Farley involved on a regular basis in discussing issues as they related to the Department of Justice investigation?

JUSTICE VERNIERO: Not that I recall.

MR. CHERTOFF: Who was the head of the Division of Law at that time, '97?

JUSTICE VERNIERO: I believe it was Jaynee LaVecchia. I could be mistaken.

MR. CHERTOFF: Did you get her involved on a regular basis in discussing the issues involved with the Department of Justice investigation?

JUSTICE VERNIERO: On a regular basis, no. We may have occasionally spoke about information requests. She had more experience than I had on dealing with information requests, particularly in complex matters, in her capacity as a Division of Law director. I might have consulted her, but it was nothing like a regular basis.

MR. CHERTOFF: She wasn't in the chain -- in terms of the chain of command in terms of dealing and supervising with the back-and-forth in Washington. Is it fair to say the chain of command was Rover to Waugh to you?

JUSTICE VERNIERO: That sounds right.

MR. CHERTOFF: You didn't put anybody either experienced in Criminal Justice or experienced in the Division of Law in that chain of command, did you?

JUSTICE VERNIERO: Well, with the exception of Jack Fahy. Now, was he in -- you're giving us a little bit more credit than we deserve in terms of formal structure. You know, we didn't really sit down in a meeting and say, "Here is the chain of command." As I say, the Justice Department, it sort of begun somewhat informally. It was civil in nature, as I remember. And it was clear that there might be some information we would have to retrieve and send over. I was confident that Alex, through George, and anyone else that he needed -- because Alex was fairly senior, he could draw on just about anybody in the Department -- that they would get the job done. I don't think I was thinking in terms of a chain of command.

MR. CHERTOFF: Well, let's move forward with this for a minute to complete the picture, because there comes a point where Mr. Farley leaves.

JUSTICE VERNIERO: That is correct.

MR. CHERTOFF: And who replaces him?

JUSTICE VERNIERO: Paul Zoubek.

MR. CHERTOFF: And again, as you indicated, Mr. Zoubek was very experienced as a prosecutor, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: You didn't bring him into the issue of the profiling investigation by the Department of Justice either, until February 1999, right?

JUSTICE VERNIERO: I'm sorry, the DOJ investigation?

MR. CHERTOFF: Yeah.

JUSTICE VERNIERO: I don't recall when I began to consult with Paul.

MR. CHERTOFF: Well, let's take 1998, for example. In 1998 you had the Hogan and Kenna investigation, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: That was being supervised by Mr. Zoubek, ultimately?

JUSTICE VERNIERO: Through the Division of Criminal Justice, yes.

MR. CHERTOFF: You had the Troop D audit, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: Mr. Zoubek was involved in that, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Both of -- certainly the Troop D audit touched on the issue of racial profiling, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: At the same time you had an ongoing back-and-forth with the Department of Justice in Washington, about racial profiling, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: Mr. Zoubek was not called in to work on that, right?

JUSTICE VERNIERO: At that stage, no.

MR. CHERTOFF: And Mr. Rover, who was dealing with Washington, wasn't helping Mr. Zoubek with respect to what he was doing in Troop D, right?

JUSTICE VERNIERO: Not to my knowledge. He may have. I don't know.

MR. CHERTOFF: And Mr. Fahy and the people in Appellate were working on the Soto appeal, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: And they--

JUSTICE VERNIERO: That's my understanding. There could have been others. I think Jack Fahy was in Grand Jury at that time, but because he had -- he had tried the Soto case, as I said, he was -- he was a resource not only in the Soto appeal, but in our DOJ inquiry, as well.

MR. CHERTOFF: So in 1998, was there any one person in the Department of Law and Public Safety in whose hands all the threads relating to racial profiling were gathered -- the trooper investigation, the Soto appeal, and the Department of Justice inquiry?

JUSTICE VERNIERO: Well, I guess in the purest sense, I held all those threads as the Attorney General.

MR. CHERTOFF: Because, as far as the audit was concerned and the Hogan and Kenna material, that was Zoubek, correct?

JUSTICE VERNIERO: Principally, yes.

MR. CHERTOFF: And as far as the Department of Justice inquiry?

JUSTICE VERNIERO: That was Waugh.

MR. CHERTOFF: That was Waugh and Hespe and Rover, right?

JUSTICE VERNIERO: And anyone else that they -- and Fahy. You keep -- you keep missing Jack Fahy. As I say, he was a resource. We drew on his expertise from time to time. If I'm not mistaken, he may have come down to Washington with me. The record would indicate that. I don't recall that, but it would not surprise me, because he was a resource that we drew on.

MR. CHERTOFF: But he--

JUSTICE VERNIERO: I wouldn't leave him out of the equation.

MR. CHERTOFF: But in terms of the one person who actually had -- the only person who had the overview of all of these disparate events, that was you?

JUSTICE VERNIERO: Of course.

MR. CHERTOFF: And you didn't bring anybody else--

JUSTICE VERNIERO: I didn't bring in anyone over me, no.

MR. CHERTOFF: No. Here's my question: You didn't bring in anybody, before February 1999, who was experienced either in Criminal Justice or in the Division of Law to sit and gather all those threads and supervise all that underneath you, right?

JUSTICE VERNIERO: I didn't feel it was necessary, because we had Alex Waugh, in whom I reposed great trust and confidence -- a bright individual, a person of total integrity. He was drawing on Jack Fahy's expertise from time to time, and George Rover's. And as far as I knew, the Justice Department was quite satisfied with the team -- and that's your word -- that I had in place, and I saw no reason to bring in any additional persons.

MR. CHERTOFF: But here's my question: There was really only one person at the Department of Law and Public Safety, in 1998, who was in a position to have an overview about the material being gathered in the Troop D audit and the material that was being turned over to the Department of Justice by Mr. Rover and Mr. Waugh and Mr. Hespe, and that person was you.

JUSTICE VERNIERO: Well, I don't know if I knew the full extent of what was being gathered in the Troop D audit. I was the head of the Department. And your question was, who held all the reins? I held the reins. It doesn't necessarily mean I knew all the information.

MR. CHERTOFF: But here's my question: You knew information was being gathered in the Troop D audit, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: You knew it related to profiling, right?

JUSTICE VERNIERO: Possibly.

MR. CHERTOFF: You knew profiling was the subject of the Department of Justice inquiry, right?

JUSTICE VERNIERO: Well, I knew the Soto case was the focus of the Department of Justice inquiry.

MR. CHERTOFF: Did you know racial profiling was the subject of the Department of Justice inquiry?

JUSTICE VERNIERO: It was racial profiling through the lens of Soto. That's how I understood it. And I think that's an accurate assessment, at least in the early tenure. Now, DOJ may have changed their focus, but in the -- my early tenure, the focus was Soto -- racial profiling as it related to Soto.

MR. CHERTOFF: And they asked for information relating to racial profiling on the Turnpike, right -- involving the Moorestown and Cranbury barracks, right?

JUSTICE VERNIERO: I don't know the specific information requests that they may have made, or at least I don't recall.

MR. CHERTOFF: Well, here's my question: What steps did you take in 1998 to assure that potentially relevant information gathered by Mr. Zoubek in the Troop D audit was communicated to Mr. Rover, who was dealing with the Department of Justice in satisfying their request for information?

JUSTICE VERNIERO: I would have assumed that Alex Waugh, who was the point person, would have ensured that we were complying with the Justice Department request.

MR. CHERTOFF: Alex Waugh wasn't there in 1998.

JUSTICE VERNIERO: Oh, 1998 -- then it would have been whoever the first assistant was. I think Dave Hespe took over, or Janice Mintz. I'm not sure.

MR. CHERTOFF: Well, were-- Did you direct any of them to be involved, in any way, to making sure that the information being gathered by the Troop D audit was getting over to Mr. Rover so it could comply with what Department of Justice wanted?

JUSTICE VERNIERO: I don't remember issuing a directive in that to that respect. I might have suggested that they consult with folks at CJ. I just don't remember.

MR. CHERTOFF: Well, did you-- I mean, this is the-- In any way, shape, or form did you tell anybody to act to make sure that the material being gathered by the Troop D audit, which had to do with falsification of data in Moorestown and Cranbury, was somehow being made known to the person who you had assigned to pass that stuff to the Department of Justice?

JUSTICE VERNIERO: Well, implicit in the question is that there was a question that that be passed along to Justice from Justice. I don't recall that. I recall that my standing instructions, if it were -- if you will, was to turn over information that the Department of Justice requested. And I assumed that was -- that was happening.

MR. CHERTOFF: But what steps did you take to make sure--

Let me step back. You decided on the assignments, with respect to Mr. Zoubek handling Troop D, right? That was your decision, right?

JUSTICE VERNIERO: That was the decision that was self-executing. He was the head of CJ. He handled the audit. I didn't consciously make that decision.

MR. CHERTOFF: You knew he was doing it.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: You knew Mr. Rover was handling the civil rights matter, right?

JUSTICE VERNIERO: I knew Alex Waugh was handling it. Alex was drawing on whoever in the Department that he needed to draw on, including Jack Fahy.

MR. CHERTOFF: I have to stop you, Justice Verniero. There wasn't a shooting in 1997.

JUSTICE VERNIERO: That's correct.

MR. CHERTOFF: The Troop D audit began in 1998, right?

JUSTICE VERNIERO: That's right.

MR. CHERTOFF: Mr. Waugh's way off.

JUSTICE VERNIERO: I see. Pardon me.

MR. CHERTOFF: So now you--

The Troop D audit is a serious matter, right?

JUSTICE VERNIERO: It is.

MR. CHERTOFF: I mean, you had a shooting, correct?

JUSTICE VERNIERO: Yes. We--

MR. CHERTOFF: Let me--

JUSTICE VERNIERO: We considered Troop D, at least as I recall-- That was separate from DOJ. I don't recall--

MR. CHERTOFF: When did you make the decision that was separate from DOJ?

JUSTICE VERNIERO: I made no decision. It was--

MR. CHERTOFF: Well, who made the decision that it was separate?

JUSTICE VERNIERO: We were responding to DOJ requests for information. Had they requested information that touched on the Troop D audit, and had I been aware of that, I'm sure I would have directed someone to consult with the individuals who were handling the Troop D audit. My testimony--

MR. CHERTOFF: Were they asking--

JUSTICE VERNIERO: My testimony is, I do not recall any information requests from the Department of Justice which would have implicated or touched upon the Troop D audit. We were not in the mind-set, at that point, Mr. Chertoff, of simply turning over information that we were finding in any one of a given number of pending investigations. We were responding to DOJ requests. And I think we were responding to them faithfully.

MR. CHERTOFF: Wasn't there a specific request by the Department of Justice for record information from Moorestown and Cranbury on certain dates in connection with their investigation?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Let me put up W-26, April 7th, 1997.

Do you see this memo?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: It's addressed to you.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: It's from Mr. Waugh.

JUSTICE VERNIERO: Mr. Waugh, that's correct.

MR. CHERTOFF: You received it.

JUSTICE VERNIERO: Presumably.

MR. CHERTOFF: It says, "Attached is a copy of the Justice Department's request for specific information with respect to dates chosen by the -- over a two-year period, correct?

JUSTICE VERNIERO: That's what it says, yes.

MR. CHERTOFF: And it had to do, as you understood, with information and records at Moorestown and Cranbury, correct?

JUSTICE VERNIERO: Well, I don't see that listed in the memo. Presumably, since they were focusing on Moorestown and Cranbury, I would have assumed that. I don't have an independent recollection of that.

MR. CHERTOFF: Now, you knew the Troop D investigation was focused on whether records at that location -- or those locations were falsified, right? Correct? That's the whole point of the audit.

JUSTICE VERNIERO: Well, again, this is April 1997.

MR. CHERTOFF: Here's my question: Was the Troop D audit focused on whether records at these barracks were falsified?

JUSTICE VERNIERO: My understanding was, the Troop D Barracks audit extended up the entire Turnpike.

MR. CHERTOFF: And did the Turnpike include Moorestown and Cranbury?

JUSTICE VERNIERO: Yes, of course.

MR. CHERTOFF: So it stood to reason that if you asked for an investigation of falsification of records on the Turnpike, that would include an investigation of whether records at the barracks being looked at by the Department of Justice had been falsified, right?

JUSTICE VERNIERO: Well, no. The Department of Justice was asking for specific information. This says specific information with respect to dates chosen.

MR. CHERTOFF: Here's my question.

JUSTICE VERNIERO: Now, I don't know as I sit here what that "specific information" was. If they were asking for specific information as to whether records were being falsified, I assume we would have turned that over. But that's not indicated on this memo.

MR. CHERTOFF: We will go through the genesis of all this discovery shortly. But I just want to make clear we understand this point. Did you understand that the Troop D audit was looking at whether records at barracks on the Turnpike were false?

JUSTICE VERNIERO: Whether troopers were falsifying records, yes.

MR. CHERTOFF: Would you agree with me, therefore, that that would be arguably relevant if the Department of Justice was pulling or asking to get those very records from the State of New Jersey? Right?

JUSTICE VERNIERO: Well, my understanding was they were focused on the Soto case and reconstructing a record, or furthering a record, that dealt with the number of minority stops. I never married the two concepts in my mind, falsification versus stops. I might have. I just don't recall.

MR. CHERTOFF: Did you--

JUSTICE VERNIERO: I mean, this is three or four years ago.

MR. CHERTOFF: You never married-- In 1998, you never married in your mind, or connected up, the falsification issue with the general issue of racial profiling?

JUSTICE VERNIERO: I did. But your question was in connection with DOJ discovery requests. And the reason I didn't address it in the perspective of DOJ discovery requests is, I wasn't handling those requests on a day-to-day basis.

MR. CHERTOFF: Well--

JUSTICE VERNIERO: And on April 7th, 1997, the date of this memo, there was no Troop D audit, as far as I knew.

MR. CHERTOFF: I want to-- Again, I want to try to fix us on this 1998 period. In 1998, you're aware that the Department of Justice has been requesting, and the State of New Jersey has been furnishing, documents relating to stops and other activity on the Turnpike, right?

JUSTICE VERNIERO: I was aware that they were making information requests, yes.

MR. CHERTOFF: And that was being provided by Mr. Rover at your direction, right?

JUSTICE VERNIERO: Well, that was being handled by Mr. Waugh, and he was supervising Mr. Rover.

MR. CHERTOFF: And you were dealing with Mr. Rover yourself, right?

JUSTICE VERNIERO: Directly, occasionally. My main point of contact was Alex Waugh.

MR. CHERTOFF: And Mr. Waugh wasn't there in 1998, so-- He was gone, right?

JUSTICE VERNIERO: That's correct.

MR. CHERTOFF: But Mr. Rover was still there.

JUSTICE VERNIERO: He was.

MR. CHERTOFF: So-- And obviously you understood it was important that Mr. Rover not furnish misleading or false information to the Department of Justice, right?

JUSTICE VERNIERO: Presumably.

MR. CHERTOFF: I mean, that would be a serious matter if material were provided to the Department of Justice that turned out to be false records, right?

JUSTICE VERNIERO: I would think so.

MR. CHERTOFF: And therefore, if one came to learn that there was a possibility that records being furnished were false, that would be a matter that you would have to look at, right?

JUSTICE VERNIERO: If I was informed of that possibility, yes.

MR. CHERTOFF: So there came a time in 1998 you were informed that there was an audit directed at the issue of whether troopers on the Turnpike were lying and falsifying their records, right?

JUSTICE VERNIERO: Well, we didn't have absolute proof at that time. There was a possibility.

MR. CHERTOFF: Right. So there was--

JUSTICE VERNIERO: And that's an important point, because-- Look, I know where you're going on this, and you're missing a big point. The big point is this, we were representing-- I was representing the State of New Jersey in connection with the DOJ. We were looking at a Troop D audit situation, which may or may not have materialized our worst fears -- our worst fears that there was widespread falsification.

I have no specific recollection of deciding yes or no to send information, but I would not have sent information to the DOJ that was premature, that was unverified, that was untested, information that we ourselves did not have the ability to analyze. And to my knowledge, they never requested it.

MR. CHERTOFF: I'm really asking--

JUSTICE VERNIERO: Now, when Alex Waugh left the Department, as I recall, the Department -- that function -- that supervisory function over George Rover was discharged by Dave Hespe. I don't recall whether Dave Hespe was involved or had knowledge of the Troop D audit. He may have.

MR. CHERTOFF: Well, Hespe didn't do criminal stuff. Mr. Zoubek testified yesterday that his chain of command on this was to you, right?

JUSTICE VERNIERO: I understand that, but nor did Alex Waugh do criminal stuff.

MR. CHERTOFF: But Mr. Zoubek's indicated, and I take it you don't disagree with him, that his chain of command on Troop D was to you, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: So you'd agree with me, even if the Troop D audit is inconclusive, it's under way, it's certainly relevant and certainly has to be considered in terms of whether the documents are false, right?

JUSTICE VERNIERO: I don't know if we went through that analysis at that time. So I-- Without seeing exactly what is being requested and seeing exactly what is being yielded in the Troop D audit, I'm not in a position to label anything as relevant. It might have been, but I can't make a determination on that.

MR. CHERTOFF: Let's go to W-24. It's a memo to Alexander Waugh from George Rover, March 3rd, 1997.

Do you see that?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And there's a little handwritten notation, Mr. Waugh told us, was his writing to PV, FYI, Alex Waugh.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Did you get this?

JUSTICE VERNIERO: Presumably. I don't recall it, but I must have. It has my name on it.

MR. CHERTOFF: And doesn't this lay out issues, for example, of the Department of Justice requesting samples of forms records, requesting radio logs, and records of traffic stops, and other kinds of information with respect to Cranbury and Moorestown stations? Right?

JUSTICE VERNIERO: It does, yes.

MR. CHERTOFF: And it talks about here, the Attorney General had already sent copies of consent to search traffic and summonses and warnings, but that he wanted to see radio logs, patrol logs, arrest reports, and consent to search reports, right?

JUSTICE VERNIERO: What page are you reading?

MR. CHERTOFF: Page 2, Paragraph 2.

JUSTICE VERNIERO: That's what the paragraph says, yes.

MR. CHERTOFF: So you had, in your possession in 1997, an understanding that the Department of Justice was looking precisely at the kind of documentation which was the subject of an investigation for falsification in 1998, right?

JUSTICE VERNIERO: I don't know if I can make that determination by reading this letter, precisely. You used the word precisely. I would disagree with that.

MR. CHERTOFF: All right. Generally, you knew that the Department of Justice was requesting, and your office was providing, information of the kind that in 1998 became the subject of an investigation for falsification, right?

JUSTICE VERNIERO: Well, you say information of the kind. I'm not sure what that means. Are you saying patrol logs, arrest reports, consent to search?

MR. CHERTOFF: Right.

JUSTICE VERNIERO: I mean, that conceivably could mean scraps of paper in the Division of State Police. And that's not what the Department of Justice was looking for. In fact, I--

MR. CHERTOFF: They wanted samples.

JUSTICE VERNIERO: They wanted samples, and I recall they were very narrow in their requests. So I would not have-- Even if I had remembered, in June of 1998, and that's a big if, that there was this letter that was FYI'd to me a year earlier-- Even if I had remembered that, I don't think I would have thought, well this unverified work in progress known as the Troop D audit ought to be turned over to DOJ.

MR. CHERTOFF: I'm not asking you whether it should have been.

JUSTICE VERNIERO: Well, that's what you're suggesting--

MR. CHERTOFF: No, I'm asking--

JUSTICE VERNIERO: --I failed to do.

Let's be candid. I mean, that's exactly what you're suggesting I failed to do. And I'm saying my testimony is, the DOJ's requests were very narrow. They were specific. I was satisfied in the people that I had put in charge in dealing with the DOJ. And it is my testimony, and it was my belief, that they acted appropriately.

MR. CHERTOFF: But that's my very point. I'm not asking you why you didn't turn it over, I'm asking you why you set up a system in which the people who were dealing with DOJ, and the people who were doing the investigation of whether the underlying material was false, were kept totally separate, with only you in the middle bridging the gap?

JUSTICE VERNIERO: I don't know if I thought about it in those terms. I just-- This was an informal inquiry. We satisfied the Justice Department, as far as I know. And as far as I know, they have never complained to the contrary.

MR. CHERTOFF: This was the most-- Well, as a matter of fact, in February of 1999, they talked about going public and accelerating the investigation, right?

JUSTICE VERNIERO: As I testified earlier, I'm not sure when they reached that conclusion.

MR. CHERTOFF: Now again-- So my question is, did you take any steps at all to give anybody responsibility for coordinating between the Department of Justice document production issues and what was being uncovered in the Troop D audit? And I guess the answer to that is you really didn't give anybody that responsibility.

JUSTICE VERNIERO: I don't recall giving an express direction.

MR. CHERTOFF: You held that responsibility unto yourself, right?

JUSTICE VERNIERO: I take full responsibility, yes.

MR. CHERTOFF: Now, just to go back and-- As we go back--

Now, let's see where we are in January 1997. I'm sorry. I want to make sure we're all in the right year here, back in '97. Now, Mr. Waugh is still there, right?

JUSTICE VERNIERO: I believe so, yes.

MR. CHERTOFF: And Mr. Rover gets involved, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And Mr. Fahy's still sometimes involved, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: And at this point, you are getting somewhat familiar with the underlying facts, with respect to this civil rights profiling issue, correct?

JUSTICE VERNIERO: I don't know what you mean by underlying facts.

MR. CHERTOFF: Well, you asked questions, didn't you, in the period of December when you knew there was an investigation about what the underlying facts were? You asked Mr. Fahy. You asked Mr. Waugh.

JUSTICE VERNIERO: The underlying facts as they related to Soto, yes.

MR. CHERTOFF: As related to profiling.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And I'm going to show you-- Now, you understood, first of all, that in Soto itself, the data was collected from '88 to '91, right?

JUSTICE VERNIERO: I referenced that in my opening statement, yes.

MR. CHERTOFF: And so therefore, it was old, even as of 1997.

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: You also understood it would be quite significant if it turned out that more recent reviews of stop data at Moorestown and Cranbury showed a same, consistent pattern of stops, right?

