Return to Transcript PRETRIAL

Return to index of transcripts.

 0001
                                            Volume I     
                                            Pages 1 to 132
                                            
              
                         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.)
              
                       Harvey Chopp, Clerk
              
              APPEARANCES:
              
                  Goodwin Procter
                       (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 Offices of Richard M. Egbert
                       (by Richard M. Egbert, Esq. 
                       and Patricia A. DeJuneas, Esq.)
                       99 Summer Street, Suite 1800,
                       Boston, MA  02110, for the Honorable 
                       Maria I. Lopez.
              
              
                                    Held at:
                           Edward W. Brooke Courthouse
                              24 New Chardon Street
                              Boston, Massachusetts
                            Monday, November 18, 2002
                                    9:39 a.m.
              
              
              
                 (Jane M. Williamson, Registered Merit Reporter)
              
 0002
                                    I N D E X
              
              WITNESS                      DIRECT  CROSS 
              
              Maria Lopez
              
                  (By Mr. Ware)              65
              
              
              
                                    *  *  * 
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
              
 0003
          1                      P R O C E E D I N G.
          2            HEARING OFFICER DAHER:  Gentlemen, I want 
          3   to go through some of the motions.  Let me 
          4   address -- has the stenographer been sworn?
          5            MR. EGBERT:  Yes.
          6            HEARING OFFICER DAHER:  The motion to 
          7   compel the deposition of Commission's state witness, 
          8   David Wedge.  As you were notified on Friday, that's 
          9   been denied. 
         10            Now, let's deal with the issues at hand.  
         11   The cameras, pursuant to Rule 1:19 of the SJC, there 
         12   will be a video camera allowed.  There will be one 
         13   stationary camera in a very unobstrusive place in 
         14   the courtroom.  And there will be -- as Judge 
         15   Greaney has stated in his 1998 order, it is a public 
         16   access.  It is -- the building should be 
         17   permitted -- the public should be permitted to have 
         18   access.  And there will be -- cameras may be out in 
         19   the corridor, but no closer than 25 feet from the 
         20   entrance.  
         21            And that brings us into the motion in 
         22   limine that you have.  Mr. Egbert, I'll hear you.  
         23            MR. EGBERT:  May I use the podium?
         24            HEARING OFFICER DAHER:  Please. 
 0004
          1            MR. EGBERT:  Your Honor, the respondent 
          2   filed a motion in limine with regard to statements 
          3   made by her and counsel before the Judicial Conduct 
          4   Commission.  Those statements were preceded, as you 
          5   know from having a transcript of them, by a 
          6   statement by Mr. Mone that he was there to discuss a 
          7   disposition in the case and would like to talk about 
          8   that disposition.  
          9            During the course of his remarks to the 
         10   Commission, he made it clear that with regard to 
         11   many of the defenses that he had to these 
         12   proceedings, he wasn't going to get into them 
         13   because he was there to talk about a disposition of 
         14   the matter.  And Judge Lopez equally so put forth a 
         15   statement to further that --
         16            HEARING OFFICER DAHER:  If you could 
         17   address the affidavit that he signed on the 15th of 
         18   this month, where he indicated purportedly that he 
         19   had been talking to Mr. Ware and Mr. Ware had 
         20   suggested that he make an appearance before the 
         21   Judicial Conduct Commission.  If you could address 
         22   that.
         23            MR. EGBERT:  I was going to, Judge.
         24            HEARING OFFICER DAHER:  If you could narrow 
 0005
          1   it down slightly, I'd appreciate it.
          2            MR. EGBERT:  I will.  Based on the hearing 
          3   we had last week, I met with Mr. Mone and asked him 
          4   to reiterate for me what occurred, both prior to and 
          5   post the hearing, which resulted in his affidavit 
          6   being presented to you.  In that affidavit, he 
          7   indicated, as he had indicated to me and I indicated 
          8   to you in court last week, that from nearly the 
          9   beginning of the proceedings before the Judicial 
         10   Conduct Commission, there were discussions had 
         11   between Mr. Ware and Mr. Mone with regard to the 
         12   possible disposition of the case. 
         13            Contrary to Mr. Ware's statements to the 
         14   Court last week, Mr. Mone makes clear that Mr. Ware 
         15   had, on behalf of the Commission, indicated a 
         16   position which the Commission would accept or a 
         17   disposition which the Commission would accept.  And 
         18   Mr. Mone had indicated a position or disposition 
         19   which Judge Lopez would accept by way of settlement.  
         20   Those discussions went on to such a degree that Mr. 
         21   Mone on March 22nd of 2002, as you saw from the 
         22   attachment, basically suspended discovery on his 
         23   own, not by any fiat of the Commission, so that 
         24   these settlement discussions could continue. 
 0006
          1            Shortly before the issuance of the formal 
          2   charges or the time to issue formal charges, there 
          3   was a conversation between Mr. Ware and Mr. Mone, 
          4   where again their positions were relatively stated, 
          5   and Mr. Ware encouraged Mr. Mone to appear before 
          6   the Commission with Judge Lopez and to make the 
          7   statement in order to try to resolve the dispute.  
          8            He writes in his affidavit, "Mr. Ware and I 
          9   continued to discuss a settlement short of 
         10   suspension and he told me in no uncertain terms that 
         11   Judge Lopez's only chance of reaching such a 
         12   settlement would be if she and I appeared in person 
         13   before the Commission prepared to make a statement.  
         14   Mr. Ware encouraged us to appear because he thought 
         15   a personal appearance could lead to an agreed-upon 
         16   settlement." 
         17            That's exactly what occurred.  And 
         18   interestingly enough, almost immediately after the 
         19   Commission's hearing, there were phone conversations 
         20   between Mr. Ware and Mr. Mone, the first of those 
         21   initiated by Mr. Ware, indicating that the 
         22   Commission was not prepared to settle the matter, 
         23   having heard the statement and arguments by -- or 
         24   positions by Mr. Mone and the formal charges at 
 0007
          1   issue.  
          2            It seems to me, at least, these are classic 
          3   statements in furtherance of settlement.  That was 
          4   the purpose that the parties were there.  They were 
          5   encouraged to be there by counsel for the 
          6   Commission.  And in fact, interestingly enough, 
          7   there must have been -- although I can't say for 
          8   sure, because I'm not privy to the confidential 
          9   meetings of the Commission -- but I think one can 
         10   reasonably infer that there was some action taken on 
         11   the Commission to reject the settlement proposal 
         12   immediately after the appearance by counsel and Ms. 
         13   Lopez.
         14            HEARING OFFICER DAHER:  Mr. Ware? 
         15            MR. WARE:  Thank you, Your Honor.  Paul 
         16   Ware for the Commission on Judicial Conduct. 
         17            Your Honor, I think to argue that an 
         18   appearance pursuant to the statute before the 
         19   Commission on Judicial Conduct is a settlement 
         20   conference is really a perversion of the purpose of 
         21   the statute and the appearance itself.  
         22            The appearance before the Commission is a 
         23   matter of right, but not obligation, that's made 
         24   available to any judge who is under investigation by 
 0008
          1   the Commission on Judicial Conduct. 
          2            I think perhaps it's easiest to see why 
          3   this could not be a settlement conference to reflect 
          4   on the fact that indeed, the conference, so-called 
          5   by my colleague, is in fact an appearance before the 
          6   entire Commission.  So there's a nine-member 
          7   Commission, plus an executive director and a 
          8   stenographer in the room.  That's a very peculiar 
          9   settlement discussion in my experience, Your Honor. 
         10            When Mr. Mone and I discussed settlement, 
         11   as indeed we did many times, both before and after 
         12   this appearance before the Commission by Judge 
         13   Lopez, it was indeed a negotiation between the two 
         14   of us, a discussion about impressions that perhaps 
         15   had been left with the Commission, discussions about 
         16   Mr. Mone's view of where Judge Lopez was with 
         17   respect to making certain admissions. 
         18            But the fact is none of that changes the 
         19   character of the appearance.  At no time -- well, 
         20   let me just say, I don't think there's anything 
         21   grossly inaccurate in Mr. Mone's affidavit.  We had 
         22   all of these discussions before and after the 
         23   appearance.  But the appearance itself was certainly 
         24   not a negotiation and was certainly not 
 0009
          1   characterized by me as a way of their negotiating a 
          2   settlement.  Rather, in colloquy with Mr. Mone, I'm 
          3   sure I said, if the matter is going to be advanced, 
          4   make your appearance.  The Commission will consider 
          5   that appearance.  You and I can talk again.  But at 
          6   no time did I recharacterize --
          7            HEARING OFFICER DAHER:  Mr. Ware, did any 
          8   one of the nine-member Commission stop Judge Lopez 
          9   or stop Mr. Mone and state, We're not here to 
         10   negotiate the matter?  We're not here, you know, to 
         11   entertain any offers of compromise?  Did anybody 
         12   from the Commission at that time, you know, tell 
         13   them, "We're not here to negotiate"?  Did anybody do 
         14   that?
         15            MR. WARE:  Your Honor, better than that, 
         16   there was no proffer of any kind of solution or 
         17   offer by Judge Lopez or by Mr. Mone.  At the 
         18   appearance before the Commission, Mr. Mone took the 
         19   first 20 minutes and he made certain statements with 
         20   respect to the matter that are in the transcript 
         21   before the Court.  Thereafter, he asked the judge, 
         22   would she like to make a statement before the 
         23   Commission, and she said she would.  And she made 
         24   the statement before the Commission.  At no time in 
 0010
          1   either of those statements was there the slightest 
          2   suggestion, for example, "Commissioners, I'm 
          3   prepared to do X or Y as a way of compromising the 
          4   anticipated charges against me."  That was not done.  
          5   Counsel did not do it.
          6            HEARING OFFICER DAHER:  What did they think 
          7   she was there for?
          8            MR. WARE:  I'm sure they thought she was 
          9   there for precisely the statutory purpose, which is 
         10   she had a right to be there. 
         11            Obviously, Your Honor, in every situation 
         12   in which a judge who has been accused of something 
         13   appears before the Commission, that judge hopes that 
         14   the appearance before the Commission will be helpful 
         15   and will lead to some resolution, or even a decision 
         16   not to bring charges at all.  In that sense, every 
         17   appearance -- it's the same as testimony before the 
         18   Court by a defendant.  That defendant hopes that 
         19   testimony will be helpful. 
         20            So what may have been in Mr. Mone's mind or 
         21   what may have been in the judge's mind is utterly 
         22   irrelevant to this statutory -- this statutory 
         23   creature.  That is, it's more in the nature of a 
         24   right of allocution of a defendant in a criminal 
 0011
          1   case, or in addition, an answer. 
          2            In this case, Judge Lopez filed no answer 
          3   to the original statement of allegations, and so the 
          4   judge had the option of appearing personally to do 
          5   that.  And the rules provide that she may do that.  
          6   If this is treated as an answer, that, too, would be 
          7   admissible before the Court as admissions. 
          8            So I think it's a stretch to argue here -- 
          9   and I understand that this document may be 
         10   uncomfortable for Judge Lopez.  But it was 
         11   nonetheless her decision, an informed decision, to 
         12   appear before the Commission and make statements 
         13   which she may now regret.
         14            HEARING OFFICER DAHER:  Response to that, 
         15   Mr. Egbert?
         16            MR. EGBERT:  Let me say at the outset that 
         17   the forum of the attempted settlement and settlement 
         18   discussions should not be at issue.  People appear 
         19   everyday, whether it be on the criminal side or the 
         20   civil side or an administrative proceeding, where an 
         21   appearance for one purpose turns into or is used for 
         22   another purpose, and that is settlement.  You'll 
         23   hear it in this case. 
         24            In a criminal case called before a judge on 
 0012
          1   a particular day, the parties decided to go and meet 
          2   with the judge in conference and talk about a 
          3   settlement.  None of that could be admissible in any 
          4   proceeding against that particular witness.  The 
          5   fact that these people appeared upon a day that is 
          6   statutorily allowed -- not required, but statutorily 
          7   allowed -- doesn't change the character of the fact 
          8   that both the invitation by Mr. Ware and the belief 
          9   of the parties as to what they were there to do.  
         10            And nothing could be more expressive of 
         11   that intent in this particular instance when Mr. 
         12   Mone opens by stating, "I would like to talk to you 
         13   about a disposition in the case.  I would like to 
         14   talk to you about why I believe that a public 
         15   disposition without sanctions is appropriate, 
         16   putting aside from it the fact that we had legal and 
         17   factual defenses to a lot of what is in the 
         18   statement of allegations" and goes on to say 
         19   basically "I'm not going to talk about all those 
         20   things.  I'm going to talk about settlement." 
         21            And I think that's the classic statement of 
         22   settlement.  That's what they were there to do.  And 
         23   in fact, that's what they got in return:  a 
         24   rejection of their settlement offer.
 0013
          1            And I might add one other thing, Your 
          2   Honor.  Mr. Ware had always told Mr. Mone that, "I 
          3   can't settle this case.  I don't have the authority.  
          4   I can't do it," and on occasions told Mr. Mone, "I 
          5   don't even know what the Commission wants."  That's 
          6   what led up to this go-in-there-and-talk-to-them 
          7   kind of situation.  So I think this takes on all the 
          8   attributes of a typical settlement conference.  And 
          9   the day it occurred is of no matter to that 
         10   decision.
         11            HEARING OFFICER DAHER:  Mr. Ware, go ahead.
         12            MR. WARE:  Thank you, Your Honor.  A couple 
         13   of things.  Of course I can't speak for the 
         14   Commission.  The Commission is the Commission.  I 
         15   have no right to speak for them to make their 
         16   judgments.  In that respect, it's no different than 
         17   any other case in which as an advocate, I represent 
         18   a client.  I always have to go to that client and 
         19   seek that client's permission to settle anything or 
         20   to resolve any issue of substance in the case.  
         21            My role here was no different.  It was as 
         22   advocate, as representative for the Commission. 
         23            The fact that Mr. Mone begins with a 
         24   conciliatory tone is no more than an intuitive 
 0014
          1   matter.  Obviously he wouldn't be hostile.  And the 
          2   fact that he opens with a sense of concession, "and 
          3   I want to resolve this matter," is no more than his 
          4   personal decision with Judge Lopez to set a tone in 
          5   that proceeding that's created by statute.  
          6            One fact that's not been mentioned, Your 
          7   Honor, is that the statute provides that the 
          8   statement given by the judge and her counsel shall 
          9   be recorded.  It would be very peculiar to record 
         10   something which is in the nature of a settlement 
         11   conference, since my colleague argues that could 
         12   never be used anyway.  The very fact that the 
         13   statute provides that it mandatorily has to be 
         14   recorded strongly suggests that's for the purpose of 
         15   using it later.  Precisely because it is admissible, 
         16   it is in the nature of -- 
         17            HEARING OFFICER DAHER:  Hadn't Judge Lopez 
         18   waived her rights of privacy and so the document 
         19   could be made public? 
