IN RE: ) TRANSCRIPT ) 0F SENATE JUDICIARY ) ELECTRONICALLY COMMITTEE INVESTIGATION ) RECORDED DEPOSITION ) OF ) RONALD SUSSWEIN

Transcription

1 NEW JERSEY STATE LEGISLATURE OFFICE OF LEGISLATIVE SERVICES IN RE: ) TRANSCRIPT ) 0F SENATE JUDICIARY ) ELECTRONICALLY COMMITTEE INVESTIGATION ) RECORDED DEPOSITION ) OF ) RONALD SUSSWEIN TAKEN BEFORE: TUESDAY, FEBRUARY, 00 ************************** JAMES V. BOWEN, Notary Public of the State of New Jersey, for the Offices of J&J COURT TRANSCRIBERS, INC., a Certified Transcription Agency, at the Office of Legislative Services, State House Annex, Trenton, NJ 0, commencing at 0:00 a.m. A P P E A R A N C E S: ********** Senate Democratic Staff By: JO ASTRID GLADING, ESQ. DOUG WHEELER, ESQ. Latham and Watkins By: MARK GOLDBERG, ESQ. SCOTT LOUIS WEBER, ESQ. One Newark Center Newark, NJ 00 0ffice of Attorney General By: JEFFREY MILLER, Assistant Attorney General Richard J. Hughes Justice Complex W. Market Street Attorney for Mr. Susswein Transcriber, Patricia A. Kontura J&J COURT TRANSCRIBERS, INC. Evergreen Avenue Hamilton, NJ 0 (0)- FAX NO. (0)- Audio Recorded

2 Examination - Susswein 0 0 MR. WEBER: Mr. Susswein, good morning. My name is Scott Lewis Weber. I m an attorney with Latham and Watkins in Newark, New Jersey. Latham and Watkins and Mike Chertoff were retained by the Senate Judiciary Committee as special counsel to assist the Senate Judiciary Committee in connection with its investigation into racial profiling, or allegations of racial profiling, by the New Jersey State Police. Before we begin, I just want to advise you of my authority to take your deposition today. There was a motion by the Senate Judiciary Committee approved January th of this year in which the Senate Judiciary Committee authorized, among other things, special counsel to the Committee, Michael Chertoff, and his aides and associates, to take such testimony, interview such persons and gather such documents in further of this Committee s investigation and inquiry into the issue of racial profiling and the circumstances pertaining thereto. It was further resolved that we have the authority to administer oaths on behalf of the Committee, to obtain sworn testimony. So if you would be kind enough to raise your right hand, I ll swear you in. If you would please repeat after me. Examination - Susswein 0 0 R O N A L D S U S S W E I N, SWORN MR. WEBER: Mr. Susswein, before we begin today s deposition, I m just going to ask that everyone in the room please identify themselves for the record. And if Mr. Miller would be kind enough to start. MR. MILLER: Jeffrey Miller, Assistant Attorney General, counsel for Mr. Susswein. THE WITNESS: Ronald Susswein, Assistant Attorney General. MR. GOLDBERG: Mark Goldberg of Latham and Watkins. MR. WEBER: Myself, Scott Lewis Weber of Latham and Watkins and Jo Glading, who will also be participating this morning. Jo is counsel to the Senate Minority. Mr. Susswein, let me just first off thank you on behalf of the Committee for agreeing to appear today and to testify about the issue of racial profiling. I do appreciate you coming down. We know that it was of a voluntary nature. And just on behalf of the Committee, I do want to thank you. If at anytime during the course of my questioning or questioning from others you don t understand a question or it s at all unclear, please don t hesitate to let us know. We re happy to restate

3 Examination - Susswein 0 0 the question. Mr. Susswein, if we could begin just by getting a background and if you could just please start where you went to college, where you went to law school, and then just detail for the Committee your job history, I d appreciate that. THE WITNESS: Okay. I went to American University Undergraduate. I got a degree, Bachelor of Science and Political Science. I then went on to Georgetown University Law Center, graduated in. Right after coming out from Georgetown I took a job with the Division of Criminal Justice in the Department of Law and Public Safety, first as a legal intern until I had gotten the bar results, and then I was sworn in as a Deputy Attorney General in December of. I was there in a number of different capacities, starting in the Appellate Bureau, for about months or so. I went on to the State -- what was then called the State Grand Jury Bureau. MR. WEBER: How long were you with the Appellate Bureau? THE WITNESS: I think about months. MR. WEBER: So when you started as a DAG, you were immediately assigned to the Appellate Bureau? THE WITNESS: I m sorry? Examination - Susswein 0 0 MR. WEBER: When you started as a DAG in December of, were you immediately assigned to the Appellate Bureau? THE WITNESS: Yes. In fact, even before that as a legal intern, or whatever the phrase was before I passed the bar. MR. WEBER: So you were in the Appellate Bureau from -- THE WITNESS: September of until months later or thereabouts. MR. WEBER: Okay. You were then transferred to what bureau? THE WITNESS: It was then called the State Grand Jury Bureau. MR. WEBER: And approximately when did you start in the State Grand Jury Bureau? THE WITNESS: Whenever months is from September of. Sometime in. MR. WEBER: So beginning part of? THE WITNESS: Yeah. MR. WEBER: How long were you in the State Grand Jury Bureau? THE WITNESS: Well, the name of the Bureau changed. I was really working on one case for about a year and a half, and then I became the Special

