COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS: Complaint Nos. 2000-110, et seq.
In the Matter of Judge Maria I. Lopez
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 (6th 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:
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)
“It is a mistake to suppose that the Supreme Court is either honored or helped by being spoken of as beyond criticism. On the contrary, the life and character of its justices should be the objects of constant watchfulness by all, and its judgments subject to the freest criticism. The time is past in the history of the world when any living man or body ofmen can be set on a pedestal and decorated with a halo. (Emphasis supplied) True, many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all. The moving waters are full of life and health; only in the still waters is stagnation and death.”
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
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) 1st What was the common law before making of the Act;
(c) 2nd What was the mischief and defect for which the
common law did not provide;
3rd What remedy the Parliament both resolved and
appointed to cure the disease of the Commonwealth;
And 4th 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;
(ii) the defendant did not use the screwdriver as a weapon; and
(iii) her statement that the Horton offense was “low level” referred
to the Sentencing Guidelines.
Judge Lopez gave this false information to Ms. Kenney knowing that Ms. Kenney was the judge’s liaison with the media and the public, and Ms. Kenney did, in fact, rely on it in communicating with the public. Accordingly, through her misrepresentations to Ms. Kenney, Judge Lopez misinformed the public.
Judge Lopez also approved and issued a false statement. Indeed, Judge Lopez admitted under oath that the statement was “inartful” (see Vol II, p.64) and “erroneous” (see Vol II, p.66) in that it stated that (i) that Judge Lopez’s “low scale” remark referred to the Sentencing Guidelines. (See also Vol II, p. 74);
“Because I thought they would - - the fact that I called ‘low scale.’ Look, I had a bad day that day. Okay? So I called it ‘low scale.’ I shouldn’t have called it ‘low scale’ in the scheme of things. All right?”
“And they were giving some sort of spin to the ‘low-scale’ statement that was in the tape.” (Testimony of Judge Lopez)
and (ii) that there were “certain facts” known to the judge, the prosecution, and defense counsel which, if known by the public, would justify the Horton sentence. The judge also testified that she had the opportunity to correct the inaccuracies, but that she did not do so. See Vol. II. pp. 60, 63, 64, 66, 67, 68. Rather, she expressly authorized the misleading press release because she was hopeful that it would deflect criticism and improve her public image.
Her personal statement was particularly disturbing as it implied that there were “certain facts” that mitigated Horton’s conduct. Ex. 4. In her testimony before the Commission, however, Judge Lopez admitted that there were no such other facts. ADAs Deakin and Joseph, the line prosecutors, likewise testified that there were no such facts that minimized the offense or fit Judge Lopez’s description in any way. At this hearing, however, Judge Lopez changed her testimony . She testified for the first time that the “certain facts” referred to the CPCS social worker’s report. This testimony is plainly untrue since the “certain facts” referenced in her statement could not possibly have referred to the CPCS psycho social report. Among other things:
(i) Judge Lopez never mentioned the Psycho Social report to Ms. Kenney
at the time she drafted the statement;
(ii) Ms. Kenney testified that, in drafting the statement, she intended
the “certain facts” to refer to Judge Lopez’s description of the case,
namely, that the boy was not kidnapped and the screwdriver was
not used as a weapon in the crime;
(iii) In her prior testimony, Judge Lopez specifically stated that she
did not know what the “certain facts” could have been, as there
were no such facts that she was aware of that fit the description.
(iv) The statement says that such “certain facts” could not be released
publicly, but Judge Lopez conceded in her prior testimony that
there were no facts, including the CPCS psycho social report,
that could not be publicly disclosed.
The reference to the “certain facts” is, perhaps, most troubling because it implied that there were mitigating circumstances when in fact there were not.
Kenney, who was relying on Judge Lopez to accurately describe the facts, See Vol. II, pp 56-57; Vol. X, pp 157-58, took Judge Lopez’s false characterization of the kidnapping and the screwdriver and drafted a personal statement for the Judge, approved by the Judge, that referred to “certain facts” the Judge could not reveal, “which would change the characterization of [the] case as currently reported by some media outlets.” Ex. 24. The Statement also encouraged the media and the public to speculate and search for such “certain facts.” In so doing, the media rehashed the crime in public, intruded on the victim’s privacy, and “re-victimized” the victim. The judge’s campaign to defend her public image was thus conducted at the expense of both the truth and the 11 year old victim. The statement, which Judge Lopez viewed as an exercise in “spin” to deflect public criticism, had the desired effect: public comment shifted to the 11-year old boy, and the public began to wonder whether the facts and charges to which Horton pled represented the real story.
The evidence proving at least two of Judge Lopez’s separate false statements to Ms. Kenney is ironclad. Kenney’s recollection is specific and unwavering:
Q. Judge Lopez told you that this was not a kidnapping; isn’t that right?
A. That’s correct.
Q. To your best recollection, those were her words, without qualifiers; is that right?
A. That’s correct.
Q. Judge Lopez did not tell you that the defendant admitted putting a screwdriver to the child’s neck; isn’t that so?
A. Yes, she did not think it was used as a weapon.
Q. In fact, she told you the reverse; that it wasn’t used as a weapon, right?
A. That’s right, yes.
Q. She never told you that in open court the defendant had admitted to using the screwdriver as a weapon on the child, correct?
A. She told me what the charges were and what he had agreed to in the plea, but she obviously didn’t believe that happened that way.
Q. In any event, she told you the screwdriver wasn’t used as a weapon.
A. That’s correct.
Q. Whatever the defendant had said in open court.
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. Could you have discussed, in your view, facts brought to your attention in the reports which were not public, had you chosen to do so?
A. I don’t think there were any such facts. I put in my findings when I continued the case that she suffered from a sexual identity disorder. The very confidential nature of what was in that report I put on the record the day I continued the case on August 4, was it. So once I put it on the record, once it’s an in-court statement, I can talk about that all I want.
At the Hearing, having embraced her September 7 statement, Judge Lopez flatly contradicted her prior testimony and said (under oath) that she could not have discussed the contents of the Katz Report.
Q. And what were the [certain facts]?
A. Those would be the facts contained in the psychological assessment that I had...
R. For example, in that psycho social report, I’ll call it, there was - there was a finding...that the person before you was not a predatory pedophile, correct?
A. That’s correct.
S. And was not a likely recidivist, repeater?
A. Unlikely to repeat an offense of this kind or something.
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?
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
the Code of Judicial Conduct
The record evidence as previously stated establishes that Judge Lopez’s bias and appearance of bias violated:
• Canon 1, because the judge’s bias and appearance of bias undermined
the integrity of the judiciary;
• Canon 2, because the judge failed to avoid impropriety and the
appearance of impropriety;
• Canon 2(A), because the judge’s bias and appearance of bias undermined
public confidence in the integrity and impartiality of the judiciary;
• Canon 2(B), because the judge’s prejudice toward ADA Joseph after the initial decision on August 1, 2000, influenced her conduct and judgement;
• Canon 3, because she failed to perform her judicial duties impartially;
• Canon 3(A)(1), because she failed to be faithful to the law and failed
to be unswayed by partisan interests, public clamor, or fear of
criticism, as among other things, she reacted in response to such
public criticism; and
• Canon 3(B)(5), because she failed to perform judicial duties, by words
and conduct, without exhibiting bias or the perception of bias.
Canons 1, 2, 2(A), 3, and 3(B)(5) are similar in that each is violated by Judge Lopez’s appearance of bias. The disparity in the treatment of the Assistant District Attorneys (as lawyers for the public) as opposed to the defendant and defense counsel by itself establishes the appearance of bias, even though the Commission has not established by clear and convincing evidence that Judge Lopez violated any Canon in her favorable treatment of the defendant. Indeed, it was the disparity of treatment - Judge Lopez abusing the Assistant District Attorneys while being solicitous of the defendant - that provoked the filing and docketing of dozens of complaints against Judge Lopez with the Commission.[v] Although all that is necessary to establish violations of Canons 1, 2, 2(A), 3 and 3(B)(5) is the appearance of bias,[vi] the disparity in treatment was so great as to constitute actual bias.
Judge Lopez’s actual bias is also evident from her view of the role of the media. With no factual basis, Judge Lopez found that ADA Joseph acted unethically in her dealings with the press: she found ADA Joseph’s comments to Eileen McNamara to be “huge hyperbole” and a personal attack.[vii] See Vol. II, pp. 16,17,18. Judge Lopez stated the article “would have a chilling effect on the exercise of independent judgement by the judiciary, absolutely.” See Vol. II, p. 14. Is it not the duty of the media to report and make comment? “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”. Bridges v. California, supra at 289 (Frankfurter, J. dissenting)
The judge’s double standard is manifest, i.e., while criticizing ADA Joseph for her comments to McNamara, Judge Lopez solicited defense counsel to appear on television and make public comment in the Horton case. Judge Lopez’s view that the ADA could not speak with a reporter about sentencing philosophy, but defense counsel and Leahy could advocate for the judge to the press cannot be reconciled. In short, the evidence shows that Judge Lopez exhibited actual bias, and was undisputedly perceived to be biased in presiding over the Horton case, all in violation of Canons 1, 2, 2(A), 2(B), 3, 3(A)(1), and 3(B)(5).
It should be remembered that, Judge Lopez viewed ADA Joseph’s description of the rapes in Estrada as “vile” to be hyperbole. This was a situation where over a period of years a stepfather would have his 11 year old stepdaughter perform fellatio.
The defendant admitted this behavior to DSS, to his wife, to his
pastor. The wife and the pastor have supported his criminal
behavior, even at the expense of this girl’s well being. Her
own mother refers to these vile rapes as an accident.
The defendant has been in therapy, and his therapist
identified all his -
THE COURT: Well, I will let her put the hyperbole on the
record. . .
THE COURT: Ms. Joseph, let me just say something on the
Next time - do you want to stand up. Stand up.
MS. JOSEPH: Yes, your honor.
THE COURT: Okay. Next time that you are going to recite
the facts to me on a plea, dispense with hyperbole and with
Exhibit 65, Transcript of the February 10, 1999
Proceeding in Commonwealth v. Estrada at 12-13, 25-26.
Judge Lopez also violated Canon 2(B) (which prohibits personal relationships from influencing conduct or judgment), as she allowed her conduct to be influenced by her pre-existing prejudices against ADA Joseph and the District Attorney’s Office - malice has a long memory. Judge Lopez likewise violated Canon 3(A)(1), which required her to be faithful to the law and to be unswayed by partisan interest, public clamor, or fear of criticism.
At critical junctures in the Horton proceedings, Judge Lopez exhibited bias against the District Attorney’s Office and the Assistant District Attorneys and favoritism towards Horton. Were a male judge to have labeled a young professional woman as belonging in the suburbs where she could do her nails, there would be no question as to the seriousness of his misconduct.
Judge Lopez Improperly Contacted a Complainant to the Commission.
It is unrebutted that Judge Lopez contacted Sister Angela Beaucage at 11:04 p.m., on November 1, 2000, only hours after the judge received Sister Beaucage’s first complaint from the Commission. Sister Beaucage, living alone, had to get out of bed to answer the phone. When Sister Beaucage answered the phone, Judge Lopez said “I am pleased to meet you.” Judge Lopez’s statement that she was pleased to meet Sister Beaucage traced the complainant’s statement that she did not know or had not met the judge previously. Ex. 31 (Complaint of Sister Beaucage, dated October 17, 2000).
Sister Beaucage perceived the call to be a potential threat and an attempt at intimidation, which she found extremely disturbing. Indeed, the ensuing morning, Sister Beaucage called her representative who called the police to report the call. Sister Beaucage subsequently submitted another complaint to the Commission. Ex. 31 (Complaint of Sister Beaucage, dated January 19, 2001).
Judge Lopez’s explanation why she called Sister Beaucage is simply not credible. She suggests that she had, in the past, received false complaints and somehow believed that Sister Beaucage’s complaint was false, because it came from a region of Massachusetts near where the Demoulas family lives and operates. The judge offered no evidence of this. Moreover the testimony is questionable:
(i) Judge Lopez was under investigation and was represented by
counsel when she made the call. If she had questions about the
validity of Sister Beaucage’s complaint, why did she not refer
them to her counsel? Why did she not refer her questions to
(ii) When the judge received two letters at the courthouse,
(Exhibits H and I), she referred them to a court officer
to research their authenticity during working hours.
Here, by contrast, the judge received a formal complaint
that, as she well understood, had already been screened
by the Commission. Judge Lopez chose not to refer this
complaint to a court officer, or even to her lawyer. Rather,
she called the complainant directly after 11:00 p.m.
(iii) The notion that Sister Beaucage could be a “Demoulas”
agent is baseless. The Demoulas family does business
throughout all of Massachusetts and New England. See
Def. Ex. L. There is no evidence that any Demoulas family
member was in Billerica, where Sister Beaucage lives, or
even had any relationship whatsoever with Sister Beaucage or any other complainant to the Commission concerning
this case. Further, Sister Beaucage’s phone number and
address were listed on the complaint. Ex. 31. Through
either the phonebook or the Internet, Judge Lopez could
have easily confirmed her address.
Judge Lopez’s explanation for calling Sister Beaucage - i.e. to determine whether she was an ally of the Judge’s “Demoulas enemies”, - is troubling. The improbability of this excuse was underscored by her admission that there were other, far more reasonable alternatives available to her if she in fact was calling to “confirm” Sister Beaucage’s identity. See Vol. II, pp. 70-72. Morever, Judge Lopez admits that she received Sister Beaucage’s complaint from the Commission, which had already screened it for legitimacy. See Vol. V, pp. 125-126. Judge Lopez offers no credible reason to believe that Sister Beaucage’s complaint was in any way related to her alleged “Demoulas enemies,” yet she claims to this day to have continuing doubts about the legitimacy of Sister Beaucage’s complaints. See Vol. III, pp. 74-75. Once again, Judge Lopez refuses to accept responsibility for her actions. She attacks the Commission and Sister Beaucage for the testimony that after learning who the caller was, that the Sister perceived the call to be a threat. Sister Beaucage’s own words, as set forth in the complaint she filed long before she ever spoke with Commission Counsel, are unambiguous - she described the call as “disturbing”.
The problem with this approach is that in blaming others, many within the legal community have accepted the fact that Judge Lopez is the victim. This is a mantra that Judge Lopez is utilizing and foisting on the Judiciary. She seeks to create apprehension within the system, that in the Commission going after her, her fellow judges may be next. This tactic is unfortunate and untrue. The following interchange is illustrative of the problem.
Q. And you believe that indeed you are the victim here, don’t you?
A. With regards to these proceedings?
A. Yes, I do.
R. You’re the victim, correct?
A. Yes, I do.
MR. WARE: I have nothing further. Thank you, Your Honor. See Vol. III, p.75.
Judge Lopez’s late-night call to Sister Beaucage was indefensible. In many respects, the Commission functions parallel to those of a grand jury. In the Matter of Roche, 381 Mass. 624, 633, N. 10 (1980) Yet, Judge Lopez’s defense at the hearing was to ignore the conduct on the pretense that the Commission is at fault for even considering its charges.
Ironically, a central allegation in the Demoulas aftermath has been that lawyers improperly called and attempted to compromise the confidential interworkings of a judge and her office. See Vol. III, pp. 77,79. Yet, Judge Lopez felt entirely free to ignore a statutory investigation into her judicial conduct and made a late-night anonymous call to a witness/complainant. This is a violation of M.G.L. c. 211C.