JUSTICE VERNIERO: I don't know if I would agree that it would be quite significant.

MR. CHERTOFF: You don't agree with that?

JUSTICE VERNIERO: I don't know if that's how we viewed statistics at that time. And I don't think we did. I mean, there was a general feeling, because of Soto and the reasons for appealing Soto-- I remember junk science was the term that then Attorney General Poritz used to describe how she felt about the data in Soto. Statistics were seen in a different light prior to 1998, 1999, when these issues really became accelerated. So I don't accept your characterization.

MR. CHERTOFF: Well, let me stop you. In 1998 and 1999, are you saying you had a different view about the validity of stop data?

JUSTICE VERNIERO: 1978, did you say? MR. CHERTOFF: I'm sorry, 1998 and 1999. Did you say you had a different view of the validity of stop data than you had in 1996 and 1997?

JUSTICE VERNIERO: Data that was post-Soto was seen in a different light than data that was pre-Soto. And the reason for that was that after the Soto case was decided, there were a set of reforms put in place that presumably would deal with the problem of racial profiling. And so-- And obviously, there would need to be a period of time when there had to be some implementation for the reforms to actually kick in, so to speak.

So yes, there was a distinction. I don't recall if we ever put it on paper and said, you know, we're making this distinction. But there is a distinction between the pre-Soto numbers and the pre-Soto reform numbers and the post-Soto numbers, and post-Soto is, you know, obviously information from '97, '98, and forward.

MR. CHERTOFF: Did you ask anybody, again in this time frame of December 1996, whether the numbers that were the subject of Soto were being analyzed and reviewed in more recent periods of time to see if they continued?

JUSTICE VERNIERO: I don't recall asking that specific question.

MR. CHERTOFF: Well, let's go to F-26, which is a letter -- typed letter -- January 3rd, 1997. And in the handwritten section, it looks like it's either January 7 or January 17th.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Now, at the top of the page, above where it's typed on the first page, is that your handwriting?

JUSTICE VERNIERO: It appears so, yes.

MR. CHERTOFF: You edited this, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: It was originally drafted by Mr. Fahy?

JUSTICE VERNIERO: I don't know that. I don't know who drafted this letter.

MR. CHERTOFF: It was transmitted to you by Mr. Waugh.

JUSTICE VERNIERO: Yes, that's his language there under the word padding.

MR. CHERTOFF: Now, let's go to Page 8.

I take it you understood the content of the letter. When you got the letter -- the draft letter, the content was familiar to you. It wasn't a surprise.

JUSTICE VERNIERO: Well, when you say the content--

MR. CHERTOFF: In other words, the letter discusses--

JUSTICE VERNIERO: I understood the words, if that's what you're asking.

MR. CHERTOFF: No, the letter discusses certain issues and takes certain positions. And I take it this wasn't unfamiliar to you. You understood it.

JUSTICE VERNIERO: Yeah. I understood what-- I understood the terms, yes.

MR. CHERTOFF: All right. So now you have, in type form--

JUSTICE VERNIERO: Yes.

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

Now, at the time you received this draft from Mr. Waugh, that was what was typed in the draft, correct?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: You struck it out.

JUSTICE VERNIERO: I did.

MR. CHERTOFF: You were aware at the time you got this that the State Police were reporting that the number of stops involving black motorists on the southern portion of the Turnpike remains near the level reported in the Soto case.

JUSTICE VERNIERO: Well, I don't recall if I saw the numbers that went behind that sentence, or just the sentence itself. The sentence says what it says. I don't recall reviewing any statistics to verify that sentence.

MR. CHERTOFF: Were you surprised by this sentence?

JUSTICE VERNIERO: I wasn't, because again we're in this period of time where we're very close to that Soto line -- pre-post Soto. And the fact that the statistics might have been the same as the level reported in Soto made some sense to the extent that the post-Soto reforms had not yet had a chance to really develop or mature. And I'm not sure, even as I read this letter now, what the time frame is for these number of stops. It's a very vague reference in the letter.

MR. CHERTOFF: So did you ask-- Did you ask someone to explain what does this mean, what is the significance of this?

JUSTICE VERNIERO: Well, I knew at that time that we wanted to conduct a trustworthy violators' survey, which we felt was very important. So the number, as I recall from my previous discussions on the Soto case-- I used the word discounted. I don't mean that in a pejorative phrase, but we were not viewing as meaningful, the pre-Soto data. Why is that?

MR. CHERTOFF: But this is post-Soto data.

JUSTICE VERNIERO: Well, it doesn't say that. It says--

MR. CHERTOFF: Did you ask?

JUSTICE VERNIERO: It says the data remains near the level, but it doesn't say what the data is.

MR. CHERTOFF: Did you ask?

JUSTICE VERNIERO: And even if it was immediately prior to Soto, the Soto reforms had not yet really taken hold. So--

MR. CHERTOFF: I have to ask you this. Did you -- because you speculated about a lot of things-- Did you ask?

JUSTICE VERNIERO: I didn't have to ask. I knew what the Soto numbers were, and I knew why we discounted them. So the fact that this was pre, or immediately post, either way--

Look, the date is only January '97, so at best, this data could have been from March '96 to '97.

MR. CHERTOFF: So you consciously went through this thought process of thinking this through when you read this sentence.

JUSTICE VERNIERO: I don't recall what I consciously went through. I'm trying to recollect and give you my best guess as to what went through my mind when I deleted this paragraph. What-- I don't recall exactly why I did it. But my best recollection, at this point, is it was unverified information.

Look at this-- The first sentence says, the number of stops involving black motorists remains near the level of Soto. But we're discounting Soto. We're discounting Soto data.

The next sentence says, this figure is higher than what is reported at State Police stations in the state, including those along the Turnpike. So built in, there are some inconsistencies.

And the third sentence, which probably is the most important from my perspective, is that we can't believe-- We have a difficulty believing that the State Police would intentionally racially profile. And that was very much our mind-set in 1997.

MR. CHERTOFF: I mean, you could--

JUSTICE VERNIERO: So I deleted the paragraph, I think -- again I don't have any independent recollection -- because it just was too inconclusive. It was contradictory and inconclusive. And it was not-- It did not suit this letter, as far as I was concerned.

MR. CHERTOFF: Well, one can draw the conclusion from the paragraph that whatever the policy prohibiting profiling was, it wasn't being effective, at least with respect to one station, right? That would be a pretty serious thing, right?

JUSTICE VERNIERO: Well, I don't know that as I read this letter--

MR. CHERTOFF: Well, it says here--

JUSTICE VERNIERO: --because I don't know what the time frame is. I mean, we might have discussed statistics in '97, or even '98, that dealt with pre-Soto time frames. And so it's hard for me to tell, by reading this letter, exactly what the time frame is for the so-called number of stops. That's my only point.

MR. CHERTOFF: But here's my question. As he indicated just a moment ago, it's arguably inconsistent and troubling to say to you've put in these reforms, you have a clear policy against profiling, and there seems to be one station where the numbers aren't changing. That could reflect a statistical problem, but it could also reflect a problem with the station, right?

JUSTICE VERNIERO: Or it could also reflect the same problem or concern we had with the trustworthiness of this data. Remember, we are in a Soto sort of frame of mind, where we are discounting this data.

Now, of course, we know down the road that we shouldn't have discounted this data. I mean, that's clear. But you're asking me, at this moment in January 1997, what was running through my mind.

MR. CHERTOFF: I'm asking--

JUSTICE VERNIERO: My testimony is twofold. One, I don't recall exactly what was going through my mind four years ago in this one letter, but I am trying to reconstruct what I probably was thinking at that point in time. And what I probably was thinking is that we're appealing Soto. We don't have a violators' survey by which we can measure any pre- or post-Soto data to determine whether it's meaningful. We're getting repeated assurances from the State Police that profiling is not a systemic problem. That, in my mind, was sufficient to delete this paragraph.

MR. CHERTOFF: But my question, before we even get to why you deleted it, is that you've indicated a moment ago that this anomaly between the reforms on the one hand and the one station with continued high numbers could be due to a number of causes, right?

JUSTICE VERNIERO: I don't believe I testified to that.

MR. CHERTOFF: Well, did you say it could possibly be because there's a problem with the violators' survey? Right?

JUSTICE VERNIERO: No, we didn't have a violators' survey. So it's not that there was a problem with the-- We didn't--

We weren't sure what these numbers meant, because we didn't have a violators' survey. What we knew was -- at least there was the thought that Soto was based on "junk science." So anything coming out of Soto would have been discounted.

MR. CHERTOFF: But this wasn't coming out of Soto, was it? This was not figures assembled by public defenders.

JUSTICE VERNIERO: No, but it says right-- It says--

MR. CHERTOFF: Well, let me finish.

JUSTICE VERNIERO: It says, at the level reported in Soto from the same barracks tied to Soto. So the same infirmity of the information would have pertained in this time frame.

MR. CHERTOFF: But wasn't the problem--

Now again, as of this point you've indicated you were conversant with Soto, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: You've read the decision, right?

JUSTICE VERNIERO: I'm sure I had.

MR. CHERTOFF: You knew what the basis of appeal for the State was, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: You knew that one of the criticisms was that the way that the public defenders assembled the baseline data was flawed, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: Basically, the State was saying, this data came from the public defenders. It's junk science, right?

JUSTICE VERNIERO: That's basically what we were saying.

MR. CHERTOFF: But this letter talks not about information -- current information from the public defenders, it talks about current information from the State Police. That's a big difference, isn't it?

JUSTICE VERNIERO: Well, it talks about current stops, yes.

MR. CHERTOFF: It says, the State Police report to me.

JUSTICE VERNIERO: Or number of stops.

MR. CHERTOFF: It says the State Police report to me, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: It doesn't say the public defenders are alleging in court, right.

JUSTICE VERNIERO: No, that's correct.

MR. CHERTOFF: That's a big difference, right?

JUSTICE VERNIERO: Well, but we were appealing Soto for other reasons.

MR. CHERTOFF: But--

JUSTICE VERNIERO: Mr. Chertoff, please let me finish my answer before you go on to your next question.

We were appealing Soto not only because it was based, in part, on junk science, it was because the numbers at that time, without a case-by-case analysis, were not conclusive proof of profiling. And Judge Francis changed the burden of proof in that case, which is another thing that we were appealing -- that he dispensed with a case-by-case analysis.

So when you have stops that show, at a Soto level, without a case-by-case analysis, with assurances from State Police that they're not profiling, and in the absence of a violator survey, against which to add meaning and content to these numbers, the numbers were discounted. That's my testimony.

Now, if you ask me should we have discounted the information, absolutely not.

MR. CHERTOFF: I'm asking you this--

JUSTICE VERNIERO: But that's an issue that I can say, in retrospect, at the time frame of 1997, that was not our thinking.

MR. CHERTOFF: I'm asking--

JUSTICE VERNIERO: It is my testimony that it was appropriate the way we were approaching it, given the time frame.

MR. CHERTOFF: I'm asking you this: Do you agree with me that this is material -- this is information coming from the State Police, not from the public defenders, right?

JUSTICE VERNIERO: Well, the sentence says that. As I say, I don't know where -- what the information actually was.

MR. CHERTOFF: So, if you don't know what the information is, if you don't know what the numbers are, if you don't know what the basis is, I still have to come to this question. Did you ask anybody to find out? Did you make any inquiry at all and say, "What does this mean?"

JUSTICE VERNIERO: I may have. I don't recall. What I recall at that time was that we were trying to obtain a violators' survey to add meaning to these numbers. I might have asked for a progress report, at that point, on the survey, but it's fairly early on, so I don't think there was much progress at that point. I don't remember what I may have said four years ago in connection with this letter. I've given you my testimony on why we discounted the information, and I've described why I deleted the paragraph -- or why I think I deleted the--

MR. CHERTOFF: This didn't raise a red flag to you? And you saw no reason to pursue this with anybody.

JUSTICE VERNIERO: I may have asked some questions. I don't recall. It was not a red flag because of all the reasons that I've just described.

MR. CHERTOFF: Would you tell us-- Justice Verniero, was there a single thing you did after getting this letter to follow up -- to ask questions about the information in this paragraph, one single thing?

JUSTICE VERNIERO: I do not recall.

MR. CHERTOFF: And you understood, when you deleted this, this would mean the Department of Justice would be unaware that the State Police were accumulating information more recently than Soto, right?

JUSTICE VERNIERO: Presumably, if this was the only way that they would have been aware, yes.

MR. CHERTOFF: Certainly, you knew from this letter-- You knew from this letter that the State Police was accumulating data in 1996.

JUSTICE VERNIERO: I don't know if I knew they were accumulating data. I mean, this letter indicates that they had some snapshot in time, perhaps -- some data, but I do not recall what that data was. I do not recall if anyone ever disclosed that data to me. And I see nothing in this paragraph that indicates that they're in the process of collecting data on a regular basis.

MR. CHERTOFF: Forget regular basis.

JUSTICE VERNIERO: Well, I think that's what your question implied.

MR. CHERTOFF: Does it indicate that they have collected or gathered data in 1996?

JUSTICE VERNIERO: It indicates what it indicates, Mr. Chertoff, that they report to me the number of stops. It remains the level reported in Soto. I don't want to add any gloss to what it says. It says what it says.

MR. CHERTOFF: Is it clear from the letter that the State Police had collected, and was capable of collecting, data about the number of stops involving minorities and nonminorities? Is that clear on the face of the letter?

JUSTICE VERNIERO: Well, capable of collecting-- They had an obligation to collect and maintain data.

MR. CHERTOFF: Does it indicate that the State Police had, in fact, collected and were reporting data on the number of stops involving minorities on the southern portion of the Turnpike? It says that.

JUSTICE VERNIERO: For an uncertain time frame, yes, it says that.

MR. CHERTOFF: Now, is your concern about my asking you this question relating to the fact that on May 5th, 1999, you were asked the following question, on Page 65, during your confirmation hearings by Senator Matheussen: "What time period, to get to the point of where you are, which you announced just two weeks ago with regard to the ultimate decision--"

JUSTICE VERNIERO: Excuse me, can I have the page number, please?

MR. CHERTOFF: It's Page 65.

JUSTICE VERNIERO: Sixty-four?

MR. CHERTOFF: Sixty-five.

JUSTICE VERNIERO: Sixty-five. Yes.

MR. CHERTOFF: May 5th.

Where Senator Matheussen says, "Why that time period to get to the point of where you are, which you announced just two weeks ago, with regard to the ultimate decision that profiling was taking place and that you were taking proactive steps? Why that amount of time, some two years -- two-and-one-half years."

And you answer, "Well, the underlying data that was used to support the report we had actually begun collecting a year ago, thereabouts, as a result of the Turnpike incident that occurred in April of last year."

Now, my question to you is, is your concern about this passage in the letter -- that it's inconsistent with the answer that you gave to Senator Matheussen on May 5th, indicating that, in fact, the process of data collection had only begun a year ago?

JUSTICE VERNIERO: I don't have any concern on this paragraph. I'm just trying to explain to you why I deleted it. I don't think it's inconsistent at all with my prior testimony.

MR. CHERTOFF: You'll agree with me, at least, though, that you focused on, and made decision with respect to, this passage of the letter, which told you, in no uncertain terms, that the State Police were recording the number of stops involving motorists on the southern portion of the Turnpike. You were unambiguously aware that the State Police was reporting statistical data relating to racial composition involving stops on the Turnpike.

JUSTICE VERNIERO: Well again, I disagree with your characterization, because you have-- The way you've described it-- You've described to me an unambiguous awareness of some sort of continual comprehensive audit. And that's not what that sentence says.

MR. CHERTOFF: I didn't say continual comprehensive or internal audit.

JUSTICE VERNIERO: Well, you said, are you aware that the State Police continues? I thought I heard the word continue.

MR. CHERTOFF: Did the sentence make it clear to you that at some point after Soto the State Police were reporting on the number of stops involving minorities--

JUSTICE VERNIERO: No, were reporting, that's where you and I have a disagreement.

MR. CHERTOFF: Had reported.

JUSTICE VERNIERO: Had reported. One report, Mr. Chertoff. That's all this letter says to me. The State Police report. One. One report. An uncertain time frame. This doesn't say is reporting. Were reporting. One report. That's all it says.

MR. CHERTOFF: So it's the difference between whether they were reporting or are reporting. That was significant to you.

JUSTICE VERNIERO: Well, it's significant to your question.

MR. CHERTOFF: Did you ever make an effort, after getting this letter, to ask to see these reports or find out what the report said?

JUSTICE VERNIERO: I may have, but again, given our mind-set with respect to the meaningfulness of these statistics, it would not surprise me if I had not.

SENATOR GORMLEY: We'll take a half-hour break.

JUSTICE VERNIERO: Thank you, Mr. Chairman.

AFTER RECESS:

SENATOR GORMLEY: Okay.

Mr. Chertoff.

MR. CHERTOFF: Thank you, Mr. Chairman. Good afternoon.

Justice Verniero, now, we talked about this letter of January 3rd where you deleted the language on Page 8. And you then continued to work with respect to the letter, even afterwards, correct?

JUSTICE VERNIERO: I'm sorry, I continued to-- I didn't hear you.

MR. CHERTOFF: You have to hit the button on your mike. (referring to PA microphone)

JUSTICE VERNIERO: I didn't hear you. I'm sorry.

MR. CHERTOFF: You continued to work with the letter, even after you had made this change, right?

JUSTICE VERNIERO: I'm not sure I know what you mean. Work with the letter? Continued to revise the letter?

MR. CHERTOFF: Yeah, you made further revisions.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: For example, I'm going to show you W-15, which is a letter of -- which is a memo, dated January 9th, to you from Alexander Waugh. It's another draft of the letter. And if you look, you'll see that the letter drops -- not surprisingly drops the language which you had deleted, correct?

JUSTICE VERNIERO: Let me-- I'll accept your representation of that. Sure.

MR. CHERTOFF: It's on Page 5.

JUSTICE VERNIERO: Sure. Yes.

MR. CHERTOFF: Okay. And then at the bottom of the coverage page-- The cover page says that-- Mr. Waugh says, "My sense is, they will not go away if they do not get a lot of the documents they have listed." I take it you read this cover memo, right?

JUSTICE VERNIERO: I must have. I assume I have, yes.

MR. CHERTOFF: And then you say at the bottom, "Alex, let's discuss. P." That's your handwriting, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And do you remember what you discussed with him about this letter?

JUSTICE VERNIERO: I honestly do not know.

MR. CHERTOFF: Now, then the next day, on January 10th, you have another meeting with respect to the Department of Justice data request with Mr. Waugh and with Colonel Williams, correct?

JUSTICE VERNIERO: If you make that representation, I'll accept it. I don't recall specifically.

MR. CHERTOFF: Well, I'll show you G-12, which is a New Jersey State Police interoffice communication. And it indicates in the corner there, Colonel Williams says, "Spoke to AG Verniero and AAG Waugh, reference: the data requested by the Justice Department. At this time, same will be restricted to the Turnpike stations in Cranbury and Moorestown."

Do you remember that meeting?

JUSTICE VERNIERO: I don't remember if we had a meeting. It might have been over the phone. I really don't recall. I understand what it says here. I'll trust that the Colonel's notation was accurate. I don't recall it.

MR. CHERTOFF: But you'll agree with me that, again, you are-- In addition to working on the letter to Ms. King, you're also working with Colonel Williams in personally making a decision about the scope of what's going to be turned over, correct?

JUSTICE VERNIERO: I don't know if we were making a scope decision, as much as we were relaying to Colonel Williams the requests that were coming in and how we were going to address those requests.

As I recall, the request had come in from the Department of Justice for a certain universe of information. And I don't know whether it was myself, Alex Waugh, or somebody else suggested that there be a discussion with the Justice Department to make sure that we understood exactly what they needed, what they wanted, and to narrow the requests in accordance with what they were actually asking for.

I think that's the proper context for the word restricted. Now, that's Colonel Williams's word. I don't recall using that word. But it was a sense that we should narrow the request, obviously respond, give them what they think is relevant and so forth. I recall, generally, that conversation, but I don't recall much beyond that in terms of detail.

MR. CHERTOFF: It's clear to you, though, at this point, first of all, that you are personally involved in the process of responding to the request by the Civil Rights Division, correct?

JUSTICE VERNIERO: I got involved in certain points. I was not-- To my recollection, I was not a person involved with the day-to-day turnover of information. I do recall occasions where either Alex Waugh, or perhaps others, had conversations with me regarding document production requests, but I wouldn't say I was involved on a day-to-day basis. MR. CHERTOFF: Well, Judge Waugh testified yesterday that, with respect to any significant or material information or decisions, he generally informed you or consulted with you. Do you disagree with that?

JUSTICE VERNIERO: No, I don't disagree with that.

MR. CHERTOFF: And you'd also agree with me that this -- based on this conversation you had on January 10th, you were clearly aware that the Justice Department was looking at data from the Turnpike stations of Cranbury and Moorestown, right?

JUSTICE VERNIERO: Well, that would have been consistent to what I thought the focus was, which was Soto.

MR. CHERTOFF: And as we said before the lunch break, it was those very stations which were the focus of the Troop D audit in 1998, correct?

JUSTICE VERNIERO: That was authorized sometime later in 1998, correct.

MR. CHERTOFF: Same stations.

JUSTICE VERNIERO: Well, it was those two stations, plus the additional station. I believe Troop D was the entire Turnpike.

MR. CHERTOFF: Including those two stations.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Now then, let's go on January 9th-- I'm going to show you G-11. You also were sent a copy of a memo from John Fahy to Mr. Waugh. It says, "To PV, FYI, 1/9/97." And then your handwriting is in the left-hand corner, correct?

JUSTICE VERNIERO: That appears to be my handwriting. It's fairly faded on this copy.

MR. CHERTOFF: Does it say, "Alex, let's bring this up at our 10 a.m. meeting today?"

JUSTICE VERNIERO: I'm not sure of the time, but yes, "Let's bring this up at our meeting today."

MR. CHERTOFF: Does that help tell you that the reference we saw in the document we just looked at was, in fact, a meeting that you had with Colonel Williams, and that's the meeting that's referred to here?

JUSTICE VERNIERO: It might be.

