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 0001
                                                      Volume I 
                                                      Pages 1 - 34
                                            
                        THE COMMONWEALTH OF MASSACHUSETTS
                         COMMISSION ON JUDICIAL CONDUCT
                                        
                         Complaint No. 2000-110, et seq.
              
              - - - - - - - - - - - - - - - - - - - x   
                                                    :
              In the Matter of Investigation of:    :     
              The Honorable Maria I. Lopez,         :
              Associate Justice, Superior Court     :
              Department                            :
                                                    :
              - - - - - - - - - - - - - - - - - - - x 
              
              BEFORE:  Hearing Officer E. George Daher,
                          Chief Justice (Ret.)
              
                       Guillermo Garza, Esq., Clerk
              
              APPEARANCES:
              
                  Goodwin Procter LLP (by Paul F. Ware, Jr., Esq., 
                       Roberto M. Braceras, Esq., and Cheryl R. 
                       Brunetti, Esq.) Exchange Place, Boston, MA 
                       02109 for the Commission on Judicial 
                       Conduct.
              
                  Law Office of Richard M. Egbert (by Richard M.
                       Egbert, Esq.) 99 Summer Street, Boston, MA
                       02110, for the Honorable Maria I. Lopez.
              
                                     * * * *
                       
                                     held at
                           Edward W. Brooke Courthouse
                              24 New Chardon Street
                              Boston, Massachusetts
                            Friday, November 15, 2002
                                   12:05 p.m.
                                        
                                Carol H. Kusinitz
                        Registered Professional Reporter
                                        
                                     * * * *
              
 0002
          1                   P R O C E E D I N G S
          2            HEARING OFFICER DAHER:  Mr. Egbert, do you 
          3   want to start it off? 
          4            MR. EGBERT:  I do. 
          5            Your Honor, I think the first matter before 
          6   you is my motion to compel the deposition of Dave 
          7   Wedge. 
          8            HEARING OFFICER DAHER:  Go ahead.  I'll 
          9   hear it.
         10            MR. EGBERT:  Your Honor, it wasn't until 
         11   November 7th of 2002 that the Commission on Judicial 
         12   Conduct gave notice to the Defendant that it may 
         13   call David Wedge as a witness during its case in 
         14   chief, or at all.  As you know from pleadings, we 
         15   then immediately filed seeking permission from the 
         16   Commission under the rules to depose Mr. Wedge.  It 
         17   was denied in a manner that, quite frankly, I don't 
         18   understand, indicating that the discovery period was 
         19   ended, and Mr. Wedge's connection to this --
         20            HEARING OFFICER DAHER:  It would have to be 
         21   the ruling for acts not forseeable; is that correct? 
         22            MR. EGBERT:  Right.  Mr. Wedge's connection 
         23   to this matter has been known for some time.  His 
         24   name appeared on an article regarding Judge Lopez. 
 0003
          1            Well, his name appeared on a number of 
          2   articles as a person who contributed to various 
          3   articles, but what's of particular interest, during 
          4   the course of Judge Lopez's deposition with regard 
          5   to these matters, counsel for the Commission asked 
          6   Judge Lopez about a particular news article, and I 
          7   think it's the one they're referring to now, which 
          8   had a by line by Mr. Martinez.  And the Commission's 
          9   counsel specifically asked Judge Lopez, "Did you 
         10   make the following statement to Mr. Martinez?"  And 
         11   Judge Lopez indicated she did not. 
         12            They never asked her if she made the 
         13   statement to Mr. Wedge, and of course, she never -- 
         14   she was never asked, nor was it answered, nor do we 
         15   know what Mr. Wedge may have to say in that regard. 
         16            We have no statements from Mr. Wedge.  We 
         17   have no notes of interviews of Mr. Wedge.  He was 
         18   never deposed, as far as we know.  He was never 
         19   spoken to by the Commission, as far as we know, at 
         20   least by way of any information given to us.  In 
         21   fairness, it seems to me that we ought to be 
         22   entitled to depose him to find out what he has to 
         23   say.
         24            HEARING OFFICER DAHER:  Well, this was 
 0004
          1   brought to my attention by your associate, Pat, and 
          2   then you and I discussed this.  And I had suggested 
          3   to you that maybe Mr. Wedge should have counsel here 
          4   today, and it was your thoughts that, let's get a 
          5   ruling first, and then we can take it from there.
          6            MR. EGBERT:  It was their preference to 
          7   have Mr. Wedge on their witness list, so I assume 
          8   Mr. Wedge has not exhibited any objection to having 
          9   testified.
         10            HEARING OFFICER DAHER:  Mr. Ware.
         11            MR. WARE:  Your Honor, a couple of things.  
         12   First of all, there are a great many witnesses in 
         13   this case who have not been deposed.  And so on the 
         14   issue of prejudice, if anything, there are 20 or 
         15   more witnesses on the defense list here about whom 
         16   the Commission had no knowledge whatsoever until 
         17   November 12th or 13th.
         18            So on the scale of surprise here, this one 
         19   is way down that scale. Both sides are going to have 
         20   to live with some uncertainties here.  We're now at 
         21   the point of trial. 