         20            MR. WARE:  She has no right of privacy --
         21            HEARING OFFICER DAHER:  In a sense, the 
         22   Commission indicates that all comments would be 
         23   prohibited from publication.  She's indicated, has 
         24   she not, in the past -- I think, Mr. Egbert, did you 
 0015
          1   so notify the Court that everything that was said 
          2   would be available to the public; is that correct? 
          3            MR. EGBERT:  In this formal proceeding.
          4            HEARING OFFICER DAHER:  In this formal 
          5   proceeding; okay. 
          6            MR. WARE:  Yes, Your Honor.  The filing of 
          7   formal charges changes the landscape with respect to 
          8   the privacy of the whole Commission's investigation.  
          9   At that point the formal charges become public and, 
         10   as the Court obviously knows and as you have 
         11   participated in, matters that come before you are 
         12   also public.  So there are no rights of privacy 
         13   which now attend what Mr. Mone or Judge Lopez did 
         14   before the Commission.
         15            HEARING OFFICER DAHER:  Mr. Egbert, is 
         16   Attorney Mone here today? 
         17            MR. EGBERT:  No, he is not, but I can get 
         18   him here for a hearing if you want, Your Honor.
         19            HEARING OFFICER DAHER:  I think that's 
         20   probably -- I'm going to have a preliminary hearing 
         21   on the -- we can have it this afternoon right after 
         22   we conclude with the case in chief or we can do it 
         23   tomorrow afternoon.
         24            MR. EGBERT:  At the break, Judge, I'll call 
 0016
          1   Mr. Mone.
          2            HEARING OFFICER DAHER:  Okay.  That will be 
          3   fine.  
          4            Okay, Mr. Ware, you may open. 
          5            MR. WARE:  Thank you, Your Honor.  With me, 
          6   Your Honor, is Roberto Bracers from Goodwin Procter 
          7   on behalf of the Commission.
          8            MR. BRACERAS:  Good morning, Your Honor.
          9            MR. WARE:  I'd like, Your Honor, if I may, 
         10   to set the context of this hearing as I understand 
         11   it, to give a brief reflection on the canons of 
         12   ethics that are pertinent here, and then to review 
         13   with the Court some of the evidence which I expect 
         14   to elicit during the course of the testimony. 
         15            The citizens of Massachusetts expect a lot 
         16   of their judges, and they have a right to do so.  
         17   The judges, after all, are the repository of our 
         18   trust, of our confidence that they will carry out 
         19   the law, that they will listen dispassionately and 
         20   independently to what both sides have to say.  They 
         21   are the repository of our faith in the judicial 
         22   system itself. 
         23            We expect them, correctly, to be unbiased, 
         24   to be neutral, to be attentive, and during every 
 0017
          1   proceeding, in a sense to be on trial themselves, 
          2   not with respect to a controversy, but with respect 
          3   to their sense of fairness, their example, their 
          4   dispassion and their courtesy. 
          5            The evidence in this case will be that 
          6   during a course of a criminal matter pending in 
          7   Suffolk Superior Court, Commonwealth against Horton, 
          8   Judge Lopez was the opposite of what we expect.  The 
          9   evidence will be that she was discourteous, that she 
         10   was abusive, that she exhibited bias, and that, 
         11   contrary to her obligation under the canons of 
         12   judicial ethics and conduct, she did not promote 
         13   confidence in the integrity and impartiality of the 
         14   judiciary, but rather, eroded that confidence, 
         15   causing many people to question both judges and, to 
         16   some extent, the system itself.
         17            The evidence will show that during the 
         18   Judge's conduct of Commonwealth against Horton, she 
         19   abandoned that judicial role and, rather, took on 
         20   the role of advocate for herself, an apologist for 
         21   her own conduct. 
         22            This case is not about financial 
         23   self-interest, but it is a case about self-interest.  
         24   And the evidence will show that the publicity which 
 0018
          1   followed Judge Lopez's conduct included a host of 
          2   innuenda regarding the victim, the defendant and all 
          3   of the players in this case. 
          4            Judge Lopez was a participant in events 
          5   which led to and gave rise to that publicity.  Even 
          6   after an official investigation began in September 
          7   2000, the judge took it upon herself to make an 
          8   anonymous phone call to one of the complaining 
          9   witnesses to the Commission.  This the Commission 
         10   thinks is highly improper, a very unusual judgment 
         11   for the judge to make.
         12            MR. EGBERT:  Judge, I object to what the 
         13   Commission thinks.  The opinions of the Commission 
         14   are not --
         15            MR. WARE:  I'll amend that.
         16            HEARING OFFICER DAHER:  It's amended.  
         17   Stricken.  Go ahead.  Thank you. 
         18            MR. WARE:  Apart from what the Commission 
         19   thinks, the formal charges in this case include a 
         20   charge that Judge Lopez improperly made this 
         21   contact.  And whatever her motivation, it was an 
         22   extraordinary piece of judgment for a woman who is 
         23   supposed to be a judge and supposed to act for the 
         24   protection of dispassionate, fair decision-making. 
 0019
          1            The canons relevant here, Your Honor, are 
          2   Canons 1, 2 and 3 of the Code of Judicial Conduct, 
          3   and I won't belabor them, because the Court, of 
          4   course, has access to them. 
          5            But broadly speaking, Canon 1 requires that 
          6   the judge promote public confidence in the integrity 
          7   and impartiality of the judiciary.  Canon 2 requires 
          8   that she be patient, dignified and courteous to 
          9   lawyers and everyone who appears before her.  And 
         10   the third canon requires that she preserve the 
         11   integrity and impartiality and independence of the 
         12   judiciary by her conduct and by her decision-making.  
         13   The Commission expects to prove that the judge 
         14   violated each of these canons in different ways. 
         15            Let me turn to a brief overview of the 
         16   evidence here, Your Honor.  As I mentioned earlier, 
         17   the events which bring us here arise out of the case 
         18   of Commonwealth against Horton. 
         19            On August 1, 2000, the parties in that case 
         20   and the judge conducted what's known as a plea 
         21   conference.  This court is familiar with that.  But 
         22   briefly, as you know, a plea conference is really 
         23   just a discussion among counsel and a judge with 
         24   respect to whether the defendant who's been accused 
 0020
          1   may plead guilty to one or more of the pending 
          2   indictments; and, if so, what sentence the judge is 
          3   likely to impose in the event of such a plea. 
          4            The charges in the Horton case included 
          5   kidnapping, assault with attempt to rape a child 
          6   under 16, assault and battery on a child under 14, 
          7   simple assault and battery, and assault and battery 
          8   with a dangerous weapon. 
          9            The evidence will be that Mr. Horton pled 
         10   guilty, ultimately, to those charges and in every 
         11   material respect agreed to the factual bases 
         12   asserted by the district attorney, which is to say 
         13   that throughout a lengthy recitation of the evidence 
         14   which the district attorney anticipated bringing to 
         15   the court in the event of trial, the defendant took 
         16   no issue with any substantive aspect of that; no 
         17   issue, for example, to his having used a screwdriver 
         18   as a weapon, no issue to having approached the child 
         19   from a car, no issue to the child's not knowing who 
         20   he was.  So he agreed to all of those material 
         21   facts.  
         22            The conference on August 1 resulted in 
         23   Judge Lopez informing the district attorney and 
         24   defense counsel that she anticipated or was inclined 
 0021
          1   to place the defendant on probation.  And she 
          2   scheduled a plea and sentencing or disposition for 
          3   three days later, on August 4, 2000. 
          4            The lawyer for the Commonwealth, Leora 
          5   Joseph -- that is the assistant district attorney -- 
          6   subsequently met with her superior, David Deakin.  
          7   Mr. Deakin was the head of the child abuse unit.  
          8   The assistant district attorney, Leora Joseph, had 
          9   worked in that unit since 1997. 
         10            They had a conversation following the lobby 
         11   conference before Judge Lopez in which Ms. Joseph 
         12   related what had occurred, related that the judge 
         13   intended to place Mr. Horton on probation, and they 
         14   had a further conversation with respect to whether 
         15   this case was the type of case, child abuse case, 
         16   which was worthy of a press release, a routine press 
         17   release, from the district attorney's office. 
         18            Ms. Joseph, as a junior assistant on the 
         19   case -- that is, the line prosecutor -- was not in a 
         20   position to make that decision.  Accordingly, she 
         21   did the proper thing in speaking with Mr. Deakin, 
         22   who was head of the child abuse unit.  Mr. Deakin in 
         23   turn talked to the first assistant in the Suffolk 
         24   County district attorney's office.  And following 
 0022
          1   that discussion, a decision was made at that senior 
          2   level to issue a press release. 
          3            And Mr. Borghesani, at the time with the 
          4   Suffolk County district attorney's office, prepared 
          5   a release and sent it out.  That release features 
          6   principally that a Boston man is expected to plead 
          7   guilty to child kidnapping and sexual abuse.  It 
          8   also identified the defendant as appearing as a 
          9   woman and as transgendered. 
         10            On August 4 -- that is, the following day, 
         11   the day scheduled for the plea and sentencing -- 
         12   when the parties arrived at court, there was already 
         13   some media present.  A camera had been set up in the 
         14   courtroom at that time without Judge Lopez's 
         15   permission -- before she gave permission.  And there 
         16   were reporters milling about and some cameras in the 
         17   hallways. 
         18            The defense counsel, whose name is Anne 
         19   Goldbach, from the Committee for Public Counsel 
         20   Services, was distressed at this and requested 
         21   another lobby conference with Judge Lopez, which the 
         22   judge granted. 
         23            The evidence will be that during that lobby 
         24   conference, the judge inquired of the assistant 
 0023
          1   district attorney whether in fact she had called the 
          2   press in.  And the assistant district attorney, Ms. 
          3   Joseph, said that she had personally not done so, 
          4   but that surely her office was responsible for the 
          5   press being there. 
          6            The judge, already angry at the presence of 
          7   reporters in the hallways and the confusion in the 
          8   hallways, became very personal with the assistant 
          9   district attorney.  I think it's fair to say that 
         10   she criticized her in extremely personal terms.  She 
         11   blamed her for the press being there.  She made no 
         12   effort in the course of that day to have 
         13   conversation with Ms. Joseph's superior or to 
         14   inquire of the press office of the district 
         15   attorney's office.  And in a nutshell, she took it 
         16   out on Assistant District Attorney Joseph.  
         17            Among the remarks that she made to the 
         18   assistant district attorney at that time was that 
         19   she belonged in the suburbs.  And the judge, a year 
         20   later, when she appeared before the Commission on 
         21   Judicial Conduct, explained that what she meant by 
         22   that statement was the woman who stays home, does 
         23   her nails, and goes to the beauty parlor. 
         24            It is hard to imagine a more insulting 
 0024
          1   remark to a young professional woman; and one can 
          2   only imagine, had this been a male judge, how swift 
          3   retribution would have been. 
          4            On that day, August 4, the judge continued 
          5   the case because of the press coverage and said in a 
          6   lobby conference that she intended to do so.  It's a 
          7   legal requirement in child abuse cases that if there 
          8   is to be a continuance, the judge must make a 
          9   finding.  The judge, already angry, became more 
         10   enraged, because the district attorney opposed that 
         11   continuance, stating that the victim's grandmother, 
         12   an elderly woman, had been present in court since 
         13   early in the morning, that the case was scheduled to 
         14   go forward, that there was nothing wrong with the 
         15   press having been called in, and he asked that the 
         16   case go forward.  The judge declined and granted the 
         17   continuance and issued what she characterized as 
         18   "findings." 
         19            Those findings are both intemperate and 
         20   inaccurate.  She finds, among other things, that 
         21   this young assistant district attorney attempted to 
         22   ridicule and embarrass the defendant.  That is, that 
         23   it was a purposeful act.  She finds that the 
         24   district attorney's office tried to create a media 
 0025
          1   circus by issuing this press release.  And the judge 
          2   angrily rescheduled the matter for September 6. 
          3            About five weeks later, on September 6, the 
          4   parties again appeared before the Court for the 
          5   planned disposition and sentencing.  The colloquy 
          6   between the Assistant District Attorney David 
          7   Deakin -- that is, Ms. Joseph's superior -- who had 
          8   come into the case late on August 4 because of the 
          9   anger of Judge Lopez, represented the Citizens of 
         10   Massachusetts as the assistant district attorney on 
         11   that occasion, September 6. 
         12            I will not try to characterize the colloquy 
         13   between the judge and Mr. Deakin on that occasion.  
         14   It's been the stuff of six o'clock news and many, 
         15   many airings over the last two years.  And we will, 
         16   of course, see it again in this court proceeding.  
         17            I think, however, that it's fair to say 
         18   that the evidence will show that the judge 
         19   undeniably repeated the kind of intemperance and 
         20   anger that she showed on August 4 and that her 
         21   conduct was inconsistent with her obligations under 
         22   the Code of Judicial Conduct.  She did not promote 
         23   public confidence and integrity and impartiality of 
         24   the judiciary.  She appeared biased, she appeared 
 0026
          1   partisan, she was neither dignified nor courteous, 
          2   she showed no respect for the assistant district 
          3   attorney, and little enough respect for the process 
          4   itself. 
          5            Following the sentencing, there was, of 
          6   course, the furor with which most of us in one 
          7   degree or another are now familiar and which gave 
          8   rise to the complaints that have been addressed by 
          9   the Commission on Judicial Conduct.  
         10            After that occurred, Judge Lopez called the 
         11   Supreme Judicial Court's Office of Public 
         12   Information.  That office, as this Court knows, has 
         13   a number of functions, but one of them is to act as 
         14   press liaison, to act as press spokesperson for 
         15   individual judges in notorious cases or 
         16   circumstances in which the judge requests assistance 
         17   from that office. 
         18            On September 6, the day of the sentencing, 
         19   as the stories begin to break and as the fire storm 
         20   broke, Judge Lopez called that office and asked for 
         21   the assistance of Joan Kenney, the public 
         22   information officer. 
         23            Joan Kenney had been briefed on the case a 
         24   month earlier, on August 4, when Judge Lopez called 
 0027
          1   her at that time and made available to her the 
          2   findings. 
          3            Obviously the Public Information Office was 
          4   dependent upon Judge Lopez's description of events 
          5   and description of what she had done in the 
          6   courtroom.  There wasn't a transcript; there was no 
          7   information available on September 6, other than 
          8   through the judge herself. 
          9            The evidence will be that Judge Lopez was 
         10   not candid or honest with the Public Information 
         11   Office, that she gave information to the Supreme 
         12   Judicial Court's public press information officer 
         13   which was in fact untrue and which, while it might 
         14   be helpful to Judge Lopez, did not square with the 
         15   facts, was not candid, and was certainly not 
         16   consistent with her obligations as a judge. 
         17            Specifically, the evidence will be that 
         18   Judge Lopez misinformed the Public Information 
