COMMONWEALTH OF MASSACHUSETTS

The Commission on Judicial Conduct has charged Judge Maria I. Lopez with six (6) counts of misconduct in violation of 12 separate canons of the Code of Judicial Conduct. The charges do not focus on a single act or a single canon: the charges allege a pattern of bias, abuse, and indiscretion that undermined the integrity of the judiciary during the period August 1, 2000, through the hearing in this matter.

By St. 1987, c. 656, §1 (approved Jan. 4, 1988), the Legislature rewrote M.G.L. c. 211C. Among other things, where the earlier version of M.G.L. c. 211C had been silent, the new statute provides that the Commission shall have the burden of proving any charges by clear and convincing evidence. See M.G.L. c. 211C, §7(4) (1988 ed.). The new c. 211C also provides that the rules of evidence apply, and as such, this hearing officer is obliged to observe said rules.

The clear and convincing standard of proof is an intermediate one: it “involves a degree of belief greater than the usually imposed burden of proof by a fair preponderance of the evidence, but less than the burden of proof beyond a reasonable doubt imposed in criminal cases . . . The evidence must be sufficient to convey to “‘a high degree of probability’” that the charges as alleged are true. See Tosti v. Ayik, 394 Mass. 482, 493 n. 9 (1985), cert. denied 484 U.S. 964 (1987) “The requisite proof must be strong and positive;” see Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997) . . . it must be “full, clear and decisive.” Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977). See Liacos, Massachusetts Evidence, §§ 5.2.2 - 5.2.3 (6^th ed. 1994). See also Ireland Juvenile Law, § 107 (1993).

Judiciary disciplinary proceedings are unique and fundamentally distinct from all other criminal or civil legal proceedings. The purpose of such proceedings is to protect the people from corruption and abuse on the part of those who wield judicial power. “Judges, occupying the watchtower of our system of justice, should preserve, if not uplift, the standard of truth, not trample it underfoot or hide in its shady recesses . . .The effectiveness of our judicial system is dependent upon the public trust.” In Re: Ferrara, 458 Mich. 350, 372 (1998) “The ordinary administration of criminal and civil justice...contributes, more than any other circumstance, to impressing upon the minds of the people affection, esteem and reverence towards the government.” Alexander Hamilton, the Federalist, No. 17. Article 29 of the Declaration of Rights of the Constitution of the Commonwealth states in part: “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.” John Adams, the author of “A Constitution or Form of Government for the Commonwealth of Massachusetts”, called for a government of laws, - not of men. In the writing of this document, Adams established in the Constitution, an independent judiciary, appointed for life. In many ways, this Constitution reflected what Adams had first proposed in his Thoughts on Government, written in 1776 where he advocated an “able and impartial administration of justice.” Essential to the operation of this independent judiciary, Adams recognized that there must be “[m]en of experience on the laws, of exemplary morals, invincible patience, unruffled calmness and indefatigable application...subservient to none.”

“[O]ver generations of judicial service involving many hundreds of judges, only in a minuscule number of cases has it been necessary to discipline any of them.” In the Matter of Morrissey, 366 Mass. 11, 17 (1974). While these few instances should not have occurred, the fact “that the resulting disciplinary measures have served to give assurance to the public that such conduct will not be tolerated and that the judiciary itself is ever ready to carry out the corrective process when necessary.” Id. It was within this spirit, that the Supreme Judicial Court itself supported the concept of the creation of the Commission with the power necessary to investigate and establish facts concerning possible judicial misconduct. The question remains as to whether the Commission has established facts in this case concerning alleged judicial misconduct by clear and convincing evidence.

In this case, the Commission is not dealing with illegal and corrupt acts on the part of a judge. Rather, the Commission argues that this “is a case about self-interest and self-dealing, the currency of which is not money but judicial position. Judge Lopez has manipulated the judicial system itself - by, among other things:

. misleading and misusing the court’s press office;

. issuing a false personal statement to deflect public criticism of her actions;

. entering and misusing false “findings” as a pretext for continuing

Horton’s plea and sentencing on August 4, 2000;

. making ex parte contacts with defense counsel to publicly defend her

sentencing decision; and

. making an anonymous call to a complainant during the Commission’s

investigation, all in an effort to promote her self-interest.

Even beyond the charged misconduct, Judge Lopez has shown her total disregard for the judiciary, the public interest, and the Code of Judicial Conduct by providing false testimony during the Commission’s investigation and in this hearing. Throughout the Horton case, and the Commission’s investigation, Judge Lopez has concerned herself with self-preservation and retaining her position on the court. She has failed entirely to take responsibility for actions which her own counsel conceded “could be viewed as creating appearances of impropriety.” See Commission on Judicial Conduct’s Post-Hearing Brief, preponderance of the evidence. 1 & 2. See also Commission, Ex. 44 at p. 4.

Commonwealth v. Horton originated in November 1999, when Charles Horton was arrested and subsequently indicted on charges of:

1. kidnapping;

2. assault with intent to rape a child under 16;

3. indecent assault and battery on a child under 14;

4. assault and battery; and

5. assault and battery by means of a dangerous weapon.

The victim of these crimes was an eleven (11) year old boy whom Horton enticed to enter his car on a pretext. Further, the evidence also shows that some force was used, Horton was dressed as a woman and claimed to need assistance in finding “her” son.

The case first came before Judge Lopez on August 1, 2000, when the Court held a plea conference with the Assistant District Attorney (“ADA”) and defense counsel. A plea hearing was scheduled for August 4, 2000. On that date, August 4, 2000, Judge Lopez continued the change of plea and sentencing to September 6, 2000, and issued written findings in the case.

On September 6, 2000, Judge Lopez found that Mr. Horton had pled guilty knowingly and voluntarily, and found that there was a sufficient factual basis for this guilty plea. Mr. Horton, stating that he agreed with all of the material facts as presented by the prosecution, was sentenced to five (5) years probation, subject to certain specified conditions.

Following the sentencing, the Commission received complaints relating to Judge Lopez and her handling of the Horton case. Pursuant to its mandate under M.G.L. c. 211C, the Commission initiated an investigation.

The Commission alleges that Judge Lopez exhibited bias in favor of the defendant because he was transgendered. On August 1, 2000, Judge Lopez held a conference at side bar with ADA Leora Joseph and Defense Attorney Anne Goldbach. ADA Joseph had consulted with her supervisor David Deakins, Esq., and had decided from the Commonwealth’s perspective to recommend an 8 to 10 year sentence. Defense counsel was requesting probation. The ADA went through her recitation to Judge Lopez. According to ADA Joseph, all was going well until Attorney Goldbach brought up the fact that the defendant was transgendered. At that point, the attitude of Judge Lopez toward the case changed.

This is when Judge Lopez said to the ADA “You don’t know anything about transgendered people, do you?” The ADA replied “not much”. Judge Lopez then said “Well, I do. I have a house in P_town. They’re not violent.” See Vol. VI, p. 55. See also Vol. VI, p. 46.

At that point, according to ADA Joseph, defense counsel Goldbach told Judge Lopez that she “had a report her to show the judge about the defendant.” See Vol VI, p.47. Further, ADA Joseph testified that Ms. Goldbach said that it was a social report or a psychological report. At that point, Judge Lopez indicated that she would likely give the defendant the probationary sentence, which defense counsel has requested.

While Judge Lopez denies this statement, her own witness, Ms. Goldbach, specifically recalls Judge Lopez saying that she “knows transgendered people”, and conceding that Judge Lopez could have characterized transgendered people as “not violent.” See testimony of Anne Goldbach, Vol. XIII 22-23. In examining the credibility of the witness, on this point, the ADA’s testimony was clear and unequivocal.

Judge Lopez’s sentence is not an issue in this case. What is at issue is whether she rendered the sentence because of bias? The courts have demanded strict compliance with the letter and spirit of the canons because, without it, “our judicial system which depends on public confidence in the integrity and impartiality of the judiciary would surely fail.” (Emphasis added) See In Re: Ferrara, 458 Mich. 350, 372 (1998). The judge must be scrupulous to avoid losing her impartiality and to maintain her unfamiliarity with disputed matters and with extraneous matters which should not be known by her. A biased decision-maker is constitutionally unacceptable. Our system of law has always endeavored to prevent even the probability of unfairness. See Withrow v. Larkin, 421 U.S. 35 (1975) .

Judge Lopez’s stereotyping of transgendered people is offensive, dangerous, and inconsistent with the Code of Judicial Conduct. The suggestion that any group of people is or is not violent, cuts against the very principle that rights and responsibilities are accorded to each and every individual. If Judge Lopez had sentenced the defendant to an 8 to 10 year sentence because he was a transgendered person, the sentence though lawful, would be equally inconsistent with the Code of Judicial Conduct. Judge Lopez’s comments were not based on a judicial source. These comments were derived from personal opinion, not judicial sources.

It is axiomatic that a judge would pervert justice by deferring to a majority view if that judge is convinced that it is erroneous. But the first requirement of civilization is justice - the assurance that a law once made will not be broken in favor of an individual. If nonlegal considerations are permitted to distort legal judgment, then people will lose faith in the fairness of the courts.

But Judge Lopez did not extend to the defendant probation solely because he was transgendered. In cross examination of ADA Joseph (See Vol. VII, p. 147) she was presented with her prior testimony before the Commission. “She agreed”, meaning the judge, “it was a serious case and she would be hard-pressed to give probation. Then when she heard the defendant has this transgendered issue and she saw the report, I think she was like, well, she was swayed at that point.” Ms. Joseph, in agreeing with that prior testimony, thus testified that the social worker’s report was a factor in Judge Lopez’s determination of the sentence.

The Commission asserts that the social worker’s report was useless, and that Judge Lopez could not reasonably make a sentencing report based on it. Judge Lopez’s attorney, Richard Egbert, replies that it was the responsibility of the ADA to have asserted objections to the report from being considered. To the Commission “junk science is still junk science, whether or not its rebutted”. Vol. VIII, p. 108.

This hearing officer agrees with Judge Lopez, that under the system operating within the Superior Court, that even though the report was useless, as argued by commission counsel - it was something. As explained by Judge Lopez and confirmed by Chief Justice DelVecchio, there are no real rules governing plea bargaining, as long as the judge stays within the statutory sentence and does not violate any constitutional rights of the defendant. There is no formal structure for receiving documents in consideration of sentence at these plea conferences.

In answer to Attorney Egbert’s question concerning the introduction of documents and whether they are placed in any permanent record, the Chief Justice answered “No. Sometimes they may be placed in a probation file, but they’re not placed as part of the public record of the case. And I’m talking there can be medical reports, psychiatric reports, even letters, character reference letters for a defendant, whatever, victim impact statements. Those are all placed in a - - if they are placed at all - - in a probation file”. See Volume XI, p. 91. The Chief Justice was further asked “and if they’re not placed in a probation file, what’s done with them?”, to which she responded “they’re generally given back to the attorneys.” This is precisely what Judge Lopez did. Ms. Joseph, at that point, did not appreciate that Judge Lopez was relying on that report. The system thus, created a void, which prejudiced the prosecution and which offends the American system of due process and fair play.