4 Examination - Susswein 0 0 Assistant to the Deputy Director of the Division of Criminal Justice. MR. WEBER: When did that happen? THE WITNESS:, something to that effect. MR. WEBER: Special Assistant to the Deputy Director of the Division of Criminal Justice? THE WITNESS: Right. Deputy Director for Operations. That was John DeCicco. MR. WEBER: How do you spell John s last name? THE WITNESS: It s D-e-C-i-c-c-o. MR. WEBER: And approximately when were you appointed Special Assistant? THE WITNESS:. MR. WEBER:? THE WITNESS: Yeah. MR. WEBER: What were your responsibilities generally in that capacity? THE WITNESS: Well, it turned out I became the Legislative Liaison for the Division of Criminal Justice in that time period,. MR. WEBER: Off the record. (Off the record) MR. WEBER: Did you immediately begin as the Legislative Liaison when you started your tenure as a Examination - Susswein 0 0 Special Assistant to the Deputy Director? THE WITNESS: It might have been a little thereafter. The person who was the Legislative Liaison left and I sort of took over his position. MR. WEBER: And how long were you in that position, the Special Assistant position? THE WITNESS: Well, the titles changed over time. First I was Legislative Liaison. Then a unit was formed called the Policy and Legislation Unit. I was a member of that. At some point I became the Chief of that unit. MR. WEBER: When did you become the Chief of the unit? THE WITNESS: I really don t recall whether it was,. Things were changing rather rapidly. And then I became the Special Assistant to the Director of the Division of Criminal Justice. MR. WEBER: When was that? THE WITNESS: I m going to say. MR. WEBER: And who was the Director at that time? THE WITNESS: Don Belsole. MR. WEBER: How long did you remain in the Special Assistant to the Director of CJ position? THE WITNESS: As long as Don was there.

5 Examination - Susswein 0 0 MR. WEBER: Approximately when did he leave? THE WITNESS:. MR. WEBER: What was your position then in after Mr. Belsole left? THE WITNESS: Well, at some point I was promoted to Assistant Attorney General and I was in -- I m not even sure of the name. The Bureaus kept, they kept changing the names. The functions really never did change that much, but the titles of the Bureaus changed. MR. WEBER: Was it in approximately when you became an Assistant AG? THE WITNESS: I believe it was earlier than that,. MR. WEBER: How long did you remain an Assistant AG? THE WITNESS: Until I left the State. Until I left the Division of Criminal Justice in February of. MR. WEBER: Where did you go in February of? THE WITNESS: Union County Prosecutor s Office. MR. WEBER: In what capacity? THE WITNESS: The Executive Assistant Examination - Susswein 0 0 Prosecutor. MR. WEBER: How long were you in that role? THE WITNESS: I stayed there until September of. MR. WEBER: What happened in September of? THE WITNESS: I returned to the Division of Criminal Justice. MR. WEBER: In what role? THE WITNESS: Assistant Attorney General and Deputy Director for Policy. MR. WEBER: How long did you remain in that position? THE WITNESS: Until I guess October of 000. Just a few months ago. MR. WEBER: What position were you transferred to or promoted to in October? THE WITNESS: Right now I m in the Office of Attorney General and the title is Special Assistant to the Attorney General for Policy. MR. WEBER: Are you now up on the Eighth Floor? THE WITNESS: Yes. MR. WEBER: Have you ever been up on the Eighth Floor prior to this promotion in October 000?

6 Examination - Susswein THE WITNESS: Briefly. Just before I left for the Union County Prosecutor s Office. Just a couple of weeks. MR. WEBER: All right. Let s go back a little bit. I want to get some details on what your responsibilities were in connection with some of these positions here. What were your primary functions as a Legislative Liaison from the Division of Criminal Justice back in to time frame? THE WITNESS: I would represent the Division before legislative committees. I would review bills that were of interest to law enforcement and the Division of Criminal Justice. And I would draft legislative initiatives for the Attorney General and the Governor s Office. MR. WEBER: And I assume that those functions were made in the same as both the Legislative Liaison and as the Chief of the unit? THE WITNESS: Yes. Yes. MR. WEBER: With the additional responsibility, I take if, of the supervisory role as the Chief of the unit? THE WITNESS: That s correct. MR. WEBER: What were your general Examination - Susswein 0 0 responsibilities as the Special Assistant to Mr. Belsole? THE WITNESS: Doing projects for the Director. And at one point he became the First Assistant Attorney General. MR. WEBER: Is that when you briefly went up to the Eighth Floor? THE WITNESS: No. I went to the Eighth Floor just before I went to the Union County Prosecutor s Office. MR. WEBER: Were you at all involved in legislative -- in a legislative capacity or a legislative role when you were the Special Assistant to Mr. Belsole? THE WITNESS: Yes. MR. WEBER: Were you involved in the drafting of the Comprehensive Drug Reform Act of? THE WITNESS: That was my assignment, yes. MR. WEBER: Okay. If you could just briefly describe for the Committee, when you say that was my assignment, what exactly did it entail? THE WITNESS: Well, drafting it for the Governor s Office and for the Attorney General. That involved reviewing the laws in all 0 states and legislation pending in New Jersey and the 0 states,