         19   Office with respect to some of her comments during 
         20   the colloquy on September 6 at the sentencing.  One 
         21   of those comments was, "This is a low-level crime."  
         22   The judge told the Public Information Office, 
         23   however, that when she was referring to "low level," 
         24   she was not characterizing the seriousness of the 
 0028
          1   crime or the seriousness of the acts or the threat 
          2   to the child, but rather, was simply referring to 
          3   sentencing guidelines.  That was not true, as the 
          4   judge later admitted before the Commission. 
          5            Nonetheless, that statement was 
          6   incorporated into a statement issued by Judge Lopez 
          7   and the public information officer.  There was also 
          8   reference to facts allegedly known to the 
          9   prosecution and the defense and the judge, which 
         10   would change the media's perception of the 
         11   seriousness of the case, when in fact, the judge 
         12   knew on September 7, when she talked to the public 
         13   information officer, that she did not know the facts 
         14   to which the release was referring.  And indeed, 
         15   there were no facts which would change the 
         16   characterization of the case in the public eye.  The 
         17   judge was merely attempting to circle the wagons. 
         18            This was not a statement, the evidence will 
         19   show, that was sent out simply by the Public 
         20   Information Office without input from Judge Lopez.  
         21   Rather, the testimony will be that Judge Lopez 
         22   herself received a draft of the statement, that she 
         23   reviewed it, she had it read to her, and the 
         24   statement was also sent to the Chief Justice of the 
 0029
          1   Superior Court, who in fact made some minor edits 
          2   and sent it back. 
          3            The evidence will be that the Chief Justice 
          4   of the Superior Court talked with Judge Lopez and 
          5   that Judge Lopez, following that, instructed the 
          6   Office of Public Information to send out the 
          7   statement. 
          8            At the time the judge did that, Judge Lopez 
          9   knew that the statement contained errors -- for 
         10   example, the "low level" comment -- knew that it was 
         11   untrue, but did not tell the public information 
         12   officer, nor Justice DelVecchio.  And, accordingly, 
         13   the statement was put out which compromised the 
         14   integrity of the judiciary and the Supreme Judicial 
         15   Court's office. 
         16            The statement had its intended effect.  It 
         17   did cause the media to start raising questions or 
         18   speculate about the victim, what kind of a child he 
         19   was.  And I might say at this time that the evidence 
         20   will be that this child was in fact 11 years old at 
         21   the time of the events in November 1999.  There was 
         22   speculation whether he was older, whether he was 
         23   more seasoned, whether he was street-wise, none of 
         24   which was subsequently substantiated.  
 0030
          1            This child was and is nothing but an 
          2   innocent victim in this case, and no evidence was 
          3   ever educed that he was otherwise, notwithstanding 
          4   the rumors.
          5            Following this statement, and notably in 
          6   documents filed before the Commission, Judge Lopez 
          7   disavowed the statement.  Having issued it in her 
          8   own name -- the statement says "by Maria Lopez" -- 
          9   having had the advantage of it in the public press, 
         10   the judge then turned around and said, It wasn't my 
         11   statement.  It was a statement of the Public 
         12   Information Office or Justice DelVecchio or Joan 
         13   Kenney or some combination, but it's not my 
         14   statement, and so what if it has errors in it. 
         15            In the ten days following September 6 and 
         16   7, the judge made a series of unusual and 
         17   inappropriate phone calls.  Those were phone calls, 
         18   first of all, to the Committee for Public Counsel 
         19   Services.  The evidence will be that at this time 
         20   the judge had conversations with the Chief Justice 
         21   of the Superior Court during which she was asked not 
         22   to comment to the press any further.  She was not 
         23   told, but she was advised that it would be in her 
         24   interests not to comment.  She has similarly said 
 0031
          1   that her counsel advised her not to make any 
          2   statements. 
          3            The evidence will be that the judge 
          4   instead, in order to get some different impression 
          5   out in the public, went to the Committee for Public 
          6   Counsel Services and encouraged them to go out front 
          7   and to defend the sentence and the process on their 
          8   own, which indeed at least one member of that office 
          9   did, appearing on television and being quoted in 
         10   various newspaper articles. 
         11            The allegations then are that this was 
         12   improper; that if the judge wanted to have a 
         13   conference with defense counsel, she should have had 
         14   it with all counsel, including the assistant 
         15   district attorney.  The reason for that is, first of 
         16   all, this was immediately following the sentencing  
         17   during a period which, depending on one's view of 
         18   the law, it was possible to appeal various aspects 
         19   of the probationary sentence, specifically the 
         20   conditions of the probation. 
         21            In addition, in this case, the judge had 
         22   specifically retained jurisdiction.  This was not a 
         23   typical case in which, following sentencing, perhaps 
         24   any judge on a revocation of probation might 
 0032
          1   subsequently handle the matter.  Here Judge Lopez 
          2   retained jurisdiction, meaning that only she would 
          3   have the case again, and that the parties would 
          4   appear in front of her should there be a revocation 
          5   of probation or a violation of probation or any 
          6   other issue requiring input from counsel for the 
          7   parties.  Under those circumstances, the allegation 
          8   is it was improper for the judge to be talking to 
          9   defense counsel immediately on the heels of the 
         10   sentencing. 
         11            This is not to say that no judge in the 
         12   Commonwealth should ever talk to a defense lawyer or 
         13   a prosecutor or a friend following a case.  This was 
         14   not that circumstance.  This was an unusual 
         15   circumstance. 
         16            In addition, the judge called a detective, 
         17   whom she believed to be a material witness in the 
         18   case, for some of the same reasons; that is, there 
         19   remained the possibility that this material witness 
         20   would have to testify in the future.  It was 
         21   improper for the judge to call a detective from the 
         22   Boston Police Force, and, at a minimum, created an 
         23   appearance of impropriety in his doing so, an 
         24   appearance of partiality.  
 0033
          1            The purpose of calling that detective was 
          2   to get him out front, to find a source of 
          3   information which could cause the media to have a 
          4   different view of Judge Lopez's sentencing decision, 
          5   and, among other things, the judge advised the 
          6   Public Information Office of the Supreme Judicial 
          7   Court to contact that detective as well.  
          8            The evidence will be that having done so, 
          9   the detective had some information, he refused to go 
         10   on record with it, it didn't seem reliable to the 
         11   Public Information officer; and, accordingly, none 
         12   of it was published by the SJC Public Information 
         13   Office.
         14            At some time as well Judge Lopez provided 
         15   information to the Public Information Officer that 
         16   the victim was not kidnapped in the usual sense, 
         17   whatever that meant, and that the screwdriver was 
         18   not used as a weapon -- this, despite the fact that 
         19   in open court the day before the defendant had 
         20   specifically agreed to the recitation of facts by 
         21   the prosecution, including that the screwdriver was 
         22   put to the child's neck and that the child asked to 
         23   go home and that the child did not know the woman, 
         24   in quotes, in the car.  These representations, too, 
 0034
          1   undercut and eroded confidence in the judiciary and 
          2   certainly did not create an appearance of 
          3   impartiality or appropriate judicial conduct. 
          4            I mentioned earlier that following the 
          5   September 6 sentencing, an investigation was begun 
          6   by the Commission on Judicial Conduct.  That 
          7   occurred on September 11, 2000; that is, the 
          8   initiation of the investigation. 
          9            And as I mentioned earlier, six weeks 
         10   later, having received a copy of the complaint from 
         11   one of the complaining witnesses, Judge Lopez 
         12   contacted that witness late at night.  It was an 
         13   anonymous call in which the judge did not identify 
         14   herself.  She appeared to give a greeting, she 
         15   appeared to introduce herself only vaguely and then 
         16   hung up.  Fortuitously, this older woman had Caller 
         17   ID and went downstairs from her bedroom and looked 
         18   at the Caller ID, which said "M. Lopez."  
         19            This, too, was highly improper, six weeks 
         20   into a pending investigation in which the judge was 
         21   represented by one of the leading lawyers in our 
         22   community, and particularly so, when the judge had 
         23   other avenues of determining answers to any 
         24   questions she may have had regarding this complaint 
 0035
          1   or any other complaint.  Under the rules of the 
          2   Commission on Judicial Conduct, the judge is 
          3   entitled to copies of any complaint filed by the 
          4   Commission.  And the Commission turned those 
          5   complaints over to the judge.  
          6            It is a misuse of the process, and the 
          7   judge surely knew it to be a misuse to start calling 
          8   a witness before the Commission.  Obviously whatever 
          9   the judge's motivations, even if they were good 
         10   motivations, which I will assume for the moment, the 
         11   decision to interfere in that way with the 
         12   investigation was highly improper. 
         13            In summary, Your Honor, that would be the 
         14   evidence for the Commission.  I think that at 
         15   bottom, the case from the Commission's standpoint is 
         16   really captured by the Supreme Judicial Court's 
         17   instructions in this area, which are that it is not 
         18   enough for a judge to be fair, but that judge must 
         19   also appear fair. 
         20            This is a case not only of appearing fair, 
         21   but also being fair.  And the Commission asserts 
         22   here that Judge Lopez's conduct violated numerous of 
         23   these canons in various ways that undercut and 
         24   eroded the public's confidence both in the integrity 
 0036
          1   and the impartiality of the judicial process. 
          2            Thank you, Your Honor.
          3            HEARING OFFICER DAHER:  Mr. Egbert, do you 
          4   want to make your opening now? 
          5            MR. EGBERT:  Please, Your Honor.
          6            HEARING OFFICER DAHER:  Okay. 
          7            MR. EGBERT:  Your Honor, I have before you 
          8   an 11-page formal charge which is broken down into 
          9   six separate counts containing six separate charges 
         10   alleging the same conduct over and over again and 
         11   recasting it in different ways.  And then, 
         12   interestingly enough, because of the lack of any 
         13   legal authority for discipline in those kinds of 
         14   allegations, at the end of the formal charges the 
         15   Commission says, Based upon Charge 1, 2, 3, 4, 5 and 
         16   6, which allege and reallege the same conduct over 
         17   and over again, you should find that there is a 
         18   pattern of misconduct for which a discipline ought 
         19   to be had. 
         20            The evidence will show that this case boils 
         21   down to nothing more than a singular instance, an 
         22   instance which we've acknowledged, of Judge Lopez 
         23   losing her temper to some extent with Mr. Deakin on 
         24   September 6, 2000, warranting no formal sanction at 
 0037
          1   all.
          2            After two years of intensive investigation 
          3   by the Judicial Conduct Committee, going out into 
          4   courthouses and reviewing cases that she sat on, 
          5   going out and interviewing lawyers and prosecutors 
          6   and people who were involved in her cases over a 
          7   14-year career, after going through two years of 
          8   investigative efforts in that regard, the Commission 
          9   still, in return of this particular matter, returns 
         10   to you nothing more than the allegations concerning 
         11   the Horton case, which we are fully prepared to 
         12   address. 
         13            This case comes before you with a history 
         14   that can't be ignored.  Yes, there was a fire storm 
         15   in this case, a fire storm created at first by a 
         16   district attorney's office, by some district 
         17   attorneys who violated the canons of ethics by their 
         18   very conduct in dealing with the press, by a growing 
         19   process of district attorneys and members or 
         20   segments of the press getting together to see if 
         21   they can achieve a desired result not through 
         22   advocacy, not through the presentation of evidence, 
         23   but through public furor, through headlines, through 
         24   tabloids and the like. 
 0038
          1            You cannot consider her sentencing as a 
          2   pivoting point.  I've heard all of this discussion 
          3   of the sentence, the sentence, the sentence.  And by 
          4   the way, I think it will come out in the wash that 
          5   the sentence was both reasonable and well thought.  
          6   But the sentence is not the issue.  That is her 
          7   judicial prerogative.  That's what she's there to 
          8   do.  Some would like to make it the issue.  Some 
          9   would like to continue on with this process that "We 
         10   don't like what she did and therefore, we should do 
         11   something about it."  
         12            That thought process, the headlines, the 
         13   history, the rhetoric, the sheer craziness that went 
         14   on after that is about as inappropriate as anything 
         15   I can imagine.  We don't want judges reacting to the 
         16   front page of the Boston Herald or the Boston Globe 
         17   or any other newspaper.  We don't want decisions 
         18   made by courts of law based upon call-in shows and 
         19   talkmeisters and Bill O'Reilly and the rest of them.  
         20   We don't want judicial decisions made based upon 
         21   appeals to prurient interest of the public.  
         22            We want judicial decisions made based upon 
         23   thoughtful, intelligent, experienced review of the 
         24   facts and the law.  And that's exactly what occurred 
 0039
          1   here.  The media and the public and the SJC ought to 
          2   ask themselves whether or not they really want to 
          3   have judicial integrity and independence impeded by 
          4   this kind of show of what really this case began and 
          5   end; and that is, a segment of this community who 
          6   neither understood, nor agreed with the sentence 
          7   delivered by Judge Lopez. 
          8            Why is that important?  Well, it's 
          9   important for a couple of reasons.  One, as you 
         10   know -- and we will get much into this down the 
         11   road -- judges have certain limitations when they 
         12   are dealing with something called a pending case, 
         13   which will transverse the whole discussion that we 
         14   have in this case.  But that judgment, that desire 
         15   or that prohibition from dealing in that particular 
         16   area isn't absolute.  
         17            And one of the things that has now become 
         18   clear through history is that judges have the right, 
         19   the duty, the obligation to stand up when the media 
         20   and the public and politicians are invading the 
         21   province of the judiciary, are calling for 
         22   resignations and impeachments and beheadings of 
         23   judges because they don't like what the judicial 
         24   determination was, is both the obligation and the 
 0040
          1   responsibility, and it is ethically permitted, for a 
          2   judge to then speak in regards to those matters and 
          3   for other judges to speak in regards to those 
          4   matters. 
          5            It was just such a time and such an issue 
          6   that we will raise in this case, and you will hear 
          7   about, of Judge Baer in New York, where he issued a 
          8   ruling and a motion to suppress which caught a 
          9   tremendous amount of political and public 
         10   denigration, going so far as the President of the 
         11   United States calling for the impeachment of the 
         12   judge unless he didn't change his ruling, much like 
         13   we had here.  
         14            What happened in that case?  The judges of 
         15   the Court of Appeals in that circuit, the Second 
         16   Circuit Court of Appeals, to a number issued a 
