Pubdate: Sat, 03 Dec 2005 Source: Star-Ledger (NJ) Copyright: 2005 Newark Morning Ledger Co Contact: http://www.nj.com/starledger/ Details: http://www.mapinc.org/media/424 Author: Robert Schwaneberg SENTENCE UPHELD IN PROFILING CASE Defendant Has Right To Top State Court Review Calvin and Ricky Lee did not submit quietly when state troopers stopped their pickup truck in 1995. According to court records, Ricky, the driver, fled on foot while Calvin struggled with a state trooper -- at one point grabbing for the trooper's gun before fleeing into darkened woods where he was captured after a search involving dogs and a helicopter. State troopers found 11 ounces of cocaine and 18 ounces of marijuana in the truck. Yesterday, in a 2-1 decision, a state appeals court upheld a ruling that said it made no difference whether the Lees, who are African-American, were the victims of "racial profiling," the illegal practice of stopping drivers because of their skin color. The majority said Calvin's actions -- resisting arrest and assaulting a trooper -- erased any illegality that might have tainted the initial stop. It upheld his 55-year prison sentence for possessing illegal drugs with intent to distribute. The dissenting judge, Jose Fuentes, said racial profiling is such "a profound and flagrant attack on justice itself" that -- if it occurred -- it cannot be overlooked. Fuentes' dissent gives Calvin Lee an automatic right to have the New Jersey Supreme Court review his case. Susan Brody, his assistant deputy public defender, said, "We're going to appeal." It will be the first time the high court considers whether racial profiling can be ignored because of the actions of the defendant. According to court records, State Troopers Steven Parisi and Lisa Mayer were patrolling Route 80 in West Paterson in their marked car shortly after midnight on May 22, 1995. Parisi wrote in his report the truck was doing 38 mph in a 55-mph zone and darting across lanes. Thinking the driver was drunk or fatigued, he later testified, Parisi activated the overhead lights but the truck drove another mile before pulling over. When Ricky Lee could not produce registration papers or say who owned the truck, Parisi began to suspect it was stolen and ordered the Lees to place their hands on the dashboard, according to court records. Parisi called for backup, the two brothers fled, and the struggle with Calvin Lee ensued. Parisi discovered the illegal drugs while searching the truck for weapons, according to court records. It was later determined the truck belonged to the Lees's aunt. The brothers were tried separately in 1996, convicted and sentenced to lengthy prison terms. Three years later, in April 1999, then-Attorney General Peter Verniero admitted that racial profiling by State Police was "real, not imagined" and announced a plan to eradicate it. That admission touched off attempts by many inmates to overturn their convictions. Calvin Lee's lawyers filed a motion in 2001 to obtain Parisi's arrest records, hoping to show he had a history of racial profiling. Like all such motions, it was assigned to Judge Walter Barisonek in Union County, who denied it. Barisonek ruled the Lee brothers knew they were under arrest and did not "have a right to just walk away." "Whether or not the arrest is illegal or unlawful is of no consequence," Barisonek said. "The acts of the defendants outweigh in my mind any discriminatory act that may have started the incident." Upholding that ruling yesterday, Appellate Division Judge Howard Kestin wrote, "No good public purpose is served by ignoring or rewarding such anti-social acts" as resisting arrest. He was joined by Appellate Division Judge Edwin Alley. Dissenting, Fuentes wrote: "It cannot be over-emphasized that racial profiling connotes a segregationist mentality, harkening to a time when this type of malevolent stereotyping was not only considered acceptable, but legitimate. Short of actual physical violence, it's difficult for me to imagine a more serious and flagrant abuse of the state's police power." - --- MAP posted-by: Beth Wehrman