MR. CHERTOFF: Now, this is a document having to do with the options for conducting a violators' survey.

JUSTICE VERNIERO: It appears so, yes.

MR. CHERTOFF: Did you discuss that at the meeting with Colonel Williams?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Did you ever order a violators' survey?

JUSTICE VERNIERO: I had approved that we should take steps to see if we could come up with a violators' survey, yes.

MR. CHERTOFF: Did you ever get a response indicating whether there was going to be one?

JUSTICE VERNIERO: I recall getting some updates. It turned out to be a much more complicated project than we had originally intended. It was something that I thought was important. The deputies that -- who had advised me on the Soto case -- and in fact, the Department of Justice thought, or at least agreed, that it was something that we should have in the State. And I recall, at one point, we may have asked the Department of Justice for any assistance in helping us to construct the project.

So yes, I clearly had indicated the decision that we should go forward with it. I don't recall at what point in time I may have been advised on its progress, but I have some progress on it.

MR. CHERTOFF: Did it ever get done?

JUSTICE VERNIERO: To my knowledge, it was not completed, no.

MR. CHERTOFF: During the two years, or two and a half years that remained in your term as Attorney General from January 9th, 1997, did you ever get a final statement as to what was going to happen with the violators' survey?

JUSTICE VERNIERO: No, I never got a final statement. As I said, I had gotten some updates. I believe I was aware, at some point in time, that it was fairly complicated. I believe my office had consulted with some statisticians or some consultants at one or more of the universities or colleges in the state or elsewhere. It turned out to be, as I say, difficult. I don't think there was a jurisdiction that had completed one. And so it was not anything that-- It was not a cookie-cutter type of project. We really had to work to put the project together. And we were not successful.

MR. CHERTOFF: Then you continue, after this, to--

First of all, you-- Obviously this memo indicates that you were interested in being informed about this violators' survey issue, correct?

JUSTICE VERNIERO: That I was interested in-- I wanted to be informed in terms of progress, yes.

MR. CHERTOFF: And you also kept on top of the various interactions between New Jersey and the Department of Justice in Washington, correct?

JUSTICE VERNIERO: Well, I kept receiving updates, yes.

MR. CHERTOFF: So let me show you W-17, which is a memo to Alex Waugh from George Rover, February 5, 1997. And it says in the corner, in Mr. Waugh's handwriting, "To PV, FYI, I have asked DAG Rover to prepare an options memo for our review and discussion."

Do you remember getting this document?

JUSTICE VERNIERO: I don't recall, no.

MR. CHERTOFF: Do you remember in general getting information that indicated the various issues with respect to production of documents that the Department of Justice wanted to pursue?

JUSTICE VERNIERO: As I said, I recall getting updates from time to time. Any decision or matter that was significant enough in Mr. Waugh's judgement-- He would have come to me and given me a briefing on it. But I don't recall anything that would, in my mind, represent a day-to-day kind of turnover of information. I got updates.

MR. CHERTOFF: Is there any reason that you wouldn't have gotten a document like this if Mr. Waugh directed it to you, that you can think of?

JUSTICE VERNIERO: None that I can think of.

MR. CHERTOFF: And then the next day, Mr. Rover writes a response -- or drafts a response to that letter from Mr. Posner which is the subject of the previous memo, and that's W-21, which I'll put before you.

JUSTICE VERNIERO: Okay.

MR. CHERTOFF: And you see there, it's "To PV, FYI" from Alex Waugh.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And then it says, "Alex, please see me."

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: So you'd agree you would have seen this, right?

JUSTICE VERNIERO: It has my handwriting on it. Yes, I would have seen this.

MR. CHERTOFF: And you discussed the content of this with Mr. Waugh.

JUSTICE VERNIERO: You know, I don't recall what I -- what my conversation was with Mr. Waugh.

MR. CHERTOFF: Well, your normal practice, if you wrote please see me with respect to a document, would be to see the person with respect to that document. You wouldn't have written this because you wanted to see him about something else.

JUSTICE VERNIERO: That's correct. I would have had either a question, maybe there was something I didn't understand about the document, or maybe I just wanted him to go further than what was on the document.

MR. CHERTOFF: And then obviously this letter includes an indication that there was going to be a preservation of radio transmission tapes at certain troop stations, including Cranbury Station, right?

JUSTICE VERNIERO: That's what the document says. As I said, I don't recall this letter. Looking at it now, this letter seems unremarkable. It shows progress and cooperation between Mr. Rover and Mr. Posner.

MR. CHERTOFF: And you followed up with this.

JUSTICE VERNIERO: It's not the kind of letter I would have dwelled on.

MR. CHERTOFF: But you followed up with a notation, "Alex, please see me."

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And then on the very same day, 2/6/97, there's a fax from the Department of Justice to Mr. Rover, W-22, regarding a request to get certain information upon traffic volume from the Turnpike -- directly from the Turnpike.

JUSTICE VERNIERO: Right.

MR. CHERTOFF: Do you recognize this?

JUSTICE VERNIERO: I don't, no.

MR. CHERTOFF: But you see, again, you have your handwriting at the top, "Alex, please see me," right?

JUSTICE VERNIERO: I do, yes.

MR. CHERTOFF: So again, that would confirm that you would have seen the letter and wanted to discuss the content of this letter, as well, with Mr. Waugh.

JUSTICE VERNIERO: I would have seen, obviously, the cover memo here. I said, "Alex, please see me." I might have flipped through the attachments. I don't recall what specific conversation I may have had with Mr. Waugh.

MR. CHERTOFF: And again, this letter is one in which the Department of Justice indicated they were looking to get data about vehicle use on the New Jersey Turnpike, right?

JUSTICE VERNIERO: This letter was not directed to my office. It was directed to the Turnpike Authority.

MR. CHERTOFF: But you got a copy of it, via Mr. Waugh, right?

JUSTICE VERNIERO: It appears to be attached to the memo that was given to me, yes.

MR. CHERTOFF: And in fact, the memo says -- comments -- letter dated February 6th, 1997, Jerry Craft, (phonetic spelling) and what's attached is a letter of February 6th, 1997 to Jerry Craft?

JUSTICE VERNIERO: It appears so, yes.

MR. CHERTOFF: So again, can we conclude from the fact that you wrote, "Alex, please see me," that you must have read this document and wanted to discuss it with him, as well?

JUSTICE VERNIERO: Well, I don't know if you can conclude I read it from start to finish. I mean, it's a fairly brief document, but many times when I got a cover memo with attachments, I would try to get a sense of what the document was about by flipping through the attachments, or sometimes I just keyed in on the cover memo and would say, please see me. Sometimes, particularly if it was a lengthy document, the please see me was a shortcut, if you will. I was receiving a lot of material, a lot of paper, and a lot of reading. And sometimes -- my managment style, I was better listening rather than reading. I would bring someone in and say, "All right, you've given me this thick document, what's in it? What's important? What should I focus on?"

Again, with a two-page letter, I would have read it, I'm assuming. But generally, if I said please see me on a cover note, it didn't always mean that I had studied the attachments. That's my testimony.

MR. CHERTOFF: Well, Mr. Waugh was your executive assistant attorney general, right? You worked with him on a daily basis.

JUSTICE VERNIERO: Yes, nearly a daily basis.

MR. CHERTOFF: I mean, presumably you communicated with him on the management communication style you wanted from him, right?

JUSTICE VERNIERO: He presumably knew my style, I would think, yes.

MR. CHERTOFF: So is it fair to say that he -- when he generally transmitted things to you, it was with an understanding of the kinds of things you like to read and tend to read and the kinds of things you don't want to read.

JUSTICE VERNIERO: I don't know. You'll have to ask Mr. Waugh if he had that understanding.

MR. CHERTOFF: Did you ever complain to him and say, "You know, Alex, you're sending me a lot of paper. Can you just talk to me about it instead?"

JUSTICE VERNIERO: I used to make jokes at my morning staff meeting sometimes about the volume of paper. I don't know if I ever directed it specifically to Mr. Waugh. There was a point in time in my tenure where I was carrying a fairly heavy load of paper -- homework, as I used to call it.

MR. CHERTOFF: How often did you have your morning staff meetings.

JUSTICE VERNIERO: We tried to do it once a day, every morning.

MR. CHERTOFF: And in these morning staff meetings, who would attend?

JUSTICE VERNIERO: My senior executive staff, which changed over time, but principally, it was Mr. Waugh when he was in that position, my first assistant, the-- We had several liaisons of the various divisions on my senior executive staff, Nancy Kaplen, Alfred Ramey. There were about six or seven people in total -- Roger Shatzkin, the public information office-- He was normally in my morning meetings.

MR. CHERTOFF: And in these morning meetings, did you ever discuss the Civil Rights Division inquiry?

JUSTICE VERNIERO: I don't recall. They were usually very brief. Sometimes they were all of five minutes, ten minutes. The purpose was to just sort of get a snapshot of what we thought the day ahead would be, see if there were any quick decisions I needed to make, anything that I needed to have on the radar screen as I began the day.

MR. CHERTOFF: Did you ever, in one of these meetings, get a snapshot of something you had to do with respect to the racial profiling investigation by the Department of Justice?

JUSTICE VERNIERO: Not that I recall, no. It's possible. I just don't recall it.

MR. CHERTOFF: Then we have W-24, which is a memo to Alex Waugh from George Rover -- I think we've looked at this earlier -- again to PV, FYI.

JUSTICE VERNIERO: I'm sorry, what number is that?

MR. CHERTOFF: It's W-24 -- exhibit W-24.

JUSTICE VERNIERO: I don't think I have that here.

MR. CHERTOFF: We'll get it to you and put it up.

Do you have that?

JUSTICE VERNIERO: She says I have it, so I must have it.

W-24?

MR. CHERTOFF: Right. It's a memo dated March 3rd, 1997.

JUSTICE VERNIERO: Oh, here it is. I'm sorry. I have it.

MR. CHERTOFF: Again, that was to your -- for your information, as well.

JUSTICE VERNIERO: Yes, FYI.

MR. CHERTOFF: And again, the normal practice would be you'd look at that if you got it, right?

JUSTICE VERNIERO: I would at least skim it, yes.

MR. CHERTOFF: It's a short letter.

JUSTICE VERNIERO: It is. This is short.

MR. CHERTOFF: And then let me show you W-23A, which is a memo dated February 28th, 1997, which is a draft letter, again to the Justice Department, relating to specific questions about summonses and warning data.

Do you have that?

JUSTICE VERNIERO: Yes, I do.

MR. CHERTOFF: And it says, "Attached" -- on the cover memo -- "Attached for your review and approval is a proposed letter responding to several questions asked by DOJ." Again, you would have approved and reviewed letters of this type, with respect to this investigation?

JUSTICE VERNIERO: Well, Alex asked for my approval, so presumably I must have read it and approved it. I just don't recall.

MR. CHERTOFF: And then on the next page, which is the actual attachment, it says, "PV Will be reformatted. APW."

JUSTICE VERNIERO: I see that, yes.

MR. CHERTOFF: Did that indicate that you had made a request about format and asked it to be reformatted?

JUSTICE VERNIERO: I can't recall. That could have been something that Alex thought up himself, prior to even attaching it to me -- to the memo. I just don't know.

MR. CHERTOFF: Is it fair to say from the documents we've reviewed that in the period of January and February you were intimately involved in decision making about the back-and-forth with the Department of Justice in Washington regarding this investigation?

JUSTICE VERNIERO: Again, I wouldn't say it was intimate. I mean, they were keeping me informed. I wanted to be kept informed. I say it wasn't intimate, for example, when I look at this letter with these various dates and indications -- S-1347, W-1427. I might have just read it, gotten a general sense of what's being produced, what's being requested, but I don't recall going behind this letter, actually looking at these attachments and looking at the data. That's what I mean when I say I wasn't involved with the day-to-day turnover of information.

MR. CHERTOFF: But you were--

JUSTICE VERNIERO: Big issues, yes. Big decisions, absolutely. Sort of the ebb and flow of conversation and dialogue, yes. But not the physical inspection of each individual document that, you know, went over to the Department of Justice. When I say document, I mean the actual data and the attachments.

MR. CHERTOFF: I don't mean to suggest you actually poured through the material that we sent over. My suggestion to you is, if you agree or disagree, that with respect to the back-and-forth negotiations and discussions with the Department of Justice, you were kept informed step by step?

JUSTICE VERNIERO: I recall, particularly early on-- I had gone down to Washington in early '97, and these represented-- These exhibits, as I recall, represented sort of the early follow-up to our visit. And yes, I was informed, and I wanted to be informed. As I recall, later on in the process, there were fewer of these kinds of briefings or letters that came in to me.

MR. CHERTOFF: And in fact, not only do you want to be kept informed, but you yourself made suggestions about things that ought to be communicated to the Department of Justice in Washington with respect to their investigation, correct?

JUSTICE VERNIERO: Well, I certainly made changes to the letters, as we indicated -- at least one letter -- as we indicated before lunch.

MR. CHERTOFF: And you, for example, suggested that when the Soto appeal brief was completed, it should be sent to the Department of Justice in Washington for them to have a copy, right?

JUSTICE VERNIERO: As I recall, that was a promise I made when I went down to speak with Ms. King. I said that we would keep her up to date on the appeal, and I followed up by sending her a copy of the brief, as I recall.

MR. CHERTOFF: And you reviewed the appellate brief in Soto, right?

JUSTICE VERNIERO: I did.

MR. CHERTOFF: So you were certainly familiar, at that point, with the arguments that were made on behalf of the State in that brief, right?

JUSTICE VERNIERO: I was generally familiar, yes.

MR. CHERTOFF: And your suggestion to Mr. Fahy-- Well, let me put it up. It's F-22. That's your writing at the bottom.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: It says, "John Fahy looks okay to me. After we file, we may want to send a copy to DOJ in Washington." That was your suggestion?

JUSTICE VERNIERO: Yes. And this underscores the recollection I had earlier that Mr. Fahy was-- He was a resource that we called upon from time to time.

MR. CHERTOFF: Well, he was involved in writing that brief. That was his responsibility, right?

JUSTICE VERNIERO: He was. Yes.

MR. CHERTOFF: As of this point in time, you weren't using him to deal with the Department of Justice, right?

JUSTICE VERNIERO: No. Just, as I say, sort of an informal advisor.

MR. CHERTOFF: And then on March 17th -- if we put up OAG-1062 -- on March 17th, you actually personally wrote to Ms. King of the Civil Rights Division enclosing State v. Soto, right?

JUSTICE VERNIERO: Yeah. As I said, I-- As I recall, this was a promise I made that we would keep that office in Washington advised of the appeal and see to it that they got any briefs and so forth, and I was just following through on my commitment.

MR. CHERTOFF: And is it fair to say that afterwards you continued to keep tabs upon what the Department of Justice was looking for in terms of specific information regarding racial profiling in New Jersey?

JUSTICE VERNIERO: I was advised, as appropriate, by Mr. Waugh.

MR. CHERTOFF: So, for example, I'm going to-- I mean, you participated in decision making about the position that the State ought to take, correct?

JUSTICE VERNIERO: Well, that's a pretty broad question. I would ask that you be more specific. What do you mean by decision making?

MR. CHERTOFF: Well, did Mr. Waugh simply advise you of decisions that he was making about what to turn over or not, or did Mr. Waugh consult with you to get your approval?

JUSTICE VERNIERO: Well, sometimes it was one and not the other. Sometimes it was both. It really depended.

MR. CHERTOFF: Well, let me show you W-26. It's a memo to you of April 7th, 1997, and it says, "Attached is a copy of the Justice Department's request for specific information with respect to dates chosen by -- over a two-year period, DAG Rover's work in the State Police to determine whether there's a pattern to these requests, and if so, whether there's a basis to suggest or choose additional or alternate dates." So again, you're being kept informed of how the State is dealing with the government's ongoing discovery requests, correct?

JUSTICE VERNIERO: I'm being updated, yes.

MR. CHERTOFF: Now--

JUSTICE VERNIERO: But again, this is one of those situations where I don't recall being informed as to what the data or information would have shown on these randomly selected dates.

MR. CHERTOFF: We heard yesterday, though, there was at least one instance in which Mr. Waugh believed this documentation relating to Moorestown and the Moorestown Station was relevant and should be turned over to the Department of Justice, and Mr. Rover did, too, and that he approached you to ask for your approval in turning it over. Remember that occasion in mid-1997?

JUSTICE VERNIERO: I don't remember it other than what I've read in the papers, and I assume you're referring to the July 1997 memo.

MR. CHERTOFF: Let me show you W-30, which is a July 29, 1997 memo. Do you remember seeing this?

JUSTICE VERNIERO: I don't, but I recall that in preparation for today's hearings.

MR. CHERTOFF: Do you remember Mr.-- Let me withdraw the question. Did Mr. Waugh give this to you and ask you for your approval as to whether it should be turned over or not?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: In connection with this Civil Rights investigation, did Mr. Waugh consult with you about whether or not certain documents ought to be turned over to the Department of Justice?

JUSTICE VERNIERO: We may have spoken generally about our approach. He knew, for example, that anything that was relevant material that they had requested, of course, would have to be turned over. I do not recall, as I have said, any detailed discussion on a document-by-document basis. One of the things that strikes me, in preparing for today's hearing about this cover memo, is that built right into the text of the memorandum are the steps that Mr. Waugh is taking in connection with the request -- in connection with the possible production of this to DOJ.

For example, he says that DAG Rover is looking into the issue. He also says that DAG Rover will explore this issue. So, although I don't have an independent recollection of this memo, as I read it now and as I did in preparation of today, this is not the kind of memo that I would have to take any action on or make any decisions on, because it's all self-executing on the cover memo.

MR. CHERTOFF: Well, Mr. Waugh testified, and I don't know that he remembered everything, but one thing he did remember yesterday was not only speaking to you once, but speaking to you twice and coming in and asking you about whether you had made a decision about this, and your having said, "I haven't focused on it yet, I'll get back to you." Is it your testimony that didn't happen?

JUSTICE VERNIERO: No. I just don't recall it happening. It might have.

MR. CHERTOFF: Well, have you seen this document in preparation for the hearing?

JUSTICE VERNIERO: Yes, I have, as I've said.

MR. CHERTOFF: You understood that the document contains a great -- a significant amount of detail, specific statistical information regarding the Moorestown Station.

JUSTICE VERNIERO: I understand that now, yes.

MR. CHERTOFF: That is the station which was the subject of the Soto case, correct?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: This is also a document that was in the -- well, parts of which were in the blue binder that was shown to you by Mr. Zoubek in March of 1999, right?

JUSTICE VERNIERO: I know that only because I have reviewed the blue binder, and it was not the entire memo. I believe in the blue binder there were just two of the attachments, not the Waugh cover memo.

MR. CHERTOFF: This was produced from the file of the Office of the Attorney General. Do you know that?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: You have a doubt that you received it?

JUSTICE VERNIERO: Pardon me?

MR. CHERTOFF: You have a doubt that you received it?

JUSTICE VERNIERO: No. I don't have a doubt that I received it. I mean, generally when Alex wanted to send me information, it generally got to me.

MR. CHERTOFF: All right. So you don't remember being asked whether it should be produced, right?

JUSTICE VERNIERO: I don't. I don't recall.

MR. CHERTOFF: But you can't-- You're not in a position to dispute Mr. Waugh saying that he, in fact, did bring it to you and asked you twice whether this should be produced?

JUSTICE VERNIERO: No, I don't dispute that.

MR. CHERTOFF: Now, when you look at the-- When you got this memo, did you look at it?

JUSTICE VERNIERO: Well, I'm sure I would have looked at the cover memo. I'm not as sure that I would have read every single page of the attachments. This is-- I'm surprised I didn't put a "please see me" on this, because this is a pretty good example of how I would have wanted to learn and hear a little bit more about this document before, you know, spending the time to go through it page by page.

MR. CHERTOFF: Well, let's explore just the first page. First of all, we've just seen a series of documents involving fairly routine correspondence with Washington, where you had noted, please see me, or indicated some desire to follow up, correct?

JUSTICE VERNIERO: Yes. That's correct.

MR. CHERTOFF: We have seen that you edited a document to Loretta King in January fairly closely, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Now, this is -- the very first sentence of this says, "This is in connection with an allegation from minority troopers at the Moorestown Station that there was racial profiling by majority troopers." And you knew, at this point, certainly because you had just finished reading the brief in Soto, that Moorestown Station was the very station which was the subject of the Soto litigation, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: I take it that -- and you knew that the State was taking the position that the statistics by themselves were not sufficiently meaningful to warrant action by the court in Soto, correct?

JUSTICE VERNIERO: That's right.

MR. CHERTOFF: And here you have a document that says not simply a matter or statistics, but talks about actual troopers--

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: --actual troopers saying there's racial profiling. Did this capture your attention as someone who is now involved both in dealing with the Soto litigation and the Civil Rights Division investigation?

JUSTICE VERNIERO: Well, as I said, I don't recall my reaction. What I might have said to myself, as I indicated, is that the follow-up that I would have authorized, Mr. Waugh was already doing. I mean, I would have turned to Alex and say, look into this. And that, in fact, is what the cover memo says he is doing through DAG Rover. So this was not the kind of memorandum that would signal any action on my part that wasn't already being taken by the person who gave me the memo itself.

MR. CHERTOFF: Well, would it signal at some point in time on or after July 29, 1997, for you to contact Mr. Waugh and say what the heck is going on with these allegations by troopers that other troopers are profiling?

JUSTICE VERNIERO: Well, as I say, I don't recall this specifically. But in preparing for today's hearing, I do note that there is a conclusion in one of the records themselves that as a result of this audit, there appears to be no validity to the perception that nonminority troopers assigned to the Moorestown Station are profiling minorities on motor vehicle stops. It's speculation on my part, but I might have gotten that far into the attachment, seeing that conclusion, believed the conclusion. That, coupled with the fact Mr. Waugh was looking into it, I would have concluded that no further action was required. The other thing I might have thought about -- again, I'm trying to reconstruct my thought process -- is that the data that's being collected, that's attached, is for the most part pre-Soto data. And as I indicated, the pre-Soto data was being discounted for various reasons.