7 Examination - Susswein 0 0 and trying to come up with the most comprehensive, modern drug enforcement statute. MR. WEBER: Who gave you that assignment? THE WITNESS: That would have come from Don Belsole and Cary Edwards, the Attorney General. MR. WEBER: Were you also involved in the drafting of the statewide Action Plan that was released in the beginning of under then Attorney General Cary Edwards? THE WITNESS: Yes. MR. WEBER: As concerns to the Comprehensive Drug Reform Act of, did you contemplate the use of drug courier profiles in connection with your efforts to draft that legislation? THE WITNESS: The legislation really didn t deal with that as much as the Action Plan which was designed to enforce it. MR. WEBER: Were you cognizant of the existence and use of drug courier profiles by other law enforcement agencies while you were working on drafting the Act itself? THE WITNESS: I suppose that I was. MR. WEBER: How did the issue of drug courier profiles come into play in connection with your work on the Action Plan? Examination - Susswein 0 0 THE WITNESS: The Action Plan was meant to be a comprehensive guide to the law enforcement community on how to implement the new statute, the new legal tools that the Legislature and the Governor had provided. So there was a number of different chapters that gave direction to the various law enforcement actors throughout the law enforcement community. One of the goals or one part of the Action Plan was on a supply side, interdiction, and one aspect of interdiction is highway interdiction and also air strips, boat marinas. MR. WEBER: The draft of the Comprehensive Drug Reform Act of that you prepared, ultimately the law that was adopted, was it very similar to the draft that you had prepared? Were there a lot of changes to it? THE WITNESS: There were very few changes. MR. WEBER: Very few changes. THE WITNESS: Through the legislative process? MR. WEBER: Yes. THE WITNESS: There were comparatively few changes to the bill that was proposed by the Governor. MR. WEBER: And how much of the Action Plan were you responsible for drafting?

8 Examination - Susswein 0 0 THE WITNESS: I wrote the entire Action Plan. MR. WEBER: There are, as I m sure you ll recall, several directives that were proposed in the Action Plan. Some of the directives concerned the amassing of offender data, to then put together a data base that could then be used, I would assume, to derive profiles of offenders to assist local law enforcement, as well as the New Jersey State Police. Do you remember that directive? THE WITNESS: There are a number of different directives for collecting data intelligence information, crime trend analysis. MR. WEBER: Well, but there was a directive that would specifically address the compilation of information for individuals who were offenders, correct? THE WITNESS: There was at least one, yes, directive. MR. WEBER: Okay. Did you give any contemplation to how that information would be used? THE WITNESS: I m not sure I understand. MR. WEBER: Well, why did you put that directive in the Action Plan? THE WITNESS: Because the goal was to enhance the effectiveness and efficiency of law enforcement in Examination - Susswein 0 0 that particular directive through collecting information. That was what was going on throughout the law enforcement community. MR. WEBER: Okay. So what was your goal for the use or your intent for the use of that information once it was collected and stored in this data base? THE WITNESS: To increase the likelihood of interdicting drugs and illicit commerce. MR. WEBER: Okay. But what I m trying to drive at here is, if the directive, in fact, was followed, and it s my understanding based upon other witness interviews, that ultimately the data base was never put together. But let s assume that the data base did, in fact, exist as a result of this directive and that the information on offender characteristics was put into the data base. What then would be done with that information? How would it be used? THE WITNESS: Well, just as a profile is used, and I m using the word to distinguish a racial profiling, which is a different beast. It would be used to assist law enforcement in identifying criminal activity. MR. WEBER: Would it be used to put together drug courier profiles? THE WITNESS: That was the original goal.

9 Examination - Susswein 0 0 MR. WEBER: Okay. Prior to drafting the Action Plan, did you conduct any research to determine whether or not drug courier profiles were constitutionally permissible? THE WITNESS: Certainly. MR. WEBER: Did you memorialize that research in any form? THE WITNESS: I know there s the memo in which came later -- MR. WEBER: But that postdates, right? THE WITNESS: No, I mean there really never was and continues to be no legal question about the use of profiles. MR. WEBER: Use of drug courier profiles. THE WITNESS: Absolutely. I mean the case law has been pretty uniform and continues to be that -- and I m talking about race neutral profiles, they are part of modern law enforcement. Otherwise known, and probably better described today, as modus operandi. MR. WEBER: The Action Plan set forth various directives. Was there any other document that you know of that provided more detail on how these individual directives set forth in the Action Plan could actually be implemented? THE WITNESS: There were many different Examination - Susswein 0 0 documents and projects. It would depend on what subject you re referring to. MR. WEBER: Well, for instance, the subject we ve been talking about, the compiling this offender data base. Was there any other document that you prepared or that you were aware of that more specifically delineated how the data base could be set up, how it could be used, how the information would be collected, how it would be digested? Things to that effect. THE WITNESS: No. Keep in mind that I am -- had been and continue to be computer illiterate, so I wasn t involved in designing -- it called Nomad, was the computer that was supposed to do this. MR. WEBER: Whose responsibility was it to take the directives, which I take it were recommendations, is that correct? THE WITNESS: No. I believe that directives, once they were issued by the Attorney General, they were directives to the law enforcement community. MR. WEBER: Okay. Then whose responsibility was it to see that the law enforcement community complied with the directives in the Action Plan? THE WITNESS: Were there were a number of committees established as part of the Action Plan to

