Public Hearing before SENATE JUDICIARY COMMITTEE “Review of racial profiling” LOCATION: Committee Room 4 DATE: April 2, 2001 State House Annex 10:00 a.m. Trenton, New Jersey 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 Hearing Recorded and Transcribed by The Office of Legislative Services, Public Information Office, Hearing Unit, State House Annex, PO 068, Trenton, New Jersey TABLE OF CONTENTS Page Paul H. Zoubek, Esq. First Assistant Attorney General New Jersey Department of Law and Public Safety 1 David Hespe, Esq. Former First Assistant Attorney General New Jersey Department of Law and Public Safety 255 Debra L. Stone, Esq. Assistant Attorney General New Jersey Department of Law and Public Safety 313 Ronald Susswein, Esq. Assistant Attorney General New Jersey Department of Law and Public Safety 314 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. ses: 1 - 21 ses: 306 - 330 lmb: 22 - 41 hw: 331 - 342 rs: 42 - 60 hw: 61 - 78 lmb: 79 - 95 rs: 96 - 114 ses: 115 - 134 rs: 135 - 156 ses: 157 - 200 lmb: 201 - 219 hw: 220 - 239 rs: 240 - 258 lmb: 259 - 283 rs: 284 - 305 SENATOR WILLIAM L. GORMLEY (Chairman): The hearing will come to order. Before we proceed with the witness, who has previously been sworn, by the end of today we’ll announce the two dates for the hearings for next week. And talking with members of the Committee, we are obviously going to focus on trying to complete a report with recommendations by the end of the month, and hopefully, following the two days of hearings next week, we can commence preparation of the report and the recommendations as they pertain to racial profiling. We’ll have those dates for the public, hopefully, at the end of the day. Mr. Zoubek’s been previously sworn. Mr. Chertoff. MR. CHERTOFF (Special Counsel to the Committee): I just have three or four very brief things to cover with you before I’m done, Mr. Zoubek. I just want to make sure-- I want to focus your attention on 1999, and in particular, on the period of time in late April when you were anticipating that there were going to be hearings with respect to racial profiling and with respect to Justice Verniero’s confirmation. Do you remember that period of time? F I R S T A S S T. A T T Y. G E N. P A U L H. Z O U B E K: Yes. SENATOR GORMLEY: Is the red light on? (referring to PA microphone) ASSISTANT ATTORNEY GENERAL ZOUBEK: Yes. MR. CHERTOFF: And is it fair to say that in anticipation of those hearings, you prepared Mr. Verniero for his testimony? 1 ASSISTANT ATTORNEY GENERAL ZOUBEK: I participated in preparation of the Attorney General. MR. CHERTOFF: And in connection with that, you focused, among other things, on the issue of when information about statistics and consent to search data was first conveyed to Mr. Verniero, correct? ASSISTANT ATTORNEY GENERAL ZOUBEK: I believe I previously testified with respect to my discussions with Attorney General Verniero on that subject matter, yes. MR. CHERTOFF: But I want to be more specific. I want to ask you whether, in fact, you focused on the issue of statistics and consent to search data and when that was first conveyed to Mr. Verniero in anticipation of the hearings. ASSISTANT ATTORNEY GENERAL ZOUBEK: As I testified previously, I think you have to keep in mind that I had my own direct contact with the Attorney General, as well as, I believe I testified, probably the Friday before the racial profiling hearing, which was on April 26th, there was a mock session, if you will, with respect to preparing for that hearing in which some subject matters were discussed. In my recollection, I can’t break it up, necessarily, between my discussions I had with the Attorney General and in the preparation session. I’m happy to break those down for you, if you wish. MR. CHERTOFF: I don’t care. I don’t think we need to break it up. I just want to understand or ascertain or be clear that before the testimony on the 26th, and before the testimony on the 5th and 6th of May, you had focused with the Attorney General on when statistics and consent to search data was first conveyed to him. ASSISTANT ATTORNEY GENERAL ZOUBEK: That’s correct. 