MR. CHERTOFF: Well, let me ask you about it. Pre-Soto data-- Soto was decided on March 4, 1996, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: If the audit occurred from May 1996 to July 1996, in what world would that be pre-Soto data?

JUSTICE VERNIERO: Well, it was pre-Soto reforms. That's what I mean by pre-Soto data. Soto was decided in March 1996. There were a series of reforms that were put in place by then Attorney General Poritz in the aftermath of that decision. I knew that those were in place and they were being implemented. I assume that there had to be a period of implementation before we would expect there to be any material change in any data or any effect of those reforms. That's when I'm referring to pre-Soto, or post-Soto reforms, I'm referring to that period in the aftermath of Soto.

MR. CHERTOFF: So are you telling us you had a conscious view that you really weren't-- You thought any data about stops in 1996 was really not worth paying attention to, because the Soto reforms hadn't come into effect yet?

JUSTICE VERNIERO: I'm not saying I have any conscious recollection of this one document. I'm saying that it was the thought in my office at the time, and I shared that thought -- that information data that was pre-Soto, pre-Soto reform, should be discounted. We didn't have the violator survey on which to compare it. We had the Soto reforms that were being implemented. In retrospect, that was something that we should have paid more attention to.

MR. CHERTOFF: By the way--

JUSTICE VERNIERO: I don't think there's any question about that now, but the frame of mind at the time was, we're appealing Soto, we've got these reforms. This data to some extent is old data, and the cover memo says that Mr. Rover is looking into it, and that would have been sufficient from my perspective.

MR. CHERTOFF: You keep talking about the post-Soto reforms. You mean reforms that occurred after the decision on March 4th?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: What were they?

JUSTICE VERNIERO: As I recall, the Attorney General had reinforced the existing SOP-- I think it was SOP-55.

MR. CHERTOFF: How was that reinforced?

JUSTICE VERNIERO: I believe that she put a committee in place to make sure that all the troopers understood-- I think there was-- She sent it out, or the Colonel sent it out, and every trooper had to read it, or at least their supervisors had to be informed that they understood it. There was a committee put in place. I think it had Deputy Attorneys General and members of the State Police that reviewed the training and practice manuals. And also, I believe Colonel Williams had put a telex out or his own -- whatever the appropriate word is for it -- his own direct communication to all the barracks or the supervisors that racial profiling was not to be tolerated.

MR. CHERTOFF: Is that the reforms you referred to?

JUSTICE VERNIERO: Those are the reforms that I believe she put in place, and maybe there were some others. But I was informed that there were a set of reforms -- my shorthand reference is post-Soto reforms, and those generally describe them.

MR. CHERTOFF: But to boil it down, what you're basically telling us then is that based on the fact that there was a Teletype after Soto and instruction to the troopers to reread and really study this preexisting SOP-55, you thought those reforms meant that any statistics generated in 1996 were really not worth looking at because the reforms didn't take effect?

JUSTICE VERNIERO: No. Not that they weren't worth looking at -- they did not urge immediate attention.

MR. CHERTOFF: Wasn't one of the reforms to have better record keeping?

JUSTICE VERNIERO: One of the deficiencies I believe Judge Francis found was that the records themselves were deficient--

MR. CHERTOFF: So--

JUSTICE VERNIERO: --that the troopers were not phoning in or recording race as was the regulation. So there was a record keeping function, that's correct.

MR. CHERTOFF: And the purpose of having record keeping is so someone can look at the records and see how things are going, right?

JUSTICE VERNIERO: Presumably.

MR. CHERTOFF: And then the question is, therefore, did you feel that it was worth looking at the records of what was going on after the Soto decision was made?

JUSTICE VERNIERO: No. I had confidence in the State Police that they understood what the records were there for, that they were doing their job in reviewing those records, and if there were problems, they would have passed them along.

MR. CHERTOFF: And so would you agree with me that this document, which was transmitted to you, does indicate that, in fact, the State Police were keeping records and analyzing data concerned with stops at the Moorestown Station in 1996?

JUSTICE VERNIERO: Well, as I say, I don't recall whether I actually reviewed or studied the attachments.

MR. CHERTOFF: But you know as you look at it, that it does, in fact, indicate-- In fact, if one turns the page, one sees statistics for total stops, White, Black, other, and total minority, right? In that first page, attached to the cover memo, right? It's unmistakable.

JUSTICE VERNIERO: I'm sorry. OAG-976.

MR. CHERTOFF: Right.

JUSTICE VERNIERO: I'm sorry. What is your question?

MR. CHERTOFF: Is it not plain on the face of this page that someone is keeping statistical information concerning the racial distribution of motor vehicle stops in Moorestown back in 1996?

JUSTICE VERNIERO: Well again, I believe that this was in response to a specific complaint.

MR. CHERTOFF: But here's my question.

JUSTICE VERNIERO: That's what it says. So I don't know from just reading the face of this document whether this was a part of an ongoing collection effort by the State Police or whether this was specific to a particular complaint.

MR. CHERTOFF: Does it say in black and white, "below is the racial distribution of motor vehicle stops by nonminority, minority members stationed in Moorestown while on solo patrol during this three-month period?"

JUSTICE VERNIERO: That must-- I'm assuming that that was the period that was tied to the specific complaint.

MR. CHERTOFF: It does indicate that at the Moorestown Station there were -- was a review of approximately 5500 stops over a three-month period with a racial breakdown, correct?

JUSTICE VERNIERO: In connection with this complaint, yes.

MR. CHERTOFF: In 1996, right.

JUSTICE VERNIERO: Well, that's the reporting date on the memorandum.

MR. CHERTOFF: And then, if one goes to the last couple of pages, is it fair to say that there is statistical information concerning searches, motor vehicle stops, and arrests of minority, nonminority drivers -- continued in the last two pages, again, dated 4/15/1996?

JUSTICE VERNIERO: I can't dispute what's on the written page, Mr. Chertoff. I'm saying to you that I don't recall specifically wading through this document page by page. Had I done so at the time, I might have been drawn to the conclusions contained that -- in the document that there was not validity to the complaint, and I might have recalled that the data was by and large pre-Soto.

MR. CHERTOFF: And might you have seen that, for example, with consent searches in 1995, 62 percent of those were of minority drivers and 30 were nonminority? Might you have seen that, too, if you had read the document?

JUSTICE VERNIERO: I don't recall looking at it at the time. It's there. It's in black and white. I can't dispute it, but I've given you my testimony with respect to that.

MR. CHERTOFF: And again, the fact that this was a document talking specifically about allegations from troopers about other troopers, that did not cause you to ask any questions or ask to have Colonel Williams or anybody else come in to talk to you about this?

JUSTICE VERNIERO: Well, I relied, again, on the cover memo from Mr. Waugh, who was my senior person, saying, in effect, he was looking into it. I would not have turned to Colonel Williams to say look into it. I would have turned to the memo writer, to Mr. Waugh, saying, okay, look into this.

MR. CHERTOFF: Now, as of July 1997, you were aware by then that consent searches, as distinct from stops, was a separate issue, a separate issue with respect to racial profiling, right?

JUSTICE VERNIERO: I'm not sure that our thinking had evolved at that point. I mean, as I mentioned in my opening statement, the whole definition of racial profiling evolved during my tenure. In the early part of my tenure, it was focused mainly on stops, because that's the point in the law enforcement process where there is the most discretion on the part of law enforcement, and therefore, we have to guard against abuse in that connection. That was the focus of the Soto case, and that was the focus, as I recall, of the Department of Justice. Over time, our thinking evolved, and it's one of those areas, and I've mentioned it now a couple of times and I will mention it again, where we should have looked at the issue more searching and more critically with respect to consent to searches than we did at the time, but--

MR. CHERTOFF: Excuse me, sir, wasn't your attention actually specifically directed to this issue in 1997?

JUSTICE VERNIERO: I do not recall, as I say, being specifically focused on that last page of this attachment.

MR. CHERTOFF: First of all, if your testimony is that you would have talked to Mr. Waugh about this memo, again, are you prepared to disagree with his testimony that he remembers asking you whether it should be turned over?

JUSTICE VERNIERO: I don't disagree with that testimony, because I don't recall it.

MR. CHERTOFF: Now, let me show you a letter -- a memo dated -- it's W-27 -- dated 4/22/97, with a cover page, 4/23/97, to you. We've seen this before. This is a memo from Mr. Rover.

JUSTICE VERNIERO: Yeah, okay.

MR. CHERTOFF: You see it's addressed to you, and Mr. Waugh says he wants to discuss it with you, correct?

JUSTICE VERNIERO: We've seen it before. This-- You've asked me about this document before.

MR. CHERTOFF: No. I would have seen it in the hearing before.

JUSTICE VERNIERO: Oh, I see.

MR. CHERTOFF: Okay. You see where it says I'd like to discuss this issue with you? That's Mr. Waugh, right?

JUSTICE VERNIERO: That's correct, yes.

MR. CHERTOFF: And you say, "Alex, do we need another meeting in D.C.? It appears so," okay, right?

JUSTICE VERNIERO: That's my handwriting, yes.

MR. CHERTOFF: So we would conclude from that that you would have looked at this memo, right?

JUSTICE VERNIERO: Again, I would have flipped through it. You know, do we need another meeting at D.C. I don't recall exactly what I had in mind when I said that three-and-half-plus years ago. It might have been that we needed to go down to Washington to discuss any problem issues, any areas that warranted my attention. As I recall, we never did go back down to Washington, so I would imagine that whatever concerns we might have had or any issues were resolved by Mr. Waugh.

MR. CHERTOFF: Well, is it your testimony that you didn't look at this memo?

JUSTICE VERNIERO: No, I don't recall wading through it. I might have. I just don't recall.

MR. CHERTOFF: Well, let's go to Page 6.

JUSTICE VERNIERO: Page 6 of the document or the attachment?

MR. CHERTOFF: Of the document -- of the attachment.

JUSTICE VERNIERO: So Page 5 of the attachment?

MR. CHERTOFF: No, it's Page 6. It says Page 6 at the top of the memo.

JUSTICE VERNIERO: Okay. I see.

MR. CHERTOFF: It talks about "A second unrelated issue -- involves NJSP consent to search data. I'm anticipating that U.S. DOJ, while expressing interest in State Police traffic stop data, is more interested in the consent to search data." Now, let me back up. We've already seen, as you'll agree, a series of draft letters and memos from Mr. Rover concerning all kinds of questions about DOJ's interest in looking at certain data, where you write, "Please see me, Alex, and let's discuss, Alex." We've seen that in the last half hour, right?

JUSTICE VERNIERO: We've seen documents that -- which I've said please see me. I don't-- Without reviewing them all again, I don't know if I could accept your characterizations of those documents.

MR. CHERTOFF: Now, do you remember reading this memo and having your attention drawn to the fact that there was -- and now we're going to be interested in the consent to search data?

JUSTICE VERNIERO: I don't recall specifically reviewing this document.

MR. CHERTOFF: And then it goes on to say, at the end of the page: "Why then do I believe U.S. DOJ's interest in this data? I anticipate that U.S. DOJ will attempt to follow the same course of action pursued by plaintiffs in the Maryland case. The use of consent to search statistics is evidence of selective prosecution. In the Maryland action, the 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 are entering into a consent order." Does that ring a bell?

JUSTICE VERNIERO: I'm sorry, what page are you on?

MR. CHERTOFF: Page 7.

JUSTICE VERNIERO: Yes, okay.

MR. CHERTOFF: Does that passage ring a bell with you?

JUSTICE VERNIERO: It doesn't. I mean, I'm familiar with the passage, because I've reviewed this document in advance of this hearing.

MR. CHERTOFF: Well, you say at the top, "Do we need another meeting in D.C.? It appears so." What did you need another meeting in D.C. about?

JUSTICE VERNIERO: Well, as I testified, again, I don't recall exactly what was going through my mind, but let's assume I had read this document or flipped through it. There seems to be a little tension in this document between Mr. Rover's understanding on what the Department of Justice wants. He references the DEA, I believe, in this letter. And, you know, you make some comments in here that suggest to me that perhaps we need to go down to Washington and resolve some outstanding issues. That's-- My guess is that's what I was referring to when I said do we need another meeting.

MR. CHERTOFF: So this is kind of a pay-it-no-attention issue as far as you're concerned at this point?

JUSTICE VERNIERO: No, it's not a pay no attention. It's, do we have to go down to Washington to resolve any issues? That was a question that I asked. Now, I assume because we didn't go down to Washington that the issues were resolved.

MR. CHERTOFF: So--

JUSTICE VERNIERO: The other thing I note from-- Again, the other thing I note from this document is that I believe this is the document which Mr. Rover himself says that consent to search is not relevant or should not be within the scope of the DOJ. I think this is that same document--

MR. CHERTOFF: Well--

JUSTICE VERNIERO: --if I'm not mistaken.

MR. CHERTOFF: --when you got the-- It wasn't your habit to read portions of documents selectively, was it?

JUSTICE VERNIERO: Sometimes. Sometimes I got documents, and there was a little yellow sticky on a particular page, and I would just read that page. You have to appreciate, my reading file at any given point in time was fairly thick.

MR. CHERTOFF: Do you think, though, as things go, a memo that Mr. Waugh sent, I'd like to discuss with you, that talks about a Federal investigation of your Department, do you think that's something that you would have treated as, you know, something to be skimmed through, or you would have read with greater care?

JUSTICE VERNIERO: Well, it depends. Again, do we need another meeting in Washington, that means that Alex would have come to me and maybe we would have discussed the contents of the attachment rather than go through it page by page or line by line.

MR. CHERTOFF: Well--

JUSTICE VERNIERO: In looking at this document in retrospect, it seems like I put the appropriate amount of time and attention to it. I conferred or at least talked to the senior person. I asked him whether we needed another meeting, and I don't know what the follow-up was, other than I don't recall going back to Washington. I'm pretty certain I only had one meeting.

MR. CHERTOFF: Well, putting aside whether you went to Washington or not, my question is this: Either by reading the memo or by having the discussion with Mr. Waugh, did you become aware of the fact that the Department of Justice was looking for consent to search data, and that the consent to search data happened to be the data that led the Maryland State Police to have to enter into court supervision?

JUSTICE VERNIERO: Well, I'm not sure that this document says that they were requesting consent to search data, does it?

MR. CHERTOFF: Well, it says, "I anticipate the U.S. DOJ will attempt--" Well, let's go on and let's read the document. "I am anticipating the U.S. DOJ, while expressing interest in State Police traffic stop data, is more interested in the consent to search data." Do you know whether that had been requested?

JUSTICE VERNIERO: I don't recall, no.

MR. CHERTOFF: Well, did you ask?

JUSTICE VERNIERO: I might have.

MR. CHERTOFF: And did you know that the forms relating to the consent to search had been requested?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Well, did you ask?

JUSTICE VERNIERO: I may have.

MR. CHERTOFF: In your conversation with Mr. Waugh, or in reading the memo, did you become familiar with the fact that consent to search data was the basis under which the Maryland State Police basically lost their case?

JUSTICE VERNIERO: I'm sure at some point I was advised of that. I don't know whether it was in connection with this document or elsewhere. Again, coming back to sort of the global view, or at least my global perspective as the head of the Department, I was satisfied that my Department was responding appropriately to the DOJ. I had not heard otherwise, and I had no reason to think that documents that were being requested were not being turned over. I mean, that was my focus, to make sure that the relationship was working, that the level of cooperation that I had set out at the outset was continuing.

MR. CHERTOFF: But my question is, do you remember a focus at some point regarding consent to search?

JUSTICE VERNIERO: A focus--

MR. CHERTOFF: In that -- either in this memo or in a conversation with Mr. Waugh?

JUSTICE VERNIERO: --in what connection?

MR. CHERTOFF: In connection with this memo that you got in April.

JUSTICE VERNIERO: I don't recall Mr. Waugh coming into me saying, "We have to turn over consent to search," or anything like that. If that's your question, I don't recall that.

MR. CHERTOFF: I'd like to-- Perhaps you can help us. We've been through a series of documents. They're all in front of you. I'm not going to put them up in the Elmo.

JUSTICE VERNIERO: Yes. Okay.

MR. CHERTOFF: But there's a January 9th document on a meeting concerning profiling -- that's G-11. And you write, "Alex, let's bring this up at the meeting today."

JUSTICE VERNIERO: Right.

MR. CHERTOFF: There's a February 5th letter, which summarizes a telephone call with the Department of Justice, which is sent to you specifically by Mr. Waugh. There's a February 6th transmittal letter.

JUSTICE VERNIERO: Do I have all these documents?

MR. CHERTOFF: They're all in front of you.

JUSTICE VERNIERO: Okay.

MR. CHERTOFF: W-21, February 6th--

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: --transmittal letter, in which you write, "Alex, please see me," on.

JUSTICE VERNIERO: Right.

MR. CHERTOFF: There's a February 6th letter to the Turnpike asking for traffic data, which you get a copy of and you say, "Please see me," on.

And yet, this document, which is an options paper discussing the status of the case -- the merits of the status of what the DOJ is looking at -- which is accompanied by a memo saying that Alex wants to talk with you -- talk about it with you -- you have no recollection of actually even reading the document or any of your conversation as it followed from the document?

JUSTICE VERNIERO: I don't, Mr. Chertoff.

Now, if you ask me what do I -- what do I recall as opposed to what I don't recall, I recall that we had standing under -- a standing philosophy in my Department that whatever the DOJ requested, if it was within the parameters of their inquiry, it should be turned over. There were occasions when we went down and the requests were narrowed for any particular reason. The consent to search, I've given you my explanation on what our thinking was at that period of time in mid-1997.

I do not have a specific recollection of my various conversations with Alex Waugh. It was an important investigation. It was the Department of Justice, but it was one of many, many issues that I had on the plate, so to speak, and one of many issues that even Alex Waugh was dealing with.

MR. CHERTOFF: Did you know what consent to search data was in mid-1997?

JUSTICE VERNIERO: Well, I understood what a consent to search was, and I assume -- maybe I assumed what it was. I don't know if I actually ever saw a consent to search form in that year.

MR. CHERTOFF: Did you ask anybody what it was?

JUSTICE VERNIERO: I'm sure we would have discussed what it was in terms of a definition, because we were discussing Soto. We were discussing the appeal in Soto. I'm sure we would have discussed it in the context of whether or not it fits within the definition of racial profiling, and at that time, it wasn't our focus.

MR. CHERTOFF: Did you have an interest in knowing whether there was racial profiling going on?

JUSTICE VERNIERO: Of course I had an interest, and whenever I asked the superintendent or others in the State Police whether racial profiling was an issue, I was told in very adamant terms that it was not an issue.

MR. CHERTOFF: Did you ever wonder why, if the State Police kept saying it was not an issue, you had a judge saying it was an issue, you had the Department of Justice looking at it, it kept coming up again and again?

JUSTICE VERNIERO: Well, it's an interesting point that you make that the Department of Justice was looking into it, but they hadn't drawn any conclusions either. I mean, they were seeing information and data. Some of it was of the same-- I know now, I don't recall it at the time, but I know now in retrospect that some of the same high statistics that were in my April 20th report, the Justice Department actually had in '97 and possibly '98, and yet, they had not drawn a conclusion that there was racial profiling.

MR. CHERTOFF: Did you know that some of the--

JUSTICE VERNIERO: So racial profiling was an issue that was terribly complicated. It turned on a lot of different elements, and you know, we were grappling with the issue as best we could within the context of a pending appeal and in the context of our discussions with DOJ.

MR. CHERTOFF: Did you know that some of the information you relied upon in your -- in the April 20th report was in the possession of your office in 1997?

JUSTICE VERNIERO: I found that out afterward.

MR. CHERTOFF: Now, after you got this memorandum, did you have follow-up with Mr. Waugh concerning this issue with respect to consent to search?

JUSTICE VERNIERO: As I say, I don't recall. I might have.

MR. CHERTOFF: Let's put up W-28.

This is an E-mail from Mr. Waugh to your secretary?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: It says, "I need some time to talk to PV about the Justice Department and State Police, re: profiling."

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: You write, "Alex, let's discuss. Maybe time today, maybe." Correct?

JUSTICE VERNIERO: Right.

MR. CHERTOFF: So that indicates that, again, there was some further discussion about this, correct?

JUSTICE VERNIERO: It does.

MR. CHERTOFF: Let's go to the next one, F-18, May 15th, 1997. This is an E-mail to you, "Please let PV--" Again, this is to your secretary from Alex Waugh, "Please let PV know I recommend a meeting with Colonel Williams, SDAG Fahy, DAG Rover, and me to talk about the Justice Department and profiling." And in your handwriting it says, "Alex, should we also go back to D.C.? P."

Is that your handwriting?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And then it says, "3 p.m., 5/20." Right?

JUSTICE VERNIERO: That is not my handwriting, but that's what it says, yes.

MR. CHERTOFF: Would you agree with me that this sequence of E-mails suggests that Mr. Waugh was focusing your attention on the fact that there was something of importance that required what you would call a formal meeting in connection with racial profiling?

JUSTICE VERNIERO: Well, it seems to me that he was trying to put a meeting together to give us an update, a sort of a status meeting.

MR. CHERTOFF: And this is in the wake of that memo, which had been sent to you by Mr. Waugh, saying he wanted to meet with you on April 23rd, right?

JUSTICE VERNIERO: I'm sorry, what memorandum is that?

MR. CHERTOFF: It's the one we spent--

JUSTICE VERNIERO: Oh, the 4/20 -- I would like to discuss-- Well, it's-- I don't know whether it's in the wake of. Yes, it occurred after -- a point in time after the 4/23/97 memo.

MR. CHERTOFF: Like within a couple of weeks?

JUSTICE VERNIERO: Thereabouts. A couple of days, actually.

MR. CHERTOFF: And then, as you keep going on this 5/15 E-mail, Mr. Waugh writes back, "Perhaps, I think we should meet first." And you say, okay let's meet, right, in the handwriting on the bottom?

JUSTICE VERNIERO: I don't see, "okay we should meet first." Where is that?

MR. CHERTOFF: "To PV, per--

JUSTICE VERNIERO: Oh, perhaps, I think -- yes -- okay, let's meet. Yes.

MR. CHERTOFF: All right.