         17   release to the public in a pending case, clarifying 
         18   the horror that was being put upon this judge, the 
         19   unfortunate invasion of our constitutional 
         20   principles and independent judiciary, and they took 
         21   it upon themselves to comment in that regard in that 
         22   pending case because it was required in order to 
         23   preserve the independence of the judiciary. 
         24            This case will bring to the forefront, Your 
 0041
          1   Honor, the problems that have increased in the past 
          2   years in the criminal justice system with an 
          3   alliance between media and prosecutors, and 
          4   prosecutors using press releases as bludgeons in an 
          5   attempt to get a judge to change their mind in an 
          6   area where they were at variance. 
          7            I would like to discuss the facts in this 
          8   case also.  And I will be fairly brief, because I 
          9   know you will hear them here, but there are some 
         10   matters which I think ought to be addressed. 
         11            Let's look for a minute at what happened 
         12   here in the course of a single case. 
         13            On August 1 there was a plea conference in 
         14   the Horton case.  To that everyone agrees.  Normal 
         15   process, for those who aren't familiar with the 
         16   criminal justice system, every day first session, 
         17   other sessions of the court, people come in for a 
         18   particular proceeding, whether it be motion days or 
         19   trial days or conference days, and if they so 
         20   desire, they can conference with the Court to 
         21   determine what will happen if a plea is entered.  
         22   Not what will likely happen, as you heard in the 
         23   SJC's opening, not what might happen.  It's a 
         24   conference which ends in a result in most 
 0042
          1   circumstances, as it did in this case, where after a 
          2   full and fair advocacy by both sides, a judge has 
          3   some options. 
          4            The judge can announce:  "Here is the 
          5   sentence I will impose."  The judge can announce:  
          6   "I won't tell you what sentence I'm going to 
          7   impose."  The judge can announce the range of 
          8   sentences I might impose, or the judge can simply 
          9   say, "Go to trial."  Basically, those are the 
         10   options. 
         11            In this instance, and in virtually every 
         12   instance in that courtroom where Judge Lopez was 
         13   presiding in the first session, an extremely busy 
         14   court in Suffolk County, after that process, what 
         15   occurs is Judge Lopez, after receiving all the 
         16   information that the parties wished to present, 
         17   makes a judgment and announces to the parties, if 
         18   there is a plea, here is the sentence.  And that's 
         19   what occurred on August 1. 
         20            So on August 1 of the Year 2000 this case 
         21   was closed, but for the procedural niceties of going 
         22   through the plea hearing and announcing the 
         23   decision.  It was over, it was done, and everyone 
         24   knew it. 
 0043
          1            What happened at the plea conference?  At 
          2   the plea conference the prosecutor -- and you will 
          3   hear, because there have been depositions in this 
          4   case -- the prosecutor was given a full, fair, 
          5   uninterrupted opportunity to state her case, Ms. 
          6   Joseph.  She'll testify -- unless she changes her 
          7   testimony again -- she'll testify that she was given 
          8   every opportunity to say everything she wanted about 
          9   this case in an attempt to advocate her position 
         10   with the judge as to what the appropriate sentence 
         11   would be. 
         12            The judge then turned -- and, by the way, 
         13   at that time the judge was privy to the police 
         14   reports, various reports made, and information given 
         15   by the Commonwealth.  
         16            And let's go back one other step, if I may, 
         17   because I've listened to this "11-year-old" 
         18   discussion throughout the pleadings in this case.  
         19   And now we've been provided with some birth 
         20   certificate which intends to show that the alleged 
         21   victim in this case was 11 years old at the time. 
         22            Well, that's news to everybody in this 
         23   case.  The police reports say he was seven weeks 
         24   short of his 13th birthday.  The Commonwealth's 
 0044
          1   statement of the case given to Judge Lopez say he 
          2   was seven weeks short of his 13th birthday.  Mr. 
          3   Deakin said in his statement in open court that's 
          4   televised he's 12 years old, seven weeks short of 
          5   his 13th birthday.  The police report itself 
          6   reflects a birth date for the victim which reflects 
          7   that he was seven weeks short of his 13th birthday. 
          8            So if anyone knew that this alleged victim 
          9   was 11 years old, they never told Judge Lopez about 
         10   it at the time.  Every document she had, every 
         11   statement by the Commonwealth and every statement by 
         12   a prosecutor indicated that he was seven weeks short 
         13   of his 13th birthday. 
         14            The judge then turned to the defense 
         15   counsel, Anne Goldbach, and Anne Goldbach advocated 
         16   her position in the case.  And she advocated in that 
         17   position that there were facts in dispute.  And as 
         18   in every plea that comes down in the Commonwealth of 
         19   Massachusetts, there's one side of the story, there 
         20   may be another side of the story, there may be a 
         21   mid-grounds to both of those stories, and those are 
         22   the matters that are put before the judge at the 
         23   plea conference. 
         24            If it was all as simple as saying, "It's 
 0045
          1   just the facts in the indictment," these conferences 
          2   wouldn't be had.  And what occurs is they both put 
          3   their best case forward, discuss it, and they go 
          4   from there.  And those were the disputed facts, 
          5   so-called. 
          6            But more importantly, what Ms. Goldbach did 
          7   on that date is she put before Judge Lopez a report 
          8   from a social worker:  We've done a psychosocial 
          9   workup of the defendant in this case, Ebony Horton.  
         10   It was provided to the Commonwealth in the sense 
         11   that they were offered an opportunity to have it.  
         12   They rejected it and turned it away because it was 
         13   of no interest to them.
         14            Ms. Goldbach discussed the factors and 
         15   gave, in fact, a copy of it for the judge to read.  
         16   And now for the first time -- because in the defense 
         17   of Judge Lopez, I am not limited or prohibited from 
         18   releasing information which she needs for her 
         19   defense -- for the first time there were a number of 
         20   facts within that report which to any judge 
         21   reflecting on the right decision in this case would 
         22   be appropriate for consideration. 
         23            Ebony Horton was a transgendered person 
         24   with a sexual identity disorder which had been from 
 0046
          1   her early childhood.  She was suffering from a 
          2   recognized mental disability, recognized by the 
          3   various diagnostic books, which we will provide to 
          4   the court.  She was abused as a child; she was 
          5   abused by her mother, she was abused by her father, 
          6   she was abused by those she went to school with.  
          7   She suffered a lack of self-esteem.  She suffered an 
          8   inability to know whether she was male or female, 
          9   boy or girl.  She didn't know whether she wanted to 
         10   have male genitals or female genitals.  She suffered 
         11   from suicidal ideations and literally had a life 
         12   which is one -- which a judge in our courts in the 
         13   Commonwealth are entitled to consider and factor in 
         14   determining the kind of sentence one wishes to 
         15   impose. 
         16            Be that as it may, after reflecting on all 
         17   of the various items in this case, what the defense 
         18   said, what the prosecution said, the factors 
         19   relating to the victim, the factors relating to the 
         20   defendant, Judge Lopez made her call.  It wasn't 
         21   biased, it wasn't prejudiced, it wasn't based on 
         22   anything but a recitation of advocacy to her, and 
         23   she made her judgment then, and there and it stayed.  
         24            This case would be probation with a period 
 0047
          1   of home confinement, with counseling, sexual 
          2   registration and various other factors. 
          3            The prosecutors didn't like it. Leora 
          4   Joseph -- who you will find and you will see is an 
          5   immature prosecutor, is a person who couldn't keep 
          6   her thoughts to herself with her disagreements with 
          7   Judge Lopez -- is a person, quite frankly, who, from 
          8   statements she made on the record to Judge Lopez, 
          9   evidence the fact that she really didn't have a 
         10   handle on being a prosecutor in a large urban 
         11   community where there are people of alternative 
         12   life-styles with years and years of pain in their 
         13   lives who come before her everyday.  And so that was 
         14   the basis of the comment that comes later. 
         15            But she leaves and she goes back to her 
         16   office.  And you will see from the depositions in 
         17   this case that nobody wants to take responsibility 
         18   for the unethical, inappropriate press release that 
         19   was issued by the DA's office on August 3 of the 
         20   Year 2000.  The ethical responsibilities for the 
         21   prosecutors as described in the canons of ethics 
         22   indicate a number of things.  
         23            No. 1, no prosecutor shall release in a 
         24   criminal case matters which will heighten public 
 0048
          1   scorn or condemnation of a defendant. 
          2            No. 2, every prosecutor should take upon 
          3   themselves the responsibility to see to it that 
          4   their office does not release unsavory, 
          5   inappropriate information to the press.  That is 
          6   their ethical obligation. 
          7            Ms. Joseph will testify under oath that she 
          8   did not even know of her obligations when she sat 
          9   there on August 4 of the Year 2000, let alone take 
         10   any steps to comply with them. 
         11            Mr. Deakin will testify that the only 
         12   reason he knew about his ethical obligations was 
         13   because he was told about them by Mr. Bracers, after 
         14   I deposed Ms. Joseph some year and a half after the 
         15   events, and he did nothing to take his ethical 
         16   responsibility.  And they left it to a non-lawyer, 
         17   press release person to put it out. 
         18            And what happened?  And what happened 
         19   because they didn't take the responsibility?  In a 
         20   case where this judge had been presented with a 
         21   defendant who was suffering from severe mental 
         22   disability and deficiency, who was suicidal, they 
         23   put out a press release the day before this possible 
         24   plea that describes in big bold detail, "Come on, 
 0049
          1   everybody, to the circus.  We're going to have a guy 
          2   in tomorrow who dresses like a female and is 
          3   transgendered," information, which had no place in 
          4   the public domain at that time.  It had nothing to 
          5   do with whether or not a plea would enter, and it 
          6   had the desired and purported effect of bringing in 
          7   the media to create a circus.  And that's exactly 
          8   what it did.  
          9            On August 4, when Judge Lopez arrived, she 
         10   didn't arrive to a court ready to take on business.  
         11   She arrived to media where they didn't belong, 
         12   without ever having sought access under the rules of 
         13   the court.  She arrived to a defense attorney who 
         14   was virtually hysterical, because when she got off 
         15   the elevator that day, the defendant and his 
         16   grandmother got into some kind of a tumult with the 
         17   press and their cameras, and off they went out back 
         18   off the elevator into some unknown room; they're 
         19   crying in some room, the defense lawyer is crying in 
         20   some room, ultimately the prosecutor is crying in 
         21   the bathroom, and this is supposed to be a decorous, 
         22   respectful situation which is going to take place 
         23   that day. 
         24            They got what they wanted.  What they 
 0050
          1   wanted was to bring the press in and try to put heat 
          2   on the judge and embarrass the judge or embarrass 
          3   the defendant because of his sexual identity 
          4   disorder. 
          5            And then they did the ultimate.  When Judge 
          6   Lopez came in and brought them all into chambers, 
          7   knowing that this was not going to be a day that a 
          8   plea would ever take place, with a person as fragile 
          9   as this -- and by the way, the defendant didn't have 
         10   to plea.  It was the defendant's option to say, "I'm 
         11   not pleading today."  And so when she brought them 
         12   in, what was her first question?  Because yes, she 
         13   was upset.  The first question to Ms. Joseph was, 
         14   "Are you responsible for this press?"  
         15            "Not me.  I had nothing to do with it."  
         16   And in fact, Leora Joseph was around, parading 
         17   around the room that day, and there will be 
         18   witnesses that she was telling everybody, "Oh, I'm 
         19   shocked there are cameras here.  Could these be for 
         20   us?  I had no idea they'd be here." 
         21            So what she did is she walked into the 
         22   judge's chambers smiling; she was disingenuous, she 
         23   lacked candor to the court, and there was an 
         24   exchange between them.  It wasn't in open court, it 
 0051
          1   wasn't in front of everyone.  It was a chastising by 
          2   Judge Lopez of a prosecutor who was out of line and 
          3   out of control in an attempt to get her to 
          4   understand that she had obligations ethically and 
          5   morally to go ahead with this case in a fair and 
          6   honorable way. 
          7            It was fairly well determined that this 
          8   case wasn't going forward.  It was going to be 
          9   continued.  And they were picking dates.  The 
         10   prosecutor ran out of the room, ultimately, as she 
         11   tells us later on that she was in the bathroom 
         12   crying.  She comes back out sometime later with Mr. 
         13   Deakin.  The case gets on the record.  And while 
         14   it's on the record, Judge Lopez comes out and says, 
         15   Look, I'm going to continue this to another day.  
         16   I've got a million things to do.  It's already 1 or 
         17   2 in the afternoon.  I have 18 bails or the like, 
         18   not looking to create a fight, not looking to 
         19   embarrass anybody. 
         20            She didn't come out on the Bench and say 
         21   Look, you people have taken this to a 
         22   fare-thee-well, you have caused all this chaos 
         23   around here.  She did it for a legitimate reason and 
         24   said, Okay, I'm going to continue it for those 
 0052
          1   reasons.  We're busy, let's pick a date and let it 
          2   die down. 
          3            Well, that wasn't satisfactory to the 
          4   prosecutors.  They wanted written findings when they 
          5   filed a motion and they got them.  And they got 
          6   written findings that spoke to exactly the way Judge 
          7   Lopez felt and spoke to exactly the facts and 
          8   inferences which she was entitled to draw.  And I 
          9   won't go through them in depth.  We'll be dealing 
         10   with them here.  But the basis of it and the thrust 
         11   of it is that the confusion and commotion and tumult 
         12   that was caused by these press releases and these 
         13   actions in a case dealing with someone who has a 
         14   sexual identity disorder and is so fragile in that 
         15   regard warranted this case being put over.  And she 
         16   stands by those findings then, today and tomorrow. 
         17            Now, interestingly enough, during all of 
         18   these process, Judge, you should know the 
         19   prosecutors never sought to do certain things with 
         20   relation to Judge Lopez's sentence.  At the time 
         21   that the psychosocial report was presented to Judge 
         22   Lopez, they did not ask for the ability to perform 
         23   their own report, own examination, or have any 
         24   information brought to the Court's attention.  They 
 0053
          1   did not seek to introduce or provide any further 
          2   information or other information, and they did not 
          3   seek reconsideration of her ruling that this would 
          4   be a probation case under these circumstances. 
          5            So what you had going into the sentencing 
          6   on September 6 was the following:  You had a judge 
          7   who had ruled after full advocacy.  You had an 
          8   undisputed, unrebutted psychological, psychosocial 
          9   report which indicated the deficiencies I've 
         10   previously described.  You had no further facts 
         11   being offered by the Commonwealth that would warrant 
         12   a reconsideration of that ruling.  And so what you 
         13   had that day was basically the formalization of that 
