Pubdate: Thu, 07 Dec 2000
Source: Trentonian, The (NJ)
Copyright: 2000 The Trentonian
Address: 600 Perry St, Trenton, NJ 08618
Feedback: http://www.zwire.com/site/news.cfm?brd=1697&pag=460&dept_ID=44436
Website: http://www.trentonian.com
Author: Ralph Siegel, Associated Press

COURT: PROFILING CAN BE USED TO APPEAL

A state appeals court said yesterday that four defendants convicted of drug 
offenses after traffic stops by state troopers may use racial profiling 
information for new appeals or to have their trials reopened.

Courts have previously ruled that evidence of racial profiling can be 
introduced at a defendant's initial trial.

State lawyers argued that two defendants whose joint case was ruled on 
yesterday, Alexander Chapman and Ruben Velez, had waived their rights to 
make new claims because they had filed guilty pleas in a plea bargain 
agreement for lesser sentences.

The state's lawyers also argued that defendants in two other cases, Thomas 
Ross and Louis Williamson, did not address concerns about discrimination 
during their trials and should not be allowed to do so now.

The panel of three appellate judges disagreed. They said in three separate 
opinions that defendants in each case may now try to use profiling 
information in light of the 1999 report by the attorney general's office 
confirming that the practice had occurred.

As a result, lawyers for these defendants will be allowed to seek more 
documentation and perhaps get depositions from witnesses in an effort to 
show the traffic stops that resulted in their clients' arrests should not 
have occurred.

The three opinions written by Appellate Division Judges Edwin Stern, Ariel 
Rodriguez and Robert Fall do not free the convicts nor reverse their 
convictions or sentences, and the judges said there is no evidence the 
trials or the plea bargain agreements were unfair. But all three found 
racial profiling information that has come to light in the past 20 months 
justifies further legal proceedings in these cases.

Chuck Davis, a spokesman for Attorney General John Farmer, noted the 
rulings have limited effect because these trials were completed before 
racial profiling information came out but the appeals are proceeding now.

"Do we expect additional cases? Yes, but at this point we don't know how 
many are out there," Davis said. But he said Wednesday's rulings do not 
apply to convicts whose appeals are already finished.

Farmer said last week that his decision to make public thousands of pages 
of documents related to racial profiling does not mean his office will 
abandon prosecutions in drug cases.

However, he said criminal cases and civil lawsuits may be dropped or 
settled if newly disclosed information is found to have a bearing on 
specific cases.

All three cases yesterday involved drugs and minorities: Velez is Hispanic, 
Ross and Williamson are black.

Most drug cases are won or lost according to whether the judges allow the 
evidence to be used. They toss it out when police officers are found to 
have violated the Fourth Amendment prohibition against unlawful searches 
and seizures.

But the appellate judges yesterday said racial profiling raises a separate 
question under a separate constitutional provision, the 14th Amendment's 
prohibition against discriminatory or selective enforcement of the laws. 
They said just because questions about a proper search may have been 
addressed at trial does not mean the question of selective enforcement 
cannot be raised again.

Further, Stern, who is one of the presiding judges of the state appellate 
division, said selective enforcement problems would render a search itself 
illegal under the New Jersey Constitution.

In what appeared to be the main case, troopers had stopped a car with 
California license plates driven by Chapman, who is white. Troopers became 
suspicious when they learned two passengers, Ruben and Roberto Velez, were 
Colombian nationals and that Ruben seemed nervous. A search produced five 
pounds of marijuana.

One trooper was asked at a court hearing whether books he had read about 
Colombian drug cartels influenced his thinking that Velez might be a 
criminal. "Yep, they quite possibly were in the back of my mind, yes," the 
trooper answered.

He was then asked if this prompted the search. "Yeah, after I see Ruben 
sweating and he tells me he's from Colombia, yeah, that's fair to say," the 
trooper replied.

Velez and Chapman pleaded guilty in 1998. The case did not report the year 
of the arrest.

In a second case, Louis Williamson was arrested in 1996 after a trooper 
pulled him over for speeding on the New Jersey Turnpike in Burlington 
County, noticed a bulge in his pants and searched him for fear of a 
concealed weapon. He found cocaine.

In a third case, Thomas Ross was arrested after a trooper stopped a BMW on 
Route 80 in Morris County in which Ross was one of three black passengers. 
The trooper said he pulled them over for failing to remain in the right 
lane and conducted a search after smelling marijuana.

Trial judges in all three cases ruled the troopers had not violated 
anyone's constitutional rights. But the judges were not aware of the 
state's racial profiling report, known in legal circles as the "interim 
report," due out in April 1999.

In a finding typical of the three opinions, Judge Rodriguez in the Ross 
case said, "The state is correct that the trial court found no evidence to 
support such a claim. However, the judge's determinations were made before 
the release of the interim report. This court has since held that the 
information contained in the interim report does present a colorable claim 
of selective enforcement and that there exists a de facto policy of racial 
profiling within the New Jersey State Police."
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