M.G.L. c. 211C still retains a measure of confidentiality even in its most recent amendment. The confidentiality provision in the statute serves a variety of legitimate state interest, i.e., protecting the judge from spurious criticism, the judiciary as an institution from disrepute, and also witnesses and complainants from unwanted publicity. There is a legitimate concern for witness privacy and the necessity of encouraging witnesses to come forward with complaints. Judge Lopez’s telephone call after 11:00 p.m., puts into jeopardy this legitimate concern.
This hearing officer understands that every judge comes under great scrutiny in high profile cases and must withstand the pressure. In it’s essence whenever a judge makes a decision he or she is alone. Something is wrong when a judge is making a call after 11:00 p.m., to a complainant. It is not a trivial matter. But unlike the course of conduct of acting improperly toward a recalcitrant District Attorney’s Office, this act was done in isolation; Judge Lopez should have known better, and I am also mindful that under a realistic appraisal of psychological tendencies and human weakness, that the incident though regrettable, would not rise to a violation of a Canon, but for the fact that the Commission investigation is parallel to a grand jury proceeding.
The problem for Judge Lopez is that no judge under administrative investigation by the Commission is free to call complainants. If this hearing officer does not say that this practice is wrong in violation of the Canon, it is inviting other judges in the future to possibly commit the same wrong. Unless this hearing officer says that this act of Judge Lopez was wrong, the consequences for the Commission could be adverse to their operation. While the Commission has demonstrated that Judge Lopez’s telephone call after 11:00 p.m. to Sister Beaucage affected her to some degree, the harm committed in making this phone call was fundamentally anathema to the important work carried out by the Commission. It does not matter whether the phone call was intimidating to Sister Beaucage, it was improper.
Judge Lopez’s Misleading Testimony in the Course of this Investigation Violated the Code of Judicial Conduct
Separate and apart from Judge Lopez’s charged misconduct in connection with the Horton case, Judge Lopez has exhibited questionable misconduct in the course of the Commission’s investigation and prosecution of the Formal Charges. Indeed, the judge has changed her testimony under oath such that her testimony must be considered at least misleading, if not patently false. Her obfuscation on the stand at this hearing was unfortunate.
This is the most troubling aspect of the case for this hearing officer. Judge Lopez has treated this investigation as an attack on her character. Judge Lopez’s misrepresentations are catalogued in the Commission’s Summary of Judge Lopez’s False and Inconsistent Statements, submitted to this hearing officer. The Summary details numerous representations, each of which merits careful examination. The evidence demonstrates that even under the scrutiny of investigation, Judge Lopez embarked on a campaign of giving less than candid testimony. Throughout the Commission’s investigation and prosecution of the Formal Charges, Judge Lopez has provided at times, a less than candid response in favor of her defense. As this case developed, so did her testimony. For instance:
1. Judge Lopez testified before the Commission that her “low
level” comment had no relation to the Sentencing Guidelines,
but at the Formal Hearing, the judge changed her testimony and,
for the first time, stated that the “low level” comment vaguely related
to the factors undergoing the Sentencing Guidelines.
2. Judge Lopez testified before the Commission that she had one
ex parte telephone conversation with Attorney Goldbach, and
that the conversation was initiated by Ms. Goldbach. At the
hearing, Judge Lopez changed her testimony and admitted
that she (Judge Lopez) had, in fact, initiated the ex parte
communication. Further, the judge’s own witness, Attorney
Goldbach confirmed that Judge Lopez made several telephone
calls - not just one - shortly after the sentencing of Mr. Horton
3. During her prior testimony, Judge Lopez stated that the
September 7, 2000 statement was “not her statement” and was
presented to her Joan Kenney and Chief Justice DelVecchio.
During the hearing,- - -Judge Lopez testified that it “[was] my
statement” for which she “absolutely” took responsibility.
4. During her prior testimony, Judge Lopez made clear that she
believed she was permitted to say anything at all about the
Horton case without limitation, even in a press release.
At the hearing, --- Judge Lopez attempted to modify her
earlier testimony by stating that she could say anything that
she wanted about the case but only “in a sentencing
5. During her prior testimony, Judge Lopez stated that she
was unaware of the “certain facts” referenced in her
September 7, 2000, press statement that supposedly
justified her sentence. Indeed, Judge Lopez explained
that she did not think that such facts existed, as there
were no facts (including those in the CPCS psycho social
assessment) that could not be disclosed. At the hearing,
however, --- Judge Lopez testified that such facts did exist
and, for the first time, pointed to the CPCS psycho social
assessment as a purported basis for the “facts” referenced
in her press release.[viii]
6. During her prior testimony, Judge Lopez stated that her
September 7, 2000 statement contained numerous
inaccuracies and errors. Judge Lopez nevertheless allowed
the statement to be released, because she was hopeful that
the “spin” would support her sentencing decision and
deflect public criticism. During the hearing, however, —
Judge Lopez testified for the first time that her press release was an accurate statement “for a press release”.[ix]
7. In her Response to Formal Charges, Judge Lopez stated
that she was unaware of the District Attorney’s August 3,
2000, press release when she wrote her “findings” regarding
the continuance of the Horton sentencing on August 4, 2000.
At the hearing, however ---- Judge Lopez testified that she had, in
fact, read the District Attorney’s press release and relied
on it in making her “findings” on August 4.
False Statements, ¶ 5.
Adopting a new strategy , of course, does not give anyone, especially a judge, the right to be less than candid. Each of the judge’s misrepresentations, standing alone, causes concern. Taken together, the multitude of misrepresentations creates a fundamental question about the judge’s fitness to serve.[x]
Through her tactics, ad hominem attacks, and overt disdain for the Commission and these proceedings, Judge Lopez has revealed a demeanor and temperament inconsistent with the Code of Judicial Conduct. Her intemperance was evident in her unprecedented soliloquy at the end of the hearing. What this hearing officer allowed her to present as allocution, amounted to a little more than a diatribe against the Commission, its witnesses, and Commission counsel.
The judge used this forum not to defend her actions, but to launch yet another attack on the Assistant District Attorneys whom she described as “inexperienced, unprofessional, and of questionable veracity.” See Vol. XIV, p. 104. The Assistant District Attorneys are public servants who have made sacrifices to represent the people of Massachusetts.
Judge Lopez, of course, did not limit herself to criticizing the prosecutors; she took aim at the Commission and Commission counsel as well. Indeed, she prefaced her closing remarks by admitting that they were largely critical of the Commission and its attorneys, describing the investigation as “politically motivated.” Despite the irrefutable evidence that Judge Lopez misrepresented facts to the Public Information Officer for the Supreme Judicial Court, misled the public, and testified with less than candor, the judge asserts that this matter is “political” and involves “unfounded and irresponsible charges.” See Vol. XIV at 105, 114. Judge Lopez’s attempt to lay blame on Commission counsel or “politics,” while refusing to accept responsibility for her conduct, is troubling.
Judge Lopez’s suggestion that the Commission and these proceedings are a threat to the independence of the judiciary is similarly perverse and is yet one more subtle attempt by the judge to put undue pressure on the process and instill fear into the Judiciary. Indeed, our Supreme Judicial Court has already warned that “judges who do not abide by those high and well recognized standards of personal and judicial conduct to which they must be held, cannot employ the argument of judicial independence as a shield when questionable practices on their part are challenged.” In Re: DeSaulnier, 360 Mass. 787, 809 (1972). The Code of Judicial Conduct and the Commission that enforces it are integral to the independence of the judiciary. See In the Matter of Killam, 388 Mass. at 622 (the purpose of judicial conduct “is to preserve the integrity, independence, and impartiality of the judiciary and, moreover, to preserve public confidence in the integrity, independence, and impartiality of the judiciary”).
Massachusetts is fortunate to be one of only three (3) states in the entire nation in which judges are appointed with life tenure. Without elections or term limits, the only accountability is the Code of Judicial Conduct enforced by the Commission. Should the system fail, should there be no accountability for misconduct, then the call for term limits or the election of judges will only escalate.
Even if the judge disagrees with the policy interests undergirding the Commission and its work, the Commission is a creature of the Legislature - the people’s representatives. Indeed, the judge’s closing soliloquy demonstrates a lack of judgment and an intemperance fundamentally at odds with the Code of Judicial Conduct.
Judge Lopez rightly asserts in her allocution that, as a judge, she has the same rights guaranteed to all citizens of this Commonwealth by Article 29 of the Declaration of Rights. Indeed, the Constitution of the United States, as well as that of Massachusetts, apply to all persons; nothing in their text suggest that judges are excluded from their protection. But then, she asserts “How do we quantify the chilling effect that these proceedings have had on the exercise of independent judgment by judges. I have heard it from colleagues on the Superior Court, as well as freely from judges in the other courts of the Commonwealth.” See Vol. XIV, p. 105. “These proceedings against me have undermined the very foundation of our judiciary’s constitutional mandate, which is to dispense justice freely, impartially and independently.” See Vol. XIV, p. 107. She previously had equated herself to Lord Cooke (Coke). “Because Cooke was removed from the bench by the King, the Chief Justice’s theory of a judiciary, independent of control by the royalty or Parliament, was not developed further in England. It was, as we know, highly regarded and adopted by the American colonies as early as 1761." Vol. XIV, p. 106. Judge Lopez’s assertions are nothing more than an attempt to create apprehension within the judiciary.
There can be no question that the independence of the judiciary is a “fundamental precept [ ] upon which our systems of government is founded.” Hastings I, 770 F. 2d 1093, 1104 (D.C. Cir. 1985) (Edwards, J., concurring). In the hallowed words of Alexander Hamilton, the “independence of the judges is requisite to guard the Constitution and the rights of individuals (against legislative encroachments and) from the effect of those ill humors which the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves.” The Federalist No. 78 at 527 (Alexander Hamilton) (J. Cooke ed. 1961). Indeed, the Supreme Court of the United States has stressed “the imperative need for total and absolute independence of judges in deciding cases or in any phase of the decisional function.” Chandler v. Judicial Council 398 U.S. 74, 84 (1970) (Judge Douglas, Dissenting) But, “judicial independence and judicial accountability” are partners in maintaining the respect and confidence necessary to the effectiveness of the . . . judiciary. McBryde v. Committee to Rev. Cir. Council Conduct, 83 F. Supp. 2d 135, 155 (D.D.C. 1999) quoting H. Rep. No. 101-512 at 8. “[T]he Framers never intended that the independence of any one officeholder, including judges, be so absolute as to threaten the integrity and orderly functioning of that officeholder’s branch of government.” Hastings, 593 F. Supp. at 1379. Our courts have consistently rejected the notion “that each judge in a complex system shall be the absolute ruler of his manner of conducting judicial business” Chandler, 398 U.S. at 84. Courts “are not mere collections of individual judges, each of whom is a complete law unto himself or herself.” Hasting II, 783, F. 2d at 1505.
“Hamilton’s concern with judicial independence seems largely to have been directed at the threat from the two other branches.” (Emphasis added.) McBryde v. Committee to Rev. Cir. Council Conduct, 264 F. 3d 52, 66 (D.C. Cir. 2001). “I agree that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’” The Federalist No. 78 at 523 (Hamilton) (Jacob E. Cooke, ed.) (quoting Montesquieu) Hamilton famously characterized the judiciary as “the least dangerous” branch. Id. at 522. “Thus, it seems natural to read Hamilton as seeing the guarantees of life tenure and undiminished compensation and the limited means for denying a judge their protection, simply as assuring independence for the judiciary from the other branches” McBryde at 66. (Emphasis added) “Indeed, the Hamiltonian concern for protecting the judiciary from other branches argues for internal disciplinary powers. Arrogance and bullying by individual judges exposes the judicial branch to the citizen’s justifiable contempt. The judiciary can only gain from being able to limit the occasion for such contempt.” McBryde at 66. Judge Lopez’s premises is thus fundamentally at odds with the structure created by the Constitution that John Adams created for Massachusetts which in turn was reflected in the U.S. Constitution. The judicial power that was crafted by John Adams vested judicial powers not in an individual judge but in the courts. The judiciary is not a batch of unconnected courts, but a judicial department. Individual judges are not entitled to choose their own manner of conducting judicial business. “There can, of course, be no disagreement among us as to the imperative need for total and absolute independence of judges in deciding cases or in any phase of the decisional function. But it is quite another matter to say that each judge in a complex system shall be the absolute ruler of his manner of conducting judicial business. Chandler at 84.
In her allocution, the judge said “I fear it is quickly becoming a justice system composed of judges not just concerned with applying the law in a fair and just fashion, but it is become a justice system that will think first about what happened to Judge Maria Lopez.” Judge Lopez does not have to remind this hearing officer about judicial independence and the sacrifices that it entails. But judges acting rightfully within their jurisdictional domain, have no fear. The doctrine of judicial immunity has been deeply entrenched in our legal system, since the time of Lord Cooke (Coke). In the seminal case of Floyd v. Barker, 12 Coke Rep. 23, 77 Eng. Rep. (Star Chamber 1607) decided by Lord Cooke (Coke) in 1607, judicial immunity was established for judges who served on English courts of record. In that decision, Lord Cooke discussed for the first time what are now considered some of the modern policies that underlie the doctrine of judicial immunity. As stated by Lord Coke, judicial immunity serves the following purposes: (1) it insures the finality of judgments; (2) it protects judicial independence; (3) it avoids continual attacks upon judges who may be sincere in their conduct; and (4) it protects the system of justice from falling into disrepute. Yet, as for the Supreme Court of the United States, the doctrine of judicial immunity is needed because judges, who often are called upon to decide controversial difficult, and emotion-laden cases, should not have to fear that disgruntled litigants will hound them with litigation charging improper judicial behavior. See Pierson v. Ray, 386 U.S. 547, 554 (1967). The grant of absolute immunity to judges has often been criticized, especially since it is judges who have granted absolute immunity to themselves. Without the right of the judiciary to monitor itself and without the courage to impose sanctions where violations of the Canons has occurred, it would then be the very independence of the judiciary which would be questioned.
If the purpose of the Canons is to uphold the integrity and independence of the judiciary, then the failure to enforce that Canon threatens the independence of the judiciary. Judge Lopez’s attack is not an attack upon the Commission, but upon the Canons themselves.
The first Canon of the Code of Judicial Conduct is greater than all the rest: “A judge should uphold the integrity and independence of the judiciary.” [xi] Judge Lopez’s behavior in her handling of the Commonwealth v. Horton matter, together with her less than forthright testimony in these proceedings, demonstrates a failure to uphold the integrity of the judiciary .
The Commission’s heavy burden is to persuade the hearing officer that there is clear and convincing evidence that the charged misconduct occurred. G.L. c. 211C, §7(4). The evidence must be more persuasive than the preponderance standard requires, but need not be proof beyond a reasonable doubt. The proof “must be strong, positive and free from doubt’ and ‘full clear and decisive’” Callahan v. Westinghouse Broadcasting Co., Inc., 372 Mass. 582 (1977). The evidence must be sufficient to prove “to a high degree of probability” that a charge is true. Tosti v. Ayik, 394 Mass. 482, 493 n.9 (1985). This burden of persuasion applies to issues of fact, and to how the Canons apply to the facts. Matter of Brown, 427 Mass. 146, 150 n.4 (1998).