         22            With respect to Mr. Wedge in particular, 
         23   the fact is that the formal charges identified this 
         24   article.  It would have taken no more than a phone 
 0005
          1   call to the newspaper or to Mr. Martinez to learn 
          2   that Mr. Wedge was in fact the reporter who spoke 
          3   personally -- says he spoke personally with Judge 
          4   Lopez. 
          5            Moreover, this was not a fleeting 
          6   conversation.  This was a conversation, face to 
          7   face, which we're given to understand Mr. Wedge 
          8   introduced himself to Judge Lopez.  We never did 
          9   depose Mr. Wedge.  He is represented at this point 
         10   by counsel for the Boston Herald. 
         11            So all of this could have been learned, was 
         12   known.  Counsel have been in this matter for a long 
         13   time.  The rules, as the Court knows, provide that 
         14   the hearing was to have occurred within 60 days.  
         15   We're now six or seven months out.  There's been 
         16   ample opportunity to deal with this issue. 
         17            MR. EGBERT:  Judge, I don't understand the 
         18   answer, quite frankly.  The Commission says -- 
         19   counsel says that they have a number of witnesses 
         20   who they haven't deposed.  They never sought to 
         21   depose anyone, quite frankly, nor did they ever file 
         22   asking me for a witness list or discovery. 
         23            The Commission had within the rules the 
         24   ability to send me a letter asking for discovery at 
 0006
          1   any time, and they never did, not once.  So it's not 
          2   as if I'm springing anything on them.  In fact, they 
          3   simply never asked for discovery in this case, and 
          4   that should be made a part of the record.  Had they 
          5   asked for discovery, they would have gotten whatever 
          6   discovery they asked for under the rule. 
          7            Number two, it doesn't take a phone call.  
          8   Reporters don't talk to me, and reporters don't give 
          9   me information without some form of process.  And 
         10   with the byline being Mr. Martinez, and with 
         11   counsel's questions being directed to whether or not 
         12   Judge Lopez ever made that statement to Mr. 
         13   Martinez, we felt quite secure, because Judge Lopez 
         14   informed me and counsel that she never met Mr. 
         15   Martinez. 
         16            So this statement attributed to her by Mr. 
         17   Martinez and asked if she delivered to Mr. Martinez 
         18   was fairly easy to deal with in this case, because 
         19   in fact Judge Lopez had never had any discussion 
         20   whatsoever with Mr. Martinez. 
         21            Now at the last minute they say, no, it was 
         22   Mr. Wedge who had this conversation.  They never 
         23   asked Judge Lopez about it when she was deposed, and 
         24   therefore we're entitled to know.
 0007
          1            MR. WARE:  Your Honor, may I respond 
          2   briefly?
          3            HEARING OFFICER DAHER:  Please. 
          4            MR. WARE:  Neither side asked for a witness 
          5   list until the last conference before the Court.  
          6   Obviously, if I had asked for a witness list three 
          7   months ago, counsel would have said what he said 
          8   last week:  "We don't have it yet." 
          9            So it's not a question of our springing any 
         10   information on Judge Lopez's counsel at this 
         11   juncture.  Moreover, Mr. Wedge's name is on the 
         12   article.  It's the tag line on the article.  So it 
         13   would not have taken in-depth inquiry to figure out 
         14   who made the quote.  Defense counsel was in as good 
         15   a position as we were to learn anything about Mr. 
         16   Wedge. 
         17            The point is, at this juncture we're about 
         18   to start the trial.  There are many witnesses in the 
         19   case that are going to go on this witness stand 
         20   without having been deposed, and there is no 
         21   prejudice of any moment to Judge Lopez here. 
         22            HEARING OFFICER DAHER:  I'm going to take 
         23   this under advisement until about 4:30 this 
         24   afternoon.
 0008
          1            MR. EGBERT:  May I say one other thing for 
          2   your information?
          3            HEARING OFFICER DAHER:  Yes.
          4            MR. EGBERT:  I suspect any deposition of 
          5   Mr. Wedge will not delay these proceedings one iota, 
          6   based on our schedule.  I can depose him Monday 
          7   afternoon. 
          8            HEARING OFFICER DAHER:  Okay.  I'll take it 
          9   under advisement.  I'll have an answer for you by 
         10   4:30.  
         11            We have another one dealing with Ms.  
         12   Beaucage.
         13            MR. EGBERT:  That relates to Ms. Beaucage.
         14            HEARING OFFICER DAHER:  Is there any 
         15   opposition to that? 
         16            MR. WARE:  Yes, Your Honor.
         17            HEARING OFFICER DAHER:  What's your 
         18   opposition?  
         19            MR. WARE:  The opposition is, Your Honor, 
         20   that --
         21            HEARING OFFICER DAHER:  How will you be 
         22   prejudiced by it, Mr. Ware?