This hearing officer is mindful that as the Supreme Court wrote over thirty-five (35) years ago that “[d]ue process of law is the primary and indispensable foundation of individual freedom. It is the basis and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.” In re: Gault, 387 U.S. 1, 19-20 (1967). The rules that govern adversarial proceedings are the “instruments of due process which enhance the possibility that truth will emerge from the confrontation of opposing version and conflicting data. Procedure is to law what ‘scientific method’ is to science.” Id. at 21. When testifying in this case, the ADA was not even sure that the social worker’s report was part of the record because Judge Lopez did not retain a copy. Judge Lopez’s attorney at one point at Vol. VIII, pp.130-131 asked this hearing officer to strike testimony on pages 102, 103, and 104 appearing in Vol. VI because he was prohibited from cross examining the ADA on whether there were any facts that couldn’t be disclosed by the judge. That motion is denied. If the social worker’s report had been accepted by Judge Lopez as being part of the record, then it could be disclosed. There was no evidence of any type of statutory restrictions presented to this hearing officer that would have restricted the social worker’s report from being made public, if it was part of the record. The social worker was not treating the defendant. If there was a privilege, it had to be asserted by the defendant. But it was the defendant’s attorney who placed it in the record. In any event, Judge Lopez never explained to this hearing officer the existence or basis that the social worker’s report could not be made public. The Commission argues that Judge Lopez could not have relied upon the social worker’s report, because it was never officially entered into the record of the case until after the sentencing hearing September 6, 2000. But Chief Justice DelVecchio was very clear that according to the customs and practice of the Superior Court, Judge Lopez did not have to place the document into the record in order for her to rely upon it.

Continuing, Chief Justice DelVecchio testified (Volume XI - 103) that “when we are doing the sentencing conference, we generally have a probation officer and we tell them to run the guidelines, just to give us an idea for a particular crime and taking everything into account that I’ve talked about the way a sentencing could be.” Judge Lopez had been involved in other abuse cases, and questionably she did not seek the input of a probation officer to run the guidelines in this case. If she had involved a probation officer, that officer would have probably informed the court at the September 6, 2000 sentencing, that the defendant had committed another sexual crime in the midst of the current controversy, and had pled guilty. This hearing officer finds it amazing, that Judge Lopez was not informed of this intervening crime.

The bottom line is that the system permitted Judge Lopez to act as she did. The system allowed her to hang her hat on a dubious report entitled “Psycho Social Assessment and Dispositional Plan for Charles Ebony Horton” prepared by one employed in defendant counsel Goldbach’s office. It is clear now that Judge Lopez did not enter that report as an official part of the record, and the report itself was not even filed with the court until after the sentencing hearing on September 6, 2000, and then, by the defense counsel sending the report to the Probation Department.

Judge Lopez’s stereotyping of transgendered people has no place in the judiciary. The Commonwealth has satisfactorily proved only by a preponderance of the evidence that in this specific incident, Judge Lopez exhibited bias in favor of the defendant. However, if rules of evidence were in place, which would have made it improper for Judge Lopez to rely upon such a social worker’s report, or if official sentencing guidelines were in place, then the proceeding would have been more discernible making it difficult to allow any bias or prejudice in favor of the defendant’s transgendered status to operate.

Judge Lopez, in attempting to justify her later action, constantly reiterated, directly and through counsel, that the case was essentially over on August 1, 2000. If this be true, then all of the remaining stages of the case were a charade, with each party play acting their roles to protect themselves. If this be true, then Judge Lopez violated the spirit of M.G.L. c. 258B, enacted in 1983, where Massachusetts approved a victim’s bill of rights, providing crime victims the right to be informed of and participate in criminal prosecutions. “[T[he statute was intended to change the ‘traditional view’ of victims from virtually silent observers to active participants in the criminal justice process.” Hagen v. Commonwealth, 437 Mass. 374, 380-381. The procedures operating in Judge Lopez’s courtroom on August 1, 2000 would appear to have made a mockery of this statute. While Judge Lopez acknowledges on cross examination that she was free to change her mind at the September 6, 2000 hearing, this hearing officer agrees with Judge Lopez and her counsel that the case was essentially over on August 1, 2000. In reviewing the evidence presented to me concerning two (2) criminal cases presided over by Judge Lopez, which were referred to in this hearing, namely Commonwealth v. Calixte and Commonwealth v. Estrada, there can be discerned no pattern of behavior in giving any deference to the victim impact statement, except to utilize the statement in a way which meets her perceived sense of justice. In Estrada , it seems that Judge Lopez did not even know what the maximum sentence for rape of a child, see Ex. 65 at 8 where Judge Lopez asks of ADA Joseph:

Let me just see. Rape of a child carries? What is the maximum?

MS. JOSEPH: It carries a life sentence.

In Calixte the victim testified that:

I don’t think it is fair that you are walking away with only eight years’ probation, because you came close to killing me.

See Ex. 66, p. 25

By doing so, she violated the clear legislative intent “that the right of the victim be considered in the course of criminal proceedings by the officials responsible for them, including judges”.

The facts show clearly that Judge Lopez exhibited concern for the defendant. While none of the steps taken on behalf of Defendant Horton were requested by defense counsel, this hearing officer cannot say that the arrangements made for the defendant was in fact special and was not driven by a desire for the orderly administration of justice. Even though the defendant Horton walked into court through the front door with no attention whatsoever from the media or anyone else, does not mean that Judge Lopez was wrong in her concerns for the defendant. The fact that Judge Lopez did not show the same consideration for the victim or his family during the proceedings, does not mean that she violated the Canons. This indifference may merit question, it does not merit sanctions.

Thus, as to the charge in Count II that Judge Lopez exhibited bias in the discharge of her duties toward the defendant because of this transgendered status and additionally, being overly solicitous of the defendant, one must examine the standard of proof required in this proceeding, namely: clear and convincing.

This hearing officer has deep respect for the important distinction between the merits of a judicial decision and the conduct of the judge rendering that decision. Although the line between merit and conduct is not always easily found, courts have been able to draw a meaningful distinction between legal or factual determinations. The Judicial Conduct Commission has recognized that its own limited jurisdiction excludes specifically legal questions. The clear and convincing standards provide a measure of insulation so that a judge will not be sanctioned out of disagreement with the merits of her rulings. The central thrust of the charge against Judge Lopez is to make her accountable for conduct not related to the merits of rulings that arise in the course of the performance of judicial duties. There can be no question that the independence of the judiciary is a fundamental precept upon which our system of government was founded. There is an imperative need for total and absolute independence of judges in deciding cases. The Code of Judicial Conduct, based upon the Code of Judicial Conduct as drafted by the American Bar Association, represents an effort to protect the integrity of the judiciary as a whole by placing limits on the independence of individual judges, in order to preserve the integrity of the judiciary, maintain public confidence in the judicial process, while at the same time strengthening judicial independence. Our Code of Judicial Conduct merely echoes existing Canons of long standing to guide judges in the impartial performance of their duties. The Commission would have proved that Judge Lopez had violated the Canon in that she exhibited bias in the discharge of her duties toward the defendant because of his transgendered status, if the standard of proof was simply by a preponderance of the evidence. But, this hearing officer must recognize the import of c. 211C, as amended by St. 1987, c. 656, §1 in creating a new comprehensive scheme.

Thus, under the heightened standards of c. 211C, I am not convinced that the Commission has proved by clear and convincing evidence sufficient to sustain the charge of bias in favor of the defendant, which amounts to a violation of the Canon (to a) reasonable certainty. Judge Lopez had an independent source as the underpinning for her sentence, namely: the social worker’s report. According to the standards and practice of the Superior Court, the trial judge, at the plea hearing, is not acting as a gate keeper. If there is no objection, the report is in. Under the lack of rules for this procedure, there is really little that an ADA could do. There is little recourse that one can take where a judge relies upon evidence which is dubious. Superintendence is only available in extraordinary circumstances and in any event, the issue would be mooted out before effective relief could be obtained.

But Count II not only charges favoritism toward the defense, but also alleges that at every turn throughout the proceedings, Judge Lopez exhibited disdain for the DA’s office. Thus, Count II also charges that Judge Lopez violated the Code of Judicial Conduct by exhibiting that bias and failing to appear impartial in presiding over the Horton case.

It is true that the evidence reveals throughout the proceedings, that Judge Lopez exhibited disdain against ADA Joseph. She had already presided over two (2) earlier cases involving ADA Joseph, namely: Commonwealth v. Calixte and Commonwealth v. Estrada. Thus, Judge Lopez’s opinion and treatment of ADA Joseph was already “informed” by the Calixte and Estrada cases.

That bias was not evident at the August 1, 2000 court hearing. To the contrary, in making her presentation, ADA Joseph thought Judge Lopez was being responsive to her arguments in making her presentation. The DA’s office was recommending an 8 to 10 year sentence. From their perspective, it was a very serious case: the defendant was a stranger to the child; a weapon was used in order to force the child to simulate a sex act; and the child was kidnapped. The case was extremely strong; the family of the boy had been very cooperative with the DA’s office and prepared to follow through to trial. The defendant had made a confession and the police had recovered from the car in which the boy was kidnapped, the weapon that was used to force him to simulate a sex act. Had the police not come onto the scene by happenstance, there was a real possibility of the sex act being consummated. In making her presentation, the ADA left out crucial bits of information which could have better informed Judge Lopez.

Defense attorney Anne Goldbach, came into this conference with the perception that a Detective Jay Greene had exculpatory information. She was also armed with an evaluation of her client by an employee of her office, Joan Katz. Defense counsel originally sought this report to assist her in any bail hearing. Additionally, there was alleged concern on the part of counsel about competency on the part of her client. She also thought the report could be useful on disposition.

In fact, defense counsel had offered the report to ADA Joseph at the Superior Court arraignment. ADA Joseph had a look of disdain on her face like the report was a worthless piece of paper, and refused to accept the document. See Vol. XI, p. 210.

However, Attorney Goldbach found a more receptive audience from Judge Lopez. In good faith, Attorney Goldbach put forth evidence which later turned out to be untrue. She indicated to Judge Lopez that this was not a total stranger situation. She also told Judge Lopez about the information that she had gotten from Jay Greene. That he was a veteran detective who was not a “softy”. Ms. Goldbach felt that the Commonwealth was exaggerating the case, making it look serious, ignoring what she viewed as mitigating aspects of the case. Ms. Goldbach vigorously objected to the “good boy” description of the victim advanced by the ADA by stating “I don’t think he’s everything your making him out to be”, see Vol. VI, p. 54.

There was no outward evidence of any animus displayed by Judge Lopez toward ADA Joseph during the sidebar on August 1, 2000. Ms. Joseph made it clear to Judge Lopez that “the DA’s office was not going to agree to probation on any level”. The ADA again argued that in their office’s perspective, this was a “very serious crime”. “The victim’s family feels strongly about the case as well.” Vol. VI, p.56. And Judge Lopez responded, “You can argue and say whatever you want, but that’s what I’m going to do.” Vol. VI, p.56.

Up to this point, the Commission has not established that Judge Lopez had violated any Canons through August 1, 2000. If she had done nothing further, but simply imposed the sentence that she indicated, this matter could have been avoided. Instead, the events that unfolded display a journey into quicksand. The more that Judge Lopez struggled to extricate herself from that quicksand, the further she sank.

My job as hearing officer is to make factual determinations and to evaluate the truthfulness of witnesses appearing before me. It must be recognized that since the advent of the Commission on Judicial Conduct, the bench has in many ways been governed by a higher standard of conduct than the bar. Unlike the bar, a judge must not and cannot engage and descend into petty feuds. But this is what was about to occur in this case. The actions and course of conduct that Judge Lopez was about to embark upon was disingenuous to say the least.