These demanding standards are heightened still further with respect to many of the charges by G.L. c 211, §2(4):
In the absence of fraud, corrupt motive, bad faith, or clear
indication that the judge’s conduct violates the Code of Judicial
Conduct, the Commission shall not take action against a judge
for making findings of fact, reaching a legal conclusion, or
applying the law as he understands it. Commission proceedings
shall not be a substitute for an appeal.
This statute provides to Massachusetts judges a measure of qualified immunity from sanctions for good faith conduct in the performance of their judicial duties. Otherwise, findings of fact determined to be erroneous and unfounded, erroneous legal rulings, and actions taken based on a good faith understanding of the law would be sanctionable. Where the charges involve Judge Lopez’s conduct in making findings of fact, conclusions of law, or applying the law as she understood it, the Commission bears the heightened burden to convince the hearing officer that Judge Lopez did not act in good faith or that there is a clear indication that the code was violated. It was in this vein and spirit, as to each charge, that this hearing officer asked himself whether I am quite certain of my conclusions on this question of application. Unfortunately, I am.
The purpose of these proceedings is not to punish errant judges but to protect the judicial system and those subject to the awesome power that judges wield. Ultimately, it is the protection of the public that the Commission has to be concerned with, ensuring evenhanded and efficient administration of justice, and the maintenance of public confidence in the integrity of the judicial system. The task presented me is to make findings of fact and recommendations, inclusive of sanctions and discipline, if any, that is necessary to achieve these goals. To that end, I have considered evidence offered by the judge in explanation and/or mitigation of her conduct. But where there is maliciously motivated judicial misconduct, mitigation as a factor in determining the nature of the discipline becomes less of a factor. What makes it harder is Judge Lopez’s patent misunderstanding of the nature of her judicial responsibilities that serves not to mitigate but to aggravate the severity of her misconduct. While she has not engaged in a continuous course of overreaching and abuse of judicial authority, a judge is not excused simply because she has not made a habit of being vindictive and not accepting responsibility for her actions.
She is not the subject of this action because she possesses an unpopular philosophy, has offensive idiosyncracies, has rendered unpopular decisions or is too compassionate. She is here for specific acts that allegedly violate the Canons. Judge Lopez, because she refuses to recognize that what she did was wrong both to the victim and to the Assistant District Attorneys, has “never exhibited true remorsefulness for her misleading comments to the public, and has never shown that she understands the damage to the judiciary that occurs when a judge offers, as fact, public statements that are not reasonably supported, researched, investigated, or believed to be true.” In Re: Ferrara, 458 Mich. 350, 362 (1998). A judge who is opinionated, outspoken, hardworking and extroverted, must also insure that she is never prejudiced and always impartial. Rather than respond immediately and convincingly to the specific charges that she prejudiced the administration of justice by not being impartial, she expends most of her defense effort in attacking the character and credibility of the adverse witnesses, the Commission, and the Commission’s attorney. While she concedes that she lost her temper on one occasion, she denies she has ever deliberately abused her judicial office and generally refuses to admit she has done anything improper. She puts forth a conspiracy theory that she is the subject of this attack because she is a woman, Hispanic and liberal. She has never exhibited true remorsefulness for her misleading comments to the public, and has never shown that she understands the damage that she has done to the judiciary. Judge Lopez fundamentally misperceives the nature and gravity of the charges, and instead, views the entire matter as one of ideological and ethnic differences. I agree with Judge Lopez that the “idiosyncrasies” of individual judges “may be displeasing to those who walk in more measured conservative steps [,] [b]ut those idiosyncrasies can be of no possible constitutional concern to those critics.” Chandler at 140. In this case, Judge Lopez has displayed a lack of candor with both the Commission, and with this hearing officer.
It is clear that in the Horton case, one is not dealing with illegal and corrupt acts on the part of the judge. In this case, Judge Lopez allowed pride to control her behavior. In so doing, she forgot her responsibilities to the public and, in particular, an eleven (11) year old boy, the victim.
If indeed sanctions are to be imposed, one must recognize that choosing the proper sanction is an art, not a science and turns on the facts of the case at bar. In making her allocution, this hearing officer was hoping to hear an apology by Judge Lopez to the judiciary, to the lawyers involved, and most importantly, to the then eleven (11) year old victim - none was forthcoming. Sanctions are necessary, not only to pointedly tell Judge Lopez that she was wrong, but to let all those who believe that Judge Lopez was wrongly prosecuted, that when you look at the particulars, wrong was done by Judge Maria I. Lopez.
Judge Lopez asserts that she has never before been the subject of a complaint that has survived the Commission’s screening process. The implication of this assertion is that a judge can act vindictively in a single case, as long as it does not become a habit. This argument does not preclude the Commission from responding to that behavior. Judge Lopez’s insistence that she saw nothing judicially improper about her conduct, except for her one (1) time loss of temper with ADA Deakin, only serves to heighten the severity of her misconduct. Judge Lopez’s patent misunderstanding of the nature of the accusations against her is indeed troubling. A judge is not an absolute monarch, restrained only by the risk of appeal or certiorari.
Rather than respond affirmatively and convincingly to the specific charges, Judge Lopez expends most of her defense in attacking the character and credibility of the adverse witnesses. But leaving aside the testimony of the adverse witnesses, there is still clear and convincing evidence to support these findings.
As pointed out by Commission’s counsel, the entire thrust of the judge’s defense here is “I am a victim. I’m a victim of the District Attorney’s Office. I’ve been victimized by that District Attorney’s Office. They were out to get me. They conspired to do so. Deakin and Joseph made an affirmative decision. The District Attorney’s Office ginned up a press release to infuriate me and drew me into a circumstance in which I had no choice but to discipline them in the way that I did.” See Closing Argument of Mr. Ware, Volume XV, pp.113-115.
Judge Lopez, in her closing, expands the list of those she attacks to other judges who have been in the past found wanting. The fact that Mr. Ware, on behalf of the Commission, is asking this hearing officer to consider recommending her removal is, according to Judge Lopez, nothing short of blasphemy, when other judges have received a far less sanction. Judge Lopez attacks Appeals Court Judge Brown as a repeat offender. See In Re: Brown, supra. Why her and not Judge Brown? Judge Brown is indeed an outspoken jurist. Judge Brown has the courage of his conviction, he accepts responsibility.
Mr. Egbert asks this hearing officer to “remember, nine months ago, there was a case before the Supreme Judicial Court of the Commonwealth, In Re: Markey. A judge used his judicial position to deliberately interfere and intercede in a case to affect the outcome of a case in front of another judge. And that judge suffered a short suspension. Nothing about that when the Commission on Judicial Conduct wants you to remove Judge Lopez for yelling on tape.” See closing arguments of Mr. Egbert, Volume XXV, pp. 106-107. See In the Matter of Markey, 427 Mass. 797 (1998). Mr. Egbert argues that “[Commission’s accusation that Judge Lopez engaged in a pattern of abuse of office warranting severe sanctions, including removal, lacks the proportionality required by pertinent Supreme Judicial Court cases. Nothing in this record remotely approaches the pattern of gross misconduct in several judicial misconduct cases. See Judge Maria I. Lopez’s post-hearing brief, p. 87.
But the Commission’s attorney is not asking for her removal because of the underlying transgressions that Judge Lopez committed in the Horton case in breach of the Canons. He argues that the problem for Judge Lopez is her lack of candor in these proceedings, the fact that Judge Lopez has not been honest in her sworn testimony, either before the Commission on October 2001, or before this hearing officer or both. How can it be that a judge who cannot be completely open and honest in this courtroom can sit by as a witness, take an oath to tell the truth, and monitor the testimony of that witness?
“There are few judicial actions in our view that provide greater justification for removal from office than the action of a judge in deliberately providing false information to the Commission on Judicial Performance in the course of its investigation into charges of wilful misconduct on the part of the judge.” Adams v. Commission on Judicial Performance, 10 Cal. 4th 866, 914 (1995).
Judge Lopez argues that removal is not necessary to protect the public and the judicial system itself. She argues that such a sanction would be sharply out of line with prior Supreme Judicial Court decisions. In looking at the question whether a judge should be removed from office, the misconduct that justifies this most severe sanction frequently revolves around a pattern of arbitrary, irrational, and inappropriate conduct of the judge while acting on the bench in dealings with litigants, attorneys, witnesses, and other persons, or while otherwise performing his or her judicial function and an abuse of his or her judicial powers and authority. But if a judge has not been candid in a proceeding, that lack of candor can be fundamentally disqualifying.
“Although we agree with the Commission that these isolated occurrences, standing alone, would not be sufficient to justify removal, petitioner’s misconduct is magnified here by a pattern of evasive, deceitful, and outright untruthful behavior, evidencing a lack of fitness to hold judicial office...Particularly relevant here is our conviction that ‘deception is antithetical to the role of a judge who is sworn to uphold the law and seek the truth.’” In the Matter of Collazo, 91 N.Y. 2d 251, 254, 255 (1998).
Judge Lopez now admits at the hearing that one part of her answer was in error. She admits ¶ 9 of her Response to Charges was wrong when she said that “[a]lthough Judge Lopez was unaware of it at the time that she made her findings, the Suffolk County District Attorney’s Office issued on August 3, 2000, a press release . . .” Judge Lopez now acknowledges that she not only was aware of the press release, but read it before she made her findings of August 4, 2000. The problem for Judge Lopez is that her answer to the Complaint has never been amended. It was not until this hearing when this error was revealed, does Judge Lopez admit that her answer was wrong. The answer was filed on May 6, 2002. She had the opportunity to correct her answer before the hearing, but failed to do so.
Judge Lopez had an epiphany on the stand and testified that she not only had read the D.A.’s press release before issuing her Findings, but she actually had based the Findings, in part, on the press release. See Vol. I at 107-09; Vol. IV at 41. But this not only contradicts her Response (¶9), it also is inconsistent with her prior testimony. See Ex. 32 at 79-81 (failing to identify D.A.’s press release as basis for her Findings). This Court can assess the credibility of the judge’s explanation as to her “error” in the Response (and, presumably, in her prior testimony), but it is hard to see how a judge - particularly a judge as smart and sophisticated as Judge Lopez (see Vol. XIV at 32, 40, 62, 66 91) - accidently puts such a clear and unambiguous statement into a document as important as her Response to the Formal Charges. Moreover, while she claims “error” as to her Response, she has little or no explanation for the inconsistencies with her prior testimony. As noted above, it is noteworthy that Judge Lopez had more than one (1) year since her prior testimony, and six (6) months since her Response, to correct her error before the hearing, but this she did not do.
Even more egregious in her answer is Judge Lopez’s attempt to lay responsibility for issuing her post-sentencing press release upon Chief Justice DelVecchio. In ¶22, Judge Lopez asserts that “[a]ccording to the evidence before the Commission, the press release would not have issued at all but for Chief Justice DelVecchio’s decision to issue it.” [Emphasis added]. But the evidence before this hearing officer is just the contrary; that Chief Justice DelVecchio advised Judge Lopez not to issue any press release. See Vol. II, p. 155. Again, this answer has not been amended. The answer is indicative of Judge Lopez’s proclivity not to accept responsibility for her own actions, but to blame someone else for the transgression. Chief DelVecchio was quite illuminating as to her interaction with Judge Lopez.
Q. And did you in this case, as Chief Justice of the Court, tell Judge Lopez not to issue a press release or press statement?
A. I told her she shouldn’t say anything.
Q. Was that as a directive of the Court? In other words –
A. I can’t direct a judge not to do something. I can advise. I can’t forbid a judge from talking to the press. I can’t do any of those things. But I advised her not to say anything.
Q. And was that from a public relations standpoint?
A. I didn’t consider the Canons at the time, whether it was appropriate - - but that’s up to her to consider. I don’t tell a judge how to conduct themselves pursuant to the Canons, but I did think that at that point in this case, the less said, the better.” See Vol. II, pp. 124-125.
As stated previously, Judge Lopez looks for protection from the First Amendment. I agree that the protection of the First Amendment extends and is afforded to judges themselves. Judge Lopez is right to embrace the First Amendment. She has the right to marshal her own explanation or defenses to justify her actions in the Horton matter. But the public right and interest in unfettered expression does not mean that a judge can be less than forthright in presenting that defense.
In his closing, the Commission’s counsel included compilations of this lack of candor by Judge Lopez. Although these compilations are not evidence, they are adopted by this hearing officer as illustrative of Judge Lopez’s habit of not being totally candid in answering questions.
(Sworn Testimony 10/31/01)
Judge Lopez DID continue the case toavoid media attention.
LOPEZ: I wanted to continue the case because I really believed that on another date there would be some other new[s] story that was hotter than mine.
Exhibit 32 at 84
(Response to Formal Charges 5/6/02)
Judge Lopez was NOT aware of the District Attorney’s August 3 press release when she made findings.
“Although Judge Lopez was unaware of it at the time she made her findings, the Suffolk County District Attorney’s Officeissued on August 3, 2000, a press release . . . .
Response para. 9
(Hearing Testimony 11/02)
Judge Lopez did NOT continue the case to avoid media attention.
WARE: And you continued the case because you believed that on another date there might be a hotter news story than this case, isnt’ that so?
LOPEZ: Those were not the reasons why I continued the case.
Volume I at 83
(Hearing Testimony 11/02)
Judge Lopez WAS aware of the District Attorney’s August 3 press release when she made her findings.
LOPEZ: What I mean by that statement [the findings, Ex. 17] was that, after having reviewed the DA’s press release, because these findings were made after I had seen that press release, . . . .
Volume IV at 41
(Sworn testimony 10/31/01)
The District Attorney’s press release was NOT unethical.
LOPEZ: Yes. I believed [the DA’s Office] issued a press release the day before.
WARE: Is there anything in your mind inappropriate about that?
LOPEZ: Look. They’re politicians. There’s probably nothing inappropriate.... Nothing inappropriate. There’s nothing unethical....
Exhibit 32 at 74
WARE: So now you’re saying that you saw this press release on August 4th in the afternoon before you wrote the findings, but after the proceedings in the lobby.
LOPEZ: Correct Between my morning lobby conference and the time I wrote these findings, I had read the press release.
Volume I at 107-08
(Hearing Testimony 11/02)
The District Attorney’s press release WAS unethical.
WARE: And if follows from that, does it not, that you are saying the District Attorney’s office at large acted unethically in this case, isn’t that so?
LOPEZ: That is so.
Volume IV at 41
(Sworn Testimony 10/31/01)
The press statement of 9/7/00 was NOT her statement.
WARE: That’s because you take the view that this wasn’t your statement?
Exhibit 32 at 146-47
(Sworn Testimony 10/31/01)
Judge Lopez does NOT know the “certain facts” mentioned in the press statement of 9/7/00.
WARE: In the press release, it says there are certain facts before you. What are the facts to which this alludes, if you know?
LOPEZ: I don’t know.
Exhibit 32 at 146-47.
(Hearing Testimony 11/02)
The press release of 9/7/00 WAS her statement.
EGBERT: It purports to be your statement, correct?
LOPEZ: It is my statement.
Volume IV at 147
(Hearing Testimony 11/02)
Judge Lopez DOES know the “certain facts” mentioned in the press statement of 9/7/00.
EGBERT: And what are those facts and circumstances that you had in mind [in your 9/7/00 statement]?
LOPEZ: Those would be the facts contained in the psycho social assessment that I had, the disputed facts that had been presented to me in the lobby conferences, the defendant’s criminal record information, police reports which were not part of the public record.
