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Stats on skin color, stops OK'd; SJC approves racial profiling measure.

Byline: Denise Lavoie

BOSTON - Drivers who are stopped by police and suspect racial profiling can use statistical information to make their case, and if they prove it, evidence seized during the stop should be thrown out, the state's highest court ruled yesterday.

The Supreme Judicial Court said that defendants can compare the racial composition of people stopped by police along a certain stretch of road with the racial composition of all the people who use the road.

If the statistics show "impermissible discrimination" based on race, then the burden shifts to prosecutors to show that the traffic stop was not motivated by race, the court ruled.

Defense attorneys hailed the ruling as an important step for minorities who have long believed they are stopped by police because of their skin color, not a traffic violation.

"The court is saying that if the real reason for the stop was race ... then that is selective enforcement (of the law), and you can't enforce traffic laws based on race," said Murray Kohn, a staff attorney for the Committee for Public Counsel Services, the state's public defender agency.

The trial lawyer for Andres Lora, the defendant whose case resulted in yesterday's SJC ruling, is gratified that Worcester Superior Court Judge John S. McCann suppressed seized evidence, based on evidence of racial profiling. But Michael H. Erlich of Eden, Rafferty, Tetreau and Erlich in Worcester said that the high court's standard of establishing the racial makeup of those who use a highway "is an incredible statistical burden that I think is overwhelming."

Mr. Erlich agrees with the SJC there were some flaws in his statistical analysis, but he said that was not his sole argument to suppress criminal evidence.

The ruling came in the case of Mr. Lora, of Lawrence, who was a passenger in a car that was stopped by state police on Interstate 290 in Auburn on Dec. 20, 2001.

The driver was not operating erratically, but had committed a traffic violation by driving in the left lane when there was no traffic in the center or right lanes.

After a state trooper stopped the car and returned to his cruiser to run a check on the driver, he saw Lora step out of the car. When he went to tell Lora to get back into the car, he saw a small bag on the driver's side floor containing cocaine.

Lora was charged with cocaine trafficking, but later filed a motion to throw out the cocaine as evidence, arguing that the traffic stop was unconstitutional because the trooper, Brendan Shugrue, initiated the stop based on his dark skin.

Mr. Erlich, Lora's lawyer, introduced statistics showing the trooper had a history of disproportionately stopping and citing nonwhite motorists for motor vehicle violations. A Superior Court judge found that the statistical evidence created an "inference of purposeful discrimination," and agreed to suppress the cocaine found in the car.

The SJC overturned the lower court's ruling, finding that the statistical evidence presented by Lora wasn't enough to rebut the state's claim that the trooper had acted in good faith and without intending to discriminate. The court found that Lora's statistics - which compared the racial makeup of drivers who were stopped along a stretch of I-290 with the racial makeup of the town of Auburn - were unreliable and not accepted within the scientific community.

But the SJC concluded that legitimate statistical evidence demonstrating disparate treatment based on race can be offered by defendants.

Lora's appellate attorney, William S. Smith, said that the ruling could help other defendants, even though it didn't help his client. He said that in suspected cases of racial profiling, now the state can't just point to traffic laws to justify the stop.

Worcester District Attorney Joseph Early Jr. said the court has provided safeguards for prosecutors and defense attorneys by laying out a clear standard for showing discriminatory treatment through statistical information.

"It says that you've got to look on the highway. If a highway is passing through Grafton, Auburn, Millbury, you don't go to the towns, you find out what the racial composition of the people actually using the road is," Early said.

Lee Hammel of the Telegram & Gazette staff contributed to this report.
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Publication:Telegram & Gazette (Worcester, MA)
Date:May 21, 2008
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