And then you did have a meeting on May 20th, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Did you ever get a copy of the agenda of that meeting?

JUSTICE VERNIERO: I don't recall, but I'm sure I would have.

MR. CHERTOFF: And do you remember that the meeting was, in fact, attended as Mr. Fahy requested-- I'm sorry, as Mr. Waugh requested -- by himself, Mr. Fahy, Mr. Rover, you, Colonel Williams, and a couple of people from the State Police?

JUSTICE VERNIERO: That sounds correct.

MR. CHERTOFF: One of the subjects of the meeting was production of consent to search documents?

JUSTICE VERNIERO: My recollection-- And again, I don't have a specific recollection of the meeting date, other than how I prepared for this hearing. You're obviously speaking of the May 20th meeting. My recollection was that was a meeting called for the purpose of reviewing the status of the DOJ inquiry.

MR. CHERTOFF: And part of that was production of consent to search documents, right?

JUSTICE VERNIERO: I don't have the agenda in front of me. It might have, I just don't recall.

MR. CHERTOFF: Well, we'll put up W-29, which is the agenda.

JUSTICE VERNIERO: Thank you.

MR. CHERTOFF: You would have had this in the meeting, right? Not the handwritten part, but the typed part.

JUSTICE VERNIERO: I would have-- This looks like a meeting agenda I would have had for a meeting.

MR. CHERTOFF: All right.

So it says, "Production of consent to search documents, Maryland case, proper characterization of documents." Do you see that?

JUSTICE VERNIERO: I do.

MR. CHERTOFF: There's a point in the meeting that that's discussed?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Was there a discussion in the meeting where anybody said that the State Police have numbers, with respect to consent to search in New Jersey, and they are about on a par or in the same ballpark as or similar to numbers in Maryland that led to a consent decree?

JUSTICE VERNIERO: I do not recall any specific discussion of statistics. I have a vague recollection of the in-the-ballpark comment, but I don't have any specific recollection of it.

MR. CHERTOFF: Well, how about a general recollection that the State Police indicated they have statistics about consent to searches in New Jersey and that they were in the ballpark with the numbers in Maryland that had led to a consent decree?

JUSTICE VERNIERO: Again, I don't recall a specific conversation of statistics or a conversation of what the State Police had or didn't have or the date of that information was. I just don't recall.

MR. CHERTOFF: I'm going to make the question even simpler. Did the State Police make reference in any way, shape, or form in the meeting to the fact that they had some numbers relating to consent to search in New Jersey?

JUSTICE VERNIERO: I don't recall. As I say, I have a vague recollection of the in-the-ballpark comment, but I don't recall anything beyond that.

MR. CHERTOFF: Was there discussion in the meeting concerning a Maryland case in which the Maryland State Police had to enter into a consent decree because of their consent to search numbers?

JUSTICE VERNIERO: Well, I see that the Maryland case is listed on the agenda. I don't recall a specific discussion of Maryland at that meeting.

MR. CHERTOFF: Well, when you get an agenda, if something's not discussed, do you ask a question about it?

JUSTICE VERNIERO: If something is not discussed?

MR. CHERTOFF: Yes. If there is something on an agenda and it doesn't come up, do you say to somebody, "There's a reference here. There's something on the agenda. What's that about?"

JUSTICE VERNIERO: Well normally, if it's-- Normally, when it's someone else's meeting, and in this case it was Alex's meeting -- he was the primary person that put the meeting together -- I would leave it up to the person who organized the meeting to decide whether to drop something on the agenda, to highlight something, put something on. When I call a meeting and put an agenda, then we talk about every item on the agenda.

MR. CHERTOFF: So this wasn't your meeting?

JUSTICE VERNIERO: Well, it was my meeting. I'm the Attorney General. I was there. They had it to purpose of briefing me. But in terms of questioning what might be on the agenda -- which is your question as I understand it -- or what was omitted from the agenda, I would not have had that discussion.

MR. CHERTOFF: So you're just a passive observer at this meeting?

JUSTICE VERNIERO: Did I say I was a passive observer, sir? No. I was the Attorney General in a meeting being briefed on an agenda written by my senior deputy.

MR. CHERTOFF: Would you have considered it, at that period of time, a matter of significance if you had been told that the State Police were very concerned about the numbers and statistics as it related to consent to searches?

JUSTICE VERNIERO: Well, the State Police, as I recall, particularly Colonel Williams, was very concerned about one thing, and that was the possibility that the Department of Justice would enter into a consent decree in New Jersey. Whether that was tied to Maryland or Maryland numbers, I don't recall, but I do recall at this meeting, as well as other meetings and other conversations that I had with Colonel Williams, that he was most concerned about this issue.

And the reason he was concerned -- because I asked him, you know, why he was so concerned -- was that he recalled the earlier tenure of DOJ jurisdiction over the State Police in the 1970s, and he felt that that was a humiliating process. And that's my word, but that was the expression, that was his sentiment. It was humiliating. It was uncalled for. It was unfair. And he was looking to me at this time frame -- as I say, I think it was at this meeting, but I know it was even on more than one occasion -- of an assurance that I would support the State Police, that I would not allow the DOJ to assert jurisdiction unfairly, and I gave him that assurance at this meeting and at least on one other occasion, as I recall.

MR. CHERTOFF: So this meeting of May 20th was just a status meeting to kind of update you on what's going on?

JUSTICE VERNIERO: That was my recollection.

MR. CHERTOFF: And those E-mails we saw and those notes where -- accompanying the memo on April 22nd and following that memo, where Alex Waugh says, "We need to have a meeting. We need to have a discussion," and you say, "Do we need to go to Washington?" -- that's all a prelude to a status meeting?

JUSTICE VERNIERO: I don't know if that was the prelude to this meeting or not. I assume it was. I know from the prior testimony that this meeting has attained almost a legendary significance in these proceedings, but I assure you, at the time, for me, it was essentially a status meeting. That's how I recall it.

MR. CHERTOFF: Now if the-- I want to make sure we're clear on this. Your recollection is that the Superintendent of the State Police told you he was concerned about the possibility of a consent decree, because he was thinking back to a consent decree that had been entered into in the 1970s, and that's what worried him?

JUSTICE VERNIERO: He did not want New Jersey State Police to come under a DOJ consent decree. He felt that that would unfairly tarnish the image of the Division, that it was not warranted. Why isn't it warranted, Colonel Williams? Because we're not engaged in profiling. It's unjustified. I mean, that was the context of his concern.

MR. CHERTOFF: You needed to have a meeting to discuss that with him?

JUSTICE VERNIERO: Pardon me?

MR. CHERTOFF: You needed to have a meeting to have that back-and-forth?

JUSTICE VERNIERO: No. I'm-- I'm not suggesting that this was the purpose of the meeting. I'm suggesting that because it was an item on the agenda, the DOJ broadly speaking, it probably came up. As I recall, it did come up at this meeting.

MR. CHERTOFF: At this time, would it have been a noteworthy thing for you to be told that the State Police had consent to search numbers that they believed were a problem -- a potential problem -- in terms of the Department of Justice?

JUSTICE VERNIERO: Would it have been noteworthy?

MR. CHERTOFF: Yes, would you have taken note of that?

JUSTICE VERNIERO: I would have recalled if there was any expression of alarm at this meeting, if persons had turned to me and said, you know, "We really have a problem. We have a significant issue." But I don't recall anyone expressing that alarm.

What I recall is a general update of the kinds of requests that were coming in, and I recall the superintendent, again, urging my support in connection with a consent decree.

Now the point that I made in my opening statement is -- is relevant to underscore here. There was no--

MR. CHERTOFF: No, I want to-- Excuse me. We're getting a little beyond the question, because I want to make sure that we have a crystal-clear understanding of what your recollection is of the meeting.

Would it have been a matter that you would remember if someone had said at the meeting that, "Our numbers are similar to numbers that led the Maryland State Police to have to get into a consent decree?"

JUSTICE VERNIERO: Again, I don't know how much we would have focused on that, given our belief at the time that consents to search were not the focus of racial profiling. We were still in the Soto mentality, so to speak, of focusing on stops, of focusing on the Soto record, and consent to searches, particularly consent to searches from another state-- It's private litigation. It's a private matter between the state and the plaintiffs.

I was not aware at the time of what the circumstances were by which Maryland may have entered into that agreement. States enter into consent agreements for all sorts of reasons. I was focused on New Jersey, and I just don't remember anyone in that meeting expressing alarm, expressing concern. You know, stop what we're doing. This is something new. We've got to really focus on this. It was not that kind of meeting.

MR. CHERTOFF: So this was just a status meeting where you're talking about -- where the Attorney General, the Executive Assistant Attorney General, two Deputy Attorneys General, and the Superintendent of the State Police come together to discuss the routine status of the document production in a case?

JUSTICE VERNIERO: Well, as you have pointed out, when you're dealing with the Department of Justice, it's not necessarily routine. This was an opportunity for those who would have been involved with the document production to gather in one place, to get updated.

That's how I recall this meeting.

MR. CHERTOFF: And there was no expression of concern by anybody concerning consent to search statistics and the possibility that they would compare unfavorably to those in the Maryland case. You would remember that if it happened.

JUSTICE VERNIERO: I would remember if someone said, "We have a serious problem with these numbers. We've got to take action." If someone had said, "Our numbers are in the ballpark with Maryland, but consent to search is not really part of racial profiling, and in any event, it's not occurring at State Police," that was the context of the meeting, no, I wouldn't have been alarmed.

MR. CHERTOFF: I'm sorry, are you telling us you do remember now someone saying, "Well, our numbers are in the ballpark with Maryland?"

JUSTICE VERNIERO: I-- No, I said I don't recall. I have a vague recollection. If there was any mention of Maryland, it was as I have indicated. It's "we're roughly in the ballpark."

MR. CHERTOFF: And you wouldn't-- You didn't follow-up or say, "Why are we talking about Maryland or ballparks?"

JUSTICE VERNIERO: Well, again, you were in the 1997 time frame. I'm assured by State Police that there's not a problem with racial profiling. We're still in that time frame where we're trying to put a violator survey in place, so we have a benchmark to measure the meaning of these statistics, and consent to searches were not the focal point.

So all of those things added together and the -- the -- the tone of the meeting, as I say, was nonalarming, there would not be any follow-up to be taken after this meeting, other than what is already occurring, which is Alex Waugh and George Rover continued to produce documents and continued their dialogue with DOJ.

MR. CHERTOFF: And again, at the time of this meeting, of course, you don't have any context from the fact that you had already received the memo of April 22nd with several pages of discussion -- discussion of consent to search -- in which you indicated that perhaps another meeting was needed in D.C. That was also just routine stuff.

JUSTICE VERNIERO: Well again, I don't want to dismiss the DOJ inquiry as routine stuff. It's obviously important, but you're asking-- I believe you're asking what steps, that I was not already taking or not otherwise being taken, did I take as a result of this meeting, and--

MR. CHERTOFF: No, what I'm--

JUSTICE VERNIERO: --my testimony is, we were taking the steps that I thought were appropriate. So there were no additional steps required of me as a require -- as a -- as a result of the May 20, 1997, meeting.

MR. CHERTOFF: What I'm asking you is, in the light of a document addressed to you that discusses, with specificity, consent to search data -- the fact that the Department of Justice is going to be looking at that, because of the precedent of a Maryland consent decree -- in light of that document, in light of the repeated requests by Mr. Waugh to discuss, in light of your saying, "maybe we need to go to D.C.," in light of a meeting at which multiple participants remember that the Maryland numbers and the comparison to New Jersey were discussed, my question to you is, are you taking the position before the Committee that in April and May of 1997, you had no idea there was any issue with consent to search in the State of New Jersey?

JUSTICE VERNIERO: That's not my testimony. And I would disagree with several premises of your question. It's so long, I won't be able to disagree with all of it, but here are the things I disagree with: that I had gotten -- I think you had said, with specificity -- consent to search information. I don't see that indicated in these prior documents. That there were persons at the meeting that were discussed -- where statistics were discussed with specificity. I do not recall that.

MR. CHERTOFF: I didn't say specificity, Justice Verniero.

JUSTICE VERNIERO: I thought I heard that.

Your questions are very long, Mr. Chertoff--

MR. CHERTOFF: I'll rephrase it.

JUSTICE VERNIERO: --I'm trying to keep up as best I can.

MR. CHERTOFF: I'll rephrase it. And I'll put the context this way: You have before you a document, W-27--

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: It's a--

JUSTICE VERNIERO: W-27?

MR. CHERTOFF: Right.

JUSTICE VERNIERO: Let me just get that, because I don't-- Okay. Yes.

MR. CHERTOFF: It's addressed to you, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: Mr. Waugh indicates he wants a discussion with you, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: You indicate that another meeting in D.C. may be necessary, right?

JUSTICE VERNIERO: We've discussed this, yes.

MR. CHERTOFF: The body of the document includes several pages of discussion indicating that the Department of Justice is going to be interested in consent to search data, because they're going to try to use the statistics to show selective prosecution in a way that was successful in the Maryland case.

JUSTICE VERNIERO: Well, it says it might, and it also suggests the reasons why it would not be relevant or appropriate for this inquiry to -- to focus on consent to searches.

MR. CHERTOFF: And it also--

JUSTICE VERNIERO: So the -- the document itself is conflicted in a sense.

MR. CHERTOFF: And it indicates that this kind of analysis was used successfully by the plaintiffs in Maryland to impose a consent decree, right?

JUSTICE VERNIERO: It's-- In plain language it says that, yes.

MR. CHERTOFF: So we have this. We also have the fact that there is a meeting called, at Mr. Waugh's repeated request, on May 20th, right?

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: It's attended by the superintendent and the other people in the Office of the Attorney General working on this matter, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: We have testimony before the Committee, of which I'm sure you're aware, in which everybody -- whether they quibble with the language -- everybody else at the meeting recalls a general comparison made between New Jersey consent to search figures and Maryland consent to search figures, and people also recall it being said that Maryland consent to search figures led to a consent decree, and that the State Police were concerned about it.

Now, in light of all that evidence in the record, is your position that in April and May of 1997, you were not informed that consent to search data in New Jersey was a matter of concern to the State Police?

JUSTICE VERNIERO: My position is that consent to search, at that point in time, was not considered to be the focal point of racial profiling, that Maryland had had its own difficulties and had gone through its own experience with racial profiling that might or might not have been the same as New Jersey -- that was a separate case. That the Department of Justice had not requested consent to search information at this particular time, but certainly had they, we would have turned it over, that was my standing instruction to my staff. And that no one in this meeting said in any urgent way, "We've got a problem."

And the reason for that is, they indicated that racial profiling was not a problem at State Police, and they even, as I recall-- One of the reasons why consent to search was not the focal point -- at least, this was our thinking at the time -- was that consent to search had to be subject to a case-by-case analysis before a firm conclusion of racial profiling could be -- could be made.

MR. CHERTOFF: So am I--

JUSTICE VERNIERO: Now I reiterate, because I think it's important for the Committee to understand this as my testimony, this is an area where we could have and should have done more. This is an area where, looking back, I wished that I had asked more probing questions. This is an area where even if there wasn't alarm at this meeting, I wished that I had brought up the question myself to say, "Hey, let's get behind consent to search." I didn't for all the reasons that I've testified to previously, but this is an area where I could say-- And I just want the Committee to appreciate where I'm coming from--

MR. CHERTOFF: I have to--

JUSTICE VERNIERO: --that -- that this -- this is an area where I wish I would have done more.

MR. CHERTOFF: I have to stop you, because experience shows if the questioner doesn't insist that his question get answered, then shame on him for not getting the answer he's looking for or trying to get.

JUSTICE VERNIERO: Fair enough.

MR. CHERTOFF: This is my question--

JUSTICE VERNIERO: Yes, sir.

MR. CHERTOFF: Do you now remember, in April and May 1997, that there was discussion that you had about consent to search numbers in New Jersey as the compared to consent to search numbers in Maryland?

JUSTICE VERNIERO: Actual discussion of actual numbers, I do not remember.

MR. CHERTOFF: Putting aside whether there was discussion of specific numbers, was there a discussion of the fact that numbers in New Jersey and Maryland were comparable and that the numbers in Maryland had led to a consent decree?

JUSTICE VERNIERO: I have a vague recollection that the numbers were described as in the ballpark, that the Maryland suit was a private suit, not between DOJ and the State of Maryland, but between plaintiffs and Maryland, that Maryland may or may not have had their own Soto-type reforms in place, consent to search was not the focal point of our racial profiling understanding at that time, and that in retrospect, we should have and could have done more on the consent to search issue. And I regret that we didn't.

MR. CHERTOFF: So now you do remember discussion along these lines at the time?

JUSTICE VERNIERO: I remember, at best -- and it's vague-- I'm trying to give you the same answer to your question. I have a vague recollection of someone making a general comparison. I have no recollection of numbers. I have no recollection of statistics, and I have no recollection of anyone saying, "We've got a real problem in the State of New Jersey because of consent to search." No one was saying that at that time.

MR. CHERTOFF: Did Colonel Williams express to you his concern about those consent to search numbers at the meeting on May 20th?

JUSTICE VERNIERO: Not that I recall. Colonel Williams--

MR. CHERTOFF: And -- and you--

JUSTICE VERNIERO: To my recollection, Colonel Williams never expressed concern on this issue, other than his concern that we work to ensure that New Jersey and the State Police be treated fairly and not come under a Federal consent decree.

MR. CHERTOFF: And you certainly would agree that as of May 30th, you had not asked anybody to do any individual case-by-case study with respect to racial profiling?

JUSTICE VERNIERO: I did not, no.

MR. CHERTOFF: In fact, is it fair to say that as of May 1997, you really hadn't asked anybody in the Office of the Attorney General to take a look at or request or examine any audit data or statistical data from the State Police?

JUSTICE VERNIERO: Other than the steps that I thought were being taken to do the violator survey and any steps that would have been warranted to respond to DOJ, beyond that, no.

MR. CHERTOFF: When's the first time that you asked or directed that someone from your office get the State Police to turn over documents related to statistics about stops or about consents to search?

JUSTICE VERNIERO: I don't recall. Now, after the troop-- I don't recall a specific date. After the Troop D audits began, presumably the Division of Criminal Justice was asking for that data. That might be the first time, but I don't recall the exact date.

MR. CHERTOFF: So you don't actually know whether anybody in your office ever asked the State Police for any data about stops or consents to search before February of 1999, right?

JUSTICE VERNIERO: I don't have any specific recollection. I would have assumed that if an information request had come into Alex Waugh, he would have passed it along to George Rover, and George Rover might have asked. That's an assumption. But I cannot give testimony to any specific request on any specific date for information.

MR. CHERTOFF: Well, during the period that Alex Waugh was there, did he ever tell you that someone had requested consent to search or stop data or statistics from the State Police?

JUSTICE VERNIERO: In 1997?

MR. CHERTOFF: Yes.

JUSTICE VERNIERO: I have no recollection of that.

MR. CHERTOFF: And in 1998, Mr. Waugh wasn't there anymore, right? We've established that, right?

JUSTICE VERNIERO: That's correct.

MR. CHERTOFF: So who is it that would have told you someone was requesting stop or consent to search data from the State Police?

JUSTICE VERNIERO: It would have been either, I would think, Dave Hespe or, if we were in the Troop D situation, it would have been Paul Zoubek.

I recall, and I don't have the exact date, but I recall in 1998, this was now midway, later toward my tenure, we had gotten an information request from The Star-Ledger and perhaps some other newspapers, that they had requested certain data and information.

MR. CHERTOFF: That's February 1999, actually.

JUSTICE VERNIERO: Was that the first time The Star-Ledger request came in? I thought that's when we complied with it. I have a recollection that it came in sometime in 1998.

MR. CHERTOFF: Sorry, 1998, yes. Go ahead.

JUSTICE VERNIERO: Yeah. So it was in that regard I recall someone in my office -- and this might have been the first time, again, I'm just going on my recollection -- there were questions asked of State Police in connection with this Star-Ledger request. Do we have the information? What's the format? What's the quality of it? So on and so forth. And my understanding was that the response of State Police was that they did not have the information in an easy to retrieve form. And in fact, I recall we had to send a deputy attorney general, whose name I cannot recall, to physically go over to West Trenton to go to the State Police and to begin to assemble the data and statistics that would have been responsive to The Star-Ledger request.

MR. CHERTOFF: So then it's fair to say that as far as you're concerned, as of February 1999, you didn't think the State Police had -- you had never asked the State Police, or to your knowledge no one in your office had ever asked the State Police, except for in connection with this press inquiry, for statistical compilations related to racial profiling?

JUSTICE VERNIERO: As I say, I don't know what Mr. Waugh and Mr. Rover may have asked.

MR. CHERTOFF: They certainly never told you they were asking for that stuff, right?

JUSTICE VERNIERO: I don't have a recollection of being told that anything was asked.

MR. CHERTOFF: And you didn't ask for it?

JUSTICE VERNIERO: No.

MR. CHERTOFF: Now, let's go back to consents to search. You were kept -- further kept informed after this May meeting -- well, let me actually go back to the July memo we looked at -- July 29th. Again, you told us that last page, where it talks about consents to search--

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: --you would not have -- you don't remember seeing that page or looking at that page, right?

JUSTICE VERNIERO: I do not.

MR. CHERTOFF: And then later in the year, there came a time that the Department of Justice finally did drop the other shoe and asked for copies of consent to search forms, right?

JUSTICE VERNIERO: I don't recall, other than in my preparation for this hearing.

MR. CHERTOFF: Let's put up W-31. Do you have that?

JUSTICE VERNIERO: I do, yes.

MR. CHERTOFF: Now, it indicates there that the Department -- this is a memo to you from Mr. Waugh, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: It indicates the Department of Justice requested copies of consent to search forms, and that because they relate to post-stop activities, the position taken is they should be treated as not relevant. But because they indicate the reason for the initial stop, there's no way to resist their production, but the desire of the writer is to go on record that there's no consent to any broadening of the scope of the inquiry. Do you remember getting this?

JUSTICE VERNIERO: I don't. I don't remember it, but I'll assume that I did get it.