10 Examination - Susswein 0 0 help to implement -- implement the Action Plan. MR. WEBER: Were you part of any of those committees? THE WITNESS: I was part of a couple of them, most notably what was called the Education -- well, it is now called the Education of Law Enforcement Working Group. In the Action Plan it was called the School Zone Narcotics Enforcement Working Group. MR. WEBER: Were any of the committees that you were involved in responsible for complying with the directive that concerned the establishment of the data base, the offender data base and the collection of that data? THE WITNESS: I believe there -- well, certainly there was a training committee, and I believe there may have been another committee on designing the Nomad system. MR. WEBER: Were you on the training committee? THE WITNESS: I don t believe I was on it. I may have been. I certainly wasn t the Chair of it. MR. WEBER: We briefly discussed that some other witnesses have testified that not all of the directives were ultimately complied with. Do you know why that happened? Examination - Susswein 0 0 THE WITNESS: Well, a number of reasons, depending on the directive -- for example, the Nomad system was a great idea. Maybe a little bit before its time. The technology simply didn t exist to design the system the way it was originally contemplated. Some other directives didn t make any sense as it turned out. MR. WEBER: Ultimately who had the decision or who would make the decision to say okay, Directive Five -- I m using five as an example, Directive Five just doesn t make sense. It was a good idea, but we really can t implement it so let s scrap that directive. Whose decision was that? THE WITNESS: It would be a, probably a group that would get together and ultimately it had to be the Director, the Superintendent or the Attorney General. MR. WEBER: Was there any subsequent communication to that type of decision being made to the law enforcement community saying okay, you know, we previously issued Directive Number Five, but we now have decided to withdraw it for whatever reason? THE WITNESS: The only ones that I think were really not implement had to deal with Nomad, and mostly between State Police and Criminal Justice. In other words, within the State system. So I don t believe we

11 Examination - Susswein ever told local or county law enforcement to disregard or change one of the directives. MR. WEBER: All of this work that we ve been talking about, the work on the Action Plan, this all occurred while you were an Assistant Attorney General, from to, correct? THE WITNESS: The original Action Plan was done in a very, very brief time period in. MR. WEBER: Why was it done in a very brief time period? THE WITNESS: Well, the Attorney General was insistent on you can t have this new comprehensive law and then not use it. He didn t want something to sit on the shelf. So there was this narrow window in terms of putting out the directives and the guidelines. MR. WEBER: You said in February of you went to the Union County Prosecutor s Office. Did you resign from the Attorney General s Office, were you on sabbatical? How did that work? THE WITNESS: No, I had resigned. It wasn t a -- on leave or anything of that nature. MR. WEBER: What were your general responsibilities as the Executive Assistant Prosecutor in Union County from February to September? THE WITNESS: It varied day to day. I was Examination - Susswein 0 0 Drew Rotolo s Executive Assistant. I was Chief Counsel to the Union County Police Academy. I was involved in supervising the Victim Witness Unit. MR. WEBER: Did you discontinue your training involvement with the State Police Academy? THE WITNESS: No. MR. WEBER: Okay. So even while you were at Union County, at the Union County Prosecutor s office, you still continued to be involved in training at the State Police Academy in Sea Girt? THE WITNESS: Yes. I did a number of courses or schools for them. MR. WEBER: You then come back in September to be an Assistant Attorney General, Deputy Director of Policy. Again, this is in September of -- THE WITNESS: I m sorry, the Policy Bureau. MR. WEBER: The Policy Bureau. What were your responsibilities generally in that position? THE WITNESS: It was supervising the Legislation Section, the Research and Evaluation Section and the Grants Section, which was eventually called the Program Development Section. MS. GLADING: What year was that? THE WITNESS: I came back in, late. September of.

12 Examination - Susswein 0 0 MR. WEBER: And you remained in that position for approximately six years? THE WITNESS: Yes. MR. WEBER: And you re now Special Assistant to the Attorney General for Policy. What are your general responsibilities in that role? THE WITNESS: Doing special projects, mostly for Paul Zoubek and the Attorney General. MR. WEBER: Still have legislative policy bent to it? THE WITNESS: To some extent. It s not the formal role of reviewing bill comments that I had when that was part of my actual unit. But if there s legislation on an area that they think I have some expertise, I would comment or kibitz on that. MR. WEBER: When did you first begin your involvement in the training at the State Police Academy in Sea Girt? THE WITNESS: I was still in the Appellate Bureau -- or it was then called the Appellate Section. So that would have been. MR. WEBER:? THE WITNESS: Or. MR. WEBER: And how did it come to pass that you were involved in the training with the State Examination - Susswein 0 0 Police? THE WITNESS: The then Deputy Chief of the Appellate Section had been doing training for the State Police and one day he grabbed me and said, come with me, you re going to be -- he wanted me to watch it so that I could take it over. MR. WEBER: Did you take it over shortly thereafter? Was this a quick passing of the baton or -- THE WITNESS: Yeah, it was the very next session. I mean the sessions were maybe less than once a month but, yeah, the very next -- I didn t at the time believe that -- I thought I was a driver at the time and it turned out he wasn t kidding, I was going to take it over for him. MR. WEBER: What were the topics that you spoke on in connection with the training? And let s start with, you know, the first topic you remember speaking about and then let us know if that expanded or changed with time. THE WITNESS: Well, it s always been arrest, search and seizure, occasionally Miranda gets woven into that. Miranda and Fifth and Sixth Amendment issues. But basically it s Fourth Amendment and state constitutional counterpart to the Fourth Amendment.