2 MR. CHERTOFF: All right. And now, in connection with that, you had informed him about the fact that there were documents found in Mr. Rover’s files that related to statistical analyses back in 1996 and 1995, correct? ASSISTANT ATTORNEY GENERAL ZOUBEK: I did inform him that I had found documents in Mr. Rover’s files that related to some of the statistics that we had believed had not been previously produced. I can’t sit here today, Mr. Chertoff, and say I specifically recall it was ’95 and ’96. MR. CHERTOFF: Well, you know you specifically told Mr. Verniero that you had found information relating to the Gilbert data in Rover’s files, correct? ASSISTANT ATTORNEY GENERAL ZOUBEK: I believe the way I put it to the Attorney General was that I had found in Mr. Rover’s files copies of some of the documents and some of the underlying data that I had believed did not come over before. MR. CHERTOFF: And that included material back in ’96 and ’95, because that’s what the Gilbert data included, correct? ASSISTANT ATTORNEY GENERAL ZOUBEK: That is what the Gilbert data included. As I said, I don’t know if I specifically said that to the Attorney General. MR. CHERTOFF: And-- Well, did you report to him that some of the Gilbert memos were found in Rover’s file? ASSISTANT ATTORNEY GENERAL ZOUBEK: Yes, with a caveat. I think as I testified, it was not the undated Gilbert memo that said, to the effect 3 -- or words to the effect that we’re in a very bad spot, but it was some of the underlying data. MR. CHERTOFF: Okay. You also, again in the period before the hearing, told Mr. Verniero that you had spoken to either Mr. Rover or Mr. Fahy, and that they had confirmed that there was some discussion of numbers at a meeting in 1997 as it related consent to search data. ASSISTANT ATTORNEY GENERAL ZOUBEK: Well, I think what I had testified before was that I had -- I informed the-- I had the one discussion with the Attorney General regarding my conversation with Lieutenant Colonel Dunlop where we talked about that sometime prior to the hearing. And I think I’ve testified that I don’t recall exactly when the conversation took place, as to whether it was before the interim report came out or after the interim report came out, that I had a discussion with either Mr. Fahy or Mr. Rover. I didn’t recall who it was, and I discussed with the Attorney General that I was hearing, again, that there had been a meeting at some point in time in which there may have been some discussion of numbers. MR. CHERTOFF: And particularly, you said to him that you’d been told that in this meeting there was discussion about the fact that the numbers did not look good, right? ASSISTANT ATTORNEY GENERAL ZOUBEK: I informed him that that was-- I was hearing there was some discussion of numbers that in the current context could be considered “bad numbers.” MR. CHERTOFF: And he acknowledged that there was a meeting at that point? 4 ASSISTANT ATTORNEY GENERAL ZOUBEK: He acknowledged the meeting. No, he didn’t-- He acknowledged-- He said to me-- I’ve testified to this both in my deposition and last week that what he said to me was he didn’t specifically recall the meeting, and if there had been any discussion of statistics, it was in the context that didn’t mean that racial profiling was occurring. MR. CHERTOFF: So he said to you, “I don’t remember a meeting, but if there was a meeting this is what was said?” ASSISTANT ATTORNEY GENERAL ZOUBEK: I think what he said to me doesn’t specifically-- He didn’t specifically recall a meeting. If there was any discussion with respect to statistics, the context in which that discussion would have occurred was that the advice he was receiving was that it didn’t mean there was racial profiling. MR. CHERTOFF: I want to take it step-by-step, and let me see if I can refresh you by referring to your, I guess, your deposition at Page 222. The question was: “Well, so he acknowledged that he had been told the numbers did not look good, right? He acknowledged that? That’s final at the end of the day?” Your answer: “He acknowledged that there was a meeting.” Question: “Right, and that the bad numbers were discussed at the meeting, right?” Answer: “That numbers were discussed at the meeting.” Question: “And then he said, ‘But I got advice that the numbers were not determinative, because you could still say it’s not -- it doesn’t equal racial profiling,’ right?” Answer: “That’s what he told me.” 5 Is that correct? ASSISTANT ATTORNEY GENERAL ZOUBEK: And I think that’s just what I’ve testified to just now.