State Destroys Evidence in AZ Racial Profiling/Drug Case
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There aren't a lot of African-Americans in Coconino County, Arizona, but Flagstaff attorney Lee Brooke Phillips kept getting black customers. They were not locals; instead they had been stopped by the Arizona Highway Patrol as they drove along Interstate 40. Once part of fabled Route 66, this stretch of highway is now, in the constricted view of the drug warriors, "the main drug-smuggling route between Los Angeles and the East coast." And, it seemed to Phillips and the Coconino County Public Defenders Office, the cops had it out for black men traveling that route.
"There have been a lot of people being stopped and detained because of the color of their skin," Phillips said. "We had cops writing reports like 'I saw a car with Pennsylvania plates with two black males inside and I pulled it over.'"
As the cases began to add up, Phillips and Coconino public defenders began to compare notes. "I've represented 30 or 40 people arrested for transporting drugs on I-40 in Coconino County," said the veteran criminal defense attorney. "Naturally, the public defenders office was getting some of these highway cases as well, and I mentioned my cases and they were aware of similar ones."
"We became aware of a pattern, and we acted in concert," said Phillips. "The most common method is for police to stop a vehicle for speeding or following too closely behind another vehicle," Phillips said. "One of my African-American clients driving a U-Haul was followed 20 miles by a DPS officer before a stop was made."
"Based in part on the Soto case in New Jersey and similar rulings since, we raised a defense of racial profiling in 14 cases. Our motion to consolidate the cases for a single determination of whether racial profiling was going on was successful, and the cases are being heard by two judges," he said.
The case was filed in March 2000, and last summer Phillips complained to the state Attorney General to no avail. The Department of Public Safety, the Highway Patrol's parent agency, said race was not a consideration in traffic stops.
"We don't tolerate racial profiling and investigate it thoroughly if it is reported," DPS spokesman Lt. Dan Wells told the Arizona Republic. "We look at probable cause and reasonable suspicion factors only."
Phillips laughed when asked to respond. "What the politicians and the high law enforcement people say is one thing. What officers do in real life is another," he said.
But the defense attorneys had also set out to prove their own case and were finding evidence to back them up. By then the Coconino public defenders had already hired Temple University psychology professor John Lamberth, a nationally-known racial profiling expert, to put his suspicions to the test. Lamberth, who has produced racial profiling studies in California, Maryland and New Jersey, ran a similar study on I-40 in Coconino County. His June 2000 study of traffic violations, traffic stops, and the race or ethnicity of those involved found that African-Americans made up fewer than 3% of the traffic offenders, but accounted for 43% of all stops. Hispanics suffered less inequitable but still disparate treatment, accounting for 13% of the offenders and almost 20% of the stops.
In a report he filed with Judges Charles Adams and Robert Van Wyck in Coconino County Superior Court, Lamberth wrote, "All of the data available to me is consistent and strongly supports the contention that the Arizona Department of Public Safety (DPS) is targeting African-American motorists on I-40 in Coconino County."
Lamberth's study and report helped convince Van Wyck that the problem was serious enough to take a further look. Ruling in January, he ordered the DPS to turn over some 15,000 copies of tickets, warnings, and other traffic stop data for a one-year period beginning June 1, 1999.
Phillips and the public defenders were convinced an examination of the Highway Patrol records would only strengthen the case that racial profiling existed on I-40 in Coconino County. Now they are not so sure, and the reason why is landing the controversy on the front pages of Northern Arizona newspapers.
On March 22, Coconino County Attorney Terence Hance announced that all traffic stop records for June through December 1999 -- half of the period under study -- had been destroyed by the Highway Patrol. Calling the move "routine," he told reporters his office had also filed a motion to "clarify" just what records DPS is required to produce.
"This could get ugly," said Phillips at the time, and it has.
"Look, the judge ordered the state to turn over a year's worth of records, and the state prosecutor's office refused to turn them over," Phillips said with some indignation. "We learned they weren't turning them over because half have been destroyed. The prosecutors were aware of this, but failed to disclose this fact to the court or to the defense attorneys."
On Wednesday, Phillips sought contempt charges against the Coconino County Attorney's office, as well as asking that the charges against his clients be dropped because the records he sought could not be produced. But Judges Adams and Van Wyck would not go that far. They denied the two motions, but did order the county attorney's office to immediately turn over records in its possession that have not been destroyed and allowed Phillips to review another six months' worth of traffic stop documentation, extending to January 2001.
"This is really shocking," Phillips exclaimed. "I've never seen law enforcement and the state so boldly just ignore the law. Although state law requires these records be maintained by DPS, as does their official policy, we find that after 1997 -- after those first New Jersey racial profiling cases began to get notice -- DPS made an internal policy decision to destroy all tickets."
That practice stopped last year, after DPS headquarters in Phoenix determined the policy violated state law, DPS officials testified in court.
That doesn't mollify Phillips. "Funny thing, now the only records they haven't destroyed are ones from after they knew they were accused of profiling," he pointed out. "Now we won't get the 'saw two black males and pulled them over'; instead, it's going to be, 'observed violation, unable to observe race of motorist.'"
"We have to go back into court and prove again that racial profiling was occurring, and this only makes it more difficult," Phillips continued. "But it's the same thing everywhere, isn't it? They have the money, and they outgun us. The people and the courts are turning a blind eye to violations of the law."
Arizona officials, meanwhile, are adopting the "we don't do it and we promise not to do it any more" mantra already familiar from other states where the practice has been uncovered. "We're doing everything possible on this front," Mario Diaz, spokesman for Attorney General Janet Napolitano, told the Arizona Republic. "The bottom line is that traffic stops have to be made for actual reasons rather than a hunch."
But implicitly admitting that the practice exists in the Arizona Highway Patrol, Diaz told the Republic that the Attorney General would send new policies and procedures regarding traffic stops to all state law enforcement agencies next month. The new policies would include ensuring that officers use proper conduct in making traffic stops, training field supervisors to see warning signs of racial profiling, and procedures within police agencies to field and evaluate racial profiling complaints, Diaz said.
"These cases do have an effect beyond what happens in court," said Phillips. "Here, as soon as we filed our case, the Attorney General put together a committee and is urging all law enforcement agencies to keep those records and make them public. You can put pressure on the politicians."