13 Examination - Susswein 0 0 MR. WEBER: Has it basically been the same course that you ve taught, and again, obviously updating it as case law develops, but it s basically been the same course that you ve taught since? THE WITNESS: Yeah, the same subject. Obviously the principles have changed. MR. WEBER: And how frequently do you teach this course? THE WITNESS: That would vary. It was never more than once a month. It was more like once every other month. There were two courses that the State Police put on. One was called the Criminal Investigation School. The other was called the Narcotics Enforcement or Drug Enforcement School. One or the other was a one-week, the other was a two-week course. And I would do the half-day on arrest, search and seizure. And although this was State Police, most of the audience were not State Police, they were local. MR. WEBER: So this was not then for the State Police Academy for cadets? THE WITNESS: No, absolutely -- to this day I have never done a training session for recruits, or cadets, whatever they re called. MR. WEBER: Do you have a counterpart who does the training for the recruits? Examination - Susswein 0 0 THE WITNESS: I assume that there are, I don t know who that is. MR. WEBER: Okay. So you haven t had any conversation sort of to coordinate information with other instructors, either for cadets or for local law enforcement? THE WITNESS: No, I have not. MR. WEBER: The courses that you teach, is it sort of a voluntary basis? Local law enforcement sees what programs are being offered by the State Police and they could send representatives if they want? Or is this something that s mandated? THE WITNESS: I don t think it s mandated. I think it s made available to local and county and state people to come and they come. Now, whether individuals were assigned by their departments -- it depends on what you mean by mandatory. It wasn t required by law or regulation. I suspect that some officers were told to go by their superiors. MR. WEBER: In the context of these courses, have you dealt with the issue of the use of race in connection with stops -- THE WITNESS: Yes. MR. WEBER: -- either motor vehicle stops or stops on the street of individuals?

14 Examination - Susswein 0 0 THE WITNESS: Yes. MR. WEBER: Have the materials that you have presented in connection with that changed over time? THE WITNESS: Yeah. I think the big change was sometime in a case came out called State v. Kuhn, and that laid out what I thought was a very strict rule. And frankly, before Kuhn I might not have even addressed the subject. But once that Appellate Division case had come out, I wove that into the lectures. MR. WEBER: Okay. So prior to the Appellate Division decision in State v. Kuhn in, as best as you can recall, you probably didn t even deal with the issue of stops and the use of race in connection with stops? THE WITNESS: I really don t remember, but I know that when Kuhn came out, I added -- I added that. So I m assuming that there was not much about that -- MR. WEBER: Well, just for the record for someone who s reading this transcript, if you d give us the Reader s Digest version. What is the holding in Kuhn as it pertains to the use of race and stops of individuals? THE WITNESS: Kuhn stands for the proposition that law enforcement cannot use race or ethnicity in Examination - Susswein 0 0 drawing inferences of criminal activity at all. It cannot rely on it at all. That particular case was actually -- it was a State Police case, it was a highway stop. It was a white defendant who was seen conversing in a high-crime neighborhood with two minority, I believe Hispanic males. And the Court basically said that you can draw no inferences from the fact that the person is white or vice versa. MR. WEBER: And you, I take it, use the holding in State v. Kuhn to apply it to the use of motor vehicle stops, although the facts in that particular case didn t deal with a motor vehicle stop? THE WITNESS: Absolutely. I just assumed that that was a -- the Kuhn case cited to U.S. Supreme Court authority with a see, an s-e-e, signal. And I just assumed that was the law. MR. WEBER: Has your instruction on State v. Kuhn, or instruction that addresses State v. Kuhn, change at all since you made that part of your lesson? THE WITNESS: Well, certainly in the last year or so I have, when I do my lecture, search and seizure lectures, greatly amplified, in light of the racial profiling controversy, amplified that point. MR. WEBER: Did anyone instruct you to amplify that point, or is it something you did on your

15 Examination - Susswein 0 0 own? THE WITNESS: I certainly did it on my own, but it s not inconsistent with all the conversations I ve had about the importance of this issue. MR. WEBER: Have you worked with anyone at the State Police in connection with the search and seizure courses that you have instructed? Have you coordinated at all with anybody at the State Police? Other than, you know, the logistics of it will be on Thursday at five, you know, two o clock? THE WITNESS: Very recently, yes. I mean in the last month or so, because I m doing a training for Trooper Coaches. Before then, I don t think coordination is the word I would use. MR. WEBER: What word or words would you use to describe the interaction you had with the State Police in connection with your training? THE WITNESS: They would invite me to come to a class, a logistics of where they often tried to accommodate my schedule for morning or afternoon. And I would go and I would do the training for them. MR. WEBER: Did they ask to review your materials before you d present at the course? THE WITNESS: No. MR. WEBER: Did you ever review any of the Examination - Susswein 0 0 State Police materials that they were using, either in connection with the arrests, searches and seizure topics, Fourth Amendment topics? Did you ever request to review those materials? THE WITNESS: Not until recently. Not until the interim report and the post-interim report. MR. WEBER: All right. Let s -- what I m going to do now is -- MS. GLADING: Can I just -- MR. WEBER: Sure. MS. GLADING: Did you ever have any discussions with Detective Caffrey or Merschano about drug courier profiles, or with anyone else who was training at the academy? THE WITNESS: No. There was no -- I did my three-hour, two-hour bit. I would leave and then whoever else was doing more practical training or other kinds of training did their thing. MR. WEBER: Mr. Susswein, I m going to show you a series of documents. For the most part they ll be in chronological order. However, some of them are undated so those will not be in chronological order. The first document I m going to show you is Bates stamped OAG000 through OAG000. It is undated, but it appears to be the draft of a brief with