         23            MR. WARE:  Well, I can't say that would I 
         24   would be prejudiced by it.  The circumstances are 
 0009
          1   these, Your Honor.  This witness was deposed for 
          2   several hours.  As the Court may know from the 
          3   formal charges, the only relevance of this witness 
          4   is that she allegedly received a phone call from the 
          5   Judge at eleven o'clock at night in November of 
          6   2000, asking what her name was and so forth. 
          7            So this is not a witness with substantive 
          8   information beyond that.  She has already been 
          9   deposed for two hours, and the questions went well 
         10   beyond anything conceivably relevant about this 
         11   witness, Your Honor. 
         12            She's in her early 70s.  When --
         13            HEARING OFFICER DAHER:  Mr. Egbert, an 
         14   offer of proof.  If she were to testify, what would 
         15   you expect to elicit from her?
         16            MR. EGBERT:  The problem, Judge, is in Mr. 
         17   Ware's presentation to you -- and I'm frankly 
         18   saddened by the fact that whenever he makes a 
         19   presentation, it seems to be half a presentation, 
         20   because I had this conversation with him yesterday. 
         21            Ms. Beaucage is not being offered for the 
         22   fact that she received a phone call only.  The 
         23   formal charges in this case indicate and allege that 
         24   as a result of that phone call, she felt 
 0010
          1   intimidated, pressured, scared, threatened and the 
          2   like. 
          3            Now, I had a conversation with Mr. Ware 
          4   yesterday where he made these same kinds of remarks:  
          5   "Well, it's only about her receiving the phone 
          6   call."  I said, "If it's only about her receiving 
          7   the phone call, then I would stipulate that she 
          8   received the phone call.  Judge Lopez admitted that 
          9   she made a phone call on that night."
         10            The issue I want to depose --
         11            HEARING OFFICER DAHER:  The motion is 
         12   allowed.  You can have that one. 
         13            Any other motions?
         14            MR. WARE:  Your Honor, with respect to the 
         15   Beaucage matter --
         16            HEARING OFFICER DAHER:  Yes.
         17            MR. WARE:  -- may there be a time limit, 
         18   such as an hour.  That would be three hours --
         19            HEARING OFFICER DAHER:  I'm not going to 
         20   set any parameters on it, Mr. Ware.  The stakes are 
         21   too high in this case. 
         22            MR. EGBERT:  Judge, do you want to set a 
         23   date so that it can be a court-ordered date so I 
         24   don't have to go round and round with Ms. Beaucage?
 0011
          1            HEARING OFFICER DAHER:  Why don't you pick 
          2   a date that is conducive to your schedule and 
          3   conducive to Mr. Ware's schedule and get back to me.  
          4   It will obviously have to be done some afternoon.
          5            MR. EGBERT:  I'll report back to you.
          6            HEARING OFFICER DAHER:  What other motions 
          7   do we have, gentlemen? 
          8            MR. WARE:  Your Honor, there was -- 
          9            HEARING OFFICER DAHER:  The one with regard 
         10   to the Leahy matter? 
         11            MR. WARE:  Yes, Your Honor.  The 
         12   transcript, I have -- we've agreed on a proposed 
         13   order.
         14            HEARING OFFICER DAHER:  Is that order okay, 
         15   Mr. Egbert?  With the limitations placed in that 
         16   order, is that satisfactory? 
         17            MR. EGBERT:  It is, Your Honor. I think -- 
         18   there are some wordage changes.  I hope you have 
         19   them.
         20            HEARING OFFICER DAHER:  Okay.  It's 
         21   approved. 
         22            What else do we have, Mr. Ware?  Anything 
         23   else? 
         24            MR. WARE:  Your Honor, to the extent the 
 0012
          1   Court makes a ruling this afternoon that there will 
          2   be further depositions in this case, I just want to 
          3   advise you that I will then move to depose other 
          4   witnesses about whom we've just learned, and --
          5            HEARING OFFICER DAHER:  Such as?
          6            MR. WARE:  Well, Jerry Hart, for one, 
          7   perhaps some of the judges, Joseph Carter, a number 
          8   of individuals on the list that we received only 
          9   this week.  So it seems to me this has to be 
         10   reciprocal. 
         11            MR. EGBERT:  Well, Judge, when they file 
         12   for that, we should argue it obviously, but they 
         13   never asked for discovery in this case.  They simply 
         14   never asked for discovery under the rule.
         15            MR. WARE:  That doesn't preculde me from 
         16   asking for discovery with respect to witnesses about 
         17   whom we had no knowledge. 
         18            HEARING OFFICER DAHER:  I'll take it under 
         19   advisement.  What else do we have?  Anything else? 
         20            MR. WARE:  Your Honor, one --
         21            HEARING OFFICER DAHER:  Again, for all 
         22   parties concerned, I know that Judge Lopez waived 
         23   any rights of privacy.  So upon conclusion of this 
         24   meeting today, the press is going to be given a list 
 0013
          1   of witnesses.  