Volume IV at 156
(Sworn Testimony 10/31/01)
The press statement of 9/7/00 was NOT accurate.
LOPEZ: [In Ex. 24] I didn’t mean in terms of guidelines, no. That’s not my statement.
WARE: So this statement is erroneous in that respect?
Exhibit 32 at 37-38
LOPEZ: The characterization of what I was doing in open court, that it referred to sentencing guidelines, is not accurate.
Exhibit 32 at 40
(Hearing Testimony 11/02)
The press statement of 9/7/00 WAS accurate “for a press release.”
EGBERT: Did you feel, at the time it was issued, that it was a generally accurate reflection of your position?
LOPEZ: For its purpose, it was accurate of what had gone on, what my position was, yes.
EGBERT: And do you consider it generally accurate as to your position for a press release?
LOPEZ: Yes. . . .
Volume IV at 157
JOAN KENNEY’S TESTIMONY
WARE: Before you drafted the statement, did you learn from Judge Lopez additional facts about the case, specifically about a weapon or about the kidnapping?
KENNEY: . . .[S]he did tell me that she did not believe it was a kidnapping and that the screwdriver was not used as a weapon.
Volume X at 155-56
WARE: Judge Lopez told you that this was not a kidnapping, isn’t that right?
KENNEY: That’s correct.
WARE: And to your best recollection, those were her words, without qualifiers; is that right?
KENNEY: That’s correct.
Volume XI at 62-63
JUDGE LOPEZ’S TESTIMONY
WARE: And at that time, among the things you told Ms. Kenney, was that there was no screwdriver used in this case as a weapon; isn’t that true?
LOPEZ: That is not true. That’s not what I said.
WARE: And didn’t you tell her there was no kidnapping in the usual sense?
LOPEZ: I did not say that. I told her those were disputed facts.
Volume II at 90
See also Commission’s Summary of Lopez’s False and Inconsistent Statements.
While the Supreme Judicial Court has in the past disbarred a judge and enjoined him from the exercise of all duties and powers as a judge, see In the Matter of Troy, 364 Mass. 15, 73 (1973), M.G.L. c. 211C, as amended, appears to be a supplement to, but not a substitute for, the impeachment process or a Bill of Address. It is designed to deal with those matter which do not rise to the level of impeachable offenses, a long-term disqualification or suspension could by its practical effect, effect an unconstitutional removal of a judge from office.
The Commission’s recommendation, along with those of this hearing officer, are forwarded to the Supreme Judicial Court. It is the Supreme Judicial Court that will make the ultimate, dispositive decision in this matter. That Judge Lopez’s defenses to the initial Charges presented were for the most part, ill-founded, has been established to this hearing officer.
Judge Lopez, in her allocution, quotes Pascal that “we must not expect too much of judges.” To this, one must say that more is expected of her, since she is a judge, and rightfully so. A judge should weigh this before she accepts her office. Subject as she is to constant public scrutiny in her community and beyond, she must adhere to standards of probity and propriety higher than those deemed acceptable for others. See In the Matter of Troy, Ibid. at 71.
Judges should exercise their judicial functions with integrity and impartiality and and unfortunately, Judge Lopez’s TV courtroom behavior was unpleasant to witness and reflected negatively on the Massachusetts judiciary. She has thus compromised the notion that the law is uniform and impartial in its application within the court system of Massachusetts. She has exacerbated and changed the dynamics of her situation by not having the courage of her conviction to stand by her decisions, and instead, engaged in a pattern of unfortunate contradictions to cover up what had occurred. A third rate burglary was the undoing of President Nixon. One would think that public officials would learn that to be less than honest in order to cover up would only compound the problem. “The single, overriding thing we have learned is the need for confidence by the citizens of Massachusetts in the conduct of their government. The depth of skepticism, sometimes to the point of outright cynicism, about elected and appointed public officials, should be disturbing to private citizens, not just to the politicians. It is a measure of the alienation of people from government and of the erosion of the will to act as citizens.” Report of the Ward Commission, Dec. 31, 1980.
If the public perceives that the judiciary accepts that its members are in a different class, distinct and above the ordinary person, then the judiciary will truly become alienated from the people. Judge Lopez should not be viewed as a martyr.
In defending herself against the Formal Charges, Judge Lopez has consistently and repeatedly attempted to distract from what is at issue. Judge Lopez still fails to recognize the seriousness of her misconduct; she still fails to recognize that a judge who makes misrepresentations to the public and to this hearing officer, has breached her obligations under the Code of Judicial Conduct. See Adams v. Commission, 10 Cal. 4th 866, 914 (1995). The case against Judge Lopez concerns her complete disregard of this Code. Judge Lopez’s “duty to be completely candid” is not a triviality to be glossed over See In Re: King, 409 Mass. 590, 606 (1991).
A judge who refuses to recognize [her] own transgressions
does not deserve the authority or command the respect
necessary to judge the transgressions of others. We are
troubled by the fact that [the judge] shows nor remorse
and we can only presume that if this Court reprimanded
him, he would continue to violate the precepts of the
Code of Judicial Conduct.
In Re: Graham, 620 So. 2d 1273, 1276 (Fla. 1993) (removing judge from office); see also Inquiry Concerning a Judge, 462 S.E. 2d 728, 736 (Ga. 1995) (removing judge where court found “from [the judge’s] own testimony” it was unlikely she would alter her previous conduct); Mississippi Judicial Performance Comm’n v. Hopkins, 590 So. 2d 857, 866 (Miss. 1991) (removing from office judge who denies all wrongdoing and “offers explanations and excuses for every act); Judicial Discipline and Disability Comm’n v. Thompson, 16 S.W. 3d 212, 226 (Ark. 2000).
Blaming others for one’s own misconduct, as Judge Lopez has so often done in this case, also weighs heavily against a judge in misconduct proceedings.
The Arizona Supreme Court’s words could have been written for Judge Lopez:
Respondent’s accusations [against the Commission] only
confirm that he lacks the judgment needed to carry out his
duties competently. Respondent blames the world for his
troubles, refuses to see his own shortcomings, and,
consequently, does nothing to cure them. We take this as
some indication that no amount of rehabilitation or education
will solve these problems and that Respondent poses a
danger of committing future violations bringing the judiciary
Matter of Peck, 867 P.2d 853, 860 (Ariz. 1994) (rejecting Commission’s recommendation for a 30-day suspension and removing judge from office). As in Peck, Judge Lopez has continued to justify her behavior by pointing her finger at the very targets of her misconduct - namely, the Assistant District Attorneys, the District Attorney’s Office, and the media. Then why not as in Peck, not remove Judge Lopez. Alexander Hamilton wrote in the Federalist No. 78 that “the Judiciary . . . may truly be said to have neither force nor will, but merely judgment.” Does she have the temperament and judgement to serve as a judge? Her prior track record indicates that she does.
To Judge Lopez and her supporters, the Commission’s accusation of lies and deceit are mere fairy tales, deliberate and highly offensive falsifications that have unfairly caused serious harm. To the Commission, Judge Lopez’s attacks on its integrity is highly offensive. There is no middle ground.
This hearing officer is mindful that a temporary suspension, without pay, would not remove Judge Lopez from her judgship or create a vacancy in her office triggering the Governor’s appointment authority. The Commission has been authorized by the Legislature, pursuant to M.G.L.A. c. 211C, §8(4), to recommend to the Supreme Judicial Court various sanctions, including “removal,” the “imposition of limitations or conditions on the performance of judicial duties”, the “imposition of a fine,” and the “imposition of any other sanction which is reasonable and lawful.” The Supreme Judicial Court has concluded on previous occasions that a temporary suspension does not constitute a removal. See The Governor v. McGonigle, 418 Mass. 558, 560-561 (1994) (sheriff not removed from office where his temporary suspension did not create vacancy in the office).
In Matter of Bonin, 375 Mass. 680, 683 (1978), the Supreme Judicial Court entered an Order temporarily enjoining Chief Justice Bonin from the performance of all judicial and administrative functions during the pendency of the proceedings before that court. At the conclusion of the proceedings, the court extended his suspension “for a reasonable time to permit the executive and legislative branches to consider. . . the question of the continuance of the Chief Justice in office.” Id. at 711-712. Thus, a distinction was drawn in that case between temporary suspension of a judge from his duties, which is appropriate for the court to impose, and a removal of the judge from office, which is the perogative of the Executive and Legislature.
The essential question is:
Can a Judge Who Makes Inconsistent Statements Under Oath Retain the Office?
The answer may be found in the evidence which shows that:
1. Judge Lopez was acting from pride, an all to common human
failing, and not from corruption or bribery;
1. In 14 years on the bench, she has never been the subject of disciplinary action;
2. The Judge and her husband and indeed family, have been the subject of extraordinary humiliation and embarrassment over the past few years;
3. The Judge appears to be compassionate and hard-working, as attested to the distinguished list of jurists and attorneys. Particularly noteworthy is Associate Superior Court Justice Regina Quinlin who stated, “Whenever she was assigned anything it was always done. But what I think impressed me the most was she would call and volunteer, which not many did.” Vol. XIV, p. 45
4. The memory of the Horton case will forever be with her.
The Commission’s representative recognizes that the underlying offense which triggered the Complaint against Judge Lopez does not warrant her loss of office. It was Judge Lopez’s feeble attempt at coverup which provoked Mr. Ware’s recommendation of removal.
However, notwithstanding the above recommendation of removal, it is this hearing officer’s view, taking into consideration all the evidence presented me, if Judge Lopez were to:
1. Issue a mea culpa to the findings in this order and;
2. Admit and accept responsibility for her inconsistent statements and testimony,
then the recommendation would be a six (6) month suspension without pay. This act of contrition will do much to enable the system to heal itself and in a sense be, a public apology to the 11 year old victim in the Horton case.
Chief Justice E. George Daher (Ret.)
April 29, 2003
cc: Mr. Paul Ware, Esq.
Goodwin & Proctor
Boston, MA 02109
Mr. Richard Egbert, Esq.
99 Summer Street
Boston, MA 02110
Mr. Robert J. Guttentag, Chairman
Commission on Judicial Conduct
15 Howland Street
W. Newton, MA 02465
Ms. Jill Pearson, Executive Director
Commission on Judicial Conduct
14 Beacon Street, Suite 102
Boston, MA 02108
BEFORE THE COMMISSION ON JUDICIAL CONDUCT
In re Judge Maria I. Lopez
Complaint Nos. 2000-110, et seq.
COMMISSION ON JUDICIAL CONDUCT’S
PROPOSED FINDINGS OF FACT
I. Judge Lopez Engaged In Improper Ex Parte Contacts
Following her having retained jurisdiction in the Horton case, and during the period of appeal and/or for motions under Rule 30 of the Massachusetts Rules of Criminal Procedure, Judge Lopez engaged in at least the following ex parte contacts:
A. Judge Lopez initiated a telephone conversation with defense counsel Anne Goldbach of the Committee for Public Counsel Services (“CPCS”) shortly following the September 6, 2000 sentencing, during which Judge Lopez discussed Horton and the publicity which followed his sentencing.
1. At the end of the September 6, 2000 sentencing hearing, Judge Lopez explicitly retained jurisdiction over the Horton case at the request of defense counsel Anne Goldbach. Ex. 22 at 34. In doing so, the Judge understood that Horton would appear before her again. Indeed, Judge Lopez testified that she viewed the matter as pending for purposes of probation. Vol. II at 99 (Testimony of Judge Lopez); Ex. 32 at 11-12, 14; Vol. XIII at 49-50 (Testimony of Anne Goldbach).
2. Following the Horton sentencing, between approximately September 7 and September 10, 2000, Judge Lopez made at least two ex parte phone calls to Ms. Goldbach, who was still representing Horton (and continues to do so). At least one of these calls was made to Goldbach’s home on a weekend. Vol. II at 100–01, Vol. III at 25-26 (Testimony of Judge Lopez); Vol. XII at 181-83, V ol. XIII at 30, 41-42. (Testimony of Anne Goldbach). During one of these conversations, Judge Lopez discussed with Goldbach whether the Judge should obtain counsel. Vol. XIII at 43-44 (Testimony of Anne Goldbach).
3. During their first telephone conversation, Judge Lopez asked questions about Horton and expressed concern and worry for Horton’s well-being. Vol. XIII at 42 (Testimony of Anne Goldbach). She and Goldbach also discussed the media attention and how the Judge “was being treated.” Ex. 32 at 95-97, 101; Vol. III at 27, 31 (Testimony of Judge Lopez). Indeed, the Judge implicitly requested that Goldbach speak with the media and publicly defend her. Ex. 32 at 109; Vol. III at 38-39 (Testimony of Judge Lopez).
4. One of the purposes of Judge Lopez’s calls was to encourage defense counsel and the Committee for Public Counsel Services (“CPCS”) to make a public statement supportive of the sentence in Horton and of the Judge. Vol. II at 103, Vol. III at 38-39 (Testimony of Judge Lopez); Ex. 32 at 106, 109–10. Ms. Goldbach did, in fact, speak with the press both on background and for attribution following her ex parte conversations with Judge Lopez. Vol. XIII at 45 (Testimony of Anne Goldbach); Exs. 20, 21 (news articles quoting Ms. Goldbach).
5. At the time she made the calls to Goldbach, the Judge was aware that she had been instructed by the Chief Justice of the Superior Court and her own counsel not to speak with the press or third parties regarding the Horton matter. Vol. II at 100 (Testimony of Judge Lopez); Ex. 32 at 35, 104; Vol. XI at 124-25 (Testimony of Chief Justice DelVecchio).
6. Ms. Goldbach considered Judge Lopez’s calls to be “highly unusual.” In fact, defense counsel agreed that her being called by the trial judge in a criminal case on an ex parte basis was “unique” in her experience. Vol. XIII at 44 (Testimony of Anne Goldbach).
7. Judge Lopez never advised the District Attorney’s Office or the ADA that she had ex parte communications with defense counsel following the September 6 sentencing. Vol. III at 48, 51 (Testimony of Judge Lopez). Indeed, the District Attorney was never made aware of such communications by any source.
8. Since the September 6, 2000 hearing, the Horton matter has been before Judge Lopez on repeated occasions with respect to probation matters. The Judge continues to monitor Horton’s probation today. Ex. 32 at 11, 101; Vol. II at 99–100 (Testimony of Judge Lopez).
9. Judge Lopez called defense counsel ex parte following sentencing in order to solicit assistance in defending her image in the press, and by doing so, created at least the appearance of impropriety by asking defense counsel and CPCS to do indirectly (i.e., defend the sentence in the press) what she had been told not to do directly.
B. On or about September 7, 2000, Judge Lopez placed a telephone call to William Leahy, Chief Counsel at CPCS and expressed her anger at the press coverage of the Horton sentencing. The Judge encouraged Leahy and CPCS to come to her defense publicly.
10. Judge Lopez initiated an ex parte telephone call to William Leahy, Chief Counsel of CPCS, within a few days of the September 6 sentencing in the Horton case. Vol. II at 103–04 (Testimony of Judge Lopez); Ex. 32 at 103. Judge Lopez viewed CPCS as defense counsel’s “law firm.” She knew that Ms. Goldbach was also employed by CPCS. Vol. II at 102 (Testimony of Judge Lopez); Ex. 32 at 89.