16 Examination - Susswein handwritten comments that are replete through the document. Have you ever seen this document before? THE WITNESS: No. MR. WEBER: Do you know whose handwriting it is in the document? THE WITNESS: No. MR. WEBER: Were you at all involved in the drafting of any of the briefs in connection with the State v. Soto case? THE WITNESS: No, I had no involvement with the litigation, other than as a witness in the hearing. If I can -- I did at some point read the brief after it was filed. MR. WEBER: After it had been filed. THE WITNESS: As part of the interim report process of research. MR. WEBER: I show you a new document. This is a document I m sure you re familiar with. Actually I think you probably referred to it before. It s a September, memorandum that you authored to John Holl. For the record it s OAG000 through 00. You are the author of this document, correct? THE WITNESS: Yes. MR. WEBER: Do you have an understanding as to why DAG Cote conducted some research and authored a Examination - Susswein 0 0 few memorandum on the issue of drug courier profiles in? THE WITNESS: I really don t know what inspired her to write the memo that she wrote that I responded to. MR. WEBER: There is reference in here, and I believe it is Footnote Number on Page, to a meeting last month on the matter of drug courier profiles, At which time I was asked to prepare this responding memorandum. Why were you engaged in the discussion about drug courier profiling at this time in? THE WITNESS: Well, at some point I was shown a memo. I haven t even read it since then, I don t have that -- I have my responding memo, but I was asked to comment on that. And I did not agree with some -- I agreed with a lot of it, but I didn t agree with some of the analysis. MR. WEBER: Do you know why you were asked to comment on DAG Cote s memorandum? THE WITNESS: It s consistent with the fact that I was involved with the Action Plan, the statewide narcotics Action Plan. MR. WEBER: Was it typical or atypical for the Attorney General s Office to be involved in the drafting of legislation that dealt with the topic of

17 Examination - Susswein 0 0 crime and then to conduct research after that legislation has passed and after directives have been issued to determine whether or not the directives that had already been issued were, in fact, permissible under the current state of the law? THE WITNESS: That s a long -- MR. WEBER: I tried my best to -- THE WITNESS: When I draft legislation in the Comprehensive Drug Reform Act, I like to do my constitutional analysis beforehand when you have an opportunity to write it in such a way that it will be constitutional. That doesn t mean we don t review things after the fact as the law changes. I know we did a lot of research on the whole concept of the school zone and -- the law, by the way, in terms of drug courier profiles, didn t mention one way or the other the use of drug courier profiles. MR. WEBER: Well, I guess what I m driving at, and I mean, you know, I m not Monday-morning quarter-backing or I mean no disrespect to anyone in the Attorney General s Office by this, but I was sort of struck by -- it seemed to me kind of odd that you would have the Comprehensive Drug Reform Act of, you then have the State Action Plan, which was released very early in. And as you have told us, then Examination - Susswein 0 0 Attorney General Edwards said, Okay, we now have this law, we need to tell everybody what we re going to do with it. And then there s a series of memorandum that postdate all of that that deal with the issue of the drug courier profiling. Was there an event that occurred after the Action Plan came out and which maybe someone questioned the appropriateness of drug courier profiling that then prompted the Attorney General s Office to go conduct some research and ultimately engage you in the process? THE WITNESS: I honestly don t know what prompted Meredith Cote to -- obviously she had gotten an assignment. But I don t know what prompted her to write that memorandum. I never saw any pedigree or any provenance information about that. MR. WEBER: Was there any discussions in either the meeting that is mentioned in Footnote Number here in the memo or any other meetings that you may have had been a party to in which it was discussed why this research was being conducted? THE WITNESS: Not that I recall, no. MR. WEBER: There is some strong language in your memorandum. Sometimes you strongly agree. And you use the word strongly throughout the memo, and sometimes you strongly disagree with DAG Cote s

18 Examination - Susswein 0 0 analysis. And again, no disrespect by the question. Was this sort of your style when you reviewing some opinions and some work to take strong positions on topics, or was there something in particular about this subject or about the initial analysis that led you to take such strong positions, either agreeing or disagreeing with the analysis? THE WITNESS: I don t have a reputation for tact or pulling punches. If I agreed with someone, I said it. If I thought they were wrong, I said it. MR. WEBER: So there was nothing in particular about this issue that really forced you to take a fervent view on certain of the issues in the memo? THE WITNESS: No, other than I thought that some of the analysis was wrong. MR. WEBER: Footnote in the memo, and I ll read from it, states in part, During our meeting last month on the matter of drug courier profiles at which time I was asked to prepare this responding memorandum, it was suggested that I d be incredibly naive in thinking that the police could develop and implement a profile which does not, at least sub rosa, consider the driver s race or Hispanic origins. Perhaps so. I nonetheless submit that we must assume good faith. And Examination - Susswein 0 0 besides, if those who have suggested that police would not apply a profile in a non-discriminatory fashion are correct. The matter at issue is entirely academic since the same police officers would doubtless continue to make such stops without the benefit of a properlydeveloped and tested profile. We would, in other words, have accomplished nothing except to adopt the fiction that no formal profile is being used. I favor a more candid response and submit that this is actually a more realistic and entirely less naive approach than one which assumes that profiles are inherently improper and would suggest that they should be banned. From my read of this memo, that seems to me to be at the heart of one of the issues. And correct me if I m wrong, but your position on the whole issue of drug courier profiles was better that we state what is permissible, instruct everyone on what is permissible, than leave it up to their own discretion. Because when you leave it up to the discretion of the police officers, that s when you may run into the problems. THE WITNESS: That s fair. What I wanted was positive -- you have to say what they can t do, obviously, that s part of our job as lawyers, what police cannot do, and then explain what they can do and