On August 4, 2000, when ADA Joseph got off the elevator in front of the courtroom, she was immediately confronted by Attorney Goldbach. Ms. Goldbach was very upset complaining to the ADA about how she could do “this”. The press was there. To Ms. Joseph, the press attention was of little concern. But to Attorney Goldbach, the Great Wall of China had just collapsed. She wanted to see the judge. Her client was very upset.

Attorney Goldbach was outraged by a press release issued by the DA’s office (Exhibit 7) which identified “Charles Horton, 31, a transgendered person who appears as a woman.” The attorney felt that the DA’s office “was sensationalizing the case and that it was a lure for the media to go there. And I found it quite offensive, frankly.” Testimony of Anne Goldbach, Vol. XII-104.

Attorney Goldbach also expressed her outrage to Judge Lopez at the morning lobby conference in the day. She “indicated to Judge Lopez that at that point, I had 23 years of experience, that you usually see this type of media coverage for either a first-degree murder case or a case that was a high-profile case in the press, which was not the case in this instance. That my client wasn’t a murderer, that this was not fair, that this wasn’t just, and that it was cruel for the DA’s office to have done this.” Vol. XII, pp.106-107.

Judge Lopez was equally upset with ADA Joseph. While I believe that ADA Joseph engaged in hyperbole in describing the tone of Judge Lopez’s voice as screaming, I do find that Judge Lopez did in fact unleash a barrage of criticism at the ADA that was not warranted. Judge Lopez called ADA Joseph “very mean” and stated that she “belonged in the suburbs.” The judge blamed ADA Joseph for calling in the media saying that Ms. Joseph was unfit to be a prosecutor and had no credibility. She accused ADA Joseph of orchestrating the presence of the media in creating a “circus”. Judge Lopez was clearly displeased. The instigator to this entire barrage was Attorney Goldbach. She had a job to do - to protect her client; and unfortunately, she did it at the expense of ADA Joseph. While in Attorney Goldbach’s mind there was a circus in the courthouse, the evidence is not there to support that belief. But while Attorney Goldbach was the instigator, she found a willing partner in Judge Lopez, who accepted everything that defense counsel had to say without question or investigation. Facilitating Judge Lopez’s acceptance of proffers made by Attorney Goldbach was the fact that Judge Lopez had developed a dislike of ADA Joseph because of prior public criticism. Where actual bias on the part of a judge is present because she perceives that she has been the target of personal abuse or criticism from the party before her, then there is a constitutionally intolerable proceeding. While Judge Lopez’s bias against ADA Joseph was not clearly prejudicial to the adversarial process, it was clearly abusive. There are certainly aggressive trial lawyers who routinely test the limits of proper advocacy. But ADA Joseph was being punished for properly exercising her First Amendment Rights. Judges, like other public officials, frequently become targets of public criticism for their actions. Although the spirit of collegiality tends to shield judges from criticism from within the judicial branch, such collegiality does not extend to the Fourth Estate. The fact that the judge made offensive remarks privately within the judge’s expectation of privacy in her chambers, does not make the remarks less offensive. But when the judge allows offensive remarks to be made part of the public landscape, those remarks may well justify the imposition of discipline. But this does not mean that slurs directed toward an attorney, (whether) such remarks are made in chambers or in the courtroom, can still not constitute language that prejudices the administration of justice.

There was a total lack of understanding on the part of Judge Lopez as to the interaction between the press and the DA’s office. Judge Lopez perceived that the ADA had orchestrated the media coverage. It is true that ADA Joseph set the wheels in motion by which the press was drawn to the Horton case. But the DA’s office had a written policy requiring all Assistant District Attorneys to apprize the press office of the District Attorney of cases likely to generate press coverage or that were otherwise newsworthy. The bottom line is that the DA’s office had a right to issue a press release. The DA has a public responsibility to inform the public of crimes being prosecuted and sentences being imposed. Child molesters are no exception to the public’s right to know.

Judge Lopez might have found it offensive for the DA’s office to have mentioned in the press release that the defendant was transgendered. This is why Judge Lopez attacked ADA Joseph as very mean, very young and this was all her fault. Both Judge Lopez and Attorney Goldbach found that the mention in the press release that the defendant was transgendered as being extraneous to the case. But it was Attorney Goldbach and Judge Lopez who made the transgendered status of the defendant the central focus of the entire case. It was precisely because the defendant was transgendered that Judge Lopez adopted the sentencing recommendation of Attorney Goldbach. Even the social worker’s report focused upon the defendant being transgendered. It was the transgendered nature of the defendant which to them explained and justified the action being taken in this case.

Judge Lopez had a low opinion of ADA Joseph based on her history with Joseph in the Calizte and Estrada cases. Judge Lopez believed that ADA Joseph had a habit of criticizing her in the press. Again, this belief is derived from her misunderstanding of the nature of the DA’s office and its policies. Judge Lopez testified that ADA Joseph’s comments in the article written by Eileen McNamara, Two-Tier Justice Hurts Children, Boston Globe, 2/14/99 (Ex. 43) “criticize [her] personally.” While ADA Joseph denies that her comments were a personal attack upon Judge Lopez in that she never mentioned the judge by name, one could easily ascertain who the judge was referred to in the column.

Ms. Joseph’s contention that she never mentioned Judge Lopez’s name during her interview with Ms. McNamara (Vol. VI:88), and the Commission’s claim that Ms. Joseph’s quoted statements were not a personal attack on Judge Lopez (CB at fn. 11) are both fictions. McNamara’s article and Ms. Joseph’s statements were obviously about Judge Lopez. Was Judge Lopez warranted in believing that Ms. Joseph’s quoted statements were intended to, and actually did, refer to her as the sentencing in judge in the Estrada and Calixte cases? Yes. Did Judge Lopez believe that ADA Joseph’s representation of the reasoning that Judge Lopez used in deciding what sentences to impose in the two (2) cases was a misrepresentation? Obviously. Did Judge Lopez believe that she had been repeatedly and falsely portrayed to the public by the prosecutor? Certainly. Did Judge Lopez believe that ADA Joseph was quoted as having implied that her sentences in the two (2) cases “condone[d] the rape and beating of children”? Of course. Did Judge Lopez believe that it was inappropriate for ADA Joseph to make sentencing arguments in the press that she never advanced in court? Yes. Was Judge Lopez warranted in reading ADA Joseph’s quoted statements as maliciously false attacks that put the Superior Court and Judge Lopez in a false and damaging light? Absolutely not.

Judge Lopez would like this hearing officer to believe that ADA Joseph perjured herself when she testified that Judge Lopez expressed an opinion that transgendered people are not violent. Judge Lopez argues that the statement is so ridiculous that she could not have made this statement. The statement is indeed ridiculous, but she did make that statement. The record clearly shows that the very animus that Judge Lopez accuses ADA Joseph had against her is the same animus that Judge Lopez bears against the ADA. Judge Lopez’s continuing diatribe against Ms. Joseph is proof enough of actual bias. Despite this finding, this hearing officer does not believe that Judge Lopez’s animus against Ms. Joseph in any way affected the sentence that she handed down on August 1, 2000.

Judge Lopez argues there is no reported Massachusetts judicial misconduct case in which the legal meaning of actual bias in violation of Canon 3(B)(5) is explicated. The judge argues that no reason appears why the meaning of “bias” in Canon 3(B)(5) is different than its meaning in the disqualification standard - Canon 3(C)(1) - which in turn, is the same standard used to determine whether a judge should recuse herself from presiding over a case. To a certain extent, this hearing officer agrees, although in these circumstances there is no possible showing that Judge Lopez’s bias against the ADA could have required a reversal of her sentencing decision. Then too, the bias and prejudice relevant in a recusal proceeding are not necessarily so restricted to show a violation of a Canon. In any event, the spirit and purpose of the Canon would hardly be served by holding that a judge may act in an undignified manner while on the bench so long as she only chooses to berate attorneys. Any discourtesy to the attorneys is clearly within the scope of the Canon.

Under art. 29 of the Massachusetts Declaration of

Rights, judges are to be “as ‘free, impartial, and

independent as the lot of humanity will admit.’”

Commonwealth v. Leventhal, 364 Mass. 718, 721

(1974). “Ordinarily, the question of disqualification

Is left to the discretion of the trial judge.”

Commonwealth v. Dane Entertainment Servs., Inc.,

18 Mass. App. Ct. 449 (1984). Care & Protection of

Martha, 407 Mass. 319, 329 n. 10 (1990). “[A]n abuse

of that discretion must be shown to reverse a decision

Not to allow recusal.” Haddad v. Gonzalez, 410 Mass. 855, 862 (1991).

When confronted with a recusal motion, a “judge

[must] consult first his own emotions and conscience”

to ascertain if he is free from disabling bias or prejudice.

Haddad v. Gonzalez, supra, quoting from Lena v.

Commonwealth, 369 Mass. 571, 575 (1976). If the

judge passes the internal test of freedom from disabling

prejudice, he must next “attempt an objective appraisal

of whether this was a proceeding in which ‘his impartiality

might reasonably be questioned.’‘” Haddad v. Gonzalez,

supra, quoting from S.J.C. Rule 3:09, Canon 3 (C)(1),

382 Mass. 811 (1981). Under the rule, “[c]ircumstances

where a judge’s impartiality might reasonably be

questioned include instances where the judge ‘has a

personal bias or prejudice concerning a party . . . .’” Id.,

quoting from S.J.C. Rule 3:09, Canon 3 (C)(1)(a).

Judge Lopez argues that there are no cases in which the presiding judge’s criticism of the conduct of a lawyer, as distinguished from a party involved in a case, supports a finding of actual bias. But where the facts clearly shows actual admitted bias against the attorney, the judge’s impartiality might now reasonably be questioned. In Parenteau v. Jacobson, 32 Mass. App. Ct. 97, 100, where the trial judge explained that he did not recall the first time that the defendant appeared before him, and he “did observe that he was one of the biggest liars that I’d seen in a long time, based upon the evidence that I’d heard”, it was obvious that the judge’s impartiality might reasonably be questioned if he presided at a jury-waived trial. The fact that the trial judge in that instant, ordered a jury trial, concluding that his impartiality could not reasonably be questioned if his only connection with the case was to preside at the trial, was not persuasive. The judge’s role at any hearing is to be the “directing and controlling mind...and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings.” Whitney v. Wellesley & Boston St. Ry., 197 Mass. 495, 502 (1908). Therefore, a courtroom has no place for a judge whose impartiality in a matter may be reasonably questioned. Judge Lopez argues that, if she were biased against the ADA’s they should have sought her recusal. But the Supreme Judicial Court has soundly rejected the argument that the Canons are only violated by bias that rises to the level requiring recusal. See In the Matter of Brown, 427 Mass. 146, 152 (1998) (“the bias and prejudice relevant in a recusal proceeding are not therefore necessary to find a violation of Canon 3(A)(3)”). Moreover, any decision on recusal would have been made by Judge Lopez herself, who even now claims no bias. Thus, such a motion would have been futile given the circumstances of the case.