          2            Okay.  What else do we have? 
          3            MR. WARE:  Your Honor, we do not have a 
          4   list of exhibits from the defense.  We provided a 
          5   list of exhibits, and I thought that the import of 
          6   the Court's order last time at our conference was 
          7   that there would be a mutual exchange.
          8            HEARING OFFICER DAHER:  Also a list of 
          9   expert witnesses.  Do you have a list of expert 
         10   witnesses?
         11            MR. WARE:  Yes, Your Honor.
         12            HEARING OFFICER DAHER:  With their resumes, 
         13   their curriculum vitaes?
         14            MR. WARE:  We do not have that at this 
         15   time.  It may be that there are no expert witnesses, 
         16   that would explain this, but we haven't been told 
         17   that.
         18            HEARING OFFICER DAHER:  That would be my 
         19   reading of it.
         20            MR. EGBERT:  Obviously I didn't file any 
         21   CVs.  That was the week we were --
         22            HEARING OFFICER DAHER:  Okay.  That was 
         23   impression of it.
         24            MR. WARE:  That's fine, Your Honor.  But we 
 0014
          1   would like an exhibit list promptly. 
          2            HEARING OFFICER DAHER:  Well, the order 
          3   read that, obviously, as soon as possible, all 
          4   documents for identification would be marked at 
          5   least one half hour before trial. 
          6            Do you have a list of exhibits that you 
          7   could give brother counsel right now, Mr. Egbert?
          8            MR. EGBERT:  Well, Your Honor, I don't 
          9   intend -- I don't intend, unless ordered differently 
         10   by you, I don't intend to give counsel items which I 
         11   intend to use in cross-examination, because I'm 
         12   going to wait to see the examination of the 
         13   witnesses and see whether or not their testimony 
         14   varies from certain matters that I have in my 
         15   possession.  Those matters I do not intend to 
         16   educate the witnesses with regard to.
         17            HEARING OFFICER DAHER:  Mr. Ware.
         18            MR. WARE:  Your Honor, surely there is a 
         19   baseline group of documents or exhibits which 
         20   defense intends to offer at this juncture.  The 
         21   parameters of this case are well known.  They have 
         22   been spelled out for over a year --
         23            HEARING OFFICER DAHER:  Mr. Egbert, are 
         24   there documents that will not be used for cross- 
 0015
          1   examination solely, that, as Mr. Ware puts it, are 
          2   baseline documents that there should be no 
          3   objections to? 
          4            MR. EGBERT:  To the extent there are, Your 
          5   Honor, I'll identify them for counsel.
          6            HEARING OFFICER DAHER:  Okay.  I have 
          7   another motion.  You wrote me a letter to indicate 
          8   you wanted to the Court to vacate that order.
          9            MR. WARE:  Yes, Your Honor.
         10            HEARING OFFICER DAHER:  I'm taking that 
         11   under advisement.  I'll get back to you on it. 
         12            What else do we have?
         13            MR. EGBERT:  Judge, I'm --
         14            MR. WARE:  Excuse me.  Your Honor, with 
         15   respect to vacating that order, I just want to make 
         16   clear that my basis for that is my mistaken belief 
         17   that I had not turned over the information.  And 
         18   having discovered that I did turn it over --
         19            HEARING OFFICER DAHER:  Well, wait a 
         20   minute, Mr. Ware.  You turned it over to Mr. Mone, 
         21   but when Mr. Egbert made the request, it wasn't 
         22   turned over to him.  That tape wasn't turned over to 
         23   him.
         24            MR. WARE:  No, Your Honor.
 0016
          1            HEARING OFFICER DAHER:  That's the import 
          2   of the letter.
          3            MR. WARE:  No, Your Honor.
          4            HEARING OFFICER DAHER:  I'm sorry, go 
          5   ahead. 
          6            MR. WARE:  The way this worked was, there 
          7   was successor counsel, but everything that we had 
          8   turned over to Mr. Mone was given to Mr. Egbert.  
          9   There was no separate request from Mr. Egbert to 
         10   receive all the same discovery from us.
         11            HEARING OFFICER DAHER:  Did you file any 
         12   discovery requests, Mr. Egbert, or did you rely on 
         13   Mr. Mone's discovery?
         14            MR. EGBERT:  My statement to counsel was 
         15   that I asked for everything in the file --
         16            HEARING OFFICER DAHER:  Right.
         17            MR. EGBERT:  -- when I came into the case.  
         18   And there were matters that weren't given to Mr. 
         19   Mone which were provided to me subsequently.  That 
         20   was not a motion.
         21            HEARING OFFICER DAHER:  Okay.
         22            MR. WARE:  But, Your Honor --
         23            MR. EGBERT:  Quite frankly, you know, if 
         24   you examined the transcript of that conference 
 0017
          1   before you, Your Honor, I think you will find it 
          2   pretty clear my memory is --
          3            HEARING OFFICER DAHER:  You mean in the 
          4   pretile transcript?