19 Examination - Susswein 0 0 have a procedure in place so that it s, to use the New Jersey Supreme Court s phrase, regularized police knowledge, crime trend analysis, rather than leaving it to individuals to sort of on their own come up with some kind of visceral profile that s not supported by and not documented by evidence. MR. WEBER: Who was it in the meeting, as best as you can recall, that suggested that you were being incredibly naive? THE WITNESS: I have thought about that a lot, in light of the question, I really don t remember where exactly that was coming from. I know that was so, but I don t remember which individual. MR. WEBER: Was the point that you were being naive in thinking that the police could develop a profile and implement, or was it the position that if the Attorney General s Office, the lawyers, developed a profile, that would be a better road to travel down? THE WITNESS: My opinion is it would be a better road to travel down, that we have a regularized, carefully-documented modus operandi profile, as it were. I always prefer express rather than implied. Maybe sub rosa wasn t the right Latin word to use at this point, but I like giving clear directions that are enforceable and that people can understand. Examination - Susswein 0 0 MR. WEBER: Was there anyone that you can recall who advocated more discretion to the police, let s not have an express policy, let s just sort of let them do what they re going to do? THE WITNESS: That wasn t my impression. It wasn t coming from that direction, it was more of you re not allowed to use a profile. And again, I m talking about a race-neutral profile and I thought the case law was, and to this day I m convinced the case law is very clear that you can. MR. WEBER: Just so the record is clear, and I apologize for not having the specific reference at hand earlier. In your memo you do reference Directive. and., which address the offender profiles that were set forth in the Action Plan. That s on Page 0 of the memo, OAG00. On the bottom of Page 0 you state -- first full paragraph -- not first full -- the full paragraph that begins on the bottom of Page 0. If the conclusion in DAG Cote s memorandum were to be adopted as official State policy, these important provisions of the statewide narcotics Action Plan would have to be repealed or at least severely curtailed. And again, this talks about Directive. and., which deal with, among other things, the up-to-date offender profiles. The point is simply that DAG

20 Examination - Susswein 0 0 Cote s conclusions of law would work a fundamental reversal of our narcotics enforcement and patrol policy. Needless to say, we should be loathe to do this unless it is absolutely clear that the Constitution forbids the use of such profiles as a means of selecting among persons who have committed motor vehicle offenses in the presence of police officers. I submit not only that a lawyerly counter argument can be offered in good faith to defend the constitutionality of such a policy, but that the policy will ultimately withstand constitutional challenge. This is another one of the base issues involved in your memo, is it not, that if the AG s Office were to accept DAG Cote s analysis, these two directives would have to be pulled from the Action Plan? THE WITNESS: Or at least severely curtailed, because there was another argument that there were things that you could consider, but only after the stop had been made, which I don t see the distinction. MR. WEBER: Was there any meeting that occurred after you had circulated the September th, memo to discuss your memo and contrast it against DAG Cote s memo? THE WITNESS: Not that I participated in. Examination - Susswein 0 0 MR. WEBER: Did you get any feedback from John Holl or anyone else in connection with your September th memo? THE WITNESS: No, I never heard which decision was made or -- in terms of whether my memo was accepted or her memo was accepted as the correct statement of the law. MR. WEBER: Did you have any discussions with Ann Paskow or Debra Stone or DAG Cote after you promulgated your memo about the stopping? THE WITNESS: No. MS. GLADING: A couple of questions. Meredith Cote testified last week that she recalls the meeting at which this was discussed and she said general statistics were discussed at this meeting and she recalls the statistics indicating that minorities were being disproportionately stopped. And she said that she took the position that a drug courier profile would lead to abuse by the State Police and she based that belief on the statistics that were discussed at the meeting with Belsole. What do you recall about statistics that were discussed at that meeting? THE WITNESS: I m at a disadvantage, I haven t read her memo. I only have my memo. I know in my memo I don t mention statistics. I don t have any

21 Examination - Susswein recollection that we talked about numbers. If it had been in her memo, I think I would have commented, because my memo is longer than hers, my responding memo. I would have commented. I have no recollection that we had any numbers at all. This was all about drug courier profiles, not about racial profiling. MS. GLADING: I m sorry if you misunderstood. But she testified last week and said that she recalled this meeting and in reference to Footnote on Page. At that meeting statistics were discussed. It was not in her memo. And she said part of her thinking at the time was that there was a disproportionate rate at which minorities were being stopped. It was one of the reasons she didn t believe the drug courier profiles could be adequately controlled to keep them raceneutral. THE WITNESS: I have no recollection of that being in the meeting or in her memo. I know it s not in my memo. Just for the record, if it had been, it would have been my style, since I write long memos I would have cited it. MR. MILLER: Ms. Glading, my recollection differs slightly from yours. The record will -- but I think what she said, quite frankly, is that -- I don t Examination - Susswein 0 0 think she said that numbers specifically were discussed, the concept of minorities being stopped disproportionately was discussed. MR. WEBER: The next document we ve put in front of you, Mr. Susswein, is OAG00. It is a February th, 0 memorandum to then Attorney General Del Tufo from then Colonel Superintendent Justin Dentino. Thomas Reilly, Theresa Martinac and yourself have been cc d on the memo. Do you know why you were cc d on this memo? THE WITNESS: I actually wrote the program for R.O.A.D.S.I.D.E. And Terry Martinac is a grant coordinator. This came up rather spontaneously. Some federal monies became available. I was asked, I believe over a weekend, to draft a, not a concept paper, but some initial grants type of application for how to use this federal money from Department of Transportation. That was my involvement in R.O.A.D.S.I.D.E. MR. WEBER: Now, it was also right around this time that Superintendent Dentino testified before the Senate Judiciary Committee that he would forbid State Police troopers from using racial profiles in making arrests. Were you involved at all in Superintendent Dentino s decisions concerning racial