         14   which had already been agreed to and already been 
         15   done.  
         16            The Commission alleges that the judge took 
         17   sides by providing a special quarters for the 
         18   defendant and his mother to appear and by not 
         19   permitting cameras to film her face.  That's just 
         20   preposterous.  It is a total lack of understanding 
         21   of how our criminal courts work and how our court 
         22   officers and clerks ask of judges to inform them 
         23   when there will be matters that may be subject to 
         24   commotion, subject to disruption or subject to any 
 0054
          1   of the responsibilities of the court personnel. 
          2            Judge Lopez had already fully experienced 
          3   it.  She had seen what happened in Suffolk.  She had 
          4   people up in elevators not coming out, people crying 
          5   in bathrooms.  So what did she do?  She took the 
          6   rational and intelligent course of saying, We're not 
          7   going to have that again.  The press can come, even 
          8   though, again, they violated the rule by not seeking 
          9   court approval ahead of time.  They can film all the 
         10   proceedings.  The public's right to know these 
         11   proceedings will be had and will not be interrupted.  
         12   However, I'm going to permit -- and she had a court 
         13   officer permit the defendant to come in through the 
         14   side door, so there would be no commotion or the 
         15   like, and the face was not going to be shown because 
         16   of two reasons.  One, because she didn't want there 
         17   to be a question of danger or tumult in that regard 
         18   and, two, and more importantly, this defendant had 
         19   already shown a high emotional state, and she was 
         20   unwilling to see this plea break down again and not 
         21   go forward.  That would have been in no one's 
         22   interest. 
         23            During the plea hearing -- and again, I'll 
         24   try to cut to the facts.  We have a tape of these 
 0055
          1   proceedings.  But during the plea hearing, which 
          2   really was pro forma, the Commonwealth sought to 
          3   give a multi-page press release by way of its 
          4   statement to the court.  It was not directed at the 
          5   court.  The decision had been made.  All that had to 
          6   be done was to put on sufficient facts under the law 
          7   to allow a plea to continue.  But instead, it was 
          8   rather lengthy.  It was the impression of anybody 
          9   who was watching that that was really not intended 
         10   as a statement to convince the judge to change her 
         11   mind, because of course, everybody knew she couldn't 
         12   change her mind.  
         13            She had already announced to the defendant 
         14   at the very outset of the proceeding, "Here is the 
         15   sentence I'm giving you."  And she had no right, 
         16   after the defendant waived his rights based upon 
         17   that representation, to change her mind.
         18            She looked at Mr. Deakin.  They had a back 
         19   and forth on the efficacy of where this defendant 
         20   ought to be housed if she was incarcerated.  Mr. 
         21   Deakin obviously expected that.  This was no 
         22   sarcastic remark.  He obviously expected that 
         23   discussion, because he was well prepared to discuss 
         24   it. 
 0056
          1            And then there was the discussion of where 
          2   the crime stood.  And Judge Lopez rightly said -- 
          3   when she asked Mr. Deakin, "Where does this stand on 
          4   a scale of 1 to 10 in the cases we see in this 
          5   courthouse involving rape of children, involving 
          6   molestation of children and the like," and when Mr. 
          7   Deakin looked at her and said, "Oh, it's a 10," she 
          8   was absolutely right when she said he was 
          9   disingenuous.  He was not candid, he was not 
         10   genuine, and it's clear to anyone who looks.  
         11            If this case, this Horton case, where there 
         12   was no completed sexual act, where there was no 
         13   penetration, where there was no injury from use of a 
         14   deadly weapon, where there was no repetitive acts, 
         15   where there was no long-standing harm to the victim, 
         16   if that's a 10, then what about all the cases Judge 
         17   Lopez sees in Suffolk County, Middlesex County 
         18   everyday that have such more serious charges to them 
         19   in that regard?  We didn't have anything up to 11 
         20   and 15.  So when she said, "You're being 
         21   disingenuous with me when asked to give a candid 
         22   response to the Court," she had every right to do 
         23   so.  
         24            Now what happens?  She turns to defense 
 0057
          1   counsel and says, "I will hear from defense 
          2   counsel."  Well, Mr. Deakin doesn't want to hear 
          3   that.  Mr. Deakin says, "I want to be heard."  She 
          4   says, No, you won't be heard.  I'll hear from 
          5   defense counsel."  And Mr. Deakin stands and says, 
          6   "I want to be heard."  And Judge Lopez, 
          7   unfortunately and regrettably, loses her temper.  
          8            Remember what she's faced with, however.  
          9   She's faced with prosecutors who have lied to her in 
         10   this case consistently, tried to set her up in the 
         11   past, and now being disingenuous in their responses 
         12   and refuse to sit down and let defense counsel be 
         13   heard when they're supposed to.  Was she wrong in 
         14   doing it?  Of course she was.  Should she not have 
         15   gotten so angry?  Of course, she shouldn't have.  
         16   But I think in that regard, the Court ought to take 
         17   notice in some very important words that our Supreme 
         18   Court has indicated, and that's that even in 
         19   reviewing actions of courts in appeals, appellate 
         20   courts must grant the presider some margin of 
         21   humanity.  Judges aren't inhuman.  They can 
         22   ultimately -- ultimately, unfortunately -- can lose 
         23   their temper.  But the issue is always in cases such 
         24   as that is, is there a pattern.  Has it existed?  Is 
 0058
          1   it abusive?  Is it for a purpose?  And in this case, 
          2   there is no such thing. 
          3            What happens after that?  Mr. Ware wants to 
          4   talk about the exact languages of press releases, of 
          5   phone calls. 
          6            Based upon the press we've heard on the 
          7   night of the 6th and the morning of the 7th, Judge 
          8   Lopez and her family was subjected to some of the 
          9   most cruel, disgraceful, dispicable conduct that I 
         10   have seen or even heard of or imagined in my career. 
         11            Radio stations showed up at her driveway, 
         12   giving out her address and home phone number and 
         13   encouraging people to call and humiliate her.  Well, 
         14   they did.  Well, they did.  Calls came into her 
         15   house for her children to receive, one of them that 
         16   called her husband a spick-loving kike.  She 
         17   received racial and ethnic threats.  Her children 
         18   received them also.  She was under a fire storm.  
         19   She was under the most dispicable attack for a woman 
         20   who had spent nothing but all of her adult years of 
         21   her life achieving in ways that each of us would be 
         22   proud of.  Her family was hold-up in her house.  She 
         23   had court officers for guards in and out of the 
         24   courthouse.  She was afraid for her children, afraid 
 0059
          1   for her husband, afraid for herself and afraid for 
          2   the independence of a judiciary where she stood up 
          3   and delivered a sentence that she thought was right, 
          4   no matter what anyone else thought.  She exercised 
          5   her judicial integrity. 
          6            Did she engage -- involve herself in a 
          7   press release?  Yes.  Did she write it?  No.  Does 
          8   it carry her name?  Yes.  Did she participate in it?  
          9   Yes.  And you will find it is true.  For a press 
         10   release, it's as good as it gets.  It's true.  In it 
         11   are statements which she discussed with Judge 
         12   DelVecchio, which she discussed with Kenney -- Judge 
         13   DelVecchio, she'll testify, she knew exactly what 
         14   the press release meant, and it's exactly what she 
         15   was talking about.  She's talking about the same 
         16   factors, the same considerations that go into the 
         17   sentencing guidelines, such as they are, because the 
         18   guidelines, as you know, don't exist, because they 
         19   haven't been promulgated by the legislature.  It 
         20   goes into the factors the judges consider, the 
         21   guidelines they adopt and accept in sentencing other 
         22   persons.  
         23            What were the things she couldn't respond 
         24   to in a press release?  She couldn't tell everything 
 0060
          1   that was in Mr. Horton's background, his 
          2   psychosocial background.  That's the reason -- she 
          3   couldn't tell that I have a clear indication in the 
          4   report that he is not a pedophile, he is not a 
          5   repetitive pedophile.  And I have an opinion from an 
          6   expert that says this conduct will not likely happen 
          7   again. 
          8            Did she call and talk to Mr. Lahey, Ms. 
          9   Goldbach?  Of course she did.  Did she encourage 
         10   them?  Did she speak to them of the horrible press 
         11   that was occurring?  Yes.  Did she tell them -- 
         12   encourage them that they had an obligation to get 
         13   out there and stand out and at least stand up for 
         14   the institution of the judiciary; not take the side, 
         15   but tell them as an institution, this is an 
         16   institution that delivers sentences, and they 
         17   shouldn't be done in back rooms, nor should they be 
         18   done in press releases or by the press?  Yes. 
         19            As far as Mrs. Beaucage is concerned, I 
         20   still don't understand that one, but let me give you 
         21   a little background for that.  The Beaucage 
         22   complaint came in in this matter some six to seven 
         23   weeks after the events, after all the complaints had 
         24   come in, the fire storm, whatever.  And it came on 
 0061
          1   the heels of two letters received at the courthouse 
          2   by Judge Lopez on or about, I'd say, a week before 
          3   it.  Those letters were equally despicable and 
          4   called for various things.  And her -- she asked her 
          5   court officer to check them out, because she was 
          6   concerned.  And she learned that those particular 
          7   letters, which had come in well after these events, 
          8   were written by people who didn't exist at the 
          9   locations they described and had done business at 
         10   the locations they described, and she thus became 
         11   suspect of what kind of campaign was ongoing -- and 
         12   part of it we'll get into was the Demoulas issue, 
         13   which I will talk to you about in the trial.  
         14            So she received a complaint well after the 
         15   fact from this Ms. Beaucage.  And all she did is 
         16   called the phone to confirm that there is a Ms.  
         17   Beaucage living at that address.  She did it.  The 
         18   woman said "Yes."  She said, "Thank you very much," 
         19   and hung up the phone.  And in this highly 
         20   surreptitious late-night attempt to do something 
         21   that I don't know what the Commission is talking 
         22   about, she did it with her phone that has Caller ID 
         23   on it that says "Maria Lopez" is calling.  
         24            Now, what's wrong with that?  What rule she 
 0062
          1   has violated is beyond me.  She did nothing 
          2   whatsoever that was inappropriate. 
          3            But, Judge, this case begins and ends with 
          4   an attack on an independent woman, an accomplished 
          5   judge, because some disagreed with her sentence.  
          6   But, of course, most of the media did not have all 
          7   the facts before them.  She refused to buckle to 
          8   lawyering by use of the media, as opposed to zealous 
          9   courtroom advocacy.  And she refused to surrender 
         10   her judicial beliefs for the comfort of being left 
         11   alone by the media and segments of the community, 
         12   and now she is paying for it.  
         13            The sad truth, Your Honor, is that if Maria 
         14   Lopez had sentenced Ebony Horton to ten years in 
         15   jail and held the defense lawyer in contempt, it 
         16   wouldn't have made the 19th page of the paper.  
         17            Thank you.
         18            (At side bar)
         19            HEARING OFFICER DAHER:  I'm going to allow, 
         20   as a courtesy, that Judge Lopez can use the 
         21   facilities in the back hallway at my permission.  
         22   You can call Mr. Mone to see if he's available.  And 
         23   we'll take a very short recess.  
         24            (End of side bar)
 0063
          1            (Recess)
          2            (At side bar)
          3            HEARING OFFICER DAHER:  Any specific 
          4   mention of disposition? 
          5            MR. WARE:  No, there wasn't.
          6            HEARING OFFICER DAHER:  If you can get me a 
          7   copy, I'd appreciate it.
          8            MR. BRACERAS:  It's attached --
          9            HEARING OFFICER DAHER:  I haven't seen it.
         10            MR. WARE:  It's attached to the opposition.
         11            HEARING OFFICER DAHER:  The transcript?
         12            MR. BRACERAS:  Exhibit A.
         13            HEARING OFFICER DAHER:  Okay.  This is it? 
         14            MR. WARE:  Yes.
         15            HEARING OFFICER DAHER:  There isn't any 
         16   mention of any disposition.
         17            MR. WARE:  No.
         18            MR. EGBERT:  Yes, there is.
         19            HEARING OFFICER DAHER:  Is he coming in 
         20   today?
         21            MR. EGBERT:  He's sick this morning.  
         22   Tomorrow afternoon. 
         23            CHECK HEARING OFFICER DAHER:  That will be 
         24   fine.  Where is it talking about the disposition?  
 0064
          1   That might be redacted.  Just take it out.
          2            HEARING OFFICER DAHER:  I haven't seen it.  
          3   So do you mind if I take a look at it? 
          4            MR. EGBERT:  You may.  You don't want that 
          5   part of the record?
          6            HEARING OFFICER DAHER:  No.  He doesn't 
          7   talk about anything specifically in his affidavit of 
          8   the 15th? 
          9            MR. EGBERT:  On the suspension, you mean?
         10            HEARING OFFICER DAHER:  That's all you're 
         11   talking about.
         12            MR. EGBERT:  The suspension.
         13            HEARING OFFICER DAHER:  If there's any talk 
         14   of any specific disposition, disregard that.
         15            MR. BRACERAS:  Your Honor, I'll just 
         16   briefly attach that.
         17            HEARING OFFICER DAHER:  Right. 
         18            MR. EGBERT:  The Mone affidavit does 
         19   mention disposition, suspensions.
         20            HEARING OFFICER DAHER:  There isn't any 
         21   specificity as to the parameters of any suspension? 
         22            MR. EGBERT:  No.
         23            MR. BRACERAS:  And there's no 
         24   give-and-take.
 0065
          1            HEARING OFFICER DAHER:  Okay. 
          2            MR. EGBERT:  And there's nothing in here --
          3            HEARING OFFICER DAHER:  Do you agree? 
          4            MR. WARE:  Yes. 
          5            MR. EGBERT:  Nothing what you just said.
          6            HEARING OFFICER DAHER:  Exactly, right.  
          7   That will be fine.  You're all set.       
          8            (End of side bar)
          9                   MARIA LOPEZ, Sworn
         10                    DIRECT EXAMINATION
         11       BY MR. WARE:
         12       Q.   Good morning, Judge Lopez.
         13       A.   Good morning.  Which one?  Oh, this is for 
         14   the media.
         15       Q.   Will you state your name, please, for the 
         16   record. 
         17       A.   Maria Lopez.
         18       Q.   How long have you been a judge of the 
         19   superior court?
         20       A.   Since 1993. 
         21       Q.   And prior to that time, were you a judge in 
         22   the district court of the Commonwealth?
         23       A.   I was.
         24       Q.   Tell us when you were first appointed a 
 0066
          1   judge in the Commonwealth. 
          2       A.   In 1988. 
          3       Q.   And you have served continuously since that 
          4   time; is that correct?
          5       A.   That's correct.
          6       Q.   Now, you would agree that at some point you 
          7   began to deal with the case Commonwealth against 
          8   Horton; isn't that correct?
          9       A.   Correct.
         10       Q.   And you're aware that the charges in that 
         11   case included some serious charges; isn't that 
         12   correct? 
         13       A.   Correct.
         14       Q.   You have before you on your left hand a 
         15   book of exhibits.  
         16            MR. WARE:  Your Honor, the witness has a 
         17   set of exhibits.  The book that the clerk has is for 
         18   the Court.
         19       Q.   Directing your attention, Judge, to Exhibit 
         20   2, am I correct that that is a docket of the case, 
         21   Commonwealth against Charles Horton?
         22       A.   Correct.
         23       Q.   And do you see there that the indictments 
         24   against Mr. Horton are summarized as being 
 0067
          1   kidnapping, assault with intent to rape a child 