It is true that in the Jacobson case, as well as other cases, i.e., Commonwealth v. Fitzgerald, 380 Mass. 840, 846-849 (1980); Commonwealth v. Sylvester, 388 Mass. 749, 752 (1982), which in fact were cases where the judge made critical statements, plus exhibited angry or hostile demeanor toward counsel, did not result in any charges being brought against the judge involved in those cases. But despite the arguments of Judge Lopez, this hearing officer cannot condone or absolve her behavior, on the basis that other judges may have acted in a similar fashion. Judge Lopez asks why the alleged bias against the prosecution in the Horton case occasioned the charges against Judge Lopez when no charges were brought against these other judges. The answer is simple, though unfair in certain ways. The episode of judicial misconduct was seen on television. The introduction of television was supposed to elevate the administration of justice. The public has a constitutional right to view all phases of any public hearing. The fact remains that in most cases, what occurs in our courtroom, remains mostly unseen. Justice is usually dispensed in a courteous but quiet fashion. The fact that this case attained notoriety because of television is not unfair to Judge Lopez in that she knew well that her conduct was there for all to see. That viewing generated the controversy. “The judiciary must behave with circumspection when in the public eye.” Matter of Brown, 427 Mass. 146, 149 (1998). The fact remains in this case that even if Judge Lopez reasonably believed that the prosecutors’ conduct merited criticism, she cannot act vindictively towards those attorneys.

This hearing officer agrees with Judge Lopez that the judicial system would not survive if lawyers could relentlessly accuse a judge of bias or the appearance of bias based on the judge’s well-founded criticism of the conduct of counsel who appear before them. “Nor can that artifice prevail, which insinuates that the decision of this Court will be the effect of personal resentment; for, if it could, every man could evade punishment due to his offenses, by first pouring a torrent of abuse upon his judge, and then asserting that they act from passion, because their treatment has been such as would naturally excite resentment in the human disposition. But it must be remembered, that judges discharge their functions under the solemn obligation of an oath; and if their virtues entitles them to their station, they can neither be corrupted by favor to swerve from, nor influenced by fear to deter their duty.” Respublica v. Oswald, 1 U.S. (1 Dallas) 319, 326 (Pa. 1788).

But on the other hand, even if an attorney runs afoul of his or her obligations to the court, this does not give license to the judge to enact revenge. To brook it in a single courtroom would degrade the courts in general. As the Judicial Conference of the United States has stated, “the robe a judge wears as he sits upon the bench is not a license to excoriate lawyers or anyone else.” J.M. Shaman, S. Lubet & J.J. Akfini, Judicial Conduct and Ethics, 61 (2d. Ed. 1995).

Judge Lopez has raised profound free speech questions on behalf of judges. At the same time, she is willing to heap punishment on ADAs for exercising their rights under the First Amendment. “The administration of justice by an impartial judiciary has been basic to our conception of freedom every since Magna Carta.” Bridges v. California, 314 U.S. 282 (1941) (Frankfurter, J., dissenting). “[F]ree speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them.” Bridges v. California, Ibid at 260 (Frankfurter, J., dissenting). While Judge Lopez has the obligation to maintain decorum in the courtroom, she does not have the right to act in a way to “lay by the heel” those responsible for what she perceived to be “scandalizing the court,” that is, bringing it into general disrepute. Such foolishness has never found lodgment in the Courts of Massachusetts, whereby judges are allowed to utilize their courtroom to carry out their petty feuds. There are proper avenues whereby judges can punish attorneys. But this does not mean that the attorneys who practice before the court, lose their right to condemn decisions or the judges who render them. “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interest of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench, as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore, judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor, however blunt.” (Emphasis supplied) Bridges v. California, Ibid. at 289 (Frankfurter, J., dissenting)

See the Lincoln Day, 1898 address of Mr. Justice Brewer, Government by Injunction, 15 Nat. Corp. Rep. 848, 849.

Judges wield an awesome and final power over the liberty and property of their fellow citizens. This power is the more awesome because in this Commonwealth, as in the Federal system, we are neither elected nor subject to recall or retention elections. This power is tolerable in a democracy because judges speak only for reason and the law. In the Matter of Brown, 427 Mass. 146, 149 (1998). “Surely it is arrogance for us to say to them that we may not seem impartial but we know we are, and so they must submit.” Id. Normally the public does not witness the events in question, so they must instead trust what happens. In this case, the public did witness the events in question. As stated in the Federalist No. 78 (Alexander Hamilton), we have “neither force nor will, but merely judgment.”

But I also believe that to prevent disciplinary action from encroaching upon legitimate and necessary use of the judges’ powers to control their management of cases, sanctions should be employed only for conduct, that viewed from the perspective of reasonable judges and lawyers, is clearly abusive toward counsel or clearly prejudicial to the adversarial process. Judges are not all alike. There are as many appropriate courtroom management techniques as there are judges. In any given situation, there will be more than one appropriate way to manage a session. Then too there are aggressive trial lawyers who routinely test the limits of proper advocacy. Thus, out of context, the trial management techniques needed to control these lawyers may seem harsh, even abusive. I am also aware that judicial discipline can chill the proper exercise of judicial discretion. If judges can be sanctioned for conduct that is only arguably or possible abusive, they may be reluctant to employ stern measures even when necessary to keep control of the adversarial process.

While comments uttered off the bench pose a less serious threat to public esteem for the integrity of the judiciary, such remarks can constitute prejudicial misconduct. More importantly, the remarks made to ADA Joseph in the privacy of the lobby set the stage for the events that followed.

There is no question that Judge Lopez’s remarks at the conference were meant to inflict emotional trauma upon ADA Joseph. The fact that Judge Lopez stated to Attorney Goldbach that she was considering continuing the case until a time when ADA Joseph was on vacation was a deliberate attempt to humiliate her. Vol. VI, p.66

After the conference in Judge Lopez’s chambers, ADA Joseph contacted her supervisors. ADA Joseph’s immediate supervisor, ADA David Deakin, went to the courthouse to assist her. When he arrived at the courthouse, he was immediately confronted by Attorney Goldbach, just as Ms. Joseph had been confronted earlier in the morning.

In the lobby conference, Attorney Goldbach had asked Judge Lopez for a continuance because her “client wasn’t in any condition to engage in a plea that day.” The attorney felt that “given my client’s condition at that point, that there was no way she could knowingly and intelligently make that decision and go through a guilty plea.” Vol. XII -112. Judge Lopez , in turn, based on that ground, indicated to Attorney Goldbach that she could have her continuance. In reaction to Judge Lopez’s indication that she would grant a continuance, Attorney Deakin worked with ADA Joseph to draft a Motion in Opposition to a Continuance, see Exhibit 17.

When Judge Lopez came back on the bench after the case was again called after the lunch recess, the parties were informed that the case would be continued, without hearing further arguments. In granting the continuance, Judge Lopez now explained that the court docket was too crowded to reach the case, and there wasn’t time to do the plea. See testimony of Attorney Deakin, Vol IX - 55. But according to Attorney Goldbach, the real reason that the continuance was allowed was because she would not allow her client to make a plea given the fact that the press was there and the emotional trauma that would be inflicted upon her client.

Pursuant to M.G.L. c. 278, §16F, Judge Lopez was required to make written findings before granting a continuance in a child sexual abuse case. When ADA Deakin submitted a Motion to Oppose the Continuance, Judge Lopez responded that “Okay. You will get written findings.” “Her tone was intense.” Vol. IX, p.56

The findings were sent later on that day. Up to this point, in reviewing the actions of Judge Lopez under the clear and convincing standards, she was in the clear. If she did nothing further, the matter for all extent and purposes would have been over. Unfortunately, with her written findings, Judge Lopez crossed the line. Her findings were replete with half-truths and misleading statements.

The “findings’” included:

(1) the ADA had a habit of calling in the press;

(2) the ADA attempted to embarrass and ridicule a defendant suffering from a psychological disorder;

(3) the Commonwealth caused the continuance by seeking to turn the court proceedings into a circus; and

(4) there would be little or no impact to the “alleged victim.”

Each of these findings were misleading and based solely on the judge’s antipathy toward ADA Joseph and the DA’s office. At this point, she started her campaign to embarrass and discredit ADA Joseph.

The unrebutted record evidence establishes that ADA Joseph never “called in the press” in any case, let alone habitually. The only occasion on which ADA Joseph discussed a case handled by Judge Lopez followed the Calixte and Astride matters. In that single instance, the reporter contacted the DA’s office and ADA Joseph’s supervisors requested that she talk to Ms. McNamara. Such conversation was neither initiated by ADA Joseph nor related to “calling in the press.” Notably, Judge Lopez did not even attempt to take any evidence before making this “finding”, which amounted to nothing more than a personal attack on ADA Joseph. In making this finding, the judge’s treatment of the ADA was an abuse of judicial authority and was clearly motivated by feelings of animosity. Judge Lopez, in issuing this finding, was acting on her suspicions. Judge Lopez similarly had no basis to find that ADA Joseph attempted to “embarrass and ridicule a defendant suffering from a psychological disorder.”

The reference by Judge Lopez that the defendant “suffered from a psychological disorder” is troubling in that the report that she relied upon was not officially part of the record, at that time. Judge Lopez’s effort to elevate a four-page social worker’s report into something meaningful was pure sophistry. But for the reasons already expressed, I cannot find that Judge Lopez made an entirely dishonest use of the social worker’s report. But clearly, Judge Lopez knew that the ADA thought that the report was worthless. Thus, there was no evidence that the ADA was attempting to embarrass a defendant suffering from a psychological disorder.

Judge Lopez also found that the DA’s office caused the continuance by “seeking to turn the court proceedings into a circus.” The presence of the media in the courtroom is not only permissible, but is assured by the Supreme Judicial Court. There was no evidence that there was a “circus” atmosphere within the courtroom. Indeed, it is the obligation of a judge to control the courtroom. This is essential to the exercise of judicial power. There was no evidence that Judge Lopez had lost control of her courtroom.

In writing her findings, Judge Lopez was acting in bad faith, indulging in petty animosities which would only serve to bring the judiciary into disrepute. Unfortunately, the finding was only a precursor to more unfortunate events that were to unfold in the near future. While Judge Lopez may have believed that her findings for the continuance were true, they were in fact her own suspicions which were not reasonably supported by research or investigation.

A judge must not act upon suspicion, since to do so, would interfere with the atmosphere of impartiality which judges have the duty to maintain. Judge Lopez’s personal attack on the ADA was unsettling in that counsel must feel free to advance claims with the assurance that the judge will listen with an open mind and, without prejudgment, that the matter is not being presented in a dishonest or exaggerated manner, or that the action is otherwise in bad faith. But this is what Judge Lopez was doing. She had prejudged the matter within a five (5) to ten (10) minute span at the first conference hearing, and all the efforts by the DA’s office to change her position, she viewed as being presented in a dishonest or exaggerated manner, and in bad faith. But in her defense at this hearing, Judge Lopez now argues that the DA’s office was at fault because it was not vigorous enough.

I have no doubt that defendant Horton was emotionally overwrought by the presence of the press. But the reaction of the defense counsel to the presence of the press only exasperated the situation. Ms. Goldbach expressed real dissatisfaction with ADA Deakin when he appeared on the scene outside the courtroom. She was angry at him and his office for issuing the press release. Attorney Goldbach pointed specifically to that portion which said “Charles Horton, 31, a transgendered person who appears as a woman”. She raised other concerns with him. She told him that this case isn’t what it looked like. When asked to explain, she told ADA Deakin to talk to Detective Jay Greene. When ADA Deakin asked what does Jay Greene say, she again responded “Talk to Jay Greene.” After being pressed by ADA Deakin for more specificity, she spread her poison that Jay Greene would say that the boy “he’s not the angel or choir boy that you’re saying he is.” But when ADA Deakin asked what was the relevance of this information, she either couldn’t or wouldn’t answer it. See Vol. IX-pp.44-45.