22 Examination - Susswein 0 0 profiling and this change in policy? THE WITNESS: No. First of all, I wouldn t agree that it was a change -- well, policy, it was the first time -- the 0 standard operating procedure was the first time they ever had anything in writing that was soup to nuts on road stops and included the statement against any form of discrimination. MR. WEBER: That was SOP F? THE WITNESS: Either F or F, I get them -- and I have no idea what the F stands for or why. MR. WEBER: Were you involved in providing any advice to Superintendent Dentino or drafting any aspect of that new SOP? THE WITNESS: No, I read about it from a press release. MR. WEBER: Did you have any understanding as to why Superintendent Dentino had decided to promulgate that comprehensive SOP in 0? THE WITNESS: Well, I know from the press release, and I was aware at the time, there was a controversy, there was some litigation that was going on. I believe a television station, at least in this time period, I think it was around this time period, was running a series on the concept of driving while black. So it was an issue and the Colonel came in and Examination - Susswein 0 0 made it one of his top early priorities to put an end to this controversy. MR. WEBER: That was the Channel television series that was run in September of that you re referring to? THE WITNESS: Yes. MR. WEBER: Was anything done after the airing of that television program in that you re aware of to address the allegations that were made in that television program about racial profiling prior to Colonel Dentino becoming the Superintendent of the State Police? THE WITNESS: I wasn t privy to what the response was, the official response to the television series. MR. WEBER: Throughout your career at the Attorney General s Office, you have been involved in, among other things, policies and legislation and the whole policy process, for lack of a better phrase. Were you counseled or did anyone seek your input from a sort of public relations standpoint when the television program was aired in? THE WITNESS: No. MR. WEBER: How about in connection with Superintendent Dentino s promulgation of the new SOP s?

23 Examination - Susswein 0 0 THE WITNESS: No, I had nothing to do with the drafting or promulgation of the SOP; the 0 SOP. MS. GLADING: Do you know who did? THE WITNESS: I wasn t involved in it, I really don t know. MR. WEBER: I m sorry, your response was? THE WITNESS: I don t think it was coming out of Division of Criminal Justice so... MS. GLADING: So you don t know who did draft them? THE WITNESS: I would assume it was the State Police, but I don t know who provided counsel, if anyone. MR. WEBER: You testified earlier that, to be redundant, you had testified in the Soto matter. What was the purpose of you testifying in the Soto matter? Who contacted -- let s start it that way. Who contacted you and asked you to testify in connection with the Soto matter? THE WITNESS: Jack Fahy. The issue was in the statewide narcotics Action Plan the word profile was used a couple of times, the directives that you cited to. And there is and continues to be widespread confusion as if the word profile and racial profiling are synonymous, and they re not. So my Examination - Susswein 0 0 purpose was to clarify what the Action Plan said as opposed to some of the allegations that were made that it authorized profiling, as if profiling was either illegal or inappropriate. MR. WEBER: Was it your intent that the profiling as it was used in the Action Plan be a raceneutral profile? THE WITNESS: It had to be because it had to be constitutional. The Action Plan was very, very clear the goal here wasn t just to take drugs off the street or off the highways, it was to apprehend people and to subject them with the Comprehensive Drug Reform Act. That required that the evidence be admissible. So there are other provisions of the Action Plan that relate back to those two directives that say that it has to be done in a constitutional fashion. MR. WEBER: Does it specifically state that the profiles have to be race-neutral? THE WITNESS: No. It just says it has to be constitutional. MR. WEBER: Why is that? Was there any discussion given to the concept of in order to make sure that this is constitutional and this be done properly, we need to spell out specifically what data can be collected and what data cannot be collected?

24 Examination - Susswein 0 0 THE WITNESS: Well, the Action Plan didn t spell out any of the Constitution; Fourth Amendment, Fifth, Sixth or th Amendment. It just didn t go into those details. My understanding, right or wrong, was that at least as of in the Kuhn decision, law enforcement could not use race or ethnicity to any degree. So I assumed that that was a given. That may have been a bad assumption, both as a matter of law and otherwise, but that s -- I just assumed that when you say constitutional, it means in every respect. MR. WEBER: So you were asked to testify by DAG Fahy in connection with the Soto matter to explain to the Court what the word profile meant in connection with the action. THE WITNESS: That s right. The distinction between a legitimate profile, sometimes called modus operandi, and illegitimate profiles, which would be based on race ethnicity or national origin. MR. WEBER: How long was your testimony in that case? THE WITNESS: It started -- I was supposed to be there in the morning. It was one day, but up to lunch didn t get on. We were in the -- I was in the jury room waiting so... MR. WEBER: You testified for an hour, two Examination - Susswein 0 0 hours, three hours? THE WITNESS: Maybe two hours. MR. WEBER: Were you -- strike that. Did you testify about any other issues in addition to the one that you just identified? THE WITNESS: The training that I provided, I suppose. You know, that was consistent with that, but I d say that was all related. MR. WEBER: Any other issues? THE WITNESS: Not that I recall offhand. MR. WEBER: Was that the only involvement you had in the State v. Soto litigation? THE WITNESS: Yes. MR. WEBER: That as a witness? THE WITNESS: Yes. MR. WEBER: And when I say in the State v. Soto litigation, I mean from the time that commenced until the time that the Attorney General s Office decided to withdraw its appeal? THE WITNESS: Correct. I was a witness. I was sequestered. MS. GLADING: You testified that when you testified in the Soto case, you testified because there was widespread confusion about what was permissible and what was impermissible?