MR. CHERTOFF: Were you informed that the position that Mr. Waugh was taking with the Department of Justice was that they were not going to agree that this investigation covered consents to search, and they would only turn over -- or they were turning over the forms with the express understanding that they were being turned over because they have some information about stops, but not because they relate to consent to search? Were you aware of that?

JUSTICE VERNIERO: Well, as I say, I don't recall it. But looking at it now, it appears consistent with the overall mind-set of the Department. Now, keep in mind, these are the senior deputies, essentially, telling me how to respond to the DOJ. And what they're saying to me is, "We ought to turn over this information, but make it clear that it should not be the focal point of racial profiling." That was consistent with the mind-set of the Department.

MR. CHERTOFF: And was the mind-set of the Department at that time that we do not want to have the Department of Justice getting into the question of consent to search statistics? We want to keep them focused only on stops, right?

JUSTICE VERNIERO: I wouldn't characterize it as that. I think it was -- it was just a bit broader than that. We were focused on Soto and the stop information issue and the stop issue, and we thought that was the appropriate inquiry, and that's what we understood the Department of Justice was focused on.

But once the DOJ shifted, I think there's a subsequent indication in the record that we ultimately turned over the information that they had requested.

MR. CHERTOFF: But when you kept hearing about this interest in consents to search, did you ever say to anybody, "Would you explain why this is significant, and whether this is -- we need to look at in terms of our own finding out what's going on?"

JUSTICE VERNIERO: As I indicated, it's one of those areas, Mr. Chertoff, where I wish I had said more. I wish I had done more. I wish I asked more probing and searching questions. I did not, for the reasons that I've already indicated. In retrospect, I should have.

MR. CHERTOFF: In the letter -- in the draft letter, which you have, which ultimately was sent to Mr. Posner, it says in the second paragraph of the attached letter, which is Page 2 of the document which is in front of you: "In New Jersey, consensual motor vehicle searches must be based on a written consent, executed by the motorist, 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 determines -- thereafter determines that there is probable cause to believe there may be contraband in the vehicle."

Is that correct?

JUSTICE VERNIERO: What page is that, sir?

MR. CHERTOFF: It's the second page.

JUSTICE VERNIERO: The second page of the second letter?

MR. CHERTOFF: No, it's the first page of the attached letter.

JUSTICE VERNIERO: Okay, the first page of the attached -- okay. I'm sorry, what's your question?

MR. CHERTOFF: The passage here: "Consensual motor vehicle searches must be based on a written consent, executed by the motorist, 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 determines that there's probable cause to believe that there may be contraband in the vehicle."

Is that a correct statement of what the rule in New Jersey is, or was at the time?

JUSTICE VERNIERO: Well, let me just confine my answer to was at the time--

MR. CHERTOFF: Yeah, was at the time.

JUSTICE VERNIERO: --so we don't get into any future issues that might become -- might come before the court.

No, that's incorrect. It's not the probable cause standard. It's the reasonable, articulable suspicion standard.

MR. CHERTOFF: Do you know how it is that this -- you don't remember reviewing this?

JUSTICE VERNIERO: I do not, no.

MR. CHERTOFF: Do you know how it is that a letter with that misstatement was executed and sent out under your letterhead?

JUSTICE VERNIERO: I assume it was just oversight -- innocent oversight.

MR. CHERTOFF: Now, is it fair to say, then, in 1997, through that year, at no time did you ask anybody to give you any information concerning what statistical information was showing concerning stops or consent to search or any other police activity on the Turnpike?

JUSTICE VERNIERO: What was the time predicate in your question?

MR. CHERTOFF: 1997, during 1997.

JUSTICE VERNIERO: 1997, I did not ask for data, that's correct.

MR. CHERTOFF: Did you ask for that data in 1998?

JUSTICE VERNIERO: Well, 1998 was an entirely different situation, after the Turnpike shooting event, where I asked many questions of State Police and of Division of Criminal Justice in connection with the Troop D audit and other -- and other issues.

MR. CHERTOFF: I'm not talking about the Troop D audit now. I'm asking whether, in general, in connection with the issue of statistics about stops and consents to search, did you ask anybody for information about that in 1998?

JUSTICE VERNIERO: I don't have any specific recollection other than what might have been part of the Troop D audit.

MR. CHERTOFF: Well, the Troop D audit was being conducted by Lieutenant Sachetti and under Lieutenant Colonel Dunlop, and ultimately with the supervision of Mr. Zoubek, correct?

JUSTICE VERNIERO: That's right.

MR. CHERTOFF: Did you, however, ask for any information, generally, about statistics -- audit statistics or other statistics related to stops and searches in 1998?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Is it fair to say the first time you addressed that issue was in February 1999?

JUSTICE VERNIERO: Well, that was the first time where I put a formal investigation in place, in which we would produce a report with respect to conclusions in that regard. I always understood that the precursor to the February report -- to the April report, was the Troop D audit, that that was the first time, because of the falsification allegations and the Turnpike shooting and the other issues that were in our thinking at that point in time, that we should take appropriate steps, at least in connection with Troop D, to determine whether we had a problem.

It was in with -- it was within the falsification context, however.

MR. CHERTOFF: Would you agree with me that if you have consent to search data -- I'm not taking it to 1999 -- would you agree with me that if you have consent to search data which shows a majority of the people who are stopped, who are asked for consent to searches, are minorities, that that is the kind of data that would warrant further investigation of the underlying facts, because of the prima facie indication of selective of enforcement?

JUSTICE VERNIERO: What was the percentage that you had indicated -- majority percentage?

MR. CHERTOFF: A majority, yes.

JUSTICE VERNIERO: That might be something that we ought to look at, yes. I would say that.

MR. CHERTOFF: So that for example, if we were to look at the -- at W-30, which was the July 29, 1997 document sent to you by Mr. Waugh, which has 62 percent minority driver consent searches in 1995, you'd agree with me, that kind of number is the kind of number that should cause further investigation, right?

JUSTICE VERNIERO: What's the document number?

MR. CHERTOFF: It's W-30, last page.

JUSTICE VERNIERO: Well again, this is -- I have no recollection of actually seeing that document. But secondly, reviewing it now, it is pre-Soto, 1995 data. So my answer there would be the same as I've given previously, that there was a distinction being made between old and new data.

MR. CHERTOFF: So is it your position that the only point at which the statistical data became important to you was when a certain amount of time elapsed after Soto?

JUSTICE VERNIERO: My testimony is that we should have done more on the consent to search issue. I'm explaining to you why we didn't.

Why we didn't was, we viewed Soto as a line of demarcation, if you will. After Soto, there were reforms put in place that hopefully would have eradicated any problem that existed.

MR. CHERTOFF: And those reforms were a telex sent by the State Police and telling everybody to reread FOP-55, which had been in existence for five years.

JUSTICE VERNIERO: They were similar--

MR. CHERTOFF: Those were the reforms.

JUSTICE VERNIERO: They were similar to the reforms put in place by the previous administration, which I have heard heralded during this hearing process, as being effective in dealing with the problem.

MR. CHERTOFF: So in other words, your reforms--

JUSTICE VERNIERO: So I was -- I believed at the time, based on the information that I was getting, that these were the reforms that were appropriate to address the issue, in the aftermath of Soto.

MR. CHERTOFF: I'm sorry. Did you tell us just a moment ago that the reforms put into place after Soto were simply the same reforms that had been put into place under Colonel Dintino?

JUSTICE VERNIERO: I said my understanding is that they were similar, and you yourself had indicated that the SOP was five years old.

MR. CHERTOFF: So what was the big reform that happened after Soto? What was the dramatic step after the Soto decision that led you to believe that everything occurring at that point was statistically irrelevant, because the reforms were going to change everything?

JUSTICE VERNIERO: Well, first, the SOPs were going to be enforced and be satisfied. One of the--

MR. CHERTOFF: How was that -- what was the reform to make them enforced?

JUSTICE VERNIERO: The telex from the superintendent, the training and review committee that -- and I don't know the depth of it, whether they went barracks by barracks, or whether they had training seminars on regular intervals -- and just the leadership of the State Police itself would work to ensure that SOP-55 was being carried out to the fullest.

MR. CHERTOFF: Well, what did you do to find out, specifically -- let me step back. As I understand your testimony, your position in 1997 is that you're not concerned about statistics, because you believe there are now reforms in place, after Soto, that are going to cure the problem. Is that fair to say?

JUSTICE VERNIERO: I -- my testimony was if there were concern about statistics, it was discounted based on a few factors.

MR. CHERTOFF: Okay.

JUSTICE VERNIERO: One of which was the assurances that we were receiving from the State Police that it was not a problem. That's--

MR. CHERTOFF: Is that a reform, assurances that it was not a problem?

JUSTICE VERNIERO: No, that's the overarching context, however. It has to be part of my answer, if you're looking for a full and complete answer.

Secondly, there were reforms in place, post-Soto, which may have resembled the pre-Soto reforms. Maybe there were additions to them, maybe we were trying to execute them in a better fashion, but I was informed by my deputies that those reforms were significant, needed some time to be implemented, and so forth.

MR. CHERTOFF: Who told you that?

JUSTICE VERNIERO: We had -- part of my briefings, and I believe we even emphasized this, if I'm not mistaken -- strike that. I don't know if it's in the Soto brief. I don't recall who emphasized it to me, but it may have actually been in one of the Fahy memos. Maybe it was Jack Fahy. But that was my understanding that there were reforms in place that needed some time to work, that were going to be implemented. And the other thing, again, I say, is the definition of racial profiling at that point in time did not encompass consent to search, which was something that, if I had to do over again, I would have put more attention to.

MR. CHERTOFF: Well, I'm just -- I really want to get specific about this, because your position has been that in 1997 you don't feel it's -- you just count the figures. Well, first of all, you acknowledge that you were aware that there are some figures being corrected in 1996, right?

JUSTICE VERNIERO: I don't recall reviewing these various attachments, but the attachments say what they say. So I can't dispute what's in black and white.

MR. CHERTOFF: And you also know that you've been told, in a letter drafted, you struck out that there were some kinds of reports being made, right?

JUSTICE VERNIERO: Yes, but I don't know who put that in the letter. I don't know if it was, for example, Jack Fahy who wrote that letter. I don't know what he was relying on when he put that sentence in the letter.

MR. CHERTOFF: But you do know you didn't ask to follow up?

JUSTICE VERNIERO: That's correct.

MR. CHERTOFF: Now, and so your basis for discounting it is your belief that now there is a sea change because of these new reforms, correct?

JUSTICE VERNIERO: I don't understand your question.

MR. CHERTOFF: Well, your basis for discounting 1995 and 1996 statistical evidence is that you believe that there are reforms -- meaningful reforms post-Soto, which change the landscape. Is that fair to say?

JUSTICE VERNIERO: My reasons for discounting the figures are severalfold: the post-Soto reforms; the fact that we did not have a violator survey against which to measure the numbers, so they were, therefore, inconclusive; the assurances that I had received, adamantly, from the State Police leadership that racial profiling wasn't a problem; the focus, at that time frame, on stop data and on Soto, which was on appeal.

So I can't say one factor weighed more heavily than another. It was a combination of factors that was in place, was in my mind-set in the early part of my tenure.

That changed, however, after the Turnpike investigation, after the Turnpike shooting, after I had learned, for the first time, in 1998, that there were troopers who might have been falsifying records. Obviously you don't need a violator survey to know that that's wrong. And you don't need a lot of high-powered advice to know that falsification is a very significant issue. And my thinking--

MR. CHERTOFF: I'm still back--

JUSTICE VERNIERO: My thinking changed and evolved because of that -- because of those events.

MR. CHERTOFF: My question is this. I would still like you to tell us the specific reforms that occurred post-Soto that you relied upon as indicating that you no longer -- that you could now discount the issue of what the figures were.

JUSTICE VERNIERO: My only disagreement with your question is you keep referring to the Soto reforms as my sole reliance. It was not. It was one of the four or five elements that I have described. And I have described those Soto reforms to you. I will do so again.

It is my understanding they were -- the SOP-55 was reinvigorated or reissued. It was a committee between the Attorney General's Office and the State Police that enhanced practice and curriculum and training. It was the telex or Teletype that the superintendent had sent to the various barracks, and hopefully it was the leadership of the State Police itself, post-Soto, who would work to ensure that the various regulations already on the books, which made racial profiling illegal, were being enforced.

MR. CHERTOFF: And just so we're--

JUSTICE VERNIERO: That is one -- that is one element of four or five elements that went into my thinking that accounts for why I discounted the consent to search.

MR. CHERTOFF: Again, I've got to ask you to answer my question. My question is this: The reforms are SOP F-55, which already was on the books, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: It was a telex by Colonel Williams. Did you ever look at the telex?

JUSTICE VERNIERO: No. It was issued before I became Attorney General.

MR. CHERTOFF: Did you look -- well, if you were relying on the telex, right, did you look at it, even though it had been issued before?

JUSTICE VERNIERO: No, I did not.

MR. CHERTOFF: Did you know what the telex basically said is, we disagree with the judge's decision, but you shouldn't be racial profiling?

JUSTICE VERNIERO: If that's your representation. I don't recall what it said.

MR. CHERTOFF: Did you ever judge or evaluate whether the telex was an effective way of trying to promote this change in the organization?

JUSTICE VERNIERO: Mr. Chertoff, in the early part of my tenure, I did not second-guess the superintendent in the manner in which he issued telex to his barracks. That was his responsibility. I did not second-guess it.

MR. CHERTOFF: So we have the telex; we have the SOP F-55. And then you say there was the formation of a committee?

JUSTICE VERNIERO: That's my understanding, yes. Remember, these were things that had taken place prior to my becoming Attorney General, so I don't have intimate detail of every aspect of them. I was informed that these reforms were in place, and that we had to give them a chance to work before we put any conclusion to any data.

MR. CHERTOFF: But again, I'm simply asking what the reforms were, and I'm trying--

JUSTICE VERNIERO: I -- yes--

MR. CHERTOFF: I want -- let me -- let's go through them one by one. SOP F-55, did you understand that had been on the books since the early '90s, yes or no?

JUSTICE VERNIERO: I understood it was existing. I can't say that I knew the date it went into operation.

MR. CHERTOFF: There's the telex from Colonel Williams. Did you ever read it?

JUSTICE VERNIERO: I've already testified I did not read that.

MR. CHERTOFF: There's the committee. Did you know who was on the committee?

JUSTICE VERNIERO: I recall that it was a joint committee of lawyers from the Office of Attorney General and the State Police.

MR. CHERTOFF: Did you know how often it met?

JUSTICE VERNIERO: No, sir.

MR. CHERTOFF: Did you know what it concerned itself with?

JUSTICE VERNIERO: I understood that it was training and practices and those sorts of issues.

MR. CHERTOFF: Were you, in fact, told in May 1998 that a new initiative that should be considered after the shooting was to reinvigorate the committee?

JUSTICE VERNIERO: I might have. I don't recall.

MR. CHERTOFF: So you have no idea -- you had no idea in 1997 what the committee was doing or how effective it was?

JUSTICE VERNIERO: I was relying on the assurances of the State Police that racial profiling was not a problem, and I was operating under a presumption that the post-Soto reforms were being implemented accordingly.

MR. CHERTOFF: Did I miss any reforms, when I went through my list?

JUSTICE VERNIERO: You may have. There may be some reforms that I'm missing. I'm doing this all by memory.

MR. CHERTOFF: And your confidence in the State Police's telling you that nothing's a problem, everything's working, that was never shaken by any statement by Colonel Williams that he was concerned about the consent to search numbers?

JUSTICE VERNIERO: No. My confidence in the State Police began to change after the Turnpike shooting incident.

MR. CHERTOFF: Now, let's go to 1999. There comes a point in February 1999 that you assigned Mr. Zoubek to head the State Police Review Team, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And then a coupe of days after -- initially when it's announced, it's not -- it's not announced as covering racial profiling, correct?

JUSTICE VERNIERO: Well, I've had the occasion to review the press statement. It doesn't say racial profiling. I don't know whether that was an oversight, whether I always intended it. It was a full review of State Police practices of not only the issue of uneven law enforcement, but issues of personnel -- and I don't have the press release in front of me, but it was intended to be a wide scale review. I think you're correct, it does not use the term racial profiling.

MR. CHERTOFF: It was only a couple of days later, in connection with a meeting with the press at which Mr. Zoubek was present, that you informed him that racial profiling was going to become one of the issues there.

JUSTICE VERNIERO: I don't recall meeting with the press for that purpose. There might have been a misunderstanding between Paul and me, or maybe I thought I was less than clear in the first -- in the first press release.

I always intended it to be a formal review of State Police. I don't recall whether I used the words racial profiling or not.

MR. CHERTOFF: And so then sometime, at least in the next few days, you will agree at that point, you do say to him, racial profiling is to be a focus in this, correct?

JUSTICE VERNIERO: Oh, that was clearly communicated to him, yes.

MR. CHERTOFF: By the way, let me -- before we -- I just want to -- overlooked one thing on this May 20th meeting. Is it your recollection that at the May 20th, 1997 meeting -- the meeting you now know you had been on May 20th -- but the meeting we had been talking about earlier. Is it your recollection that if any statistics were discussed, they were pre-Soto statistics?

JUSTICE VERNIERO: I don't recall statistics being discussed, so I don't have an answer to that question.

MR. CHERTOFF: Well, I have had the benefit of looking at your interview, over the weekend, with a number of reporters, including, I guess, the Gannett reporter, who, in the version that appeared in the Asbury Park Press, quotes you as saying, "It's why, at the May 20, 1997 meeting, when possibly statistics were being discussed, and I don't recall that they were, that it's clear that these were pre-Soto statistics."

JUSTICE VERNIERO: Oh, I see. I believe that question was asked in connection with the Gilbert memorandum, which I did not see until after the fact. And it was clear, in reading that memorandum, that the statistics in the Gilbert memorandum, I believe, are pre-Soto statistics.

MR. CHERTOFF: Well, don't some of them actually continue on into 1996, after the Soto decision?

JUSTICE VERNIERO: Well again, there was the Soto decision. Then there was the post-Soto reforms, and then an opportunity for implementation of those reforms.

MR. CHERTOFF: So you actually consider pre-Soto to be not only before the decision of Soto, but really for some considerable period of time after Soto?

JUSTICE VERNIERO: Well, some period of implementation. I can't put a -- I can't put a calendar date to it.

MR. CHERTOFF: And so your feeling was basically that in the wake of the Soto reforms, which we've been discussing for the last few minutes, you could kind of let nature take its course, so to speak, for some period of time before it was necessary to go back and actually test to see what was going on?

JUSTICE VERNIERO: Well again, it was not nature taking its course. It was the post-Soto reforms, plus the assurances that I had received from the State Police, plus our mind-set on consent to search information. It was -- and plus, the lack of a violator survey against which to measure the data. It was a combination of those things that I thought at the time were sufficient.

As I have testified, it's one of those areas where I wish I had done more.

MR. CHERTOFF: Now, in March -- on March 15th, Mr. Zoubek comes into your office and gives you a blue notebook from Sergeant Gilbert, correct?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: He shows you the notebook, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: He asks you whether you're familiar with the contents of the notebook?

JUSTICE VERNIERO: I don't -- I don't know what his exact words were. I know that he was fairly upset -- strike that. I shouldn't say fairly. He was upset. I don't want to characterize it.

He clearly was not happy that he had been given this blue binder that he was receiving for the first time.

MR. CHERTOFF: Did he tell you why he was unhappy?

JUSTICE VERNIERO: He thought it might be relevant to what he was doing, and he thought it was something that the State Police should have produced sooner.

MR. CHERTOFF: Well, he thought it might be relevant to production of documents that were being promised to the Department of Justice, right?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Well, did he tell you that?

JUSTICE VERNIERO: I don't recall exactly what he thought it might be relevant to. He was not happy that he was receiving it on that date.

MR. CHERTOFF: Would you have considered it important in March 1996 if someone had told you they thought maybe documents that were supposed to have been produced for the Department of Justice had been withheld? Would that have been a matter of concern or importance to you?

JUSTICE VERNIERO: Sure.

MR. CHERTOFF: So I have to ask you, based on Mr. Zoubek's testimony yesterday, did he communicate to you a concern that there were documents that should have been turned over to the Department of Justice that hadn't been turned over?

JUSTICE VERNIERO: I don't recall. If he had, I'm sure my reaction would have been, "Go produce it."

MR. CHERTOFF: Did he tell you that he had gotten a memo from Mr. Rover, who was working under Mr. Waugh and dealing with you, that Mr. Rover had simply kept documents in the file that he withheld from the Department of Justice?

JUSTICE VERNIERO: I don't recall that conversation, and I'm not sure that that was Mr. Zoubek's testimony, although obviously I can't swear to his testimony, that Mr. Rover had "withheld" documents from the DOJ.

I do recall that throughout this time frame there was some uncertainty as to what exactly the Department of Justice was even requesting. As we indicated earlier, we had gotten this blank form that was -- that was not specific to New Jersey, that first it started with some random dates, and there was always some discussion, back and forth, with DOJ and my office as to precisely what was being requested.

So I don't recall, on March 15th or 14th, Paul Zoubek saying George Rover "withheld" documents that should have been produced. I just don't recall him saying that.

MR. CHERTOFF: So when he comes in with this blue notebook, and he's upset, he doesn't tell you that he's upset because he thinks this is material that should have been produced and wasn't?

JUSTICE VERNIERO: That might have been behind his, you know, his concern. It was a fairly quick -- I don't even want to say it was a meeting. He came into my office. He put the binder down on the table. He said, you know, "Look at this." He directed my attention to, as I recall, the Gilbert memo. That might have been near the top of the pile. We kind of flipped through the documents. And I was concerned myself, when I saw the Gilbert memo, because of the language used in the Gilbert memo.

MR. CHERTOFF: And so what did you say?

JUSTICE VERNIERO: I said, "Where did this come from," words to that effect.

MR. CHERTOFF: And did you then, at some point the next day, prepare a memo to the file about having received this information?

JUSTICE VERNIERO: I recall putting a memo together. I don't know the exact date.

MR. CHERTOFF: Z-16. Do you see it?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Have you seen this before?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: Did you prepare this?