Finally, Judge Lopez found that the continuance would have little or no impact on the “alleged victim.” She mentioned the victim, only because the statute required her to make that statement. Her real objective it appears was to punish the ADA. The written findings as to the continuance presented an opportunity to vilify and discredit ADA Joseph to the very press and television media that she decried. Judge Lopez asked Joan Kenney, the Public Information Officer at the Supreme Judicial Court to send her written findings to those television stations that she listed on her fax. Joan Kenney considered Judge Lopez’s written findings to be a press release to be sent to Channels 4, 5, 7 and 56. In addition, because Judge Lopez had asked Joan Kenney to fax the findings and order to the media that same day, the Public Information Office also sent it to other media outlets, namely, the Globe, the Herald, the A.P., and perhaps, others who might have been interested in this case.

Judge Lopez had informed Joan Kenney that she was upset at the media being present that day, particularly filming Charles Horton, and because of that, she was continuing the case. (See Vol. X, p. 147) This hearing officer finds it odd that Judge Lopez could believe that simply by continuing the case, the media would go away. Stranger still that Judge Lopez then would inform the media in writing of the continuance date. Common sense dictates that the media attention would only intensify by the continuance. In fact, there was a greater media presence on September 6, 2000, after the judge issued her “findings”/press release on August 4, 2000.

I also have no doubt that Judge Lopez was truthful in stating in open court that she had 16 bails and a lot of other things to take care of. The evidence clearly shows that. What is disingenuous, was using this fact as a reason for putting over the plea to another time in Middlesex. It was evident that the matter was continued to avoid the media. She had plenty of time to take the plea in the morning.

It is also curious that Judge Lopez sees no wrongdoing in sending out a statement to the press which did not represent the reality of the situation, while at the same time attacking the ADA for sending out an initial press release which indicated that the defendant was pleading guilty on August 4, 2000. It is disingenuous of both Judge Lopez and defense counsel to state this was not proper, when defense counsel was getting exactly what she asked for in sentencing. This heightened sense of indignation could be accepted, if there was any doubt that the defendant would take the plea. The outrage was sheer sophistry, serving only as a pretext to attack the ADA. What is important though is not whether the DA was unethical in sending out its press release, but that Judge Lopez thought it was unethical. This is what she meant when she informed the ADA’s in their opposition to the continuance, “Okay. You will get written findings.”

What is further troubling is that Judge Lopez states in ¶9 of her Responses to Charges that she “was unaware of it at the time she made her findings, the Suffolk County District Attorney’s Office issued on August 3, 2000, a press release . . .” On the stand in this hearing, Judge Lopez admitted that, in fact, that she had read the press release before she issued her finding. See Vol. I, p. 107. Judge Lopez explained at 108 that “[b]etween my morning lobby conference and the time I wrote these findings, I had read that press release.” What Judge Lopez did not say is that she knew from Attorney Goldbach, that there was a press release, and the essence of that press release.

Attorney Goldbach, called by Judge Lopez on direct examination, explained what had happened earlier in the morning before any findings were made. “We went in and sat down. Judge Lopez was already seated. And I was the first person to speak. And I explained to Judge Lopez that the DA’s office had issued a press release indicating that my client was expected to plead guilty and that my client was transgendered.” Vol. XII, p. 126.

The August 4, 2000 findings issued by the judge were significant in at least two (2) other respects. First, Judge Lopez described the findings as a “press release,” which she instructed Ms. Kenney to circulate to the media. Judge Lopez thus misused an Order of the Court as a press release to personally attack the DA’s office and ADA Joseph. Before the issuance of the findings, the public knew only that the Horton matter was scheduled for a guilty plea on August 4. By issuing the findings and affirmatively seeking to publish them to the media, Judge Lopez escalated a professional disagreement over sentencing to a personal and public antagonism between a sitting judge and the DA’s office. Judge Lopez’s decision to publish the “findings” was wrong, not only because official court orders should not be used as a subterfuge for personal battles or as a press release, but because such a “press release” was inconsistent with the purported basis for the continuance itself. Compare Ex. 17 with Ex. 42 at 2. The hypocrisy of Judge Lopez’s conduct, as previously noted, is that she attacked the DA’s office merely for issuing a standard press release and then blamed the ADAs for the mere presence of the media in the courtroom on August 4; yet she published a highly inflammatory order (as a press release) which guaranteed greater media attention at the September 6 hearing. The record evidence establishes that Judge Lopez took no evidence before writing her findings. The findings, in fact, include a number of false assertions.

Her counsel argues that the DA, if they thought that the press release was wrong, could have sought relief by seeking redress by way of superintendence to the Supreme Judicial Court. But superintendence is an extraordinary remedy which would have been a most improbable avenue of redress. Imposition of the sentence would have mooted out the case. There was little for the DA to do for past events.

But for the future, the course of events had now changed with the arrival of ADA Deakin. Knowing full well what happened to Ms. Joseph, he was determined not to be so compliant. On that day, Judge Lopez acted as a Judge Judy. Judge Lopez, who had been prepared for Ms. Joseph, would prove not to be so prepared for ADA Deakin.

On September 6, 2000, the Horton matter came before Judge Lopez in Middlesex Superior Court. Ostensibly, the hearing was set to take a plea. In reality, it was a sham. On that day, the judge’s treatment of the ADA was designed to embarrass the Office of the DA. Judge Lopez had been frustrated with the prosecutors for what she perceived to be their unethical behavior in this case. The proceeding constituted an artifice merely designed to punish the Commonwealth - depriving the public of its interest in a just and impartial disposition of the case. On that day, Judge Lopez exalted form over substance.

The well publicized evidence showed Judge Lopez to be rude, discourteous, and abusive to ADA Deakin during the proceedings. Such treatment of ADA Deakin had at least the appearance of bias against the DA’s office. Indeed, Judge Lopez’s treatment of ADA Deakin, after a month long hiatus during which she had an opportunity to “cool down,” is proof of her actual bias against the DA’s office.

During the September 6 hearing, when ADA Deakin was about to recite the facts that supported Horton’s pleas of guilty, Judge Lopez emphasized to ADA Deakin that she wanted to hear only the facts “relevant” to the indictments. Midway through ADA Deakin’s presentation of those facts, Judge Lopez interrupted him and said that his recitation was sufficient. Deakin was allowed to continue only after he requested permission to do so. Subsequently, Judge Lopez solicited ADA Deakin’s sentencing recommendation. After Deakin explained in detail the basis for the Commonwealth’s sentencing recommendation of 8 - 10 years of imprisonment, Judge Lopez asked sarcastically whether the defendant should be sent to a male prison or female prison. This remark is notable in that Judge Lopez has testified that the defendant’s sentence of probation was already a foregone conclusion; thus, her question was intended only to be sarcastic and antagonistic to ADA Deakin.[i]

When Deakin completed his sentencing recommendation, Judge Lopez asked him, how he would rate the seriousness of the case on a scale of 1 - 10. ADA Deakin provided an in-depth response explaining, among other things, that the seriousness of a case rested on a number of different “axes.” ADA Deakin did not provide a single numerical rating of the seriousness of the case, but rather described the seriousness of different aspects of the case. The judge’s contrary testimony that she understood him to have provided a single numerical rating is unsupported by the evidence. Rather, the tape and transcript reveal ADA Deakin to have said that, because the defendant was a stranger to the victim, that aspect of the crime rated a 10; the young age of the child placed the case in the “quite serious” range; and the lack of a completed sexual assault was “moderately serious.” At the end of Deakin’s response, Judge Lopez erupted , lashing out at ADA Deakin and accusing him of being “disingenuous”. Judge Lopez also characterized the offense as “on a very low level.” When ADA Deakin attempted to exercise his right to object to the judge’s finding him to be “disingenuous,” Judge Lopez wagged her finger and threatened him, stating in a raised voice that the would have to sit down or she would order a court officer to make him sit down.[ii]

Throughout this exchange, ADA Deakin remained calm and professional. Her reference now that she was referring to the Ronan sentencing guidelines is disingenuous. She knew well that the ADA was referring to the proposed sentencing guidelines that was posted on the Superior Court website, and which the Legislature had not approved. Joan Kenney, when asked about the sentencing guidelines, never heard Judge Lopez refer to the Ronan guidelines.

In truth, as Chief Justice DelVecchio testified, there was not much difference between the Ronan guidelines and the proposed guidelines that went before the Legislature. The main difference is the extra kick in the proposed guidelines that could increase the time to be served. But the Ronan guidelines were in effect well before the Legislature passed truth in sentencing provisions that made time given by a judge to be served, real time. The bottom line is that Judge Lopez has discretion under the statute to give probation, and it was under that statute she exercised her discretion. There was no evidence of any grid showing what the sentencing could have been under any sentencing guidelines.

The event described up to the point, that ADA Deakin attempted to exercise his right to object to the judge’ finding him to be “disingenuous”, was unfortunate. Up to that point, the judge’s voice, expression, and demeanor toward ADA Deakin can be described as being sarcastic. She was lacking in judicial temperament and devoid of the basic concepts of impartiality in the conduct of this hearing. Events later proved that Judge Lopez treated the whole proceeding as a sham. In trying to position the ADA to make him look like a fool, Judge Lopez did not count on ADA Deakin standing up to her abuse. ADA Joseph had never confronted her, rather she suffered in silence and complained to her superiors. When Judge Lopez viewed the tape during this hearing, even she winced recognizing that, at that point, she was lacking the dignity expected of a judge. The judge’s actions during the sentencing hearing demeaned the system of justice within the Commonwealth of Massachusetts.

In reviewing the dynamics of the proceeding, there were two (2) competing forces at work during this sentencing hearing. The ADA wanted to make an extensive record at this hearing to show that the recommended sentence was just and proper, and that the judge’s imposition of probation was unjust; and Judge Lopez , who was interested in showing to the world that the DA’s office was incompetent, and that she knew better.

The pattern of conduct shown by Judge Lopez towards the ADA in this case demonstrates profound concerns for the legal community as a whole. While every judge has a bad day from time to time, and lawyers have on many occasions taken the brunt of verbal assault from judges as an occasional occupational hazard, it should not be a plan of action for a judge to conduct such a hearing. A judge with a temper is not necessarily one without a keen sense of justice. But while litigants and attorneys may be willing to endure a temporarily awkward moment in court, in exchange for a just result, the display of her lack of demeanor in the courtroom to the public was unfortunate to witness.

The central problem for Judge Lopez was that her conduct at the September 6, 2000 hearing did not comport with the public perception of how a judge should act. While the public may be receptive to an abrasive grandmother from Manhattan on TV, who panders to the millions who watch her on the Judge Judy show, they are not willing to accept that from a sitting judge within the Commonwealth of Massachusetts. “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” (Emphasis supplied) So said Lord Hewart in Rex v. Sussex Justice, 1 K.B. 256, 259 (1924). See also in the In the Matter of Troy, 364 Mass. 15, 71 (1973). “The manner of disposition is as essential to public confidence as is the disposition itself.” Id.