11. Judge Lopez expressly encouraged Leahy to defend her publicly. Vol. II at 102-04, Vol. III at 32-34 (Testimony of Judge Lopez); Ex. 32 at 106-07, 109.
12. In talking with Leahy, Judge Lopez made it clear that she wanted the public to understand her position. She called on Leahy to advance her personal defense, because she was prohibited from doing so herself. Ex. 32 at 104-05, 109-10.
13. Following Judge Lopez’s ex parte conversation with Leahy, Leahy complied with the Judge’s instructions and gave television interviews and spoke with the written media in support of both the sentence in the Horton case and Judge Lopez personally. Vol. II at 104 (Testimony of Judge Lopez); Ex. 32 at 108; Vol. XIII at 46 (Testimony of Anne Goldbach); Exs. 11-14, 34 (news articles quoting Mr. Leahy).
14. Judge Lopez never advised the District Attorney’s Office that she had such ex parte conversations with anyone at CPCS following the sentencing on September 6. Vol. III at 48 (Testimony of Judge Lopez). Indeed, the District Attorney was never made aware of such ex parte contacts by any source.
C. Following her first telephone call to Ms. Goldbach, Judge Lopez placed one or more additional telephone calls to her, again discussing the Horton sentencing and the press coverage.
15. See Section I (A), above.
D. During one of the calls to Goldbach, Judge Lopez sought information regarding Boston Police detective Jay Greene, whom the Judge believed to be a material witness in the Horton case. The Judge contacted the detective and elicited information from Greene which she later characterized as supporting her sentencing decision.
16. The Horton police reports indicate that Boston Police officers Rose and Sweeney were the first to arrive at the scene of the crime and that Detective Greene did not arrive on scene until some later point. Detective Greene’s involvement in the Horton case was, at most, to read the defendant his Miranda rights. Ex. 27 (Boston Police Incident Report); Vol. XIII at 17 (Testimony of Anne Goldbach); Vol. VI at 104 (Testimony of Leora Joseph).
17. As reflected in the police reports, Detective Greene was not part of the investigation of the Horton matter – he was not first on the scene of the crime, he was not one of the officers responsible for interviewing witnesses, and he did not prepare the police reports nor conduct any follow-up in the Horton investigation. Exs. 27 (Boston Police Incident Report), 28 (Boston Police Sexual Assault Unit Reports); Vol. III at 41–42 (Testimony of Judge Lopez); Vol. VI at 106 (Testimony of Leora Joseph); Vol. XIII at 17 (Testimony of Anne Goldbach).
18. Officers Rose and Sweeney, the first to arrive on the scene of the crime, observed that the “victim was crying” when they arrived. Ex. 27 (Boston Police Incident Report) at 2; Ex. 22 at 15.
19. Judge Lopez read the police reports during the August 1, 2000 plea conference. Accordingly, Judge Lopez knew that Detective Greene was not first on scene and that he had no substantive involvement in the Horton investigation. Vol. I at 71, Vol. II at 51-52 (Testimony of Judge Lopez); Ex. 32 at 43. Nor did Greene testify before the Grand Jury. Vol. VI at 105-06 (Testimony of Leora Joseph). Greene later told the Judge “that he was not part of the investigation of the Horton matter.” Ex. 32 at 49.
20. At the September 6 sentencing hearing before Judge Lopez, Horton admitted to, among other things, the following facts: on Saturday, November 20, 1999, Horton, in his car, pulled up beside the victim, who was walking on the street; the boy did not know Horton; Horton lured the boy into Horton’s car by lying to him and offering money to the boy to help Horton find a fictitious missing son; Horton drove the boy to a place the boy did not know; Horton asked the boy if he wanted to perform oral sex on Horton, using a common vulgarity to refer to female genitalia; the boy said no and told Horton that he wanted to go home; Horton did not let the boy leave the car; Horton put a screwdriver to the boy’s neck and told him to be quiet; Horton pulled the boy’s head into Horton’s lap; Horton told the boy to suck on Horton’s finger and moved the boy’s head up and down; the boy was crying and pleading to go home; Horton told the boy to “shut up”; Horton told the boy to suck on the screwdriver; a police cruiser then pulled up behind Horton’s car; Horton pulled the boy’s head up and told him to tell the police that he was helping Horton look for Horton’s children; Horton lied to the Boston Police, telling officers Rose and Sweeney that the boy was helping him look for his missing son; Horton denied any wrongdoing after being read his Miranda rights; Horton then stated to the police that he had intended to perform oral sex on the boy. Ex. 22 at 12-18. Judge Lopez heard and accepted these admissions which were made in open court.
21. Horton’s admissions corroborated the observations in the police reports of Rose and Sweeney when they first arrived on the scene of the crime, including the fact that the “victim was crying” when the police arrived. Ex. 27 (Boston Police Incident Report).
22. In the face of these admissions, Horton pleaded guilty to kidnapping, assault with intent to rape a child under 16, indecent assault on a child under 14, assault and battery, and assault and battery with a dangerous weapon. Ex. 2 (Commonwealth v. Horton Docket) at 1, 3; Ex. 22 at 4-5. Judge Lopez found a factual basis for the guilty pleas and accepted each plea as knowingly and voluntarily offered. Ex. 22 at 19. Accordingly, the Judge understood Horton to have admitted the facts as represented by the District Attorney.
23. Notwithstanding her knowledge of Detective Greene’s limited role in the Horton case, and notwithstanding Horton’s admissions in her presence in open court, and the Judge’s acceptance of his guilty pleas, Judge Lopez contacted Detective Greene for the purpose of soliciting his help in deflecting criticism of the Judge in the press. Vol. II at 104-05, Vol. III at 29-30, 61-62 (Testimony of Judge Lopez). The Judge admits that her decision to call a Boston Police detective to defend her was “unprecedented.” Ex. 32 at 152.
24. Judge Lopez used the information she claimed to have received from Greene — which she knew to be false based on the police reports, the defendant’s own admissions, and his pleas of guilty — on “hundreds” of occasions to publicly justify her sentence, telling people that a local police officer agreed with her version of the facts of the case. Vol. III at 44-45 (Testimony of Judge Lopez); Ex. 32 at 53-55. Indeed, Judge Lopez forwarded Greene’s telephone contact to Joan Kenney, the Court’s Public Information Officer with the intent that Ms. Kenney would unknowingly use Greene’s false information. Vol. III at 61-62 (Testimony of Judge Lopez).
25. Judge Lopez actively solicited information about the Horton case that she knew to be false and communicated it to the public and the media in an attempt to rescue her own public image at the expense of both the truth and the victim’s reputation.
E. Following September 6, 2000, Judge Lopez had one or more conversations with Greene, whom the Judge believed to be a material witness in the Horton case. Judge Lopez subsequently caused the Supreme Judicial Court’s Office of Public Information to contact the detective for information to justify her sentencing decision.
26. Section I(D), above.
27. Judge Lopez intentionally directed Joan Kenney, the Supreme Judicial Court’s Public Information Officer, to contact Greene to obtain false information to use in deflecting criticism of the Judge in the press. Vol. II at 105, Vol. III at 61–62, Vol. V at 37–38 (Testimony of Judge Lopez); Vol. XI at 50 (Testimony of Joan Kenney). The Judge knew that Greene “was not part of the investigation of the Horton matter.” Ex. 32 at 49.
28. Judge Lopez directed Ms. Kenney to speak with Greene, knowing that he was not first on the scene of the crime, and that he therefore could have no useful information to contribute. Vol. XI at 50 (Testimony of Joan Kenney); Vol. II at 105, Vol. III at 61-62; Vol. V at 37-38 (Testimony of Judge Lopez). Indeed, the Judge directed Ms. Kenney to speak with Greene knowing that Greene’s information was false and conflicted with the very admissions that formed the basis of the guilty pleas that the Judge had accepted only a few days earlier. See Section I(D) above.
29. The Judge knew that Ms. Kenney had no first-hand knowledge of the Horton case, and that the Judge was Ms. Kenney’s source of information about the case. Vol. II at 55-57 (Testimony of Judge Lopez). Ms. Kenney, in fact, relied exclusively on Judge Lopez for information about the case. Vol. X at 157-58 (Testimony of Joan Kenney).
30. Ms. Kenney found the information that she received from Detective Greene to be uncorroborated and unreliable. Accordingly, she did not use it. Vol. XI at 53-55 (Testimony of Joan Kenney).
31. Judge Lopez attempted, through the Court’s public information officer, to communicate to the public information that she knew to be false, which was harmful to the victim’s reputation, in order to defend her own public image.
II. Judge Lopez Exhibited Bias In The Discharge Of Her Duties
A. Throughout the proceedings, Judge Lopez exhibited a bias against counsel for the Commonwealth based at least in part on her prior experiences with Assistant District Attorney Leora Joseph in the Calixte and Estrada cases.
32. Judge Lopez entered the Horton case with a pre-existing, negative view of ADA Joseph. Indeed, Judge Lopez justified her treatment and abuse of ADA Joseph in Horton based on her “history” with Joseph in two prior cases, Commonwealth v. Calixte and Commonwealth v. Estrada. Vol. I at 84–85, 100-02, Vol. II at 7–8 (Testimony of Judge Lopez); Ex. 32 at 66-67.
33. Judge Lopez falsely and without foundation blamed ADA Joseph for promoting media attention and personally criticizing the Judge in the press following Calixte and Estrada. Vol. I at 100-02, Vol. II at 13–14 (Testimony of Judge Lopez). Both Calixte and Estrada, however, were followed closely in the press prior to Judge Lopez’s involvement in those cases. Vol. I at 97–100 (Testimony of Judge Lopez).
34. Further, ADA Joseph spoke to the press on only one occasion concerning Calixte and Estrada, when she was directed by the District Attorney’s press office to speak with Eileen McNamara, a columnist from the Boston Globe who had called the press office and expressed an interest in speaking with ADA Joseph. ADA Joseph agreed to speak with Ms. McNamara only at the direction of her superiors in accordance with the District Attorney’s Office’s press policy. She was accompanied throughout the interview by a representative of the District Attorney’s press office. Vol. VI at 83-88 (Testimony of Leora Joseph).
35. ADA Joseph’s comments reported in the McNamara article never mention Judge Lopez by name, and do not personally attack her. At most, ADA Joseph’s comments can be read as general thoughts on the goals of sentencing. Ex. 43 (McNamara article); Vol. VI at 85-88 (Testimony of Leora Joseph). Notably, this was the only instance in which ADA Joseph ever spoke with the media concerning a case before Judge Lopez.
NEITHER ALLOWED NOR DENIED - SEE DECISION
36. The only other news article involving Judge Lopez and ADA Joseph contains information taken by the reporter from ADA Joseph’s statements in open court. ADA Joseph did not know that the reporter in question was present in Court at the time or was transcribing her argument, and Joseph never submitted to an interview for the article. Vol. II at 20-21 (Testimony of Judge Lopez); Compare Ex. 64 (2/11/99 Boston Herald article re: Estrada sentencing hearing) to Ex. 65 (2/10/99 Transcript of Estrada sentencing hearing) at 12-13.
37. Following the Estrada sentencing, Judge Lopez criticized ADA Joseph for using “hyperbole” when Joseph described the repeated oral rapes by the defendant of his 11-year-old stepdaughter as “vile.” Ex. 65 (2/10/99 Transcript of Estrada sentencing hearing) at 13, 25-26.
38. There is no basis for Judge Lopez’s assertion that ADA Joseph called in the press in Calixte and Estrada, had a habit of criticizing the Judge, or was prone to use “hyperbole” in her recitation of facts.
39. See also Sections II(B), (C), (F) and (I), below.
ALLOWED AS IN THESE SECTIONS
B. On August 4, 2000, during a lobby conference in Horton, Judge Lopez reprimanded Assistant District Attorney Leora Joseph by stating in substance, “You’re very mean. . . . You’re very young. . . . This is all your fault. . . . You belong in the suburbs.”
40. On the morning of August 4, 2000, reporters were present in the courthouse, and there was a camera in the courtroom. There was nothing approximating a “media circus.” Vol. I at 81 (Testimony of Judge Lopez); Vol. VI at 90-92 (Testimony of Leora Joseph). Indeed, Judge Lopez testified that she was “not at all” angry with the behavior of the press on August 4. Vol. I at 82-83 (Testimony of Judge Lopez).
41. Ms. Goldbach approached ADA Joseph when she arrived at the courthouse and accused her of arranging for the press to cover the Horton hearing, which ADA Joseph denied. Vol. VI at 63 (Testimony of Leora Joseph); Vol. XII at 92 (Testimony of Anne Goldbach).
42. Judge Lopez subsequently held a conference in her chambers, at which only Judge Lopez, ADA Joseph, and Ms. Goldbach were present. The Judge described herself as “angry, upset.” Ex. 32 at 76. The Judge began berating Joseph almost immediately after Joseph entered her chambers. Vol. I at 82, 84, Vol. III at 135 (Testimony of Judge Lopez); Vol. VI at 64-65 (Testimony of Leora Joseph); Vol. XII at 106-08 (Testimony of Anne Goldbach).
43. Judge Lopez said to Ms. Joseph: “You belong in the suburbs.” Vol. I at 85 (Testimony of Judge Lopez); Ex. 32 at 76; Vol. XII at 107-08 (Testimony of Anne Goldbach); Vol. VI at 65 (Testimony of Leora Joseph). Judge Lopez also told ADA Joseph that she was “very mean,” that Joseph had no credibility with the Court, that she did not want Joseph to appear before her again, and that Joseph was “very young” and “didn’t get it.” Judge Lopez also accused ADA Joseph of “calling in the press.” Vol. VI at 65-66 (Testimony of Leora Joseph); Vol. XII at 107-08, 110 (Testimony of Anne Goldbach). The Judge testified that Ms. Joseph denied calling the press but indicated she was not responsible for decisions of the District Attorney’s press office. Ex. 32 at 75.
44. Judge Lopez did not ask ADA Joseph nor Ms. Goldbach any further questions concerning the presence of the press and did not engage in any discussion as to how the parties might resolve any perceived problems concerning the media. The Judge merely accused ADA Joseph of “calling in” the press. To the extent that she had an opportunity to respond, ADA Joseph denied that she “called in the press.” Vol. VI at 65-66, Vol. VIII at 60-62 (Testimony of Leora Joseph); Vol. I at 88, Vol. III at 146 (Testimony of Judge Lopez).
45. As ADA Joseph was leaving the lobby conference, Judge Lopez remarked to Ms. Goldbach that the case should be continued until ADA Joseph was on vacation. Vol. VI at 66 (Testimony of Leora Joseph).
46. Judge Lopez’s abusive comments unsettled ADA Joseph and effectively removed her as the lead prosecutor on the case. Vol. VI at 66-67, Vol. VIII at 120-21 (Testimony of Leora Joseph); Vol. IX at 37-39, Vol. X at 65 (Testimony of David Deakin).
47. Judge Lopez’s comments to ADA Joseph were unwarranted and unprofessional. They did not represent professional criticism of a lawyer appearing before the Court. Rather, they were intended to be demeaning and personally insulting to the prosecutor. The net effect of such treatment was the removal of ADA Joseph as the lead prosecutor. Vol. VIII at 120-121 (Testimony of Leora Joseph); Vol. X at 65 (Testimony of David Deakin).
C. Judge Lopez intended her comments to ADA Joseph on August 4 as a personal insult and as a characterization of “the woman who, you know, stays home, goes to the beauty parlor and does her nails.”