          2   under 16, indecent assault and battery on a child 
          3   under 14, assault and battery, and assault and 
          4   battery with a dangerous weapon?
          5       A.   Those are the indictments.
          6       Q.   The defendant pled guilty to all of those 
          7   indictments on September 6, 2000; is that correct?
          8       A.   Correct.
          9       Q.   And am I also correct that the defendant 
         10   took no issue with, substantive issue with the 
         11   statement of facts as recited by the assistant 
         12   district attorney on that occasion?
         13       A.   Not to the extent that it would change the 
         14   plea.
         15       Q.   Well, the defendant did more than that, did 
         16   he not?  He agreed to the recitation of facts in 
         17   their entirety with the exception of some minor 
         18   points; isn't that a fair characterization? 
         19            MR. EGBERT:  I object to the description by 
         20   counsel of "minor points."
         21            MR. WARE:  I'm asking the judge, who was 
         22   present.
         23            HEARING OFFICER DAHER:  Go ahead.
         24       Q.   Were they not minor points with which the 
 0068
          1   defendant disagreed?
          2       A.   They were not minor points, but they 
          3   weren't relevant to the facts necessary for the 
          4   defendant to plead to these indictments.
          5       Q.   Let me ask you to take a look at Exhibit 
          6   22, which is, in fact, a transcript of the guilty 
          7   plea on September 6.  And specifically let me direct 
          8   your attention to the bottom of Page 12 and 
          9   following.  
         10            Among the facts recited by the assistant 
         11   district attorney as a basis for the guilty plea in 
         12   the Horton case, or guilty pleas, was beginning at 
         13   Line 21 and following that a car pulled up beside 
         14   the child.  Do you see that, Line 21?
         15       A.   I do.
         16       Q.   And thereafter, the defendant, who appeared 
         17   to the boy to be a woman he did not know -- do you 
         18   see that language?
         19       A.   That is the DA's recitation.
         20       Q.   Right.  And at the beginning of the top of 
         21   Line 13 and following through that page,  The 
         22   assistant district attorney recites facts, including 
         23   that the defendant told the child he was searching 
         24   for his missing son named Michael?
 0069
          1       A.   Correct.
          2       Q.   And that he asked the victim to get into 
          3   the car and the boy agreed to get in?
          4       A.   Yes.
          5       Q.   It goes on about the middle of the page, 
          6   the district attorney says that the defendant asked 
          7   the victim if he wanted to perform oral sex, using a 
          8   common vulgarity, and the boy said he wanted to go 
          9   home.  Isn't that correct?
         10       A.   Yes, it is.
         11       Q.   The assistant district attorney went on to 
         12   say that a screwdriver was put to the boy's neck, as 
         13   shown on Lines 19 and 20?
         14       A.   Correct.
         15       Q.   At Line 22, that he then pulled the boy's 
         16   head into the defendant's lap; is that correct?
         17       A.   Correct.
         18       Q.   And in the last line, that the defendant's 
         19   finger was put against the child's mouth; is that 
         20   correct?
         21       A.   Correct.
         22       Q.   And on the following page there are a 
         23   series of facts with which the defendant took no 
         24   issue, including that the defendant took the child's 
 0070
          1   head and moved it up and down.  Do you see that?
          2       A.   Yes.
          3       Q.   And beginning on Lines 4 and 5, that the 
          4   victim was crying and pleading to go home?
          5       A.   Correct.
          6       Q.   About the middle of the page, at Lines 11 
          7   and 12, that the police then pulled up, the 
          8   defendant pulled the boy's head up and told the boy 
          9   at Line 15 that he should not say anything to the 
         10   police; is that correct?
         11       A.   Yes. 
         12       Q.   And then the recitation goes into a series 
         13   of police observations, which in substance begin at 
         14   the top of Page 15 that they saw the defendant 
         15   moving up and down, as indicated at Lines 3 and 4 on  
         16   Page 15?
         17       A.   Yes.
         18       Q.   That they saw the victim rise up from the 
         19   driver's side?
         20       A.   Yes.
         21       Q.   This was after the cruiser had pulled up, 
         22   put on its blue lights, and the two officers began 
         23   to approach the car; isn't that correct?
         24       A.   Correct.
 0071
          1       Q.   And the officers involved, as indicated on 
          2   Page 14, Lines 18 and 19, were Officers Rose and 
          3   Sweeney.  Those were the officers who were first on 
          4   scene; isn't that correct?
          5       A.   Where are they? 
          6       Q.   On the prior page, toward the bottom. 
          7       A.   I see it, yes.  Boston police officers, 
          8   yes.
          9       Q.   So Officers Rose and Sweeney were the two 
         10   officers in the cruiser that spotted this vehicle 
         11   and the victim and the defendant; isn't that 
         12   correct?
         13       A.   Correct.
         14       Q.   And they pulled up behind it and the 
         15   ensuing facts are recited by the district attorney; 
         16   is that so?
         17       A.   I don't know that they pulled up behind it.  
         18   It doesn't say that here.
         19       Q.   Well, you read the police reports at the 
         20   time, did you not?
         21       A.   I did.
         22       Q.   I don't want to get derailed on that at the 
         23   moment.  Whatever, the police car approached the 
         24   vehicle in some fashion, and the two officers got 
 0072
          1   out and they made certain observations which the 
          2   district attorney is reciting to you; is that 
          3   correct?
          4       A.   Correct.
          5       Q.   Again at Page 15, beginning on Line 9, the 
          6   district attorney represents that the defendant in 
          7   the driver's seat had his pants unzipped and around 
          8   his hips.  It goes on to say that he said to the 
          9   victim, "Tell them you were helping me look for my 
         10   two kids."  And at Line 16 the police officer said 
         11   the defendant later acknowledged that this was not 
         12   true.  That is, that it was a lie; is that correct?
         13       A.   Correct.
         14       Q.   In Line 17, the district attorney 
         15   represents that the victim was crying when the 
         16   police officers approached him; isn't that so, Lines 
         17   17 and 18?
         18       A.   I don't see the "approached" language in 
         19   here, but it does say the officers noted that the 
         20   victim was crying.  And when they spoke to him...
         21       Q.   All right.  At Line 20 there is a 
         22   representation that a screwdriver was found; is that 
         23   correct?
         24       A.   Yes. 
 0073
          1       Q.   Now, without going through the next two 
          2   pages of facts represented by the assistant district 
          3   attorney, if we go over to Page 18 of the plea, 
          4   beginning at Line 13, only three issues are raised 
          5   by the defendant.  He takes no issue with anything 
          6   else in the preceding recitation of the district 
          7   attorney's facts; isn't that so?
          8       A.   Yes, it is.
          9       Q.   And what he takes issue with is whether his 
         10   pants were down, or at least down all the way, 
         11   correct, at Line 14?
         12       A.   Well, it says, "My client does not agree 
         13   that her pants were down at the time." 
         14       Q.   Okay.  The police officer having said that 
         15   he observed his pants to be unbuttoned, correct?
         16       A.   Correct.
         17       Q.   And the defendant also disagrees that they, 
         18   quote, drove around as described at Line 17, 
         19   correct?
         20       A.   Correct. 
         21       Q.   And the only other issue that the defendant 
         22   takes with any of this recitation of facts is at 
         23   Line 22, that Mr. Horton gave the child $50 to be 
         24   quiet, correct? 
 0074
          1       A.   Correct.
          2       Q.   It does not dispute that he gave him the 
          3   $50, but he disputes that it was hush money, 
          4   correct?
          5       A.   Yes.  He disputes it was hush money.
          6       Q.   Now, judge, you would agree, would you not, 
          7   that notwithstanding a lobby conference, as happened 
          8   on August 1st, that it is not a matter of procedural 
          9   niceties for you to accept a guilty plea, inform a 
         10   defendant of his constitutional rights, and make the 
         11   determination that that defendant is pleading 
         12   knowingly and intelligently to five felonies; isn't 
         13   that right?
         14       A.   Correct.
         15       Q.   It is nontrivial, isn't that correct?
         16       A.   Absolutely.
         17       Q.   And in fact, there is a specific rule, Rule 
         18   12, and a whole Constitution of the United States 
         19   and this Commonwealth which ensures that the 
         20   defendant has certain rights; isn't that right?
         21       A.   Correct. 
         22       Q.   And you, as a superior court judge, are 
         23   quite careful in taking any guilty plea to be 
         24   certain that if those rights are going to be waived, 
 0075
          1   they're going to be waived knowingly and 
          2   intelligently by the defendant, isn't that so?
          3       A.   That's a finding I have to make.
          4       Q.   And that's the reason that you go through a 
          5   series of questions that are quite particular to 
          6   those rights and whether the defendant understands 
          7   that he's waiving those rights.
          8       A.   Right.
          9       Q.   So it is not a pro forma matter, it is not 
         10   procedural niceties what occurred at the time of the 
         11   proffering of the guilty plea and your acceptance of 
         12   that guilty plea; isn't that correct?
         13       A.   No.  I have to get on the record that the 
         14   defendant understands, and understands what rights 
         15   he was -- she was waiving at the time. 
         16       Q.   And it is also the case, is it not, judge, 
         17   that if you wanted to change your mind about an 
         18   intended disposition, as you articulated it to 
         19   defense counsel and the prosecution on August 1st, 
         20   you could do so, but the defendant would have 
         21   resulting rights, such as he could decide not to 
         22   plead guilty; is that right?
         23       A.   That's right.
         24       Q.   There's no magic to the fact that on August 
 0076
          1   1st you had announced what you characterized as an 
          2   intended sentence.  You could change your mind, 
          3   couldn't you? 
          4       A.   I could. 
          5       Q.   The only fly in that ointment is that if 
          6   you did change your mind, then the defendant gets 
          7   the right to change his mind; isn't that correct?
          8       A.   That's right.
          9       Q.   And so the defendant could make the 
         10   decision not to plead guilty, isn't that so?
         11       A.   That's so.
         12       Q.   Now, weren't you told on August 1st by Ms. 
         13   Goldbach that in fact, her client had not yet made 
         14   the decision to plead guilty?
         15       A.   On August 1st? 
         16       Q.   Yes. 
         17       A.   At the lobby conference? 
         18       Q.   At the lobby conference. 
         19       A.   I believe I was told that she would go and 
         20   confer with her client after I announced what my 
         21   disposition in this case would be if the defendant 
         22   pled to these charges.
         23       Q.   Of course.  She had to talk with her 
         24   client, isn't that right?
 0077
          1       A.   Correct.
          2       Q.   And the fact is that having announced what 
          3   you proposed to do, that was the end of the lobby 
          4   conference and you don't know to what extent she did 
          5   or did not have a conversation with Mr. Horton, 
          6   correct?
          7       A.   I have no idea, yes.
          8       Q.   Now, when you came to court on August 4th, 
          9   you had scheduled a matter for plea and sentencing 
         10   or, as lawyers call it, disposition; isn't that 
         11   correct?
         12       A.   I'd have to look at the docket to see how 
         13   the clerk referenced it, because --
         14       Q.   Sure.  The docket is Exhibit 2, Judge. 
         15       A.   To see if it was scheduled as a plea or an 
         16   appearance.  I have no idea how it was -- (Witness 
         17   reviews document) 
         18       Q.   If you look at the bottom of Page 2 of 4 of 
         19   Exhibit 2 --
         20       A.   Yes.
         21       Q.   -- the month is blocked out, but you can 
         22   see, I think, that the last two entries are August 
         23   4th entries.
         24       A.   Yes.
 0078
          1       Q.   I don't believe there's any docket entry 
          2   for August 1st. 
          3       A.   Right.  But I believe you asked me what the 
          4   docket would show as to what the purpose of the --
          5       Q.   No, I didn't ask you what the docket 
          6   showed.  I'm sorry if I wasn't clear. 
          7       A.   Okay.
          8       Q.   You understood that what was to happen on 
          9   August 4th was that there would be a plea and 
         10   sentencing; isn't that so?
         11       A.   I didn't understand that at all.  I thought 
         12   there could possibly be.
         13       Q.   All right.  You scheduled the matter for 
         14   plea and disposition on August 4th, correct?
         15       A.   That is what -- I didn't schedule it.  The 
         16   way it's entered into the docket is something that 
         17   the clerks do.  So I can't remember how they do it 
         18   in Suffolk.  Sometimes they just schedule them as an 
         19   appearance, because they may not plead.  So I don't 
         20   know if it's a plea certain.  Maybe they would 
         21   indicate it that way.  This was not left as a plea 
         22   certain.
         23            MR. EGBERT:  Excuse me, Your Honor.  I 
         24   would like to object on the grounds --
 0079
          1            HEARING OFFICER DAHER:  Speak into the 
          2   microphone, please, Mr. Egbert.
          3            MR. EGBERT:  I object, Your Honor, because 
          4   there are in fact docket entries to the dates in 
          5   question, and Mr. Ware is directing her to pages 
          6   where they don't exist.  There are entries for 
          7   August 1stst of 2000 and August 4th of 2000 which 
          8   may help answer these questions.  And they are 
          9   contained on Page 4 --
         10            THE WITNESS:  I see, yes.
         11       BY MR. WARE: 
         12       Q.   Does anything there help you in this 
         13   regard?
         14       A.   Yes.  There's an entry on August 1st, when 
         15   the case was first called.  And it says "Lobby.  
         16   Continued by agreement." 
         17            So on August 4th there was a hearing plea 
         18   offer -- it was scheduled as a plea offer. 
         19       Q.   What you expected that to -- obviously you 
         20   didn't know what was going to happen.  What you 
         21   expected was counsel for the parties would come to 
         22   court on August 4th; there would be a plea and 
         23   disposition, right?
         24       A.   I think that's what, yeah, the Court system 
 0080
          1   would expect of that entry; that that's what it 
          2   would say.
          3       Q.   I'm not concerned about what the entry 
          4   means so much as what you understood.  You 
          5   anticipated there would be a plea and sentence.
          6       A.   Mr. Ware, I was not thinking about the 
          7   Horton case on August 4th when I showed up in court. 
          8       Q.   All right.  Let me direct you to Exhibit 
          9   17.
         10            Exhibit 17 is a document containing your 
         11   findings of August 4th, isn't that so?
         12       A.   Correct.
         13       Q.   And do you see the language in the first 
         14   two lines that says, "The Court makes the following 
         15   findings:  This case was on for a change in plea 
         16   today."  Do you see that?
         17       A.   Correct.
         18       Q.   Is that consistent with your understanding?
         19       A.   Yes, but these findings were made at the 
         20   end of the day.  When I got to court that morning, I 
         21   had no idea what cases would come before me in the 
         22   first session.
         23       Q.   Judge, we're making this too hard on each 
         24   other.  Three days earlier --
 0081
          1            MR. EGBERT:  Objection and move to strike.
          2            HEARING OFFICER DAHER:  Allowed. 
          3       Q.   On August 1st you met with counsel.  You 
          4   and counsel agreed to come back on August 4th for a 
          5   plea and sentencing if the defendant chose to plead; 
          6   isn't that right?
          7       A.   Yes.
          8       Q.   Now, Exhibit 17 came about as a result of 
          9   the fact that the district attorney pointed out to 
         10   you that since this was a child abuse case, you were 
         11   required to make written findings, isn't that so?
         12       A.   That's not so that he pointed it out to me.  
         13   He filed a written motion requesting findings.
         14       Q.   And the findings that we see as Exhibit 17 
         15   are indeed those findings; is that correct?