Knowledgeable observers would scoff at any suggestion that courtroom civility is slipping within the Commonwealth. But to the public, what they saw there that day was a regrettable decline in civility. For the public to perceive that there is a lack of civility among the very judges who are supposed to maintain civility would be regrettable. As Justice Anthony Kenney reminds us, “[c]ivility has deep roots in the idea of respect for the individual...respect [for] one another’s human aspirations and equal standing in a democratic society.” Justice Anthony Kennedy, Address to 1997 ABA Ann. Meeting (Summer 1997, San Francisco, CA). If civility among lawyers threatens to bring the entire legal profession into disrepute, than a lack of civility in the judiciary promises to undermine profoundly American society’s respect for the rule of law and its faith in the possibility of achieving just results. Chief Justice Warren Berger admonished his judicial colleagues over thirty (30) years ago: “Every judge must remember that no matter what the provocation, the judicial response must be a judicious response and that no one more surely sets the tone and the pattern for courtroom conduct than the presider.” Warren E. Burger, The Necessity for Civility, 52 F.R.D. 211, 215 (1971) (Text of speech delivered at the Opening Session, American Law Institute, May 18, 1971, Wash. D.C.). “Judges occupy a unique and uniquely powerful role in American society; thus, when they behave toward attorneys...in an intemperate, contemptuous, and arbitrary manner, the consequences extend beyond the immediate target of their actions.” McBryde v. Committee to Rev. Cir. Council Conduct, 83 F. Supp. 2d, 135, 164 n. 16 (D.D.C. 1999). As Judge Louis Pollak, former law school dean and American Bar Association section chair wrote: “when the target of a judge’s unjustified polemic is a lawyer practicing in the judge’s court - the harm to civility may be even more serious. This for the reason that the judge, speaking from a privileged sanctuary, is acting the bully and dishonoring the robe.” Hon. Louis H. Pollak, Professional Attitude, A.B.A.J., Aug. 1988, at 66, 67. If a judge’s conduct is gratuitously abusive, it is likely to exercise a pernicious influence upon the morale and efficacy of the legal profession and the administration of justice. It may be unfortunate that Judge Lopez did not have the common sense to be on her best behavior knowing that the television camera was in her courtroom that day. Instead, she insisted on continuing her behavior of trying to inflict damage upon the DA’s office, engaging in her view, a tit for tat approach. The fact that the press and television were there only served to compound the matter. The overall impact of Judge Lopez’s conduct had far reaching consequences that extended beyond the legal community to the general public. In addition, Judge Lopez’s conduct that day had a deleterious effect on the entire legal community. The Canons require Judge Lopez to conduct herself in a manner promoting public confidence in the judiciary by being patient, dignified and courteous. See In the Matter of Brown, 427 Mass. 146, 150 (1998). Indeed, throughout the Horton proceedings, Judge Lopez exhibited behavior that was antithetical to proper judicial demeanor: rudeness (haste) discourtesy, sarcasm and condescension. This behavior was not limited to isolated losses of temper, but was extended and repeated over time as a result of her bias toward ADA Joseph and the DA’s office.

It is my finding that the Commission has proven Charge (Count) II by clear and convincing evidence, that Judge Lopez violated the Code of Judicial Conduct by exhibiting bias and disdain against the ADAs, thus violating the Canons as specified on p.63 of this order.

Ironically, the plea by the defendant has largely been forgotten by all concerned in the Horton matter. The defendant had admitted to all the essential facts in the case, and the defendant had pled guilty to kidnapping and attempted rape of a child under 16. There are occasions where a defendant may plead guilty yet not admit all the facts that comprise the crime. See North Carolina v. Alford, 40 U.S. 25 (1970). The United States Supreme Court held in Alford that an accused may consent voluntarily, knowingly, and understandingly to the imposition of a prison sentence although unwilling to admit culpability, or even if the guilty plea contains a protestation of innocence, when the accused intelligently concludes that his interests require a guilty plea, and the evidence strongly supports his guilt of the offense charged. The defendant made no such protestation of innocence. Despite the fact that the defendant pled guilty before Judge Lopez, in an attempt to justify her actions, after receiving a barrage of hostile criticism, Judge Lopez took it upon herself to undermine the very plea that was rendered in her courtroom.

Judge Lopez had an ideal opportunity to explain herself by issuing a sentencing report, but elected not to do so. She knew that the case had generated controversy. It would have been far better for her to have addressed the controversy straight on in a sentencing report. The problem facing her in explaining the sentence is that she would have been obliged to comport to the record of the case that was before her.

Count I charges Judge Lopez with engaging in improper ex parte contacts to promote a public campaign to defend her conduct in Horton. Despite the judge’s initial equivocation, it is now unrebutted that the charged ex parte communications occurred.

The Record Evidence Shows By Clear and Convincing Evidence

that Judge Lopez Engaged in Improper Ex Parte Contacts.

Almost immediately after the Horton sentencing on September 6, 2000, Judge Lopez initiated several calls to defense counsel Attorney Goldbach, at least one call to William Leahy, chief legal counsel to CPCS, and a call to a Boston Police detective, all intended to deflect criticism, and to further the judge’s personal defense of her actions.[iii]

Initially, Judge Lopez testified under oath that she did not initiate any telephone calls to Attorney Goldbach and that such calls “would have been initiated by [defense counsel], not initiated by me.” See Ex. 32 at 95. At the hearing, however, Judge Lopez changed her testimony and admitted that she did, in fact, make calls to Attorney Goldbach.[iv] Thus, the factual allegations concerning Judge Lopez’s ex parte communications with Attorney Goldbach are largely unrebutted.

Judge Lopez called Attorney Goldbach on two (2) or three (3) occasions in the days following the Horton sentencing. On at least one of those occasions, she called Attorney Goldbach at home on a weekend. (Vol XIII, p.41) Judge Lopez has conceded that her conversations with Attorney Goldbach were intended, at least implicitly, to encourage Attorney Goldbach to defend Judge Lopez’s sentence publicly.

Judge Lopez further conceded that she had hoped that CPCS would make a statement supportive of both the sentence she imposed in Horton, and her personally. Subsequent to Judge Lopez’s first conversation with Attorney Goldbach, Goldbach did speak with the press, both on background and for attribution. In addition to asking Attorney Goldbach to defend the sentence, during these conversations, Judge Lopez expressed concern for Horton, and inquired as to his personal well-being. Throughout this period, Attorney Goldbach was still acting as Horton’s lawyer.

Importantly, Judge Lopez initiated these calls to Attorney Goldbach at a time after she had been advised by Chief Justice DelVecchio to remain silent. Further, Judge Lopez engaged in the ex parte communications with defense counsel after specifically retaining jurisdiction of the Horton case. Accordingly, she knew that the Horton matter very well could come before her again. The judge made these contacts without ever notifying the District Attorney’s office. It is telling that Attorney Goldbach, one of Judge Lopez’s own witnesses, considered this series of calls initiated by the judge to be “highly unusual.” (See Vol XIII, p. 44) Attorney Goldbach was careful in her testimony to explain that she (Goldbach) did not initiate any of the calls. See Vol. XIII, p.41.

Judge Lopez Initiated An Ex Parte Call to William Leahy

The undisputed record evidence further shows that Judge Lopez made an ex parte call to William Leahy, Chief Counsel of CPCS, shortly after the September 6, 2000 Horton sentencing. Though Leahy was not Horton’s personal attorney, Judge Lopez acknowledged that he was, in effect, a member of Attorney Goldbach’s “law firm.” Judge Lopez’s own testimony is unequivocal that she called Leahy to encourage him to defend her publicly: she wanted Leahy to defend the process, the judiciary, her sentence of Horton, and her personally.

Following Judge Lopez’s conversation with Leahy, he gave several television interviews and spoke with the press on a number of occasions in defense of the judge. Again, Judge Lopez never informed the District Attorney’s Office that she had spoken with Leahy or anyone else at CPCS.

Judge Lopez Engaged in an Ex Parte Conversation with

Police Officer - Detective Jay Greene

Judge Lopez engaged in an ex parte conversation with Detective Jay Greene shortly after the September 6 Horton sentencing. Since Greene was a Boston Police detective who came to the scene following Horton’s arrest, he was potentially a witness in the case. Judge Lopez made this highly unusual contact because she believed that Greene might have information, which proved to be false, that could be used to deflect the criticism of her in the press. The judge admits that she had never before contacted a Boston Police witness and that her actions were “unprecedented.” Judge Lopez was thus personally orchestrating sources of rumor which she understood were contrary to the facts which Horton admitted in open court. Judge Lopez was thus acting as an

advocate for herself at the specific expense of the judicial role in which she had accepted pleas of guilty.

Though Greene as a Boston Police detective was a potential witness, Judge Lopez never advised the District Attorney’s Office that she had contacted him. Rather, the judge provided Greene’s contact information to Ms. Kenney, and instructed her to contact him.

Judge Lopez intended that Ms. Kenney contact Greene to obtain information that would help deflect criticism of Judge Lopez and her sentence of Horton. Ms Kenney contacted Greene but ultimately refused to rely on his information, as she was unable to corroborate it. In addition to forwarding Greene’s name to Ms. Kenney, Judge Lopez personally used the information provided by Greene on “hundreds” of occasions to publicly justify her sentence. Such behavior is particularly disturbing given the judge’s understanding that Greene was not first on scene, was not the arresting officer, was not the investigating officer, and that his testimony directly conflicted with the defendant’s own admissions which the judge had specifically relied upon in accepting Horton’s plea of guilty.

Judge Lopez intended Ms. Kenney to rely on Greene’s information even though: the defendant had admitted to all the essential facts in the case, and had pled guilty to kidnapping and attempted rape of a child under 16. As stated above, the judge knew that Greene had a limited role and “was not part of the investigation.”

Judge Lopez forwarded Greene’s contact information to Ms. Kenney even though she knew that his “information” was contradicted by the defendant’s own admissions In so doing, Judge Lopez was encouraging misleading comment on the case. In engaging in these ex parte communications, Judge Lopez abdicated her role as an impartial decision-maker, disregarded her obligations to uphold the integrity of the judiciary, and adopted the role of advocate - marshaling a defense and assembling “evidence” for her self-interest. As charged in Count I, such proven misconduct violated:

• Canon I, as the judge failed to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved”;

• Canon 2, because the judge failed to avoid impropriety and the

appearance of impropriety in all activities;

• Canon 2(A), because the judge did not “respect and comply with

the law and ...conduct [herself] at all times in a manner that

promote[d] public confidence in the integrity and impartiality

of the judiciary”; and

• Canon 3, as the judge did not perform the duties of her office

impartially.

In this case, where Judge Lopez fully acknowledged before the Commission that the case before her was still pending, and was conscious when she made her press statement that she was prohibited from making ex parte remarks, this hearing officer decided not to grant the Motion to Dismiss those Counts, but rather to proceed to hear the matter on the merits under the rules. In ascertaining the raison d’etre of the Canons, I am reminded of the admonition of Lord Cooke (Coke). While his insightful commentary related to analysis of legislative interpretation of statutes, these admonitions are equally applicable to Canon interpretation. In Heydon’s Case, 3 Co. Rep. 7A, 7B; 76 Eng. Rep. 637, 638 (1584), Lord Coke enumerated four (4) things to be “disclosed and considered” in the interpretation of statutes:

“(b) 1^st What was the common law before making of the Act;

common law did not provide;

3^rd What remedy the Parliament both resolved and

appointed to cure the disease of the Commonwealth;

And 4^th The true reason of the remedy . . .”.