JUSTICE VERNIERO: I signed it, yes. I don't know if I actually typed it, but I signed it.

MR. CHERTOFF: Why -- have you ever written a memo like this before, to file, as Attorney General?

JUSTICE VERNIERO: As Attorney General, I don't think so. In private practice, I would do it from time to time.

MR. CHERTOFF: And whose idea was it to write this memo to the file?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Do you know whether the content of the memo-- Is it accurate?

JUSTICE VERNIERO: I believe it was accurate at the time -- that there were certain documents that I had not seen. And I think that's accurate now, even in hindsight. I had not seen the Gilbert memo. And there were other documents that I had never seen, so I believe it was accurate at the time I signed it, yes.

MR. CHERTOFF: Well, I mean, for example, when you say to that -- became aware for the first time of the existence of certain State Police documents, were you meaning to suggest you had no awareness of the existence of the type of documents that were in this blue binder before March 15th, 1999?

JUSTICE VERNIERO: I can't put any gloss on this letter, Mr. Chertoff. It's pretty straightforward. It says, "For the first time I became aware of certain documents." My recollection is that that was principally the Gilbert memo, which Mr. Zoubek, as I recall, directed my attention to. And there might have been other documents at the time. One of the things we did not do which we probably should have done was sit down and actually inventory the entire notebook and be very, very specific as to what was in there. This was a very fast meeting. I signed this memo. I believe it was accurate at the time, and I believe it's still accurate.

MR. CHERTOFF: Didn't Mr. Zoubek look the memo over before you signed off on it?

JUSTICE VERNIERO: I don't remember who might have seen it.

MR. CHERTOFF: Was there some rush about putting this in the file?

JUSTICE VERNIERO: No particular rush.

MR. CHERTOFF: Were you concerned that perhaps someone from the Department of Justice in Washington might later question why documents were turned over late, and therefore you wanted to have this in the file?

JUSTICE VERNIERO: That could have gone into our thinking. I don't know. Perhaps we were just reacting as lawyers sometimes react when they're surprised.

MR. CHERTOFF: But you had never done a memo like this as Attorney General, right?

JUSTICE VERNIERO: Mr. Chertoff, I had never done a lot of things before becoming Attorney General. This was a very unique time in our history in this state and in that office. So it was unique. Absolutely. The issue was unique.

MR. CHERTOFF: And of course, did you become aware that on the very same day that you first saw this blue notebook, that Mr. Zoubek had had an oral argument with the Appellate Division, where the Appellate Division raised issues concerning the fact that the State is only now beginning to investigate racial profiling years after the Soto litigation had been under way?

JUSTICE VERNIERO: I don't recall the oral argument.

MR. CHERTOFF: Did Mr. Zoubek tell you he had come back from an oral argument where the judges were critical of the State's position in Soto?

JUSTICE VERNIERO: I have a recollection that he thought the oral argument was difficult. I don't recall the specifics of why he sensed that. You know, when a lawyer comes back from oral argument -- was it easy? Was it hard? Don't ask me whether this is easy or hard. But I thought he said it was a difficult -- it was a difficult argument.

MR. CHERTOFF: But help me out. This is what I don't understand. You told us 30 seconds ago that this is a historic time. This issue of racial profiling and race is huge. It's a huge event in New Jersey. And yet, with respect to the circumstances of potentially withheld documents, arguments on a big case where the Appellate Division is critical of the State, one-time memos to file indicating that documents have been produced, you don't have much of a recollection of any of the circumstances of this. Was this a historic, memorable period of time, or a routine, regular kind of, you know, run-of-the-mill period of time?

JUSTICE VERNIERO: It was historic and unique, and I'm doing the best I can, with all the human frailties of memory and otherwise, to answer your questions.

MR. CHERTOFF: You have no sense that Mr. Zoubek conveyed to you that the State Police were -- had had -- I'm sorry -- that the State Appellate Division had actually had discussion with him concerning the ethical obligations of the State to make sure that if they had information consistent with our litigation position, they better disclose it? He didn't mention that to you?

JUSTICE VERNIERO: He might have. I don't recall. I recall him saying it was a tough argument.

MR. CHERTOFF: Even putting yourself in the frame of mind you had back then, isn't it a huge potential embarrassment, as Attorney General of the State of New Jersey, to contemplate the possibility that the Appellate Division, in a very significant case, might possibly criticize whether the State was being ethical in its handling of information? Wouldn't that be an absolute paramount issue for you?

JUSTICE VERNIERO: I would presume so, yes. Also at this point in time, we, and I can't remember the exact moment we decided to withdraw the Soto appeal-- But that might have factored into my thinking that if there were problems with the argument, or problems with the appeal, it might factor into our thinking as to whether to withdraw the appeal.

MR. CHERTOFF: And the problem in particular would be whether the State was in possession of information that should have been either disclosed or should have resulted in the change of position in Soto, right?

JUSTICE VERNIERO: I don't recall if that was the reason we decided to withdraw Soto. As I recall, in light of the April 20th, 1990 report and its conclusions, that the appeal in Soto would be untenable and not in the public interest. I don't recall us withdrawing Soto out of fear or concern of discovery violations, if that's your suggestion. As I say, Paul may have mentioned some of what the Appellate Division was saying. I simply don't have a recollection of it.

MR. CHERTOFF: Was the memo to the file created in part because you thought there might be someone who would pursue the issue about whether these things should have been disclosed in the Soto litigation?

JUSTICE VERNIERO: I don't recall going through a litany of reasons why I signed the memo. It seemed like the appropriate thing to do at the time. As I say, maybe we were just all acting as lawyers instinctively to set forth a chain of custody. I just can't recall it any more than that. It was accurate when I signed it. I believe it's still accurate, as far as I know.

MR. CHERTOFF: Now, then there were a series of--

Then you asked, actually, to have the interim report on racial profiling accelerated, right?

JUSTICE VERNIERO: The interim report was accelerated so we could reach a conclusion as to whether or not to appeal -- to continue the appeal in Soto. As I recall, we had asked the Appellate Division for an extension of time, which was denied.

MR. CHERTOFF: Did you look at--

JUSTICE VERNIERO: And that then set an outer limit for a decision. Do we go forward with the appeal, or do we drop the appeal?

MR. CHERTOFF: Did you look at drafts of the report?

JUSTICE VERNIERO: I recall looking at some drafts -- the next to the last draft, the penultimate draft. I recall looking at some drafts late in the process.

MR. CHERTOFF: Also in this time period, was there discussion that you had with anybody about the possibility of investigating Colonel Williams or the State Police to see why documents were withheld?

JUSTICE VERNIERO: Could you repeat the question?

MR. CHERTOFF: Did you have any conversation with anyone in this period of time, from March -- beginning of March to the end of April of 1999, about the possibility that Colonel Williams, or the State Police, should be investigated for possibly withholding documents?

JUSTICE VERNIERO: I don't know if it was specific to Colonel Williams. I do recall asking Paul Zoubek to look into the issue of how certain documents were being produced and the timing of them. I don't recall it being targeted at Colonel Williams or any one individual.

MR. CHERTOFF: Well, what do you mean to look into the timing that certain documents were produced?

JUSTICE VERNIERO: To investigate whether any official had failed to produce documents.

MR. CHERTOFF: Well, are you saying that after March 1996, you had the concern in your mind that maybe an official had failed to produce documents to your office or to the Department of Justice that should have been produced?

JUSTICE VERNIERO: No, I was keying off of Paul Zoubek's concerns, frankly. I mean, Paul is a fairly even-keeled guy. He comes into my office with this blue notebook. He puts it down on my desk. He's very unhappy. He's expressing his unhappiness. He's pointing my attention to the Gilbert memo, which is -- has very urgent language in it.

A very interesting thing about the Gilbert memo, as well, is the way it's written. And this struck me, as well, when I saw it in the blue binder.

MR. CHERTOFF: Oh, so you remember focusing on this now.

JUSTICE VERNIERO: Well, he focused me on the Gilbert memo, as I recall. And I have since reviewed the Gilbert memo. This is one of those issues where, as I said candidly at the outset, I know more now than I knew then, and my recollection is refreshed having been prepared -- in my preparation for this hearing.

As I recall, I was pointed to the Gilbert memo. I have since read it very carefully. One thing that strikes me in the Gilbert memo is it's very odd the way it's formatted. It's not an up-the-chain-of-command memo. It goes from a sergeant directly to the Colonel, with no one else in between.

That is not the kind of information or memorandum that is going "up the chain." And that strikes me as a bit odd.

MR. CHERTOFF: But here's my question, which we've wandered a bit off of. My question is this: After March 16th, was it your view or belief that someone in the State Police or in the Office of the Attorney General had improperly withheld documents?

JUSTICE VERNIERO: I didn't know what to believe.

MR. CHERTOFF: Did you ask for an investigation?

JUSTICE VERNIERO: As I said, I was keying off of Mr. Zoubek's--

MR. CHERTOFF: Did you ask for an investigation?

JUSTICE VERNIERO: I'm trying to answer your question, Mr. Chertoff.

I was keying off of Mr. Zoubek's concerns. He put the binder on my desk. He was concerned. I don't recall my exact words. I said something like, "You should look into this."

MR. CHERTOFF: And that was the end of it.

JUSTICE VERNIERO: That was my instruction to Mr. Zoubek.

MR. CHERTOFF: So you had no particular belief or understanding of what Mr. Zoubek was going to do.

JUSTICE VERNIERO: I assumed he was going to look into how the document went through the various steps in the process by which it arrived at his desk. It was not anything more specific than that.

MR. CHERTOFF: Did you ever ask him what the upshot of that was?

JUSTICE VERNIERO: No, because as I recall, I left the office fairly soon thereafter.

MR. CHERTOFF: So really, from March 1999 until you left the office, you never had any more conversation with Mr. Zoubek saying whatever happened to that issue about whether the State Police withheld documents?

JUSTICE VERNIERO: Well again, it was not necessarily targeted at the State Police. I might have. I just don't recall.

MR. CHERTOFF: I mean, would you agree with me that if the State Police withheld information from the Attorney General who supervises them, that would be a very serious matter?

JUSTICE VERNIERO: Of course.

MR. CHERTOFF: It would strike at the heart of civilian control over the police, correct?

JUSTICE VERNIERO: It would not be something that was appropriate or professional, no.

MR. CHERTOFF: And if you had--

JUSTICE VERNIERO: But getting assurances that racial profiling is not a problem -- is not an issue, when, in fact, it is, that strikes at the heart of civilian control, as well. So we were dealing with a very difficult time in our history.

MR. CHERTOFF: So then--

JUSTICE VERNIERO: I was giving the benefit of doubt to those in leadership positions. I did not want to jump to conclusions. As I indicated, I tilted in favor of State Police until I had reason not to. And when Mr. Zoubek puts the binder in my desk and is visibly upset by it, I turn to him and say, "Well, you should look into this. You should resolve any concerns that you might have regarding the chain of custody of these documents."

MR. CHERTOFF: But you, as Attorney General of the State -- you did not direct him? If he expressed a concern about whether documents had been withheld, you can direct him to get to the bottom of it and find out whether someone had misbehaved.

JUSTICE VERNIERO: Well, that was the essence of what I was communicating to him.

MR. CHERTOFF: Go find out what happened and take care of it.

JUSTICE VERNIERO: Well again, I don't remember my exact words, but I turned to Mr. Zoubek and said, "Look into this. Find out what happened." Now, Paul Zoubek is someone who I reposed great trust in.

MR. CHERTOFF: Let me stop you.

JUSTICE VERNIERO: I did not have to sit down with him and give him chapter and verse of what I meant by that. I assumed he understood what I was saying.

MR. CHERTOFF: Well, was there an investigation or not? Do you know?

JUSTICE VERNIERO: I don't recall. I mean, to my knowledge, he was supposed to do one. I don't know what happened after that. I understand what his deposition testimony was. But I had issued my instruction to him, and I assumed it would be carried out.

MR. CHERTOFF: So you didn't know whether he actually did an investigation.

JUSTICE VERNIERO: In which time frame, Mr. Chertoff?

MR. CHERTOFF: From March 15th on, when you said go do what you have to do, or words to that effect. You don't know whether he actually did an investigation.

JUSTICE VERNIERO: I might have asked him for a status report. Now, you're talking about a very truncated period of time, March 16th to May 15th, when I left the Attorney General's Office. Even for government, that's a pretty short time frame to expect action, even on a significant issue as to whether data was withheld. So everything has to be seen in context.

MR. CHERTOFF: I didn't ask you whether he completed the investigation, I only asked you this--

JUSTICE VERNIERO: I thought you had asked me whether it was completed.

MR. CHERTOFF: --do you know whether any investigation was conducted by Mr. Zoubek after March 16th?

JUSTICE VERNIERO: As a certainty, I do not know. I only know I asked him to look into it. And I assumed that he was.

MR. CHERTOFF: So when you were asked, for example, at your -- on April 26th, during the racial profiling hearing, the following question--

Well, let me go back. Do you remember the interim report, which we should give you a copy of. On Page 23--

If you look at Page 23 of the interim report, it says in mid-March, the review team began to receive documents from the State Police pertaining to audits, compilations in data, and analysis of data about the racial characteristics of detained motorists, some of which have not been previously provided to the Office of the Attorney General or the Division of Criminal Justice.

When you were asked about that passage by Senator Gormley on April 26th, he asked you on Page 25, who didn't provide the information?

And you said, "I can't answer that question, Senator." He said, "Okay. By the nature of an ongoing investigation?" And you said, "Yes." When you said there was an ongoing investigation on April 26th, you really didn't know whether there was one or not, right?

JUSTICE VERNIERO: My understanding was that there was an investigation going on.

MR. CHERTOFF: And where did you get that from?

JUSTICE VERNIERO: My instruction to Paul Zoubek to conduct one.

MR. CHERTOFF: When you said go find out what happened, right?

JUSTICE VERNIERO: Well, those were not my exact words, and I would never be that flip to a subordinate, Mr. Chertoff. I instructed Mr. Zoubek to get to the bottom of the issue, to find out what happened and why. Maybe investigation was a term of art, a word that was not the correct word or not the best word to use, but that's what I had in mind--

MR. CHERTOFF: Well, wasn't the reason--

JUSTICE VERNIERO: --that there would be an investigation, and as far as I know, and I might have spoken to Paul prior to my testimony. I do not recall, the investigation was pending at the time I answered Senator Gormley's question.

MR. CHERTOFF: Wasn't the reason you used that answer because you understood from your prior experience testifying before the Legislature that whenever the Attorney General says there's an ongoing investigation, can't comment, that basically stops the question?

JUSTICE VERNIERO: No, I don't recall that going through my mind.

MR. CHERTOFF: Isn't it a fact that--

JUSTICE VERNIERO: You get--

MR. CHERTOFF: Isn't it--

JUSTICE VERNIERO: I'll take that as a compliment that I was that careful in my wording. It was a term of art. It was-- I said go look into it. I assumed it was an investigation. Perhaps it was something less than that. But all I meant by my response to Senator Gormley was, I can't answer the question, fair enough. The reason I can't answer the question is that the investigation into the answer is pending.

MR. CHERTOFF: Are you saying you weren't careful in considering what answers you'd be giving before the Committee on April 26th?

JUSTICE VERNIERO: I was careful, but I was not as careful as you're suggesting -- that I was selective.

MR. CHERTOFF: Were you prepared?

JUSTICE VERNIERO: You're suggesting that I was selectively using words that would cut off additional lines of questions. And that was not my approach to this Committee.

MR. CHERTOFF: Well, you prepared for the hearing, right?

JUSTICE VERNIERO: I did.

MR. CHERTOFF: You met with Mr. Zoubek, right?

JUSTICE VERNIERO: Do I remember Mr. Zoubek?

MR. CHERTOFF: You met with Mr. Zoubek, right?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And in connection with your talking with Mr. Zoubek -- in fact there was a point in time that he directly asked you about whether there had been a meeting concerning consent to search data that he had heard about from Colonel Dunlop, right?

JUSTICE VERNIERO: I don't understand your question.

MR. CHERTOFF: At some point in time before the hearing, Mr. Zoubek asked you had there been a meeting where the subjects of the Gilbert memo had been discussed, right?

JUSTICE VERNIERO: I don't recall that. I understand that's his testimony.

MR. CHERTOFF: And then there was a later point in time that Mr. Zoubek came to you and said that he had spoken -- he had looked at Mr. Rover's box, and Mr. Rover's box contained a lot of documents that had come from the State Police that were in that box, right?

JUSTICE VERNIERO: I don't recall, but I understand that's his testimony.

MR. CHERTOFF: And your response to him is, "Is there anything in that paperwork that shows he came to me," right?

JUSTICE VERNIERO: I don't recall saying that. I may have, which would have been a human reaction, again, keying off of Paul's -- his mental state at finding this information. I think it would have been natural for me to say, "Well, was I told of this? Was I given this information," as a way of suggesting that perhaps there was something that I should have received, but I didn't receive it.

MR. CHERTOFF: Actually, I don't think his testimony was that you said, "Was I told about it?" I think his testimony was that you said, "Is there anything on that paperwork that shows that I got it?"

JUSTICE VERNIERO: I don't recall the exact words. I don't even recall the conversation. But as I'm trying to reconstruct it for you this afternoon. What would have gone through my mind is, "Hey, has anyone kept anything from me that I should have seen?" And the way to answer that question is, whose names are on the documents? What's the chain of command? What's the chain of custody? It was a very natural question.

MR. CHERTOFF: And then did Mr. Zoubek also tell you before the hearing, in preparation for the hearing, that he had spoken to Mr. Fahy and Mr. Rover, and they remembered a meeting you had attended where consent to search statistics were discussed?

JUSTICE VERNIERO: He may have. I don't recall it.

MR. CHERTOFF: And all of this information-- Well, was Mr. Zoubek talking to you in an effort to kind of prepare you for questions that might arise in the hearing about when certain information was being turned over?

JUSTICE VERNIERO: I don't recall why he was saying these things.

MR. CHERTOFF: Are you saying when you went into this hearing, you had no idea you were going to be asked about that passage on Page 23 that says that some of this important information had not been previously provided to the Attorney General by the State Police?

JUSTICE VERNIERO: Oh, I presume that I was going to be asked about the entire report, including that page.

MR. CHERTOFF: But you knew there was going to be a hot reaction to the suggestion--

JUSTICE VERNIERO: Well, I--

MR. CHERTOFF: Let me finish, please, Mr. Justice.

JUSTICE VERNIERO: Yes. I'm sorry.

MR. CHERTOFF: You remember-- And there was going-- You knew there would be a hot reaction to the suggestion in the report -- even watered down as it is here, that there was relevant information that had been withheld by the State Police from the Attorney General.

JUSTICE VERNIERO: If I may just turn to Page 23.

MR. CHERTOFF: Sure.

JUSTICE VERNIERO: Now, your question is?

MR. CHERTOFF: My question is, did you anticipate that there would be pointed questioning concerning the suggesting or the allegation that there was relevant material and analysis that had been withheld from the Attorney General's Office by the State Police?

JUSTICE VERNIERO: I'm sure I would have assumed that Page 23 would have garnered some questions. Now, of course, I believed at the time, and I think this is still accurate, that what Page 23 was referring to was the so-called blue binder. So I'm not sure, much beyond that, what I would have had to prepare for. I gather your question is how did I prepare to respond to potential questions to Page 23. Is that your question?

MR. CHERTOFF: My question to you is and -- because you raised the question of whether your use of the investigation was a calculated way to deflect attention from the issue, my question is, going into the hearing, were you aware that the question of what the State Police turned over and whether it was going to be a hot issue--

JUSTICE VERNIERO: Was I aware of that?

MR. CHERTOFF: Did you anticipate it?

JUSTICE VERNIERO: I'm not sure I thought about it. I mean, the whole issue was a "hot issue," to use your phrase. Every page of this report was a landmark report. So I don't know if I gave any more or less time to Page 23 as I did to any other page.

MR. CHERTOFF: On the Saturday before you went--

Let me withdraw the question.

Is it your testimony, therefore, that you didn't-- Did you role-play? Did you have like a moot court or something before your testimony on April 26th, where people acted out in the parts of Senators and asked questions?

JUSTICE VERNIERO: You're not going to ask me who played the Senators, are you?

MR. CHERTOFF: No, we're not going to do that. (laughter)

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And in connection with that moot court, I guess we can call it, did anybody ask you questions concerning who didn't turn over documents as alleged on Page 23?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: And is it your testimony that you're--

Let me take back the question.

When Mr. Zoubek came in, he told you about the documents found in Rover's box, and he told you that Fahy and Rover said that there had been a meeting where consent to search data was discussed. And he told you that Dunlop said that there was people who remembered such a meeting. Did you understand all of this to be designed to put you on notice so that you'd be prepared to deal with this issue of whether documents were withheld when you got before the Senate?

JUSTICE VERNIERO: It could have been. I don't recall Paul saying those things specifically for the purpose of preparing me for the hearing. He may have.

MR. CHERTOFF: On the Saturday before the report was issued, which I believe was April 17th, did you have a meeting with the Governor and other people and Mr. Zoubek about the draft report?

JUSTICE VERNIERO: We did. I don't recall whether it was that Saturday prior to its release. We did have a meeting.

MR. CHERTOFF: And Mr. Zoubek indicated that it was the next to last draft that would have been shown to the people in the meeting, which we have as the draft of April 16th. And I take it you have no reason to disagree with that.

JUSTICE VERNIERO: No, that sounds about right.

MR. CHERTOFF: Do you remember the reaction at the meeting of the people, being that they were upset and disturbed about the consent to search data in the report?

JUSTICE VERNIERO: I don't recall any specific concern on that issue. I recall just general reaction. This was a, as I say -- a fairly significant report with very firm conclusions that were inconsistent with the conventional thinking at that time and inconsistent with the assurances that we had received from State Police. So the whole report invoked a concern on the part of the Governor and the other participants.

MR. CHERTOFF: And you read the draft before you sent it over, right?

JUSTICE VERNIERO: If it's the draft-- Well, I don't know the exact drafts that I read. My recollection is, I read at least the last draft prior to becoming final, the penultimate draft.

MR. CHERTOFF: Right.