          5            MR. EGBERT:  Yes.
          6            HEARING OFFICER DAHER:  You haven't sent it 
          7   to me yet.
          8            MR. EGBERT:  I haven't gotten it yet.  I 
          9   had assumed that the Court had gotten them in that 
         10   regard.  Assuming is the wrong thing to do. 
         11            But I think -- my memory is quite clear 
         12   that Mr. Ware made the following statements:  "One, 
         13   I don't know if I have it.  Two, I don't know if 
         14   I've seen it" --
         15            HEARING OFFICER DAHER:  I have a good 
         16   memory, Mr. Egbert.  I know exactly what he said. 
         17            Anything else? 
         18            MR. WARE:  Yes, Your Honor.  I mean, as I 
         19   explained to the Court, but I will reiterate, I had 
         20   no idea this issue was going to come up.  And it 
         21   wasn't until subsequent to the conference that we 
         22   went back, we looked at the production that had been 
         23   made to counsel for Judge Lopez.  The obligation 
         24   here is to make the information available to counsel 
 0018
          1   for Judge Lopez.
          2            HEARING OFFICER DAHER:  Let me tell you 
          3   right now, subsequent to the pretrial conference -- 
          4   is that correct? 
          5            MR. WARE:  Yes.
          6            HEARING OFFICER DAHER:  But according to 
          7   what you communicated to me, as you were walking up, 
          8   someone told you that there was a tape, and that 
          9   refreshed your recollection.  That was my memory.
         10            MR. WARE:  Yes, Your Honor.
         11            HEARING OFFICER DAHER:  But was it prior to 
         12   or subsequent to the pretrial conference?
         13            MR. WARE:  I raised it at the conference 
         14   before you because of the discussion on the way 
         15   over.
         16            HEARING OFFICER DAHER:  Okay.
         17            MR. WARE:  I did not have an opportunity to 
         18   go back and look at correspondence until 
         19   subsequently.
         20            HEARING OFFICER DAHER:  Okay.
         21            MR. WARE:  It was only in looking at the 
         22   correspondence and checking what we had already 
         23   produced to defense counsel that we realized we had 
         24   offered to produce it.
 0019
          1            HEARING OFFICER DAHER:  No problem.  I'll 
          2   take it under advisement. 
          3            What else do we have, gentlemen? 
          4            MR. EGBERT:  Judge, I had faxed over this 
          5   morning a preliminary motion in limine.  I don't 
          6   know if the Court got it.
          7            HEARING OFFICER DAHER:  I haven't seen it 
          8   yet. 
          9            MR. EGBERT:  Did you get it?
         10            MR. WARE:  I have it.
         11            HEARING OFFICER DAHER:  I haven't seen it.  
         12   Do you have a copy for me?
         13            (Document handed to the Court   
         14            by Mr. Egbert)
         15            HEARING OFFICER DAHER:  Okay.  I'll hear 
         16   it.  Go ahead.
         17            MR. WARE:  Excuse me, Your Honor, I would 
         18   like an opportunity to respond to the motion we just 
         19   got in the last hour.
         20            HEARING OFFICER DAHER:  Do you want time to 
         21   review it?
         22            MR. WARE:  I want time to file an 
         23   opposition to it.
         24            HEARING OFFICER DAHER:  Sure. 
 0020
          1            Go ahead.
          2            MR. EGBERT:  You want me to argue it now? 
          3            HEARING OFFICER DAHER:  Any objection if he 
          4   argues it now?
          5            MR. WARE:  No, I don't object to arguing it 
          6   at the moment, but --
          7            HEARING OFFICER DAHER:  Your response will 
          8   be filed shortly.
          9            MR. WARE:  -- I may well ask the Court to 
         10   argue additional points after we get a chance to 
         11   review it and make some further legal argument, Your 
         12   Honor. 
         13            HEARING OFFICER DAHER:  Mr. Egbert, go 
         14   ahead.  I would like to hear your comments.
         15            MR. EGBERT:  Judge, I apologize, but I've 
         16   given you my copy.  I just gave you my copy. 
         17            MR. WARE:  Here.
         18            MR. EGBERT:  Judge, I'm fine. 
         19            HEARING OFFICER DAHER:  We can get a copy.
         20            (Pause)
         21            HEARING OFFICER DAHER: Go ahead, Mr. 
         22   Egbert. 
         23            MR. EGBERT:  Thank you.  Your Honor, 
         24   pursuant to Commission rule, Judge Lopez and her 
 0021
          1   attorney, Mr. Mone, appeared before the Commission 
          2   on April 18th, 2002, before the issuance of formal 
          3   charges in this case, and attempted a disposition of 
          4   the matter. 