48. By telling ADA Joseph that she belonged in the suburbs, Judge Lopez meant to criticize ADA Joseph by conveying to her that she did not know how to do her job, that she was not competent to handle cases that arise in an inner-city court, and that she was the kind of woman who “stays home, goes to the beauty parlor and does her nails.” Vol. I at 85–87 (Testimony of Judge Lopez); Ex. 32 at 76.
49. In fact, contrary to Judge Lopez’s baseless assertion, ADA Joseph has had extensive experience with urban populations. She grew up in Montreal, Canada, and attended Barnard College in New York City and McGill University Law School in Montreal. While at Barnard, ADA Joseph worked with emotionally abused children as a teacher’s aid. She also had an internship with the City of New York working with inner-city teenage mothers, and she wrote her undergraduate thesis on the topic of teenage inner-city mothers. Vol. VI at 6-8 (Testimony of Leora Joseph).
50. At the time of the Horton sentencing, ADA Joseph had been working in the Suffolk County District Attorney’s office for approximately 6 ½ years and had spent one year as supervisor of the assistant district attorneys at the Boston Municipal Court. She began working in the child abuse unit in 1997, where she had an annual case load of approximately 80 cases, of which approximately 15 were indicted as felonies each year. Vol. VI at 8-10 (Testimony of Leora Joseph).
51. Although Judge Lopez admitted that her comment “you belong in the suburbs” was inappropriate, she justified it as part of her (Judge Lopez’s) personality. Vol. I at 87–88 (Testimony of Judge Lopez); Ex. 32 at 77.
52. Judge Lopez’s comments to ADA Joseph were unwarranted and unprofessional. They did not represent professional criticism of a lawyer appearing before the Court. Rather, they were intended to be demeaning and personally insulting to the prosecutor, as, in fact, they were. See supra ¶¶ 48-51.
D. During the August 4, 2000 hearing on the continuance of the plea, Judge Lopez falsely stated that she would not hear the Horton case because of her crowded calendar that day, when in truth the Court continued the hearing specifically to avoid media coverage.
53. On August 4, 2000, Judge Lopez falsely stated in open court that she would not hear the Horton case because she had too many other matters to address that day. Ex. 42 (8/4/00 Transcript of Horton continuance hearing) at 2. In fact, the Court’s schedule was not the reason for her continuing the Horton case. Ex. 32 at 84; Vol. X at 147 (Testimony of Joan Kenney).
54. After granting the continuance, Judge Lopez wrote findings of fact in response to the opposition filed by the Commonwealth and faxed the document as a “press release” to be issued by Ms. Kenney. The fax line indicates that it was sent to Ms. Kenney at 4:07 p.m. that afternoon. Ex. 49 (Fax from Judge Lopez to Joan Kenney); Vol. I at 120 (Testimony of Judge Lopez); Vol. X at 147-48 (Testimony of Joan Kenney).
55. Judge Lopez’s true reason for granting the continuance was the presence of the media. She hoped that, by continuing the case, she would avoid media attention. Ex. 32 at 84; Vol. X at 147 (Testimony of Joan Kenney); Vol. VI at 74 (Testimony of Leora Joseph); Vol. IX at 52-53 (Testimony of David Deakin); Ex. 17 (Judge Lopez’s August 4 Findings).
ALLOWED-Except the Court would say that one of Judge Lopez’s true reasons was the presence of the media. The main reason was the defense counsel’s reluctance to go forward.
E. On August 4, 2000, Assistant District Attorney David Deakin objected to the continuance on behalf of the Commonwealth and noted to Judge Lopez her statutory obligation to enter written findings. Judge Lopez responded in what the Assistant District Attorney perceived to be a hostile tone: “You will get written findings.”
56. When Judge Lopez announced that she was continuing the case, ADAs Deakin and Joseph opposed the continuance, having in mind that the child’s grandmother had been waiting in court all day for the case to be resolved, and that a September hearing would prevent the victim from resolving his traumatic experience prior to the new school year. Vol. VI at 71 (Testimony of Leora Joseph); Ex. 17 (Commonwealth’s Opposition to a Continuance); Vol. IX at 50-51 (Testimony of David Deakin).
57. When ADA Deakin requested that Judge Lopez provide written findings on his opposition as required by statute, the Judge replied “You will get written findings” in a threatening, hostile tone. Vol. VI at 70–71 (Testimony of Leora Joseph); Vol. IX at 56 (Testimony of David Deakin); Ex. 42 (8/4/00 Transcript of Horton continuance hearing) at 3.
58. M.G.L. ch. 278, §16F requires that a judge make written findings before granting a continuance in a child sexual abuse case. Judge Lopez did not make written findings pursuant to the statute until after she had granted the continuance. Ex. P (M.G.L. ch. 278, §16F) ; Ex. 42 (8/4/00 Transcript of Horton continuance hearing) at 2-3; Vol. IX at 56 (Testimony of David Deakin). Her decision to continue the case was made earlier that day in the lobby, according to the Judge’s testimony. Ex. 32 at 84.
F. On August 4, 2000, Judge Lopez issued findings to support the continuance in which the Court falsely stated that:
(a) the Assistant District Attorney had a habit of calling in the press;
59. See Sections II (A) and (B), above.
ALLOWED AS IN THESE SECTIONS
60. Press relations and contacts by the Suffolk County Assistant District Attorneys are governed by a specific policy and guidelines. In August 2000, the District Attorney’s Office had both a written and unwritten press policy. The written policy required that all assistant district attorneys consult with the press office before speaking with the press. The Press Office was responsible for deciding whether, and to what extent, the ADAs could speak with the press. The unwritten press policy, and the custom within the Suffolk District Attorney’s office, required the ADAs to inform the Press Office of cases likely to generate news coverage or that were otherwise newsworthy. Vol. IX at 17-18, 22-23 (Testimony of David Deakin); Ex. 25 (District Attorney’s Written Press Policy).
61. ADA Joseph complied with the District Attorney’s office press policy by keeping the press office apprised of events in the Horton case. Vol. IX at 30-31 (Testimony of David Deakin). ADA Joseph never contacted the press concerning the Horton matter, nor did she have any conversation with the press concerning the case. Vol. VI at 57–60, 82-83 (Testimony of Leora Joseph). Notably, Ms. Joseph had no involvement in the drafting of, nor the decision to issue, the District Attorney’s August 3 press release. Vol. VI at 62 (Testimony of Leora Joseph); Ex. 7 (District Attorney’s August 3, 2000 press release). In any event, Judge Lopez testified that there was “nothing inappropriate . . . nothing unethical” about the issuance of the District Attorney’s August 3 press release. Ex. 32 at 74.
62. Judge Lopez made no inquiry before finding that ADA Joseph “called in the press” and had a “habit” of doing so. Vol. IX at 66 (Testimony of David Deakin). The only basis for this finding was ADA Joseph’s denial of responsibility for the press release and the mere existence of the press release itself.. Vol. I at 110 (Testimony of Judge Lopez). In fact, the release states that James Borghesani was the author; Mr. Borghesani was in charge of media relations for the District Attorney’s Office. Ex. 7 (District Attorney’s August 3, 2000 press release); Vol. IX at 23 (Testimony of David Deakin).
63. By her own admission, Judge Lopez did not contact District Attorney Ralph Martin, ADA Deakin, Mr. Borghesani, or First Assistant Elizabeth Keeley to determine how the press release came about, though she admits that she could have done so. Rather, the Judge simply inferred (wrongly) that ADA Joseph was untruthful and that she wrote or caused the issuance of the press release. Vol. I at 109-10, 119 (Testimony of Judge Lopez).
64. Based solely on unfounded assumptions drawn from the Judge’s prior experience with ADA Joseph in Calixte and Estrada, Judge Lopez falsely accused ADA Joseph of “calling in the press” in the Horton matter. Ex. 32 at 79; Vol. I at 88-89, 100-02, Vol. II at 7-8 (Testimony of Judge Lopez); Vol. VIII at 60-62 (Testimony of Leora Joseph); Vol. XII at 110-11 (Testimony of Anne Goldbach). Indeed, ADA Joseph did not “call in the press” in Horton, and there is simply no basis for the finding that ADA Joseph had a “habit” of “calling in the press.” Vol. VI at 82-83 (Testimony of Leora Joseph); Vol. IX at 57 (Testimony of David Deakin).
65. Judge Lopez instructed court personnel to fax her findings as a “press release” to the Court’s public information officer for distribution to the press that very afternoon. Ex. 49 (Fax from Judge Lopez to Joan Kenney); Vol. I at 120-23 (Testimony of Judge Lopez); Vol. X at 147-48 (Testimony of Joan Kenney).
66. Judge Lopez’s issuance of a written finding ascribing intentional and unethical conduct to ADA Joseph was unreasonable and not supported by the facts as the Judge knew them at the time. See supra ¶¶ 59-65.
(b) the Assistant District Attorney attempted to embarrass and ridicule a defendant “suffering from a psychological disorder,”
67. The August 4 finding that ADA Joseph specifically intended to embarrass and ridicule Horton was false, and there is no basis for any such conclusion. ADA Joseph had no intention of embarrassing or ridiculing Mr. Horton, nor did ADA Joseph attempt to use press coverage to gain leverage in the sentencing proceeding. Vol. VI at 89 (Testimony of Leora Joseph); Vol. IX at 57-58, 62 (Testimony of David Deakin).
68. Further, nothing before Judge Lopez on August 4 stated or established that Horton had a “psychological disorder.” The social worker report (Ex. 3) includes no such diagnosis but says only that Horton is “transgendered.” Ex. 3 (social worker report) at 1.
69. Judge Lopez faxed these findings — which were described as a “press release” — to Joan Kenney, the Court’s public information officer, for immediate distribution to the press. Ms. Kenney circulated them as instructed. Ex. 49 (Fax from Judge Lopez to Joan Kenney); Vol. I at 120-23 (Testimony of Judge Lopez); Vol. X at 147-49 (Testimony of Joan Kenney).
70. In publishing her findings to the media, Judge Lopez increased media interest in the matter and focused attention on Horton’s “psychological disorder,” stating that “‘she’ looks female in all respects.” The Judge’s findings (Ex. 17) were the first public statement that Horton had a “psychological disorder” or a “sexual identity disorder,” neither of which diagnoses was adequately established by the social worker’s report. Vol. I at 127 (Testimony of Judge Lopez); Ex. 17 (Judge Lopez’s August 4 Findings); Ex. 3 (social worker report). The findings also announced to the press the Judge’s highly personal and improper rebuke of the District Attorney’s Office.
71. Judge Lopez knew and intended that this finding would be interpreted as a statement that ADA Joseph was acting unethically and intentionally to harm the defendant. The Judge ignored the impact that this (false) finding would have on ADA Joseph or the defendant. Vol. I at 105-06, 111; Vol. III at 154 (Testimony of Judge Lopez).
(c) the Commonwealth caused the continuance by seeking to turn the court proceedings into a “circus.”
72. On the morning of August 4, 2000, there were reporters present in the courthouse, and a camera was set up in the courtroom. There was nothing approximating a “media circus.” Vol. VI at 90-92 (Testimony of Leora Joseph).
73. Nonetheless, Judge Lopez found, without taking any evidence, that the District Attorney’s Office intentionally sought to disrupt the August 4 proceedings by turning them into what the Judge characterized as a “media circus.” Vol. I at 117–18 (Testimony of Judge Lopez); Ex. 17 at ¶7 (Judge Lopez’s August 4 Findings).
74. There is no reasonable basis for the Court’s finding that the District Attorney’s Office had any malevolent intent or improper purpose in issuing its press release on August 3. Vol. I at 108-10, 117-18 (Testimony of Judge Lopez); Vol. VI at 90-92 (Testimony of Leora Joseph); Vol. IX at 62-64 (Testimony of David Deakin). In fact, this finding is expressly contradicted by the Judge’s sworn testimony before Commission Counsel in which she openly admitted that there was “nothing inappropriate” and “nothing unethical” about the August 3 release. Ex. 32 at 74. Nor is there any basis for the Court’s interpretation of the District Attorney’s press release as an invitation “calling in the media” for purposes of encouraging a “media circus.” Ex. 7 (District Attorney’s August 3, 2000 press release).
75. Judge Lopez knowingly brought this accusation to the media’s attention by sending her findings as a “press release” to Joan Kenney for distribution. Ex. 49 (Fax from Judge Lopez to Joan Kenney); Vol. I at 120-24 (Testimony of Judge Lopez); Vol. X at 147-149 (Testimony of Joan Kenney). In so doing, the Judge publicized her personal disagreement with the District Attorney and thereby escalated the press attention to the Horton case, a consequence she claimed to be trying to avoid by continuing the case. Vol. I at 125 (Testimony of Judge Lopez). Indeed, as a result, on August 5, 2000, the day following the Judge’s release of her findings to the press, both of the major Boston newspapers ran stories identifying Judge Lopez’s findings and her harsh criticism of the District Attorney. Vol. X at 151-52 (Testimony of Joan Kenney); Exs. 15, 19 (newspaper articles commenting on Judge Lopez’s August 4 findings).
76. Judge Lopez’s findings did not serve the purposes of the statute by which they were required, and served no legitimate purpose in the Horton proceedings. They were intended to embarrass ADA Joseph and punish the District Attorney’s Office. Ex. P (M.G.L. ch. 278, §16F); Ex. 17 (Judge Lopez’s August 4 Findings)
77. See also Section II(F)(a), (b), above.
G. On or before September 6, 2000 and in anticipation of what she viewed as unwelcome press interest in the Horton case, Judge Lopez made special arrangements for the defendant (but not for the victim’s family) to enter the courthouse and utilize a back elevator and a room, neither of which was available to the public or defense counsel in the ordinary course of business. The Judge made these arrangements to defeat what she viewed as inappropriate press attention. At no time was counsel for the Commonwealth advised of these arrangements.
78. In advance of the September 6, 2000 hearing, Judge Lopez arranged to have a court officer meet Horton and his counsel outside the courthouse on the day of the plea, escort them up a private elevator, and place them in a private room to await the hearing. Vol. II at 25-27 (Testimony of Judge Lopez); Vol. XIII at 39-40 (Testimony of Anne Goldbach).
79. Judge Lopez claims to have initiated these arrangements in order to avoid press attention to Horton. Such arrangements were not requested by the defendant or his counsel. Vol. II at 25-27 (Testimony of Judge Lopez); Vol. XIII at 39-40 (Testimony of Anne Goldbach); Ex. 32 at 85-87.
80. Neither Judge Lopez nor anyone else informed the District Attorney’s Office of these arrangements. Vol. IX at 68-69 (Testimony of David Deakin).
81. These arrangements were plainly unwarranted since Horton ignored them and entered the courthouse through the front door and took the public elevator without ever being approached by the press. After Horton found his counsel in or near the courtroom, they took advantage of the Judge’s offer and waited in a private room. Vol. II at 27 (Testimony of Judge Lopez); Vol. XIII, at 38-40 (Testimony of Anne Goldbach).
NEITHER ALLOWED NOR DENIED
82. Judge Lopez made these arrangements sua sponte, without informing the District Attorney. While a judge has broad discretion to make arrangements to ensure the safety of court personnel and the public, the Horton arrangements were clearly arranged to preclude the press from access to Horton. Such arrangements served to create an appearance of favoritism on the part of the Judge toward the defendant. See supra ¶¶ 78-81.
