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."