          5            Mr. Mone's opening words to the 
          6   Commissioner were, "I want to thank the members of 
          7   the Commission very much for seeing Judge Lopez here 
          8   this afternoon.  I would like to talk to you about a 
          9   disposition in the case, and I would like to talk to 
         10   you about why I believe the public disposition 
         11   without sanctions," and then he goes on. 
         12            And then he goes on to give his argument as 
         13   to why a particular disposition would be 
         14   appropriate, even though, as he acknowledges in the 
         15   next paragraph, that he has defenses to many of 
         16   them; in essence, an offer to settle the matter in a 
         17   particular way. 
         18            Judge Lopez then gave a short statement 
         19   adopting Mr. Mone's statements and indicating that a 
         20   particular settlement would be appropriate in her 
         21   mind also. 
         22            The Commission rejected that by the fact 
         23   that they brought formal charges. 
         24            It seems to me that that is classic 
 0022
          1   settlement discussions, and it is classic offer in 
          2   compromise to compromise a piece of litigation --
          3            HEARING OFFICER DAHER:  I'll hear Mr. Ware 
          4   on that point.  An offer of compromise, negotiations 
          5   for settlement.
          6            MR. WARE:  Yes, Your Honor, as I said 
          7   earlier, I would like to file memorandum in 
          8   opposition.  But I think the thrust of the argument 
          9   I would make to Your Honor is, this is anything but 
         10   an offer in compromise. 
         11            The fact that Mr. Mone says, "I want to 
         12   talk to you about a disposition in this case," does 
         13   not change the statutory character of the right of 
         14   the Judge to appear on that occasion before the 
         15   Commission on Judicial Conduct. 
         16            It is what it is, and what Mr. Mone wished 
         17   it to be doesn't change the character of that.  The 
         18   fact is, were the Court to look at this in camera, 
         19   it would see that there was no exchange at all about 
         20   a proposed disposition.  There was no -- I don't 
         21   believe --
         22            HEARING OFFICER DAHER:  At that particular 
         23   time, did the -- did the Commission have something 
         24   in mind that would act as a final resolution of the 
 0023
          1   matter? 
          2            MR. WARE:  No, You Honor.
          3            HEARING OFFICER DAHER:  There were no 
          4   negotiations whatsoever?
          5            MR. WARE:  No, Your Honor.
          6            HEARING OFFICER DAHER:  Now, did the 
          7   Commission understand that when Mr. Mone was there, 
          8   that he was there for the sole purpose -- for the 
          9   purpose of trying to negotiate --
         10            MR. WARE:  Well, he absolutely was not 
         11   there for that purpose. 
         12            HEARING OFFICER DAHER:  What was he there 
         13   for?
         14            MR. WARE:  He was there pursuant to the 
         15   right provided by the rules as follows.  I'm looking 
         16   at Section 5 of the statute that is Chapter 211C, 
         17   Subparagraph 9.  Quote, "If the judge requests a 
         18   personal appearance before the Commission" --
         19            HEARING OFFICER DAHER:  Right.
         20            MR. WARE:  -- "he may be accompanied by 
         21   counsel, his statement and that of his counsel shall 
         22   be recorded, and the Commission shall not issue 
         23   formal charges until after" --
         24            HEARING OFFICER DAHER:  Mr. Ware, at any 
 0024
          1   time prior or subsequent to Mr. Mone's presence at 
          2   the  Commission, was there any thought on the part 
          3   of the Judicial Conduct Commission to resolving it?  
          4   Did they have anything in mind that would resolve 
          5   the matter prior or subsequent thereto? 
          6            MR. WARE:  Your Honor, as the Court might 
          7   expect, counsel and I had then and have had since 
          8   conversations about a possible resolution.  They 
          9   were entirely divorced from the appearance before 
         10   the Commission. 
         11            The appearance before the Commission is a 
         12   statutory right.  The Judge had the option of doing 
         13   it or not.  The statute provides that it must be 
         14   recorded, implying in and of itself that that 
         15   statement can be used.  It is plainly an admission 
         16   of the Judge, and it is plainly something which can 
         17   be taken into account.
         18            HEARING OFFICER DAHER:  Okay.  Go ahead.  
         19   Why don't you wrap it up, Mr. Egbert.
         20            MR. EGBERT:  Judge, once again, Mr. Ware 
         21   says that there were absolutely no negotiations.  
         22   Mr. Mone is prepared to come in here and testify 
         23   under oath that he and Mr. Ware were in a number of 
         24   discussions that one would classify as discussions 
 0025
          1   of negotiations between counsel, both before the 
          2   appearance, during the appearance and after the 
          3   appearance.  And so for Mr. Ware to indicate the 
          4   opposite, once again, is just simply not in 
          5   conformance with the fact.
          6            MR. WARE:  You know, I have not indicated 
          7   the opposite.
          8            MR. EGBERT:  You said to the Judge there 
          9   were absolutely no negotiations.
         10            MR. WARE:  No.  You missed --
         11            MR. EGBERT:  Well, there's a transcript.
         12            HEARING OFFICER DAHER:  Gentlemen.  Let him 
         13   finish. 