NEITHER ALLOWED NOR DENIED
H. On September 6, 2000 and for the purpose of insulating Horton from exposure to cameras the Court permitted in the courtroom, Judge Lopez ordered court personnel to shield the defendant from cameras and placed Horton in a designated location with his back to the press.
83. Prior to the hearing on September 6, 2000, Judge Lopez issued an Order prohibiting the press from photographing Mr. Horton. Ex. A (Order Limiting use of Cameras).
84. Usually, criminal defendants are seated in the witness box, in public view, during a plea hearing. Vol. IX at 70-71 (Testimony of David Deakin).
85. Judge Lopez directed that Horton be placed in a chair, shielded from public view by defense counsel and a court officer. Vol. II at 27-29 (Testimony of Judge Lopez); Vol. XIII at 40-41 (Testimony of Anne Goldbach); Ex. 41 (Videotape of 9/6/00 Sentencing Hearing); Ex. 32 at 87-88. The effect of these arrangements was to prevent the press and the public from viewing the defendant. While Judge Lopez had entered an order permitting the use of cameras during the proceeding, she deliberately frustrated that order by blocking any view of Horton. Indeed, the videotape of the proceedings reveals that Horton could not be seen. Ex. 41 (Videotape of 9/6/00 Horton sentencing hearing).
86. Such arrangements were unusual and excessive, and served to create an appearance of favoritism on the part of the Judge toward the defendant. See supra, ¶¶ 83-85.
NEITHER ALLOWED NOR DENIED
I. On September 6, 2000, Judge Lopez conducted the change of plea and sentencing hearing in Horton. On separate occasions during that hearing, Judge Lopez failed to accord the Assistant District Attorneys a full right to be heard on behalf of the Commonwealth:
(a) During ADA Deakin’s recitation of the facts, Judge Lopez interrupted and suggested that his description was sufficient. The Assistant District Attorney had to request permission to complete the Commonwealth’s statement of the facts in support of the plea.
87. The purpose of an ADA’s recitation of facts at a plea hearing is to set forth those facts that the Commonwealth expects to prove at trial, including facts sufficient to support the guilty plea and such facts as support the Commonwealth’s sentencing recommendation. Vol. IX at 78-79 (Testimony of David Deakin). It is neither a legal requirement nor the practice in Superior Court to interfere with the District Attorney’s discretion in determining the scope of his recitation of such facts in criminal cases.
88. Before allowing ADA Deakin to recite the facts at the September 6, 2000 plea and sentencing hearing, Judge Lopez instructed that she wanted to hear only the facts pertaining to the indictments at issue — a statement perceived by Deakin to be bizarre, as it was inherent in the proceeding that he would only recite facts relevant to the charges to which Horton was pleading guilty. Ex. 22 at 12; Ex. 41; Vol. IX at 72-73 (Testimony of David Deakin).
89. During ADA Deakin’s presentation of the factual basis, Judge Lopez interrupted ADA Deakin, stating that he had recited sufficient facts. Such an interruption is unusual. ADA Deakin explained that there were additional relevant facts and requested permission to continue before the Judge allowed him to complete his recitation. Ex. 22 at 15-16; Ex. 41; Vol. IX at 78 (Testimony of David Deakin).
90. There was no justification for Judge Lopez’s attempt to restrict ADA Deakin’s recitation of the facts and to limit his right to be heard. This attempt created at least the appearance that Judge Lopez sought to avoid public disclosure of facts which she viewed as likely to cause public criticism of her or her sentence. See supra, ¶¶ 87-89.
(b) Judge Lopez asked ADA Deakin to rate the case on a scale of one to ten relative to other cases. The Assistant District Attorney responded, explaining that he rated the case a “ten” in terms of absence of any pre-existing relationship between Horton and the victim; he considered it “in the quite serious range” given the age of the child; and as “moderately serious” in terms of the completed assault, though he noted that it could have been more serious had the police not intervened. The following exchange then took place:
THE COURT: Well, let me just say that I’ve been a Judge now since 1988, and I have n many of these cases. And in the scale of cases that charge sexual assault of children, this is on a very low level. Okay? And, so, I really think it’s disingenuous for you to tell me that this is a ten. I’ll hear from the defense attorney.
ASSISTANT DISTRICT ATTORNEY DEAKIN: Your Honor, if I may –
THE COURT: No, you may not. You may sit down now.
ASSISTANT DISTRICT ATTORNEY DEAKIN: I –
THE COURT: You may sit down now or I’ll get a Court Officer to make you sit down. And I’ll hear from the defense attorney.
ASSISTANT DISTRICT ATTORNEY DEAKIN: I object to being charged with being disingenuous.
THE COURT: I find it was disingenuous, and I know better than that.
During the course of this exchange, Judge Lopez raised her voice and shook her finger at Assistant District Attorney Deakin, who remained calm and professional in his manner.
91. Immediately following ADA Deakin’s reading of victim impact statements prepared by the victim’s mother and grandmother, Judge Lopez asked the Assistant District Attorney to rate the Horton case. The Judge’s purpose in asking this question was to demonstrate that his sentencing recommendation was excessive since the Judge claimed to have made her sentencing decision on August 1. Ex. 22 at 29; Vol. IV at 112 (Testimony of Judge Lopez).
92. Judge Lopez’s demeanor in posing these questions was impatient and hostile. Ex. 41.
93. ADA Deakin responded by explaining that there were several axes on which he evaluated the case, and he identified three separate ratings, providing a detailed explanation for each. Ex. 22 at 29-30; Vol. IX at 99 (Testimony of David Deakin).
94. Judge Lopez responded to ADA Deakin in a condescending and hostile manner, stating that the Horton crime was on a “very low level” and accusing ADA Deakin of being “disingenuous” to the Court. Ex. 22 at 31; Ex. 41.
95. ADA Deakin had a responsibility as a lawyer for the Commonwealth to respond to Judge Lopez’s characterization of his analysis as “disingenuous.” He attempted to ask if he could be heard, but was cut-off by Judge Lopez, who yelled and pointed her finger at him, telling him to sit down. Indeed, the Judge threatened Deakin with bodily restraint, saying that if he did not sit down, a court officer would make him sit down. Vol. IX at 100 (Testimony of David Deakin); Ex. 22 at 31; Ex. 41.
96. In response, ADA Deakin stated calmly and professionally that he objected to Judge Lopez’s finding that he was disingenuous, to which Judge Lopez responded, still in an elevated and hostile tone, that she “kn[e]w better than that.” Ex. 22 at 31; Ex. 41.
97. The Judge’s conduct and demeanor throughout this exchange was unjustified and unprofessional, and intended to demean and embarrass ADA Deakin in open court. See supra, ¶¶ 91-96.
(c) When ADA Joseph (at the request of the victim’s mother and grandmother) attempted to read the relevant victim impact statements into the record, Judge Lopez refused to allow her to participate in the hearing and directed ADA Deakin to read the impact statements. At all relevant times, Ms. Joseph was the Assistant District Attorney in charge of the Horton case.
98. ADAs Joseph and Deakin decided prior to the September 6 hearing that ADA Deakin would present the Commonwealth’s recitation of the facts, but that ADA Joseph would read the victim impact statements because of her relationship with the victim and his family. Vol. VI at 99, Vol. VIII at 119-20 (Testimony of Leora Joseph).
99. As ADA Joseph stood up to read the victim impact statements, Judge Lopez looked at ADA Deakin and instructed him to read the statements. Vol. VI at 99-100 (Testimony of Leora Joseph); Vol. IX at 94-95 (Testimony of David Deakin); Ex. 22 at 25-26; Ex. 41 (Videotape of 9/6/00 Horton sentencing hearing).
100. There was no reasonable basis for Judge Lopez’s refusal to allow ADA Joseph to participate in the Horton sentencing proceeding since she had been lead prosecutor in the Horton case from its inception. Such treatment of a litigant was undignified and unprofessional. See supra, ¶¶ 98-99.
(d) When ADA Deakin sought to be heard for the purpose of properly reminding Judge Lopez to specify the conditions of probation, Judge Lopez interrupted the Assistant District Attorney and stated in a hostile manner, “I don’t want to hear from you anymore. Do you understand?” and “No. You will not be heard. I said, I’ve heard enough.”
101. Following Judge Lopez’s imposition of sentence, ADA Deakin asked if he could be heard to correct the Judge’s failure to specify the conditions of probation. See Ex. 22 at 32-33, Vol. IX at 111-12 (Testimony of David Deakin).
102. Judge Lopez interrupted ADA Deakin, stating that she did not want to hear from him. When ADA Deakin replied by calmly asking to be heard, Judge Lopez yelled at him, saying that he would not be heard, and that she had heard enough from him. Ex. 22 at 32; Ex. 41.
103. There was no reasonable basis for the Judge’s refusal to allow ADA Deakin to be heard, and her behavior toward ADA Deakin was undignified, unwarranted, and unprofessional.
(e) While ADA Deakin was stating the Commonwealth’s recommendations for sentence, Judge Lopez asked sarcastically: “And would the Commonwealth request that this defendant be sent to a male prison or female prison?”
104. Following ADA Deakin’s detailed explanation of the Commonwealth’s sentencing recommendation, Judge Lopez asked him, “And would the Commonwealth request that this defendant be sent to a male prison or a female prison?” Ex. 22 at 24; Ex. 41. Judge Lopez’s tone was sarcastic and impatient. It was apparent that her question was not sincere, particularly since the Judge has stated that she made up her mind about sentencing Horton to probation on August 1 more than a month earlier. Vol. IV at 71-72 (Testimony of Judge Lopez); Response ¶¶14, 16; Ex. 41. In fact, other observers viewed her tone as sarcastic. Ex. 14 (9/12/00 article noting Judge Lopez’s sarcastic tone).
105. ADA Deakin explained — in a calm and sincere manner — that he had determined that arrangements could be made within the prison system to accommodate a defendant such as Mr. Horton. Judge Lopez, however, interrupted ADA Deakin and stated, “And protective custody means they’re locked up all day?” Ex. 22 at 24; Ex. 41.
106. ADA Deakin responded that such was the case in a maximum security facility, and Judge Lopez again interrupted to emphasize her point by saying, “Right.” But ADA Deakin went on to explain that a maximum security facility would not be the likely destination for Mr. Horton, who likely would be placed in a non-violent segment of the prison population. Ex. 22 at 24-25; Ex. 41.
107. Judge Lopez’s question concerning the male/female prison served no legitimate purpose in the Horton sentencing proceeding since she intended to sentence him to probation. Her remarks were sarcastic and intended to embarrass or antagonize ADA Deakin.
J. After the sentencing on September 6, 2000, while the matter was pending before her, Judge Lopez placed ex parte telephone calls to defense counsel Anne Goldbach to express her concern for counsel’s and the defendant’s well-being. She encouraged defense counsel to defend her sentence of Horton publicly.
108. Sections I (A), (B) and (C), above.
K. In a further effort to defend her sentence to Mr. Horton, Judge Lopez contacted Boston Police detective Jay Greene, whom the Judge understood to have been “first on scene,” and therefore, a material witness. She also encouraged the Public Information Officer of the Supreme Judicial Court to contact the detective to obtain information which would justify her sentence in Horton.
109. Section I (E), above.
L. During the August 1, 2000 conference, in Commonwealth v. Horton, Judge Lopez categorized transgendered persons, like the defendant, stating that she knows “these people,” and justified a sentence of probation by stating: “They are not violent.”
110. Following ADA Joseph’s presentation of the Commonwealth’s position during the August 1, 2000 plea conference, Judge Lopez asked ADA Joseph if she knew anything about transgendered people, to which ADA Joseph responded “not much.” Vol. VI at 46, 55 (Testimony of Leora Joseph).
111. Judge Lopez stated that she had personal experience with transgendered individuals because she has a house in Provincetown, and that transgendered people are not violent. Vol. VI at 46, 55 (Testimony of Leora Joseph); Vol. XIII at 22-23 (Testimony of Anne Goldbach).
112. Judge Lopez further claimed that Horton was “mentally ill” merely because he was transgendered, without any expert support for such a conclusion. Vol. V at 96-98, 100-101; Response ¶¶9, 12, 13, 15(F), 17.
113. Judge Lopez’s comments regarding transgendered people constituted inappropriate, gratuitous stereotyping that had, and has, no basis in fact, and created the appearance of bias.
III. Judge Lopez Used The Court System in Disregard Of Her Obligation To Uphold The Impartiality And Integrity Of The Judiciary
A. On August 4, 2000, having continued the Horton case for change of plea and sentencing to avoid press attention, Judge Lopez asserted falsely that the continuance was a result of her crowded calendar. At the insistence of the Commonwealth, Judge Lopez entered “findings,” which findings were false and constituted a pretext to conceal the Court’s actions. These “findings” were entered as part of the official court record.
114. See Section II (D), above, regarding Judge Lopez’s false statement on the record that she was continuing the Horton case because of her crowded calendar.
115. ADAs Deakin and Joseph opposed the continuance and requested written findings regarding the impact on the child victim as required by M.G.L. ch. 278, §16F. Ex. P (M.G.L. ch. 278, §16F); Ex. 17 (Commonwealth’s Motion in Opposition to Continuance); Ex. 42 at 2-3; Vol. IX at 48 (Testimony of David Deakin).
116. Pursuant to the mandate of M.G.L. ch. 279, §4B, the District Attorney’s Office had notified the victim and his family of the scheduled change in plea and sentencing so that they could exercise their right to present impact statements in court. Thus, in opposing the continuance, the ADAs had in mind the fact that the victim’s grandmother had been in court all day, and that a September hearing date would prevent the victim from resolving this traumatic experience prior to the start of the new school year. Vol. VI at 70-71 (Testimony of Leora Joseph); Ex. 17 (Commonwealth’s Motion in Opposition to Continuance).
117. Contrary to the requirements of the statute, Judge Lopez did not make written findings until after she had continued the case, and after the Commonwealth specifically requested that she do so. Vol. IX at 56 (Testimony of David Deakin); Ex. 17 (Judge Lopez’s August 4 findings); Ex. 42 (Transcript of 8/4/00 Horton continuance hearing) at 2-3.
118. Judge Lopez made only one finding concerning the impact on the victim: “There is little [or] no impact on the alleged victim as this is a plea.” (emphasis added). The Court took no evidence before making this finding, and although she knew the victim’s grandmother was present, Judge Lopez made no inquiry regarding the ability of the victim’s grandmother to return on another day to present or observe her impact statement in Court. Vol. VI at 90 (Testimony of Leora Joseph); Vol. IX at 66 (Testimony of David Deakin); Ex. 17 (Judge Lopez’s August 4 Findings).
119. The remainder of Judge Lopez’s findings, which were entered as part of the public Court record, had no relevance to the impact on the victim, but attacked ADA Joseph and the District Attorney’s Office. Vol. VI at 82, 90 (Testimony of Leora Joseph); Vol. IX at 57-67 (Testimony of David Deakin); Ex. 17 (Judge Lopez’s August 4 Findings).
120. Judge Lopez sent her findings to the Court’s Public Information Officer, describing them as a “press release” and instructing Ms. Kenney to distribute them to the media. Ex. 49 (Fax from Judge Lopez to Joan Kenney); Vol. X at 147-149 (Testimony of Joan Kenney); Vol. I at 120-23 (Testimony of Judge Lopez).