         16       A.   They are.
         17       Q.   When you got to court on August 4th, there 
         18   was some activity with the press; isn't that 
         19   correct?  There was a camera in the courtroom?  
         20   There were people milling about with cameras, isn't 
         21   that so?
         22       A.   That's so.
         23       Q.   And at some point you were asked by defense 
         24   counsel, Ms. Goldbach, to have a lobby conference 
 0082
          1   with counsel, isn't that so?
          2       A.   I was told by my either clerk or court 
          3   officer -- I think it was the clerk -- that Ms. 
          4   Goldbach wanted to see the judge.  She did not tell 
          5   me directly. 
          6       Q.   As a result of that, in any event, you met 
          7   with counsel for the parties, the assistant district 
          8   attorney and the defense counsel; isn't that 
          9   correct?
         10       A.   I did.
         11       Q.   And you had some colloquy with them about 
         12   the case and about the press at that time?
         13       A.   Yes.
         14       Q.   You were, at the time when you saw the 
         15   press and when you subsequently had conversation 
         16   with Ms. Joseph, angry about the presence of the 
         17   press, were you not?
         18       A.   I was not angry about the presence of the 
         19   press, no.
         20       Q.   You were angry about something else?
         21       A.   Yes.
         22       Q.   You were angry about what the press 
         23   appeared to you or what you had been told the press 
         24   was doing?
 0083
          1       A.   No.
          2       Q.   Were you not upset that cameras were in the 
          3   courtroom already?
          4       A.   Not at all.
          5       Q.   And not upset either that there were 
          6   cameras or reporters in the hallways?
          7       A.   No, I was not upset about that.
          8       Q.   All of that was fine with you?
          9       A.   That was fine with me.
         10       Q.   Didn't you make the decision in the lobby 
         11   to continue the case based on what you saw there 
         12   that day?
         13       A.   Based on the conversations I had with the 
         14   defense attorneys in my lobby.  That is when I made 
         15   the decision to continue the case.
         16       Q.   And you continued the case because you 
         17   believed that on another date there might be a 
         18   hotter news story than this case, isn't that so?
         19       A.   Those were not the reasons why I continued 
         20   the case.
         21       Q.   Could you take a look at your sworn 
         22   testimony before the Commission, which is Exhibit 
         23   32, and specifically to Page 84, beginning on Line 
         24   18.  Do you see where you say -- I'll begin with 
 0084
          1   Line 16:  "I had the defendant and the mother up in 
          2   some room in the courthouse.  There was a media 
          3   circus going on.  I wanted to continue the case 
          4   because I really believed that on another date maybe 
          5   there would be some other new or news story that was 
          6   hotter than mine."  Is that correct?
          7       A.   Yes, that's what that says. 
          8       Q.   Now, on this occasion on August 4th, 
          9   eventually you became quite angry with Ms. Joseph, 
         10   isn't that so?
         11       A.   I did.
         12       Q.   And you had some history with her, did you 
         13   not?
         14       A.   I did. 
         15       Q.   Among the historical moments you had with 
         16   her were two earlier cases, one called Calixte and 
         17   one called Estrada; isn't that correct?
         18       A.   That's correct.
         19       Q.   And those colored your view going into this 
         20   case of the prosecutor, Ms. Joseph, did it not?  
         21   Your experience in those cases.
         22       A.   When you say colored my view of Leora 
         23   Joseph, my prior experiences with her --
         24       Q.   Yes?
 0085
          1       A.    -- informed me about her, yes.
          2       Q.   You said on that occasion when you were in 
          3   the lobby, among other things, that she belonged in 
          4   the suburbs; isn't that so?
          5       A.   I did.
          6       Q.   And what you meant by that was she was like 
          7   this woman you later described, who stays home, does 
          8   her nails and goes to the beauty parlor; is that 
          9   correct?
         10       A.   I said -- so long as it's clear that I said 
         11   that in my deposition, not to her.
         12       Q.   Well, what you said to her was, "You belong 
         13   in the suburbs," correct?
         14       A.   Correct.
         15       Q.   When you testified a year later, having 
         16   reflected on that comment about what you meant when 
         17   you said it, you testified under oath that what you 
         18   meant was it's the kind of woman who stays home, 
         19   does her nails and goes to the beauty parlor; isn't 
         20   that correct?
         21       A.   Among many other descriptions that I gave 
         22   for the definition I intended --
         23       Q.   Well, that was one of them, wasn't it, 
         24   Judge?
 0086
          1       A.   It was one of many, yes.
          2       Q.   And you would agree that that was intended 
          3   to be and was in fact a pejorative description of 
          4   Ms. Joseph; is that right?
          5       A.   Absolutely not, Mr. Ware.  I color my 
          6   nails; I do my hair.
          7       Q.   Oh, I see.  So are you now telling us, 
          8   Judge, that that was a neutral statement or a 
          9   compliment to the assistant district attorney --
         10       A.   Which statement? 
         11       Q.    -- when you told her she belonged in the 
         12   suburbs? 
         13       A.   It was not a complimentary statement, no.
         14       Q.   All right.  Well, if it was not a 
         15   compliment, would you agree that it was a criticism 
         16   of her?
         17       A.   Absolutely. 
         18       Q.   And that criticism was intended to mean 
         19   you're really not fit to do your job in an inner 
         20   city court; isn't that right? 
         21       A.   That's pretty much right, yeah.
         22       Q.   What you intended to tell this assistant 
         23   district attorney, who had been with the child abuse 
         24   unit since 1997 and had been an assistant district 
 0087
          1   attorney since 1994, was you don't know how to do 
          2   your job, correct?
          3       A.   Correct.
          4       Q.   Now, when you subsequently made written 
          5   findings, you went well beyond that, didn't you, and 
          6   you made some additional findings about Ms. Joseph 
          7   in particular?
          8       A.   Yes, I did.
          9       Q.   Incidentally, when you explained to counsel 
         10   for the Commission under oath your interpretation of 
         11   "You belong in the suburbs," you explained that away 
         12   as being part of your personality, didn't you?
         13       A.   You'd have to show me where I said that.
         14       Q.   Well, why don't you take a look at Page 77 
         15   at Line 8. 
         16       A.   (Witness reviews document)  I said, "You 
         17   know, I probably shouldn't have said 'you belong in 
         18   the suburbs.'  I probably shouldn't have, but as you 
         19   can see from interviewing me, I kind of, you know, 
         20   it's my personality."  Yes, I said that.
         21       Q.   That was your reason for having made the 
         22   comment, "You belong in the suburbs"; is that right?  
         23   It's just part of your personality.
         24       A.   Not the reason.  It may be my personality 
 0088
          1   to make a comment.
          2       Q.   Now, Judge, following your colloquy with 
          3   Ms. Joseph, you made the findings which begin in 
          4   Exhibit 17, "ADA Joseph, unhappy with the Court's 
          5   disposition, called the press in."  And you had some 
          6   conversation with Ms. Joseph about that, did you 
          7   not?
          8       A.   I did.
          9       Q.   You asked her whether or not she called the 
         10   press in, and she said she did not, but she told you 
         11   that the district attorney's office was responsible 
         12   for it; isn't that right?
         13       A.   Yes, she did.
         14       Q.   But you found in your written findings that 
         15   she personally called the press, do you not?  You 
         16   don't say the district attorney's office.  You 
         17   personalize this to Ms. Joseph, don't you?
         18       A.   I didn't believe her, that she wasn't 
         19   involved, if that's what you're asking.  So it is 
         20   personal to her.  I thought she was lying -- not 
         21   being candid with me.
         22       Q.   That was not my question, Judge.  My 
         23   question was, your written findings as set forth in 
         24   Exhibit 17 are quite personal to Ms. Joseph, are 
 0089
          1   they not.
          2       A.   They are because I've had experience with 
          3   her.
          4       Q.   All right, Judge.  We'll get to that.  You 
          5   made a personal finding that she called the press 
          6   in; not that the district attorney's office did, 
          7   didn't you?
          8       A.   I don't know how literally you're taking 
          9   the word "called."  I think you're overliteralizing 
         10   this.
         11       Q.   Are we now going to debate what "is" is and 
         12   what "called" means?
         13            MR. EGBERT:  I object and move to strike.
         14            HEARING OFFICER DAHER:  Stricken.  Allowed.
         15       Q.   "ADA Joseph, unhappy with the Court's 
         16   disposition, called the press in."  Are those the 
         17   words you wrote?
         18       A.   I did, but they don't mean that she 
         19   personally picked up the phone and called them.
         20       Q.   Well, elsewhere in this order you speak of 
         21   the district attorney's office.  Here you speak 
         22   specifically of Ms. Joseph, do you not?
         23       A.   I do.
         24       Q.   You understood that an individual reading 
 0090
          1   these findings would understand you to have found 
          2   that the district attorney personally, this young 
          3   woman, called the press in, because that's what you 
          4   say; isn't that right?
          5       A.   No, I don't think she could have possibly 
          6   believed that.
          7       Q.   Regardless of what she believed, your 
          8   findings, this public record, which you filed, says 
          9   ADA Joseph called the press in.
         10       A.   And that's true.
         11       Q.   That's your view of the law.
         12       A.   That is, yes.  That is true.  That is my 
         13   finding and that's my opinion of that finding, what 
         14   I believe in.
         15       Q.   Now, Judge, you go on to say in that same 
         16   area of Exhibit 17 that -- well, as part of that 
         17   same line, I guess, that she's unhappy with the 
         18   Court's disposition.  Do you see that?
         19       A.   Yes.
         20       Q.   And in the following line you describe this 
         21   business of calling the press in as a habit of Ms. 
         22   Joseph's, isn't that so?  "Ms. Joseph has a habit of 
         23   doing this" --
         24       A.   Correct.
 0091
          1       Q.   And what you meant by that is that Ms. 
          2   Joseph personally had a habit of calling in the 
          3   press; is that right?
          4       A.   Of criticizing me in the press after I 
          5   issued a sentence she didn't like.
          6       Q.   Judge, what you say here is that in the 
          7   order which you filed in a public court "Ms. Joseph 
          8   has a habit of doing this," the "doing this" being 
          9   calling the press in; isn't that correct?
         10       A.   Correct.
         11       Q.   And that's what you intended the public or 
         12   anyone else reading this document to understand you 
         13   to have ruled, correct?
         14       A.   That she personally was responsible for the 
         15   press being in the courtroom.
         16       Q.   That's not what you said, is it, Judge?  
         17   You said she called in the press, isn't that so?
         18       A.   But you're reading that as though I meant 
         19   she picked up the phone and called them.
         20       Q.   I'm reading "called" as meaning called.
         21            MR. EGBERT:  Excuse me, Judge.
         22            HEARING OFFICER DAHER:  What is your 
         23   objection? 
         24            MR. EGBERT:  May she be allowed to finish 
 0092
          1   her answers?
          2            HEARING OFFICER DAHER:  I agree.  Go ahead. 
          3       Q.   In any event, you make a finding that Ms. 
          4   Joseph has a habit of calling the press, correct?
          5       A.   Correct.
          6       Q.   And you're now telling us that that should 
          7   be interpreted to mean the district attorney's 
          8   office?
          9       A.   No.  That she was responsible for 
         10   initiating the contact with the press.  And I'm sure 
         11   her press office was the one who called the press or 
         12   dealt with the press.  But I found her personally 
         13   responsible for it, yes. 
         14       Q.   Well, of course, you do not say she's 
         15   personally responsible.  You say she called the 
         16   press and has a habit of doing that, don't you?
         17       A.   We're saying the same thing.
         18       Q.   And you think someone reading this would 
         19   understand that you're not making a finding personal 
         20   to Ms. Joseph?
         21       A.   I have no idea what someone reading this 
         22   could interpret it.  Obviously you've misinterpreted 
         23   it. 
         24       Q.   Am I right, Judge, that in the Calixte and 
 0093
          1   Estrada cases there was press attention to those 
          2   cases, including press attention before you ever got 
          3   involved in the cases?
          4       A.   I have no knowledge of prior press 
          5   attention in those cases.
          6       Q.   You don't know whether or not there was?
          7       A.   I do not know that.
          8       Q.   The Calixte case was a case which involved 
          9   allegedly a defendant who severely beat her 
         10   children, including a 12-year-old girl; isn't that 
         11   correct?
         12       A.   One child.
         13       Q.   All right, one child, including a 
         14   12-year-old girl?
         15       A.   I believe she was 14.  But it doesn't 
         16   matter.  It's irrelevant, the age.
         17       Q.   She whipped the child enough, according to 
         18   the facts and according to the defendant's plea, 
         19   that the child was scarred, isn't that so?
         20       A.   That's true.  She was an undiagnosed 
         21   schizophrenic at the time.
         22       Q.   Judge, maybe there are a lot of reasons.  
         23   Let's see if we can agree on what the case was 
         24   about.  The case involved --
 0094
          1            MR. EGBERT:  Objection.  The case was about 
          2   everything involved in the case, including the 
          3   people involved, the defendants and the alleged 
          4   victims --
          5            MR. WARE:  Your Honor, that's interesting.
          6            HEARING OFFICER DAHER:  What's the 
          7   objection? 
          8            MR. EGBERT:  That he continues to cut off 
          9   the Judge during the course of her answer.
         10            MR. WARE:  I don't believe so, Your Honor.  
         11   In any event, I'm entitled to cross examine.
         12            HEARING OFFICER DAHER:  Absolutely.  Go 
         13   ahead.  
         14            MR. WARE:  Thank you, Your Honor. 
         15       Q.   The Calixte case involved a defendant who 
         16   beat her child, whether 12 or 14, severely enough 
         17   that, according to the allegations, the child had 
         18   permanent scarring on her back.  There are 
         19   allegations that the child was burned by her mother 
         20   holding her hand on a flame or otherwise inflicting 
         21   burns on her; isn't that so?
         22       A.   I don't recall all those facts, no.
         23       Q.   Would you agree that that case was of 
         24   interest to the press independent of anything you 
 0095
          1   did or she did, she, Ms. Joseph, did?
          2       A.   I wouldn't agree with that.  I wouldn't 
          3   know how to answer that.
          4       Q.   You don't think there's any press interest 
          5   in a case involving that level of child abuse?
          6       A.   There could be. 
          7            MR. WARE:  May I have a moment, Your Honor?
          8            HEARING OFFICER DAHER:  Absolutely. 
          9       BY MR. WARE: 
         10       Q.   Do you recall that in the Calixte case you 
         11   imposed sentence in 1999, about February of 1999?
         12       A.   I don't have a recollection of that.
         13            MR. WARE:  Again, Your Honor, if I may?
         14            MR. EGBERT:  Your Honor, are there matters 
         15   up on your screen?
         16            HEARING OFFICER DAHER:  Yes.  Are you 
         17   getting them?
         18            MR. EGBERT:  I have them on mine.  Those 
         19   are not matters in evidence, and I don't know what 
         20   right they have to broadcast them to the finder of 
         21   fact or to anyone else until they've adequately 
         22   grounded them in evidentiary support.  So I would 
         23   object.  In any case I've tried where there's been 
         24   papers in a trial, prior to any broadcasting of the 
 0096
          1   exhibit there is a request that it be admitted as an 
          2   exhibit.  There have been no such requests.
          3            HEARING OFFICER DAHER:  Mr. Ware, I'll hear 
          4   you on that point of evidence.