         14            Go ahead. 
         15            MR. EGBERT:  The right of the Judge to 
         16   appear by statute doesn't change the character of 
         17   what that appearance was about. 
         18            Mr. Mone was clearly there in an attempt to 
         19   resolve this matter by some disposition.  The 
         20   Commission was listening to them in that regard, and 
         21   there were discussions had amongst counsel in that 
         22   regard.  And so I think -- I'm anxious to see Mr. 
         23   Ware's response.  I simply would like to respond to 
         24   it.
 0026
          1            HEARING OFFICER DAHER:  Well, I think his 
          2   response is going to be it was a voluntary 
          3   declaration, that they weren't solicited by the 
          4   Commission, and --
          5            MR. EGBERT:  Well, maybe the Court should 
          6   take a brief piece of evidence in that regard before 
          7   ruling, and I will have Mr. Mone come in and testify 
          8   as to his conversations with Mr. Ware before his 
          9   appearance --
         10            HEARING OFFICER DAHER:  When can I get a 
         11   memo on that, Mr. Ware?
         12            MR. WARE:  Your Honor, I said earlier, 
         13   contrary to what my distinguished colleague has 
         14   represented, that of course Mr. Mone and I talked 
         15   prior to that occasion, after that occasion, and I 
         16   have had conversations with Mr. Egbert about 
         17   possible resolutions, none of which changes the 
         18   character of the Judge's appearance before the 
         19   Commission, which is statutorily provided for. 
         20            Now, what she had in her mind or her 
         21   counsel's mind is up to them, but it cannot change 
         22   the evidentiary quality of that appearance. 
         23            HEARING OFFICER DAHER:  Okay.  Are you 
         24   going to have something for me by Monday morning? 
 0027
          1            MR. WARE:  Yes. 
          2            HEARING OFFICER DAHER:  What else do we 
          3   have?  I'll take it under advisement.  I'll await 
          4   that. 
          5            Next issue.  Anything else, gentlemen? 
          6            MR. EGBERT:  If I could have a moment.
          7            HEARING OFFICER DAHER:  Take your time.
          8            MR. WARE:  While Mr. Egbert is pondering, 
          9   Your Honor, there is the issue of transcripts.
         10            HEARING OFFICER DAHER:  Right.
         11            MR. WARE:  I don't know whether the Court 
         12   has resolved that or not.  I know you wanted daily 
         13   copy.  I know the Commission did not have funding 
         14   for that.  I don't know whether you have had any 
         15   communication --
         16            HEARING OFFICER DAHER:  I talked to Chief 
         17   Justice Marshall, and she said, "Fine."  She 
         18   recognized the importance of having the transcript.  
         19   I think that was communicated to Ms. Brunetti. 
         20            MS. BRUNETTI:  Yes.
         21            MR. WARE:  That was my understanding, Your 
         22   Honor.  So I'm assuming those logistics are in 
         23   place, and we don't have to do anything in that 
         24   regard.
 0028
          1            HEARING OFFICER DAHER:  That is the 
          2   understanding. 
          3            Mr. Egbert, what else do you have? 
          4            MR. EGBERT:  Judge, frankly, to address an 
          5   issue from your court officer, I'm going to raise 
          6   the issue of press so we're all on the same page as 
          7   to what we're doing, if you think that's appropriate 
          8   now.
          9            HEARING OFFICER DAHER:  I would be 
         10   delighted to hear you.
         11            MR. EGBERT:  It is not a matter of being 
         12   heard.  It is a matter of coordinating with the 
         13   Court.  It would be my preference -- obviously, I 
         14   understand that they have asked to have a pool 
         15   camera.
         16            HEARING OFFICER DAHER:  That is fine. 
         17            MR. EGBERT:  Which is fine.
         18            HEARING OFFICER DAHER:  I think that's the 
         19   proper way to go, one camera, a pool.
         20            MR. EGBERT:  Which is fine with me.  On the 
         21   issue of still cameras, I consider them a disruption 
         22   for noisely snapping away when they already have a 
         23   video going.  So I raise that so we all know what's 
         24   going on and where we're going.
 0029
          1            HEARING OFFICER DAHER:  Mr. Ware.  I can 
          2   make a ruling on that.  No big deal.
          3            MR. WARE:  Your Honor, I leave that to the 
          4   Court's discretion.  I think Mr. Egbert has a point.  
          5   I think when the Court is in session, it may well be 
          6   disruptive to have them snapping away.  When the 
          7   Court is not in session, that may be another matter. 
          8            HEARING OFFICER DAHER:  Okay.
          9            MR. EGBERT:  Let's see if we can address 
         10   that one.  When the Court is not in session, I would 
         11   ask the Court for an order that when the parties are 
         12   leaving this courthouse, that photographers, news 
         13   cameramen, the media basically, be prohibited from 
         14   using this courtroom or the corridors to take any 
         15   photographs or videotapes.  It is a disruption.  It 
         16   is a --
         17            HEARING OFFICER DAHER:  When the Court is 
         18   not in session --
         19            MR. EGBERT:  Right.
         20            HEARING OFFICER DAHER:  -- and as they're 
         21   exiting and entering the Court, you don't want --
         22            MR. EGBERT:  We don't want to be chased in 
         23   this courtroom and courthouse by photographers.  I 
         24   don't think they have the right to use this court 
 0030
          1   facility in that way.  They can go outside, they can 
          2   take all the pictures they want of people coming and 
          3   leaving. 