Canon 3A(4) bars ex parte communications in order to ensure that every person who is legally interested in a proceeding, or his lawyer, has full rights to be heard according to law. Ex parte communications are barred when they concern pending litigation. Thus, “general discussions of the law, outside of the explicit or implicit context of a case, will not usually be considered an ex parte communication.” See Shaman, Lubet, Alfini, Judicial Conduct and Ethics, Third Edition, §5.02, pgs. 160-161. A proceeding upon which a judge may not comment “must be a case that is actually in some stage of litigation. . . A judge who comments on an actual matter in controversy is making a statement about how the law applies to a fixed set of facts or circumstances. In other words, the judge is judging - something that should only be done in court and in the context of an entire case . . . That is why the prohibitions of the Code of Judicial Conduct should apply only to cases, and not to general propositions of law, legal philosophy, or similar discussions.” Id. §12.04, pgs. 421-422.

A restriction against discussing matters that are currently in litigation seems clear enough. Judge Lopez argues that the case was essentially over; the record had been established and the issues had been joined. Thus, she argues her comments could not possibly influence the course of the case. But the perplexing aspect of this case is that Judge Lopez specifically retained jurisdiction over the case, and knew that the Horton matter could come back before her again. While Judge Lopez attempts to minimize this scenario as purely procedural and administrative, there remained the possibility that a probation violation could result in a new sentencing. That possibility was indeed possible given the fact that the defendant had committed a subsequent criminal offense after the incident with the boy, but before the actual sentencing hearing. Ex parte contacts are inherently improper because they create the appearance of impropriety. An innocuous contact would be a technical violation of the Canon, but one that might not be punishable by sanction. I recognize that “the evil of these communications is their effect on the judicial process. Seemingly, innocuous contacts can have an influence on a judge that even the judge, in all good faith does not recognize.” The American Judicature Society - The Danger of Ex Parte Communications, 74 Judicature 288 (1991).

As noted previously, Judge Lopez has raised profound free speech questions on behalf of judges. This hearing officer agrees in practice that, any interpretation of Canon 3(A)(6) that would restrict a judge from commenting on a case when for all practical purposes the case is over, without more, no longer serves a public purpose. But Judge Lopez has not presented any unique circumstances to carve out an exception that permitted her to make specific comments as proved, without compromising the validity of the plea that she took from Mr. Horton. It is ironic that Judge Lopez strongly argues that any interpretation of Canon 3(A)(6) that would restrict her from commenting on the Horton case for that time after the plea is unconstitutional. She argues that the restriction no longer serves a public purpose, and indeed is adverse to good public policy, as well as the First Amendment rights of the judge to speak and the public to hear. But to fairly assess the situation, the total context of the Horton case must be viewed. In this matter, there is overlap with other alleged violations of the Canons. If Judge Lopez’s conduct offended more than one of the standards to which a judge must conform while each charge must be considered independently, the key concern of Canon 2A is the appearance of impropriety. The Commission argues that whether conduct is prejudicial to the administration of justice depends not so much on the judge’s motive, but more on the conduct itself, the results thereof, and the impact such conduct might reasonably have upon knowledgeable observers.

As noted, Judge Lopez argues that Canon 3(A)(6) does not apply here, as Count I and Count IV concerns her post-sentencing conduct. But the fact remains, however, the case law supports a finding that Horton was still pending as Judge Lopez had retained jurisdiction and that Judge Lopez herself understood and believed that she was restricted from commenting on the case. In any event, it seems of little value to argue a technicality, when her proven conduct constitutes a manifest violation of the Code of Judicial Conduct’s overarching obligations, namely, to promote the integrity of the judiciary, to preserve the public’s confidence in the integrity and impartiality of the judiciary, and to avoid the appearance of impropriety.

It is disturbing that Judge Lopez would seek refuge behind a technicality for actions which an objective observer would see as undermining the integrity of the judiciary. “That the standards imposed on judges are high goes without saying. Because of the great power and responsibility judges have in passing judgment on their fellow citizens, such standards are desirable and necessary and there should be strict adherence to them, for failure on the part of even a few judges to comply with these standards serves to degrade and demean the entire judiciary and to erode public confidence in the judicial process. “Anyone who is unwilling to accept and abide by such stringent rules of conduct should not aspire to or accept the great honor and the grave responsibility of serving on the bench.” In the Matter of Morrissey, 366 Mass 11, 16-17 (1974).

Judge Lopez fails to recognize that in the Complaint, many of the Counts are overlapping. Despite the fact that in her testimony before the Commission, as explained in my Order denying her Motion to Dismiss, Judge Lopez agreed that the case was pending, she now avers that it was not until this Complaint, that she understood that the Horton case was pending. But Judge Lopez had no right to make material misrepresentations of the case in order to encourage misleading public comment on the Horton case. Thus, under the same set of facts, Judge Lopez has run afoul of other parts of the Canon.

Judge Lopez Made Material Misrepresentations to the Court’s

Public Information Officer and Issues a False Press Release

It is this hearing officer’s findings that Judge Lopez knowingly and falsely told Ms. Kenney that:

(i) the defendant did not kidnap the eleven (11) year old boy;

A. Right.

Vol. XI at 62-65; see also Vol. X at 170 (“She told me that she did not think it had been a kidnapping”); Vol. XI at 54 (“She seemed skeptical that the boy had been kidnapped. She said it wasn’t a kidnapping”).

The best Judge Lopez can do in defense is to obfuscate concerning one of her misrepresentations: that there was “no kidnapping.” The defense makes much of the fact that, on cross-examination, Ms. Kenney stated Judge Lopez informed her that it was not a “kidnapping in the traditional sense.” See Lopez br. 49-50. This point is both irrelevant and disingenuous. Where the Judge told Kenney that it was “not a kidnapping” or “not a kidnapping in the usual sense” is beside the point. In either case, the Judge misrepresented the fact that there was a kidnapping - usual or not. In any event, even this argument is directly contradicted by the record evidence. As seen above, when Ms. Kenney was recalled as a witness and given the opportunity to clarify her testimony, she explained that Judge Lopez falsely told her that there was no kidnapping - without any qualifiers. It also is noteworthy that Judge Lopez herself denies ever saying that there was “no kidnapping in the usual sense.” See Vol. II at 90.

To reiterate the two facts, Judge Lopez informed Joan Kenney as the reason for the sentence was “[s]he didn’t think this was a real kidnapping and the screwdriver was not used as a weapon.” See Vol. X, p. 161. Judge Lopez’s recollection however is that she told Ms. Kenney that there was a dispute about the kidnapping and about the screwdriver. The problem for Judge Lopez is that the defendant pled guilty to an assault by means of a dangerous weapon and that the defendant had agreed to the fact that the screwdriver had indeed been used as a weapon and put to the boy’s neck. See Vol. II, pp. 90-91. Thus even under Judge Lopez’s version of events, she still sought to undermine the plea.

The Judge’s campaign subverted the guilty plea that she accepted only hours earlier. If she truly believed the crime did not happen, she could neither legally, nor ethically, accept the plea. Having accepted the plea, she could neither legally, nor ethically, misrepresent facts about the case to cast doubt on the seriousness of the offense. Her misrepresentations to Ms. Kenney undermined a central role of the judiciary: promoting public confidence in the integrity and impartiality of the judiciary, and the integrity of criminal convictions.

Judge Lopez Had “Hundreds of Conversations” About the Horton Case

Despite specifically retaining jurisdiction over the Horton case, and despite Chief Justice DelVecchio’s admonition that she remain silent, Judge Lopez admitted that she has had “hundreds” of public conversations about the Horton case. She further admits that, in these conversations, she has relied upon and discussed Greene’s information to justify her sentence. Again, Judge Lopez admits to having relied on Greene’s information, despite the defendant’s specific admissions before her, despite the defendant’s guilty pleas, and despite the first hand knowledge of the arresting officers who were first on scene.

Judge Lopez’s Campaign to Make and Encourage Misleading Public

Comment on the Horton Case Violated the Code of Judicial Conduct

The record evidence establishes that Judge Lopez engaged in a campaign to spread misinformation to deflect criticism and promote her self-interest, all in violation of:

• Canon 1, because, by encouraging misleading public comment,

Judge Lopez failed to uphold the integrity of the judiciary;

• Canon 2, because the judge’s conduct in commenting and encouraging

others to comment on Horton was and appeared improper;

• Canon 2(A), because the judge’s conduct undermined public

confidence in the integrity and impartiality of the judiciary;

• Canon 3, because, by commenting on the case and causing others

to comment, Judge Lopez failed to perform her judicial duties

impartially and diligently; and

• Canon 3(A)(6), because Judge Lopez failed to abstain from public

comment about a pending case.

In Charge IV, the Commission also alleged that Judge Lopez made and encouraged misleading public information that misportrayed the facts of the Horton case by telling Boston Herald reporter Jose Martinez that “[T]here is more to the case than meets the eye”, and also stated “Call around and you’ll get the real story. I’m sorry, but I can’t give it to you though.” See Formal Charge IV, ¶ 4. Judge Lopez did not recall talking to Martinez, (Ex. 32 at 138), and the Commission never produced any evidence or witnesses to support this allegation. Though the article itself might be in evidence, it was not in for the truth of assertion, merely for public reaction. Though Judge Lopez opened Pandora’s box by the use of her words, implying that there was exculpatory evidence, the Commission has not proved this specific allegation by clear and convincing evidence.

The evidence , though, proves most of the other allegations of Charge IV, and such proven misconduct constitutes a violation of each of the above charged Canons. Indeed, by directing the issuance of an inaccurate statement, by providing the Court’s Public Information Officer with misleading information concerning the merits of the Horton case, by encouraging defense counsel and a Boston Police detective (through ex parte contacts) to support the judge publicly, and by admitting to “hundreds” of personal conversations in which she discussed the merits of the Horton case, Judge Lopez did significant and lasting damage to the integrity and reputation of the judiciary, all in violation of Canons 1, 2, 2(A), 3, and 3(A)(6).

Worst of all was her attempt to inflict damage on the victim. By her use of words, she made the victim the defendant, and the defendant the victim. It made it appear that there were certain facts accepted by both prosecutor and the defense attorney that were part of the plea conference that undoubtedly would change the characterization of this case as currently reported by some outlets. There was no exculpatory evidence which was accepted by both prosecution or defense counsel. Exculpatory evidence includes “evidence which provides some significant aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story, calls into question a material, although not indispensable, element of the prosecution’s version of the events, or challenges the credibility of key prosecution witnesses.” Commonwealth v. Gregory, 401 Mass. 437,

442 (1988). Commonwealth v. Pisa, 372 Mass. 590, 595 (1977), makes clear that “exculpatory” is a technical term meaning alibi or other complete proof of innocence, but simply imports evidence “which tends to ‘negate the guilt of the accused’..., stated affirmatively, ‘supporting the innocence of the defendant.’” But in this case, where the defendant pled guilty, there was no profound doubt as to the defendant’s guilt generated by the record that was given at the September 6, 2000 hearing. Judge Lopez essentially treated the September 6, 2000 hearing as a sham in disregarding the colloquy between herself and the defendant in accepting the plea.

Even at the hearing before me, Judge Lopez, through counsel, was asserting the existing of exculpatory evidence. Attorney Goldbach was asked a series of questions concerning the lack of the victim’s saliva on the screwdriver. It was an important fact for Attorney Goldbach that after the amylase test, the victim’s saliva was not detected on the screwdriver. See Vol. XI, p. 212, 213, 214.