JUSTICE VERNIERO: I don't recall whether that was the draft that was sent over and discussed at that meeting.

MR. CHERTOFF: And you would not have sent over a draft-- You would not have sent over a draft to the Governor that you had not -- were not comfortable about the accuracy about.

JUSTICE VERNIERO: Again, I don't recall the exact draft. That's a safe assumption on my part -- on your part, but I don't recall it.

MR. CHERTOFF: Do you remember in the draft on Page 3 -- the April 16th draft, it says: "The most startling evidence of such a disparate treatment comes in the form of statistics that were compiled by the State Police as part of an internal audit, one not previously disclosed to the Attorney General's Office or the Division of Criminal Justice, which shows that eight out of every ten of the consent searches conducted by troopers assigned to the Moorestown and Cranbury stations involved minority motorists." Do you remember that passage?

JUSTICE VERNIERO: I don't.

MR. CHERTOFF: Now, do you know whether that passage-- Well, the passage plainly relates to the Gilbert data and then the 1997 and '98 data that follows that regarding consents to search, right?

JUSTICE VERNIERO: I'll take your representation on that.

MR. CHERTOFF: Well, you reviewed this, and it went out under your imprimatur. Did you not know what this passage related to when you sent it over to the Governor's Office?

JUSTICE VERNIERO: I don't have the passage in front of me. May I have that so I could better respond?

MR. CHERTOFF: Sure, it's OAG-3034 -- Z-19. And I'll give you a moment to find it.

JUSTICE VERNIERO: Page 3, you had said?

MR. CHERTOFF: Well, the best way to do it is, if you look at the numbers on the bottom, OAG-3034 is the best way to find the specific page.

JUSTICE VERNIERO: 3034. No, my document is not numbered in that fashion. My document is 2619, 2625. There is no 3034.

SENATOR FURNARI: The other side of the page, bottom left.

JUSTICE VERNIERO: No, I have-- On the other side of the page, I have SP-12.

MR. CHERTOFF: SP-12, 226--

JUSTICE VERNIERO: SP-12-- Oh, wait, here it is. I'm sorry, 3034, yes. Okay.

MR. CHERTOFF: Now, you have-- You see, at the very top is the--

JUSTICE VERNIERO: The most startling-- Okay. Yes.

MR. CHERTOFF: Right. Now, this passage relates to the consent search data initially compiled by Sergeant Gilbert and then compiled thereafter in '97 and '98, correct?

JUSTICE VERNIERO: I have no way of confirming that for you as I sit here. I can't verify that. I'll accept your representation.

MR. CHERTOFF: Well, I-- Do you know when-- When you saw this passage when you looked at the draft, did it leap out at you as a serious accusation of misconduct by the State Police?

JUSTICE VERNIERO: I don't recall. As I say, this entire document was leaked out, so to speak. I can't say that I spent more attention to one paragraph as I would on another, particularly in connection with a draft -- a work product. I just don't recall what my reaction was when I read that paragraph.

MR. CHERTOFF: But, Justice Verniero, on its face, this paragraph says that the most significant evidence was not disclosed by the State Police. Is there any conceivable way that could not be viewed as a very, very serious allegation being made on the part of the authors of this draft?

JUSTICE VERNIERO: If I had focused on it, I might have had that reaction. I don't recall what my reaction was when I read this draft report three years ago.

MR. CHERTOFF: Did the Governor focus on it?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: We had testimony yesterday that the Governor focused on this issue with respect to the question of whether information had been withheld from her Attorney General by her State Police. Did she have any reaction to it?

JUSTICE VERNIERO: I recall the Governor's overall reaction was that she was concerned that the various assurances that she had received or that I had received from State Police, that racial profiling was not a problem, had turned out to be inaccurate.

Now, in fairness to the State Police, they might have believed, when they-- They might have believed their own conclusions, their own assurances when they gave them to me. I'm not suggesting otherwise.

MR. CHERTOFF: But putting--

JUSTICE VERNIERO: But we had been led to believe that racial profiling was not a problem. And here is a report that had reached an opposite conclusion. That's what I remember the Governor was predominantly concerned about. Would she have had a concern about this paragraph? That sounds right to me, I just don't have a recollection of it.

MR. CHERTOFF: And the basis for reaching the opposite conclusion were statistics that the State Police had generated that they claimed they had turned over.

JUSTICE VERNIERO: I disagree with that, with all respect. And I've heard this criticism that this report reflects no more than old numbers that we already had. That's not an accurate description of this report and its conclusions. This report reached its conclusions based on some old data, but many new data and new information -- the falsification, which was a-- As I say, that was the key turning point. There were interviews and direct testimony, I believe, with actual troopers who began to give us direct testimony as to racial profiling. There was data and information that were post-Soto that we were receiving for the first time as part of this report, as I recall.

So it was a combination of factors that allowed us to reach the conclusions in this report. It was not simply old data.

MR. CHERTOFF: Well, let's go over that for a moment. Did you know that Christine Boyle, from the Department of Law and Public Safety, testified that with respect to the numbers, the actual numerical charts, that was really just a State Police compilation of data?

JUSTICE VERNIERO: I'm not familiar with that testimony.

MR. CHERTOFF: And with respect to the issue of anecdotal information coming from troopers, you know from the memo -- July 29th, 1997 memo -- which was directed to you, that there were minority troopers back in 1996 who were making allegations of profiling. So that was certainly old news, right?

JUSTICE VERNIERO: As I say, I do not recall specifically reviewing the appendices of the July 1997 memorandum. So I can't answer it anymore than I've already answered it.

MR. CHERTOFF: And as far as the falsification information that had been collected by Lieutenant Sachetti in the Troop D audit, he testified the other day that none of that was actually in the interim report. So what is the new material in the interim report in 1999 that didn't exist in 1997 and 1996?

JUSTICE VERNIERO: You are grossly understanding the significance of falsification. That was a real turning point in our thinking, and there may not be actual numerics disclosing falsification, but there is a clear indication in this report that falsification data -- a reliance on that data -- is part of the report's conclusion. You can't understate it, at least, that's from my perspective. That was one of the big things that occurred late in my tenure that changed our thinking and changed our focus. And it's embodied in the conclusion of this report.

As I recall, there is also data in here that is post-Soto data, that is fresh data. I think it's '97 or '98 data. There's '98 data, itself, in this report. So if your premise of your question is everything in this report was prior to 1998, I think that premise is belied by the fact that we cite to '97-'98 data, as I recall.

MR. CHERTOFF: Actually, my premise is that everything in the-- That had-- Although the report was assembled by the State Police Review Team out of your office, all the content actually comes from work the State Police were doing. The 1996 compilation, the 1997 compilation, the 1998 compilation, the Troop D audit, all of these were activities compiled and assembled by the State Police.

My question is: What did the Review Team add that wasn't present if someone had looked at the data in '96, '97, and '98 as it was being assembled?

JUSTICE VERNIERO: It was the change of focus. It was the way in which we have -- we came to appreciate the significance of the data itself.

MR. CHERTOFF: Is it fair to say that it was -- that it was only in February 1999 that someone in the Office of the Attorney General really seriously asked for it? Is that what changed it?

JUSTICE VERNIERO: I've indicated what changed it, and it's a long answer, and if you'd like, I'll repeat it. It was a change of focus. It was a change in our thinking. It was an evolution of thought. It was an evolution of the very definition and essence of racial profiling. It was keyed principally on falsification, but there were other issues as well -- direct testimony from troopers.

All of those factors evolved and came together in a form, which was expressed in this report.

MR. CHERTOFF: And the time that you became personally involved in putting together or demanding that this material be put together, in terms of a study of racial profiling, was sometime after February 10th, 1999, when you directed Mr. Zoubek to do that, right?

JUSTICE VERNIERO: That's when I formally asked him to do it. As I say, the precursors of -- of some of this report was the Troop D audit.

MR. CHERTOFF: And the Troop D audit was being run by Mr. Zoubek, right?

JUSTICE VERNIERO: That's my recollection.

MR. CHERTOFF: And again, you told us prior to February 1999 you never asked the State Police for any raw statistical data that they were assembling concerning stops or consents to search, right?

JUSTICE VERNIERO: I don't recall.

MR. CHERTOFF: Now, when the-- There was discussion concerning this draft and the issue of--

Well, then let me ask you this question. When it says, "The most startling evidence of such disparate treatment comes in the form of statistics that were compiled by the State Police as part of an internal audit--"

JUSTICE VERNIERO: Are you reading from a page?

MR. CHERTOFF: Yes, I'm reading from the page we have before us.

JUSTICE VERNIERO: Okay.

MR. CHERTOFF: "One not previously disclosed to the Attorney General's Office or the Division of Criminal Justice," wouldn't it be fairer to say, not previously asked for by the Attorney General's Office or the Division of Criminal Justice?

JUSTICE VERNIERO: I'm sorry, what line are you on?

MR. CHERTOFF: Line 3. "Not previously disclosed--"

JUSTICE VERNIERO: Not previously-- Oh, okay.

MR. CHERTOFF: "--to the Attorney General's Office." Wouldn't it be more accurate to say it was not previously requested by the Attorney General's Office?

JUSTICE VERNIERO: I -- I don't want to get into the position of speculating what would be more accurate or not accurate in a paragraph, which, ultimately, did not make its way into the final report.

MR. CHERTOFF: Didn't it not make its way into the final report, because after the meeting with the Governor, when Mr. Zoubek focused on this, he realized that this mischaracterized the facts, and therefore, he watered it down?

JUSTICE VERNIERO: I don't know if he watered it down at all. I know Paul, as I was in all my work at the Attorney General's Office, was very concerned about accuracy in all respects. We would not want to publish a significant report unless it were accurate. So, if he went back after our meeting and decided to revise any part of this report for accuracy's sake, I would -- I certainly would have encouraged that, and I assume that's what happened. But, as I say, I don't recall it.

MR. CHERTOFF: You perceive a difference between saying that something wasn't previously disclosed to the Attorney General's Office and saying something wasn't previously requested by the Attorney General's Office? There's a pretty big difference there, isn't there?

JUSTICE VERNIERO: Well, there's a difference in meaning, yes.

MR. CHERTOFF: The difference is, in one place the responsibility for the disconnect is placed on the State Police. In the other, the responsibility for the disconnect is placed on the Attorney General's Office.

JUSTICE VERNIERO: I don't think we were trying to pin responsibility on anyone. We were trying to deal with a situation that was terribly complex, that had really reached an acute level, at this point in time in April. We were laboring under a deadline that the Appellate Division had essentially set for us, and we wanted to make sure our -- our report was accurate.

I cannot sit here, Mr. Chertoff, and testify as to why we used this word or that word. I cannot testify whether I have focused on one paragraph or another. I had enormous confidence in Director Zoubek and those who actually wrote this report that it would accurate in all respects.

MR. CHERTOFF: So your position is, as far as you're concerned, the interim report did not attempt to fix--

I'm going to move to another question. As far as you're concerned, did you ever suggest or indicate that the State Police bore responsibility for any failure of information getting into the hands of the Attorney General's Office?

JUSTICE VERNIERO: That was one of the things that I had asked Paul Zoubek to look into. That's why I said, Paul, you should look into the, you know, the so-called blue binder issue.

MR. CHERTOFF: And you took no position on the merits. You just said, "look into it," but you didn't take a position or suggest that the State Police were somehow responsible for a disconnect between the information getting from their files into the files of the Office of the Attorney General?

JUSTICE VERNIERO: I don't recall if I took a position on the merits. At that point in time, again keep in mind, my approach to the State Police had changed. Prior to 1998, I gave them the benefit of the doubt, because I thought that they deserved it. And after 1998, upon learning of the falsification possibilities and other issues, I began to be less confident in the assurances that I was receiving for State Police.

But I don't recall whether I was pointing fingers on the "merits" at that particular time.

MR. CHERTOFF: Now, let me ask you this, again with respect to this issue. Same exhibit, which is before you, but this time, let's turn to Page 3189, which is another April 16th draft.

JUSTICE VERNIERO: Okay, this is a different document or the same?

MR. CHERTOFF: Same document -- OAG-3189, that page.

JUSTICE VERNIERO: Okay, 3189, okay.

MR. CHERTOFF: You see there's a table there, "motor vehicle stops by Cranbury and Moorestown Stations, 30 sample days."

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: "1995 and 1996."

JUSTICE VERNIERO: Correct.

MR. CHERTOFF: Did you tell Mr. Zoubek to take this out of the draft report?

JUSTICE VERNIERO: I don't recall that. I understand that's his testimony, however.

MR. CHERTOFF: Did you tell him, because of the reference to the fact that this was pursuant to a request made by the Department of Justice, that you wanted it out of the report?

JUSTICE VERNIERO: I may have, in the -- in the connection of investigative privilege, suggested that this be removed. I don't recall it specifically.

MR. CHERTOFF: What investigative privilege?

JUSTICE VERNIERO: The fact that this might have been subject to a -- an investigation of either the Troop D audit or something that the-- If I'm not mistaken, at this point in time, DOJ had formalized their inquiry into an investigation, and I might have suggested that this might be subject to an investigative privilege. I don't recall an extended conversation on it.

MR. CHERTOFF: Well, this was the Department of Justice inquiry, which Mr. Rover had supposedly been providing information with respect to. Remember that?

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And your--

JUSTICE VERNIERO: At some point, though--

MR. CHERTOFF: --testimony is you took this out, because you thought there was an investigative privilege?

JUSTICE VERNIERO: My testimony is, I don't recall the conversation. I recall Mr. Zoubek's deposition, and you've asked me, to the best of my recollection, what I might have had in mind. I don't recall saying it at all. You're asking me to piece together what might have occurred. What might have occurred is that I suggested to Paul that, because the DOJ had now formalized their inquiry into an investigation, that there might be some privilege attached to it. I'm assuming that Paul deleted the reference. He agreed with that or didn't disagree.

But my testimony is, I don't remember. Everything that I've said is my best recollection at trying to piece it together.

MR. CHERTOFF: If Mr.-- Mr. Zoubek testified, I believe in his deposition, that he actually wanted to keep this in, and you wanted it out, because you didn't want to disclose the substance of the investigation.

Does that jog your memory?

JUSTICE VERNIERO: No, it does not.

MR. CHERTOFF: Are you in a position to disagree with that testimony?

JUSTICE VERNIERO: I'm in a position to say I don't recall it one way or the other.

MR. CHERTOFF: Now, you'd agree with me that if we look at, for example, this passage here in the draft, if we look at the July 29, 1997, memo, which we've talked about earlier involving Moorestown, and if we look at the January 1997 letter to DOJ which you struck out, that there are a number of indications in the record that there were statistical studies and data collected by the State Police in 1995 and 1996, which wound up in this interim report.

Is that fair to say?

JUSTICE VERNIERO: I've heard that characterization. Unless I went through and verified it, I don't want to characterize it. I'll accept your characterization.

MR. CHERTOFF: When you were asked on May 5th -- in the hearing here -- about the length of time it took--

JUSTICE VERNIERO: Do you have a page?

MR. CHERTOFF: Yes.

JUSTICE VERNIERO: Am I finished with this document?

MR. CHERTOFF: I think-- Well, I think so, yes.

JUSTICE VERNIERO: Okay.

MR. CHERTOFF: I think when we--

JUSTICE VERNIERO: Do you have a page for-- You said May 5th?

MR. CHERTOFF: May 5th, Page 65.

JUSTICE VERNIERO: Sixty-five, okay.

MR. CHERTOFF: When you were asked about the length of time it took to get to the point of the interim report by Senator Matheussen, you answered at Page 65-- The question was, "Why that amount of time? It was some two years -- two and one-half years." And you said, "Well, the underlying data that was used to support the report, we had actually begun collecting a year ago, thereabouts, as a result of the Turnpike incident that occurred in April of last year."

Would you agree with me that, in fact, the underlying data in the report was collected as far back and was being collected as far back as 1995, 1996, and 1997? Well, earlier than a year before.

JUSTICE VERNIERO: That is not the data that I was-- As I recall, that is not the data that I was referring to in that passage. I was referring to the Troop D audit.

MR. CHERTOFF: There is no mention of the Troop D audit data in the interim report.

JUSTICE VERNIERO: There is no specific mention of data. There's no numerals to it, but that was my shorthand reference of referring to the falsification investigations, which were the Troop D audit.

MR. CHERTOFF: I'm sorry, is there anything-- And do you have an entire copy of your testimony before you? I think you do.

JUSTICE VERNIERO: I do, yes.

MR. CHERTOFF: Okay. So I don't want to be unfair. Would you find me anything in the preceding question or a couple of questions earlier that suggested to you that the reference to the underlying data that was used to support the report was restricted to the Troop D audit involving falsification?

JUSTICE VERNIERO: I don't understand your question.

MR. CHERTOFF: Well, in other words, my-- You're interpreting the word data in a very restrictive way. In your mind, you said it applied only to the Troop D falsification information. That's the data you're referring to, is that what you're telling us?

JUSTICE VERNIERO: That's correct.

MR. CHERTOFF: But if you look at the interim report, there is not a scintilla of data from the Troop D audit report in the interim report.

JUSTICE VERNIERO: Yeah, I may have been mistaken when I referred to data in that sense. What I-- What I was referring to was the fact that after the Turnpike incident we had begun in a very formalized way, by virtue of the Troop D audit, to review allegations of falsification, which were tantamount to racial profiling, and that that process had actually predated the February 1999 review team.

MR. CHERTOFF: But then you came back to the same point again at Page 85 of the same hearing. And at that point it's in response to questions from Senator Zane, and you say at Page 85, "As I indicated last week at this Committee, the whole issue of profiling became crystallized and uppermost in my mind at around the time of the Turnpike incident of last year."

JUSTICE VERNIERO: Is that a different day?

MR. CHERTOFF: Same day.

JUSTICE VERNIERO: Okay.

MR. CHERTOFF: Page 85.

JUSTICE VERNIERO: Yes, I see it.

MR. CHERTOFF: Middle of the page.

And you go on to say, "And I think it is fair to say, particularly since we relied, in part, on this data that we gathered last year, that I had been looking at racial profiling for at least the year."

Again, when you talk about the data that you gathered last year, were you suggesting that the gathering of data here, again, only began in the last year?

JUSTICE VERNIERO: In -- in my mind, and -- and I was obviously inarticulate in my response to Senator Zane, it was the information and data in connection with the falsification, that we had begun to look at the various barracks along the Turnpike and finding for the first time that there might be falsification.

Now, there is a reference, I believe, somewhere in the interim report to falsification and even falsification data. So the best that I could remember at this point, in trying to reconstruct it, is that that's what I had in mind.

MR. CHERTOFF: Well--

JUSTICE VERNIERO: Now, I might have been mistaken that this data was not actually formally expressed in terms of numbers or charts in the interim report, but that was the gist of my thinking when I responded to Senator Zane.

MR. CHERTOFF: And then it came--

JUSTICE VERNIERO: I also had a belief, and maybe it was inaccurate at the time-- I -- see I used the word "we." Again, that was a very unartful way-- At this point in time in my tenure, "we" did not refer to State Police. "We" referred to the Office of Attorney General, and so when I said "we" were doing X, Y, and Z, it was more of a closed definition of the review team and persons within the OAG.

In looking back, that was -- that was not the best way of responding. It was inarticulate, and I regret that. And I apologize to Senator Zane, but what I had in mind--

MR. CHERTOFF: Let me-- Before we finish, let me--

JUSTICE VERNIERO: --was the -- the falsification.

MR. CHERTOFF: And it came up again later in the same hearing.

JUSTICE VERNIERO: And, Mr. Chertoff--

MR. CHERTOFF: Page 203.

JUSTICE VERNIERO: --my answer -- my answer will be the same. That was my mind-set. That was my frame of mind.

MR. CHERTOFF: Well, let's get it into the record, because I want to give you an ample opportunity to respond. On Page 203, it was Senator Girgenti, now, and you say, "Well--"

At Page 203, same day, May 5th.

JUSTICE VERNIERO: Yes.

MR. CHERTOFF: And you say, "As I indicated last week and I believe earlier, the data that was included in the report recently issued was gathered -- we had began that process almost a year ago."

JUSTICE VERNIERO: That's-- That's the steps that were taken in the aftermath of the Turnpike shooting. That's what I was referring to.

MR. CHERTOFF: So there again, the data referred to as being included in the report, you, in your mind, were limiting that to just the falsification data, not the rest of the data.

JUSTICE VERNIERO: Well, it was falsification and the other information we were getting out of that. It wasn't just data. It was interviews with troopers and things of that nature. I mean, it was an investigation.

My understanding -- I could have been mistaken at the time -- my understanding was that it was not just that they were looking at records in the Troop D audit. They were looking at records. They were speaking to supervisors. I used data in the more expansive sense of data and information--

MR. CHERTOFF: But you--

JUSTICE VERNIERO: --and it was that data and information that we began-- Again we -- a very limited audience there, not State Police, we meaning Division of Criminal Justice or OAG -- we had begun that process almost a year ago, and I think that was accurate. This was May 5th, and that process began -- maybe it was June, as you've indicated, so it was a little bit less than a year. That's why I said maybe a year. I wasn't sure of the exact date.

MR. CHERTOFF: So again, for the third time, when you talk about having begun collecting the data only in 1998, in your mind you were restricting that to the falsification data and not the more general statistical data which is all over the interim report?

JUSTICE VERNIERO: I was referring to the things that I knew my office was doing at that time.

MR. CHERTOFF: And then--

JUSTICE VERNIERO: And it was falsification. It might have been-- I might have remembered -- again, this is going back now -- I might have believed that in addition to the falsification, there might have been some data retrieval from OAG at that point.

But the gist of what I was saying was-- Putting aside the exact words I used, the gist of what I was saying was -- and I believe this is accurate; it might have been unartful, but I believe it was accurate -- was that we had begun the process of retrieving the information that we needed in order to reach the conclusion that some troopers were falsifying records.

And that conclusion, or that possibility -- we never reached a formal conclusion, because it was part of an investigation -- was the turning point in our thinking and very much a part of the result of this report.

MR. CHERTOFF: Well--

JUSTICE VERNIERO: Or very much a part of what led to this report.