          4            But it is both, I think, unfortunately 
          5   disrespectful to a sitting judge to be chasing her 
          6   around in this hallway with cameras, and I think 
          7   they are uncontrollable from past experience, in my 
          8   past experience with them.  The corridors should not 
          9   be some kind of a war zone with cameras. 
         10            And so I would ask the Court, as was done, 
         11   most recently done in Federal Court in Rhode Island, 
         12   and that is, when the cameras take place -- whatever 
         13   takes place in the courtroom, in a ceremonious 
         14   fashion, the Court is closed down, the cameras are 
         15   closed down.  And if anybody wants to set up 
         16   outside, it is their prerogative, outside the 
         17   premises.  It is their prerogative to do that, and 
         18   we have no objection to that. 
         19            I just have an objection to being, quite 
         20   frankly, inundated.  And part of the problem is, 
         21   Judge, that -- I don't know if this court has any 
         22   place for us in terms of conference rooms so that, 
         23   on breaks or whatever, we can have a place --
         24            HEARING OFFICER DAHER:  You have.  
 0031
          1   Absolutely.  We do have quarters in this very modern 
          2   building.  We're all set.
          3            MR. EGBERT:  Great.
          4            HEARING OFFICER DAHER:  Anything else on 
          5   the issue of cameras? 
          6            Mr. Ware, your turn.  Anything else? 
          7            MR. EGBERT:  Judge, one last question.  You 
          8   were -- I believe the last time it was 9:00 or 9:30. 
          9   Have you --
         10            HEARING OFFICER DAHER:  Make it easy on 
         11   yourself.  I'm here at 7:00.
         12            MR. EGBERT:  9:30 is great for us, if 
         13   that's good for you.
         14            HEARING OFFICER DAHER:  That's ideal for 
         15   me.  Mr. Ware, satisfactory? 
         16            MR. WARE:  Yes, Your Honor.
         17            HEARING OFFICER DAHER:  Okay.
         18            Mr. Ware, what else do you have? 
         19            MR. WARE:  Just one further logistical 
         20   issue, Your Honor.  At least for certain portions of 
         21   the case, we would like to have monitors so that we 
         22   can use computer disks, which we're prepared to have 
         23   set up this afternoon.  What I mean by that is, 
         24   there would be a monitor on the Court's bench so you 
 0032
          1   can see anything.
          2            HEARING OFFICER DAHER:  No problem.
          3            MR. WARE:  There would be a monitor --
          4            HEARING OFFICER DAHER:  Can you take care 
          5   of that? Tell him what you need.
          6            MR. WARE:  It has all been arranged, Your 
          7   Honor. 
          8            COURT OFFICER JOYCE:  They will be here 
          9   this afternoon to set it up.
         10            MR. WARE:  I just want to make sure you're 
         11   okay with that.
         12            HEARING OFFICER DAHER:  Absolutely.  No 
         13   problem.  Anything else?
         14            MR. EGBERT:  We're all set. 
         15            HEARING OFFICER DAHER:  Is that it? 
         16            MR. WEBBER:  Your Honor, if I may --
         17            HEARING OFFICER DAHER:  Who are you?
         18            MR. WEBBER:  I'm David Webber from the 
         19   Boston Herald.  If you're considering excluding 
         20   still cameras from the courtroom, I would ask that 
         21   you allow an attorney for the Boston Herald to maybe 
         22   submit some papers to you before you make that 
         23   decision.
         24            HEARING OFFICER DAHER:  I haven't ruled on 
 0033
          1   it yet. 
          2            MR. WEBBER:  Thank you. 
          3            HEARING OFFICER DAHER:  That's it.  You 
          4   should hear from me between 4:00 and 4:30.  It will 
          5   take me some time to go through the issue of the 
          6   deposing of Mr.  Wedge.  I think by four o'clock I 
          7   will have an answer, 4:30 at the latest. 
          8            MR. EGBERT:  Thank you, Your Honor.
          9                 (Whereupon the hearing was
         10                 adjourned at 12:35 p.m.)
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 0034
          1                   C E R T I F I C A T E
          2            I, Carol H. Kusinitz, Registered 
          3   Professional Reporter, do hereby certify that the 
          4   foregoing transcript, Volume I, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on November 15, 2002.
          7   
          8   
          9                  _____________________________
         10                         Carol H. Kusinitz
         11                  Registered Professional Reporter
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