121. These findings did not serve the purpose of the statute nor any legitimate purpose in the Horton proceedings.
122. See also Section II (F), above.
AS ALLOWED IN THESE SECTIONS
B. In her “findings” in support of the continuance, Judge Lopez stated: (a) that ADA Joseph had a “habit” of calling in the press; (b) that she attempted to embarrass and ridicule a defendant; and (c) that the Commonwealth had caused the continuance by turning the proceeding into a “circus.” There was no basis in fact for these pretextual findings, concerning which the Court took no evidence.
123. See Sections II (F) and III (A), above.
AS ALLOWED IN THESE SECTIONS
C. Following the September 6, 2000 court proceedings, and in response to unfavorable reactions to her decision in the press, Judge Lopez contacted the Office of Public Information of the Supreme Judicial Court. Judge Lopez made material misrepresentations to the Public Information Officer, knowing that she would rely on such false information in communicating with the press and the public. Specifically, Judge Lopez falsely communicated to the Public Information Officer that: (a) the 11-year-old victim was not kidnapped; (b) the defendant did not use a screwdriver as a weapon in the commission of the offense; and (c) that her reference to the offense as “low level” was a reference to sentencing guidelines.
124. Judge Lopez understood that, as the Court’s Public Information Officer, Ms. Kenney acted as the judiciary’s liaison with the public and the media. Vol. II at 39 (Testimony of Judge Lopez). She further understood that Ms. Kenney would rely on information provided to her in communicating with the public and the media. Vol. II at 56-57 (Testimony of Judge Lopez); Vol. X at 157-58 (Testimony of Joan Kenney).
125. Judge Lopez knew that she was the exclusive source of information regarding the Horton sentence and she expected Ms. Kenney to accept her representations as true. The Judge knew that the “factual” representations contained in the press release would be attributed to her and based on the information that she provided to Ms. Kenney. Vol. II at 55–57 (Testimony of Judge Lopez); Vol. X at 157-58 (Testimony of Joan Kenney).
126. Knowing that Ms. Kenney was the Court’s liaison with the public, and knowing that Ms. Kenney was preparing a statement on her behalf, Judge Lopez told Ms. Kenney that the victim was not kidnapped, and that the screwdriver was not used as a weapon — information that the Judge knew to be false and in direct conflict with Horton’s admissions in open court and the guilty pleas that the Judge accepted on September 6. Vol. X at 155-56, 160-61; Vol. XI at 62-63 (Testimony of Joan Kenney).
127. Judge Lopez specifically told Ms. Kenney that her statement in open court that the Horton case was “on a very low level” was a reference to the sentencing guidelines. Vol. X at 153-54, 159 (Testimony of Joan Kenney). This statement was false. Judge Lopez was not referring to the sentencing guidelines when she said in open court that the case was “on a very low level.” Ex. 32 at 37-38, 40; Ex. 41 (Videotape of 9/6/00 Horton sentencing hearing); Vol. IX at 115 (Testimony of David Deakin). Judge Lopez respectfully testified to the Commission under oath that she never had the guidelines in mind. Ex. 32 at 37-38, 40.
128. Indeed, under the sentencing guidelines, the crimes to which Horton pled guilty range up to level seven on a nine-level scale, falling within the same category as manslaughter and just below only first and second degree murder, forcible rape of a child, and other similarly egregious crimes. In fact, kidnapping and assault with intent to rape a child under 16 are among the most serious felonies. Vol. IX at 115 (Testimony of David Deakin); Vol. XI at 132-33 (Testimony of Chief Justice DelVecchio).
129. Judge Lopez provided false information in an attempt to deflect criticism and to “spin” and “explain away” her conduct in the Horton case. In so doing, she misled the media and the public. Vol. II at 72–75 (Testimony of Judge Lopez); Ex. 32 at 32, 38, 40.
130. See also Section III (D), below, regarding Judge Lopez’s authorization of her press release.
D. Judge Lopez caused the Public Information Office of the Supreme Judicial Court to issue a press statement on her behalf titled “In the Matter of Charles Horton in Response to Media Reports by Judge Maria Lopez” knowing that this release contained materially false statements including: (a) that Judge Lopez’s sentencing reference to “low level” referred to proposed sentencing guidelines; and (b) that there were “certain facts” known to the Judge which, if known by the public, would support her sentencing decision.
131. Following the Horton sentencing on September 6, Judge Lopez contacted Joan Kenney to discuss issuing a public statement concerning the sentencing proceeding. Vol. II at 39, Vol. IV at 137 (Testimony of Judge Lopez). It was solely within Judge Lopez’s discretion and control whether to issue such a statement. It was the Judge’s sole responsibility to ensure that her statement was accurate and appropriate. Vol. II at 49 (Testimony of Judge Lopez); Vol. X at 165 (Testimony of Joan Kenney); Vol. XI at 134-35, 155-57 (Testimony of Chief Justice DelVecchio).
132. Judge Lopez told Ms. Kenney that her comment that the case was “low level” was a reference to the sentencing guidelines. Vol. X at 153-54, 159 (Testimony of Joan Kenney). As discussed in Section III (C), above, this statement was false and intended only as “spin” on the part of Judge Lopez to deflect criticism. Vol. II at 72-75 (Testimony of Judge Lopez); Ex. 32 at 37-40.
133. Judge Lopez also told Joan Kenney that the victim was not kidnapped and that the screwdriver was not used as a weapon — information that the Judge knew to be false. See Section III (C), above. The Judge provided this false information to Ms. Kenney, even though the defendant had admitted to these same facts in open court, and the Judge accepted the defendant’s guilty plea to the kidnapping charge. Ex. 22 at 12-19; Ex. 41 (Videotape of 9/6/00 Horton sentencing hearing).
134. Ms. Kenney drafted Judge Lopez’s statement based on the information that the Judge gave her. Vol. X at 157-58, Vol. XI at 78 (Testimony of Joan Kenney). Accordingly, the Judge’s statement falsely stated that the Judge was referring to the sentencing guidelines in using the words “low level,” and falsely indicated that there were “certain facts” that could not be disclosed. Ex. 4 (September 7 statement by Judge Lopez). Ms. Kenney believed such “certain facts” to refer to the Judge’s (false) representation that the child was not kidnapped and that the screwdriver was not used as a weapon. The existence of the social worker assessment (Ex. 3) was not a basis for the reference to “certain facts,” as Judge Lopez had never even mentioned such a report to Ms. Kenney. Vol. X at 160-62 (Testimony of Joan Kenney).
135. Judge Lopez specifically authorized the release of the public statement without identifying any errors or inaccuracies. Having been told by Judge Lopez to “send it out,” Ms. Kenney faxed the statement to the print and broadcast media at Judge Lopez’s direction. Vol. X at 165-66 (Testimony of Joan Kenney).
136. At the time she directed Ms. Kenney to issue the statement to the press, Judge Lopez knew that the information that she had provided to Ms. Kenney was false. Ex. 32 at 37-40, 146. She likewise knew that there were no facts that fit the description of the press release — i.e., there were no facts that could not be disclosed that would have changed the public perception of the Horton case. Ex. 32 at 139-40. Nonetheless, the Judge never disclosed to Ms. Kenney or to the Chief Justice that there were inaccuracies in her statement. Ex. 32 at 28; Vol. II at 62 (Testimony of Judge Lopez); Vol. X at 165-167 (Testimony of Joan Kenney).
137. The personal statement, issued on September 7, was titled “In the Matter of Charles Horton in response to Media Reports, by Judge Maria Lopez.” Exs. 4 and 24 (emphasis added). Judge Lopez intended the document to be accepted as her personal statement, and in fact, the public viewed it as her statement. Vol. II at 95 (Testimony of Judge Lopez); Exs. 10, 12, 34-40, 58, 61, 62 (articles and complaints referring to Judge Lopez’s statement).
138. Judge Lopez approached the issuance of her statement as an opportunity to manipulate public opinion regarding her sentence and conduct in the Horton case. She viewed the effort as nothing more than an exercise in “spin.” Vol. II at 72-75 (Testimony of Judge Lopez); Ex. 32 at 32, 38.
139. During the course of the Hearing, the Judge offered numerous revisions to her statement that would be necessary to make it accurate. Indeed, she acknowledged that her statement as issued was not accurate, but claimed it was sufficient “for a press release.” Vol. IV at 150-51 (Testimony of Judge Lopez). In fact, it was a personal statement from Judge Lopez and was not a press release from the court system. See Vol. IV at 147 (Testimony of Judge Lopez).
140. Following the release on September 7 of Judge Lopez’s statement (Exs. 4 and 24) alluding (falsely) to certain “facts” not known to the public, a recurrent theme appeared in the media that there might be other information that would change the public’s perception of the sentence. Such speculation focused on the character of the victim. Vol. II at 89–90 (Testimony of Judge Lopez); Exs. 12, 14, 35-40 (articles referring to the “certain facts”).
141. Judge Lopez intentionally caused Ms. Kenney to issue a public statement on the Judge’s behalf that contained false information in order to deflect public criticism of her and her sentence. Vol. II at 72-75 (Testimony of Judge Lopez); Ex. 32 at 38-40.
IV. Judge Lopez Made And Encouraged Misleading Public Comment On A Pending Matter
A. Following the September 6 sentencing, Judge Lopez engaged in ex parte contacts with defense counsel Anne Goldbach and the Chief Counsel William Leahy at CPCS and encouraged them to defend the Horton sentence in the press. Both defense counsel and Chief Counsel for CPCS spoke with the press after their ex parte conversations with the Judge.
142. Exs. 11-14, 20, 21, 34 (articles referring to statements by William Leahy and Anne Goldbach).
143. See Sections I (A) and (C), above.
B. Following the September 6 hearing, Judge Lopez talked with Boston Police detective Jay Greene about the Horton sentencing. Judge Lopez also provided the Public Information Office of the Supreme Judicial Court with the detective’s phone number and encouraged that office to contact the detective and use his information to defend the Judge’s sentencing decision.
144. See Sections I (D) and (E), above.
C. On or about September 7, Judge Lopez made material misrepresentations to the Public Information Officer of the Supreme Judicial Court, knowing that she would issue a release containing false information to the press. Specifically, Judge Lopez falsely told the Public Information Officer that: (a) the 11-year-old victim was not kidnapped; (b) the defendant did not use a screwdriver as a weapon in the commission of the offense; and (c) that her reference to the offense as “low level” was a reference to sentencing guidelines. Judge Lopez approved the Public Information Office’s issuance of the statement which she knew to be false in order to facilitate a defense of her sentencing decision and without regard for the integrity of the Court’s communications to the public.
145. See Sections III (C) and (D), above.
D. In response to a telephone call from a Boston Herald reporter, Judge Lopez stated that she was prohibited from discussing the case, and that “[T]here is more to the case than meets the eye.” She then stated, “Call around and you’ll get the real story. I’m sorry but I can’t give it to you, though.” This again implied the existence of “facts” which, if known publicly, purported to justify the Horton sentence. José Martínez, Grandma Denies Kid Knew Molester, Boston Herald, September 10, 2000.
146. Ex. 30 (9/10/00 article containing quote from Judge Lopez).
NEITHER ALLOWED NOR DENIED - SEE DECISION
E. Following September 6, 2000, Judge Lopez discussed the Horton case with numerous individuals in order to defend her public image and her sentencing decision.
147. At the end of the September 6, 2000 sentencing hearing, Judge Lopez explicitly retained jurisdiction over the Horton case at the request of defense counsel. Ex. 22 at 34.
148. Judge Lopez understood that, by retaining jurisdiction, she ensured that Horton would come before her again if there were any violation of probation or other issue that could cause Horton to be re-sentenced. Ex. 22 at 34; Vol. II at 96-99 (Testimony of Judge Lopez). The Judge still considered the case to be “pending” for purposes of probation. In fact, since the September 6, 2000 hearing, the Horton matter has been before Judge Lopez with respect to probation matters on several occasions, and Judge Lopez continues to supervise Horton’s probation even today. Vol. II at 99-100 (Testimony of Judge Lopez); Ex. 32 at 11, 14, 101; Vol. XIII at 49-50 (Testimony of Anne Goldbach). Correspondingly, defense counsel Anne Goldbach still represents Horton. Vol. XIII at 30 (Testimony of Anne Goldbach).
149. Notwithstanding her having retained jurisdiction over the case, and despite advice from the Chief Justice not to discuss the case, Judge Lopez repeatedly discussed the Horton case, including the false information provided by Greene and the contents of the social worker’s report, with third parties in the days following September 6. Vol. XIV at 54-56 (Testimony of Judge McEvoy); Vol. XI at 124 (Testimony of Chief Justice DelVecchio). Indeed, Judge Lopez had conversations with friends, colleagues, and the media concerning the Horton case as early as September 6 and 7. Vol. IV at 137 (Testimony of Judge Lopez); Ex. 32 at 55-56.
150. Despite having accepted Horton’s admissions to the facts as presented by the ADA and his guilty pleas, Judge Lopez has discussed publicly the “different versions” of the facts. Ex. 32 at 118-21. Judge Lopez shared the information that she was told by Detective Greene — information she knew to be false — on “hundreds” of occasions following the sentencing in order to defend herself and her sentence. Vol. III at 44-45 (Testimony of Judge Lopez); Ex. 32 at 53-55.
151. Judge Lopez’s purpose in publicly spreading false information was to deflect criticism and to promote her own public image: “I had hundreds of conversations, but my whole goal was to have me not portrayed as this crazy judge who puts predatory pedophiles on the street.” Ex. 32 at 118-119 (emphasis added).
V. Judge Lopez Failed To Be Patient, Courteous And Dignified, And Failed To Accord Every Person Or Litigant A Full Right To Be Heard According to Law
A. On August 4, 2000, during a lobby conference prior to the scheduled change of plea, Judge Lopez stated to Assistant District Attorney Leora Joseph, in substance: “You’re very mean. . . . You’re very young. . . . This is all your fault. . . . You belong in the suburbs.”
152. See Section II (B), above.
B. At the hearing on August 4, 2000, Assistant District Attorney David Deakin objected to the continuance of the Horton plea and sentencing on behalf of the Commonwealth. The Assistant District Attorney reminded Judge Lopez of her statutory obligation to issue written findings regarding the continuance. Judge Lopez responded to the Assistant District Attorney in a condescending and hostile tone, “You will get written findings.”
153. See Section II (E), above.
154. Ex. 42 at 3.
C. In her findings in support of the continuance, Judge Lopez stated: (a) that the Assistant District Attorney had a “habit” of calling in the press; (b) that she attempted to embarrass and ridicule a defendant; and (c) that the Commonwealth had caused the continuance by turning the proceeding into a “circus.” There was no basis in fact for these findings.
155. See Section II (F), above.
D. On September 6, 2000, Judge Lopez conducted the change of plea and sentencing in Horton. On separate occasions during that hearing, Judge Lopez failed to accord the Assistant District Attorneys a full right to be heard and was abusive in her manner toward them:
(a) During ADA Deakin’s recitation of the facts, Judge Lopez interrupted and suggested that his description was sufficient. The Assistant District Attorney had to request permission to complete the Commonwealth’s statement of the facts in support of the plea.
156. Judge Lopez and her counsel have conceded that there is no defense to her demeanor on September 6, 2000. Ex. 44 at 3, 12-13.
157. See Section II (I)(a), above.