But the important fact is that according to Attorney Goldbach, she did not know about the results of the test on August 1, 2000. Therefore, this argument could not have been the exculpatory evidence that Judge Lopez relied upon when on August 1, 2000, she announced what sentence she would impose upon the defendant. The fact that Attorney Goldbach will continue to raise this test as exculpatory evidence only points to the obvious, that it would have been better for everybody if this matter had gone to trial where evidence could be subjected to scientific examination for its veracity rather than in a plea conference where seemingly anything goes.

Could the social worker’s report have been the exculpatory evidence? This was Judge Lopez’s story to this hearing officer. Though this hearing officer gave the benefit of the doubt with regard to the social worker’s report as a reason on which Judge Lopez based her sentence, it is a stretch to say that this report can be considered to be exculpatory. As stated previously, this was not a reason advanced to Ms. Kenney as a basis for the statement that certain facts would change the characterization of this case. The fact that the defendant would not re-offend because of his experience in jail could be ascribed to all accused who cannot make bail. This is no justification as a basis for offering this as exculpatory evidence. The fact that Judge Lopez would not acknowledge that the Psycho Social Assessment and Dispositional Report was produced by a social worker, an employee out of Attorney Goldbach’s office, when Ms Goldbach clearly acknowledged this fact demonstrates that Judge Lopez knew the weakness of this report. Judge DelVecchio, who was not even the judge in the Horton case, had no trouble in identifying where the report came from. The very characterization that Judge Lopez ascribes to ADA Deakin, can be ascribed to Judge Lopez’s testimony before this hearing officer, namely disingenuous.

The fact that Judge Lopez made no mention of the social worker’s report to Joan Kenney speaks volumes that this report was not one of the facts that would undoubtedly change the characterization of this case, neither was the fact that Judge Lopez believed the defendant in his statement that he thought the victim was fourteen (14) not eleven (11) The fact that Judge Lopez would accept this perception as true without even looking at the victim in his taped interview to the police which was given in the normal course of events to discern its veracity, is puzzling. Whether the victim was 14 or 11 is immaterial as the relevant age was 16. Many defendants who are sent to jail for statutory rape claim that the victim appeared to be of age.

Judge Lopez argues that the Katz assessment was not a matter of public record at the time the press release was issued. She asserts that due to the often sensitive nature of the Katz report, this report could not be treated as part of the public court file, but are instead treated like other criminal offender record information material, and are filed with the Probation Department. While it is true that under Mass. R. Crim. P. 28(d), the filing of certain materials with the Probation Department serves to prevent the disclosure of sensitive and confidential information, which if disclosed, might result in harm to the defendant or others, this would include information about a defendant’s psychological disorders, family history, the particulars of any rehabilitation or other program in which a defendant may be participating, and other sensitive information. As a matter of fact, the Katz report could not be considered to be sensitive information. The main ingredient of the Katz report was that the defendant was transgendered. This was already public information. The fact that the report proffers that he was not a pedophile, could not result in harm to the defendant. The assertion that the Katz report was protected, seeks to implant on that document a confidential status that it is not entitled to. The fact that Judge Lopez is allowed to rely upon the report is one thing. Confidentiality in this case does not protect the defendant. The Katz report was not a pre-sentenced investigation by the Probation Officer, but rather, a self-serving report by the defendant.

Judge Lopez’s decision to embrace her September 7 statement also led her to change her testimony concerning the “certain facts” mentioned in that statement. In her testimony before the Commission, Judge Lopez testified repeatedly that she could have discussed the contents of the Katz Report in her September 7 public statement; therefore, the “certain facts” referenced in her statement could not, in her mind, have included the Katz Report (Ex 32, pp. 139-140):

Q. And all of the matters which you have previously discussed that went into your sentence that were not a matter of public record are matters which you’re talking about there.

A. That’s right; that I could not reveal there. Vol. IV, pp. 155-57

Judge Lopez has made much of the fact that the prosecution, at no time made mention that the eleven (11) year old boy was in fact being pulled into the car by his arm. But the facts remain that Judge Lopez testified that she knew that the boy was pulled into the car because Attorney Goldbach told her so. See Volume III, p .126, where the following interchange occurred between Mr. Ware and Judge Lopez:

Q. Now, also during the course of that conference the prosecutor was

telling you, were they not, that this victim got into the car, Ebony

Horton, voluntarily under some ruse, correct?

A. Right.

Q. Didn’t Ms. Goldbach tell you, at that time, that on the very tape

that we’ve just discussed that in fact, that’s not at all what the

victim was saying what happened? He said he was pulled by the arm

through a window of the car.

A. Yes. I believe she had a different version of how the kid got into the

car, and it involved some pulling into it, yes.

The best insight into Judge Lopez’s state of mind were her conversations with Joan Kenney. Both Judge Lopez and Ms. Kenney thought their conversations were confidential, and but for this hearing, they would be. Thus, Judge Lopez felt free to provide Ms. Kenney with tidbits of information so that the public information officer could serve as a neutral third party to dispense Judge Lopez’s story without it being attributed to Judge Lopez. The fact that Joan Kenney would not be used in this fashion, speaks well of her office.

Over the course of the next several days, Judge Lopez attempted to utilize Joan Kenney to flesh out her concept that this case was not a real kidnapping. In addition Judge Lopez took additional steps to provide Ms. Kenney with a source to corroborate her account of the crime. Soon after the September 7 press release was issued, the Judge put Ms. Kenney in contact with Detective Jay Greene, hoping that he would bolster her story that the victim was not kidnapped.

Judge Lopez had been told by defense counsel Anne Goldbach on August 1 that Greene said the victim “knew what he was getting into” when he entered Horton’s car and had “been involved in this type of pick-up situation before.” See Vol. XII at 32-33. The Judge viewed such information, if true, as “exculpatory” and told Kenney that Greene had “exculpatory” information when she spoke to Kenney before issuance of the September 7 statement. See Vol. II at 50-51. Lopez then passed Green’s pager number along to Kenney, suggesting he had “useful or interesting” information. See Vol. XI at 50.

Detective Greene gave to Joan Kenney, information that Judge Lopez wanted her to hear. Judge Lopez told Ms. Kenney that Jay Greene would have some important information, but she didn’t say exactly what he was going to tell her. She didn’t have to, because Judge Lopez had spoken with Jay Greene and Attorney Goldbach and knew exactly what he was going to say.

As press officer, it would be within Joan Kenney’s domain to seek out people who could explain procedure; someone who could say something supportive of the judge. The press officer tries to put forth general principles of law which could help explain the actions of a judge - it is not her job to be an investigator, to discover facts, and to put those facts out to the media in defense of the judge. Yet, this is precisely what Judge Lopez wanted Ms. Kenney to do, in her role as Public Information Officer of the Supreme Judicial Court. In effect, to get Ms. Kenney’s imprimatur for the actions that the judge had already taken.

The information proffered by Jay Greene to Joan Kenney was that he thought the boy was faking it. He thought the boy was very street-savvy. He also indicated that this may not have been the first time that either he or the brother had gotten into a car. All that Detective Greene said was a lie. Judge Lopez, in approaching Ms. Kenney of the SJC’s Public Information Office, was mistaken as to the role of that office. She believed that she could use this office to ameliorate the reaction to what had occurred in the Horton case. And she treated that as spin. Her testimony on that is quite clear.

As it turned out, both the Commission and the defense could not call Detective Greene to the stand because there was reason to believe that Detective Greene’s testimony before the Commission was simply not truthful. Mr. Egbert, the attorney for Judge Lopez, was commendable and quite blunt as why he could not call Greene as a witness. “I think I’m ethically bound not to call him as a witness. The Canons of Ethics require that lawyers not present evidence that in good reason we believe is false.” See Vol. II, p. 8, Vol. III, pp. 59,60.

The most astounding part of Jay Greene’s story is that Jay Greene indicated to Attorney Goldbach the week of September 6 or the following week, that he disagreed with Judge Lopez’s sentence. Thus, the very man upon whose statement Judge Lopez relied upon as exculpatory, did not himself believe that it was exculpatory. See Vol XII, p. 185.

Judge Lopez herself did not take Detective Greene’s role into account when she made her sentencing decision on August 1, 2000. See Vol. II, p. 54. She merely considered the representations made by Attorney Goldbach as an officer of the court, that the Commonwealth had failed to pursue what the defense perceived to be exculpatory evidence. See Volume II, p. 54. On August 1, 2000, she was not accepting the version put forth by Attorney Goldbach, who was inspired by Detective Greene, that the victim was not an angel. After the plea, she was now trying to put forth the story told by Detective Greene as factual, and hoping that Ms. Kenney would somehow, as the Supreme Judicial Court’s media person and a disinterested person, have the credibility to put forth this story to the press.

But to use Ms. Kenny as her spin doctor, was a perversion of the process set up by the Supreme Judicial Court. In dealing with the SJC’s Office of Public Information, it is not an exercise in spin, it is an opportunity for the truth to be presented. In no event did Judge Lopez have the right to utilize Ms. Kenney as her spin meister. Judge Lopez made less than forthright representations to Ms. Kenney. Those statements undercut the fundamental premise of integrity in the judiciary. Judge Lopez was personally undercutting what she had done in open court.

It is one thing for Ms. Kenny to be a spokesperson, a filter of information, a buffer against newspapers and television stations. It’s quite another for the judge to permit a statement that she knows to be inaccurate to be presented to the public - and that’s what happened here.

It is one thing to defend Judge Lopez and her sentence publicly; it is another thing to demean the boy. Judge Lopez’s sentence could have been defended on the basis that the District Attorney only put forth evidence to demonstrate that it was kidnapping by guile, rather than by force, that the sexual act had not yet occurred. At least if Judge Lopez had issued a sentencing report, the District Attorney could have properly objected. It was her duty to deal with her difficulties by lawful and proper means. As Justice Douglas of the United States Supreme Court has written “judges are supposed to be men of fortitude, able to thrive in a hardy climate.” Craig v. Harney, 331, U.S. 367, 376 (1947). Certainly, the public comments that Judge Lopez made in her press release, and the public comments that were generated because of the open door that she invited others to walk through as a result of those inappropriate remarks, would lead a reasonably informed observer to question her impartiality. The fact that her effort to change public opinion proved fruitless, does not take away from the fact that she had made the effort to prejudice the victim. Sometimes appearance may be all that is necessary to invoke a conflict with a Canon. The integrity of the institution, with respect to the public trust, can be preserved only if judges shoulder the difficulty responsibility of monitoring their own conduct.

Mr. Egbert, in his closing, talked about Judge Lopez’s courage. Judge Lopez would have been entitled to take on the mantle of a courageous jurist if once having made findings, she was prepared to live with the consequences of those findings. A courageous judge is prepared to stand the abuse, prepared to take whatever criticism is inherent in making a decision. That’s what good judges do. They do it everyday. They don’t like it. They can’t strike back. They have a position of great honor, but also of great responsibility. Portion’s of Mr. Ware’s closing and brief cut to this very point along to the heart of this litigation and are in part adopted by this hearing officer.

The story of Judge Lopez reflects a very different decision. She was not courageous. Almost immediately, she engaged in circling the wagons, putting out her view of the case for public opinion in a highly improper way. The evidence shows that in Judge Lopez’s dealings with Ms. Kenny and the Supreme Judicial Court’s Office of Public Information, she was anything but candid. She owed that office absolute candor.

Judge Lopez’s Bias and Appearance of Bias Against the ADAs Violated