          5            MR. WARE:  Your Honor, this is merely for 
          6   purposes of cross examination to refresh the Judge 
          7   with respect to the timing of her sentence and the 
          8   fact that there was indeed press coverage more than 
          9   a year earlier.  It had nothing to do with Ms. 
         10   Joseph or the Judge.
         11            MR. EGBERT:  If it would refresh her 
         12   memory, it should be put in front of her and not in 
         13   front of the fact finder.  In any case, when the 
         14   witness's memory is refreshed, the document that 
         15   refreshes her memory does not go before the fact 
         16   finder --
         17            HEARING OFFICER DAHER:  Mr. Ware, what he's 
         18   talking about obviously is a present recollection 
         19   revived.  You show her the document -- she's the one 
         20   that's testifying, not the document.  That's the 
         21   point you want to make?
         22            MR. EGBERT:  Yes, Your Honor.
         23            HEARING OFFICER DAHER:  You've made it.
         24       BY MR. WARE:
 0097
          1       Q.   Would you please take a look at Exhibit 47 
          2   for identification.
          3            MR. EGBERT:  May I ask that the document be 
          4   taken down off the screen?
          5            HEARING OFFICER DAHER:  Mr. Ware, I'll hear 
          6   you.
          7            MR. WARE:  That's fine, Your Honor.  I have 
          8   no objection to that.
          9            HEARING OFFICER DAHER:  Motion allowed.
         10       Q.   Exhibit 47 is the docket in the Calixte 
         11   case; isn't that so?
         12       A.   Yes, it is.
         13       Q.   And if you turn to Page 5 of 7, will you 
         14   agree with me that at the top of that page it 
         15   indicates guilty pleas on February 5, 1999?
         16       A.   Yes. 
         17       Q.   Now let me show you a series of articles 
         18   and ask you whether these in any way enlighten you 
         19   whether more than a year prior to that there were 
         20   articles in the Boston newspapers about the case 
         21   that had nothing to do with Ms. Joseph or Judge 
         22   Lopez.
         23       A.   How do I know --
         24            HEARING OFFICER DAHER:  What's your 
 0098
          1   objection? 
          2            MR. EGBERT:  My objection is it assumes a 
          3   fact not in evidence and has nothing to do with Ms. 
          4   Joseph.
          5            MR. WARE:  Your Honor, this is cross 
          6   examination.
          7            MR. EGBERT:  Well, it has to be fair cross 
          8   examination, Your Honor.  The fact of the matter is 
          9   when he asked her whether or not these articles have 
         10   anything to do with Ms. Joseph, this witness has no 
         11   way of knowing whether these articles had anything 
         12   to do with Ms. Joseph, whether she spoke in them, 
         13   whether she gave them to the press or anything of 
         14   the like.
         15            HEARING OFFICER DAHER:  Again, I'll take it 
         16   de bene and subject to a motion to strike at the 
         17   proper time.  Go ahead.
         18            MR. WARE:  Let me rephrase my question, 
         19   Judge.
         20       BY MR. WARE: 
         21       Q.   The documents before you indicate that 
         22   there was press attention a year before you got the 
         23   case; isn't that right?
         24       A.   Yes.
 0099
          1       Q.   So when you said a moment ago that Ms. 
          2   Joseph had a habit of calling the press after you 
          3   imposed sentence in cases, at least this is a case 
          4   in which the press had followed the case prior to 
          5   any involvement by you, isn't that so?
          6       A.   I had no recollection -- I don't think I've 
          7   ever seen -- well, I may have seen them, but I have 
          8   no -- they would have never been in my mind, 
          9   something that happened a year and a half or so 
         10   before. 
         11       Q.   My question, Judge, is you now know that 
         12   there was press attention a year before you imposed 
         13   sentence.
         14       A.   Correct.
         15       Q.   And a year before you had anything to do 
         16   with that case; isn't that so?
         17       A.   Right.
         18       Q.   So the press was tracking that case long 
         19   before Ms. Joseph or you were involved in a 
         20   sentencing proceeding.
         21       A.   It appears that way.
         22       Q.   And that's equally true of the Estrada 
         23   case, is it not?
         24       A.   I don't know.
 0100
          1       Q.   Do you have any reason to believe that it's 
          2   not true?
          3       A.   No, I don't. 
          4       Q.   The Estrada case, just so we're all on the 
          5   same page, involved a guard at the Nashua Street 
          6   jail who raped his stepdaughter over a four-year 
          7   period from ages 11 to 15, isn't that so?
          8       A.   Yes -- well -- I want to say yes.  I'm 
          9   accepting that -- I don't remember exactly the facts 
         10   of that case, so...
         11       Q.   Well, Judge, you indicated a moment ago 
         12   that that case and the Calixte case are the very 
         13   reasons that you had a low opinion of Ms. Joseph 
         14   when you came to the Horton case; isn't that right?
         15       A.   Correct.
         16       Q.   And you said that it was because of the 
         17   press attention in those cases that followed your 
         18   sentences; isn't that right?
         19       A.   Her criticisms of me after my sentences.  
         20   She spoke to the press after I imposed a sentence.
         21       Q.   When you say you don't remember what the 
         22   Estrada case was about, this was a relatively 
         23   notorious case, and you were criticized as a result 
         24   of your sentence in the case, were you not?
 0101
          1       A.   By Ms. Joseph.
          2       Q.   By the media?
          3       A.   I don't recall that. 
          4       Q.   You don't recall that?
          5       A.   It was in an article.
          6       Q.   Well, when you say you don't recall that, I 
          7   thought you told us a moment ago that indeed, the 
          8   negative press attention following your sentence 
          9   brought on, you say, by Ms. Joseph, was the reason 
         10   that you were critical of her and suspicious of her 
         11   when it came to August 1st and August 4th, 2000; 
         12   isn't that right?
         13       A.   Ask me that question again. 
         14       Q.   You came to the Horton case with a 
         15   predisposition about Ms. Joseph that she was 
         16   trouble; isn't that correct?
         17       A.   No.
         18       Q.   You had a predisposition that she would 
         19   call in the press on you.
         20       A.   I had experienced two prior experiences 
         21   with her where, after I sentenced defendants to 
         22   sentences that she was not happy with, that she 
         23   would speak to the press and criticize me.
         24       Q.   In fact, isn't it the case that Ms. Joseph 
 0102
          1   spoke to the press only once and only for purposes 
          2   of the article written by Eileen McNamara critical 
          3   of you in Calixte and Estrada?  Isn't that so?
          4       A.   I don't know that.
          5       Q.   Why don't you know that?  Your opinion of 
          6   Ms. Joseph is based on what you say are press 
          7   attention that she called upon you, isn't that so?  
          8   Being critical of your sentencing?
          9       A.   My opinion -- it goes well beyond that.  
         10   It's not the only reason that formed my opinion 
         11   about her.
         12       Q.   Let's stick with your predisposition, the 
         13   things you brought to the sentencing about Ms. 
         14   Joseph in September of 2000 and August of 2000.  
         15   When you realized she was counsel for the 
         16   Commonwealth in that case, you realized that she was 
         17   the same prosecutor who had prosecuted Calixte and 
         18   Estrada, correct?
         19       A.   I knew that, yes.
         20       Q.   And you believed that in those cases she 
         21   had called the press in, correct?
         22       A.   Correct.
         23       Q.   You now know that at least in one of those 
         24   cases the press was in the hunt a year earlier, 
 0103
          1   isn't that so?
          2       A.   Yes.
          3       Q.   Those two cases and the publicity that 
          4   followed them caused you to have an opinion about 
          5   Ms. Joseph, a negative opinion, isn't that so?
          6       A.   What she said about me and what she said --
          7       Q.   Judge, please, my question is very simple.
          8            MR. EGBERT:  I ask that she be permitted to 
          9   answer the question.
         10            MR. WARE:  I'd like the witness to answer 
         11   in a responsive way.
         12            HEARING OFFICER DAHER:  Overruled.  You're 
         13   entitled to a response.
         14            MR. WARE:  Thank you, Your Honor.
         15            HEARING OFFICER DAHER:  Do you want the 
         16   stenographer to repeat the question? 
         17            MR. WARE:  No, that's all right, Your 
         18   Honor. 
         19       BY MR. WARE: 
         20       Q.   Your view of Ms. Joseph was colored by an 
         21   article that appeared written by Eileen McNamara 
         22   criticizing what you did in Calixte and Estrada, 
         23   isn't that so?
         24       A.   It was --
 0104
          1       Q.   Yes or no, Judge, please. 
          2       A.   Yes. 
          3       Q.   And you're not aware of any other article 
          4   ever in the history of Christendom or anything else 
          5   in which Ms. Joseph was quoted in a case of yours, 
          6   isn't that correct?
          7       A.   I believe there was another article.
          8       Q.   What article?
          9       A.   It was brought to her attention during her 
         10   deposition.  I don't remember what article it was.
         11       Q.   You personally on August 1st and August 4th 
         12   knew only of the Eileen McNamara article; isn't that 
         13   so?
         14       A.   I'm not sure what I knew -- I don't know on 
         15   August 1st, 2000 -- I can't now today tell you what 
         16   was on my mind concerning my experiences with her 
         17   and calling the press.
         18       Q.   You didn't remember what those experiences 
         19   were specifically; is that right?
         20       A.   I can't remember them now.
         21       Q.   Did you remember them then?
         22       A.   I don't remember if I did.
         23       Q.   In any event, you felt justified in saying 
         24   that Ms. Joseph had a habit of calling in the press; 
 0105
          1   is that correct?
          2       A.   Correct.
          3       Q.   Now, before you made this finding that an 
          4   assistant district attorney was essentially 
          5   unethical in calling in the press -- wouldn't you 
          6   agree that that's inherent in your finding?
          7       A.   No.
          8       Q.   And how about in your finding that she 
          9   attempted to embarrass and ridicule a defendant?
         10       A.   In that one, yes.
         11       Q.   You agree that's unethical conduct, is that 
         12   so?
         13       A.   Let's be clear.  To call in the press, for 
         14   the DA's office to call in the press is not 
         15   unethical.
         16       Q.   Right. 
         17       A.   For the DA's office to inform the press of 
         18   matters that would subject a criminal defendant to 
         19   public ridicule would be unethical, in my opinion.
         20       Q.   Now, you made a finding on August 4th, 
         21   2000, that, in effect, Ms. Joseph was unethical, 
         22   didn't you, because she attempted to embarrass and 
         23   ridicule a defendant; isn't that right?
         24       A.   I didn't make the finding that she was 
 0106
          1   unethical, no.
          2       Q.   Judge, do you really mean that?  You mean 
          3   to tell me you made a finding that says, "ADA Joseph 
          4   attempted to embarrass and ridicule a defendant,"  
          5   you agree that that would have been unethical of 
          6   her; isn't that right?
          7       A.   I agree that it would have been unethical, 
          8   but I made no finding concerning the ethics of this.
          9       Q.   I see.  You did make a finding inherent in 
         10   which, since you find that she attempted to 
         11   embarrass and ridicule the defendant, that this was 
         12   an intentional act, isn't that so?
         13       A.   Yes, I believe that.
         14       Q.   It would be hard to attempt to embarrass 
         15   and ridicule someone if you didn't intend to do it, 
         16   isn't that right?
         17       A.   Correct.
         18       Q.   So your finding means Ms. Joseph, the 
         19   assistant district attorney, again working for the 
         20   child abuse unit, deliberately tried to embarrass 
         21   and ridicule a defendant, isn't that so?
         22       A.   Correct. 
         23       Q.   And that's what you intended the reader of 
         24   your order to infer, isn't that correct?
 0107
          1       A.   Mr. Ware, I was explaining --
          2       Q.   Judge, please.  Again, am I not correct 
          3   that in making a specific unambiguous written 
          4   finding that the assistant district attorney 
          5   purposefully attempted to embarrass and ridicule a 
          6   defendant, that you intended anyone who saw this 
          7   order to infer that that was a deliberate unethical 
          8   act?  Yes or no.
          9       A.   A purposeful act; not necessarily 
         10   unethical.
         11       Q.   Would you please explain to the Hearing 
         12   Officer how a finding, a specific finding by you 
         13   that the assistant district attorney attempted to 
         14   ridicule the defendant was not purposeful or was not 
         15   intentional?
         16       A.   It was purposeful.  I made that finding 
         17   after I read the press release they had issued.
         18       Q.   Judge, haven't you testified more than once 
         19   that you didn't even see the press release at this 
         20   time?
         21       A.   Not in the lobby conference that was early 
         22   in the morning.  These findings were made late in 
         23   the afternoon.
         24       Q.   And so let me understand this.  You 
 0108
          1   subsequently saw the district attorney's press 
          2   release; that is, the release from the office of the 
          3   district attorney, correct?
          4       A.   Correct.
          5       Q.   And that is Exhibit 3, I believe, in this 
          6   case -- sorry.  Let's go for 7.  Is that the press 
          7   release to which you're referring, Judge?
          8       A.   Correct.
          9       Q.   So you're now saying that you saw this 
         10   press release on August 4th in the afternoon before 
         11   you wrote the findings, but after the proceedings in 
         12   the morning in the lobby.
         13       A.   Correct.  Between my morning lobby 
         14   conference and the time I wrote these findings, I 
         15   had read that press release.
         16       Q.   All right.  And this press release 
         17   indicates, does it not, Exhibit 3, that it's from 
         18   the Suffolk County District Attorney Ralph Martin.
         19       A.   Correct.
         20       Q.   And it has a contact point, Mr. Borghesani.
         21       A.   Yes.
         22       Q.   And you're saying this document is what 
         23   persuaded you that Ms. Joseph purposefully and 
         24   intentionally attempted to embarrass and ridicule 
 0109
          1   the defendant; is that right?
          2       A.   Correct, amongst other things; not the only 
          3   thing.
          4       Q.   Now, did you pick up the phone and call Mr. 
          5   Martin or Mr. Borghesani and ask them how the press 
          6   release came about and who was responsible for it?
          7       A.   No.
          8       Q.   Did you make any inquiry of Ms. Joseph's 
          9   superior, Mr. Deakin, with respect to how the press 
         10   release came about?
         11       A.   No.
         12       Q.   Did you ask to see Elizabeth Keeley, the 
         13   first assistant, to ask her what role she had in the 
         14   press release?
         15       A.   No.
         16       Q.   All you had was the denial by Ms. Joseph 
         17   that she had personally put out the press release or 
         18   been involved with the press release, and you had 
         19   the press release itself on the basis of which you 
         20   found that the individual assistant has a habit of 
         21   calling in the press, correct?
         22       A.   No.  The habit issue comes from my prior 
         23   experiences with her; okay?  So this does not 
         24   address the habit finding.
 0110
          1       Q.   You make a finding that Ms. Joseph in 
          2   Exhibit 17 called in the press, correct?
          3       A.   I did.
          4       Q.   What you had by way of evidence for that 
          5   finding was her denial that she called in the press 
          6   and her representation that her office had, No. 1, 
          7   correct?
          8       A.   Yes.
          9       Q.   And you had what you now tell us is this 
         10   press release from Mr. Martin's office, noting Mr. 
         11   Borghesani as the author, correct?
         12       A.   Correct.
         13       Q.   And you took no steps to inquire beyond 
         14   that?  You drew an inference that Ms. Joseph was a 
         15   liar and that she either wrote or inspired this 
         16   press release, correct?
         17       A.   Correct.
         18       Q.   You regarded that as judicious and 
         19   appropriate in terms of finding facts sufficient to 
         20   put out a finding to the public that an individual 
         21   assistant has acted --
         22            HEARING OFFICER DAHER:  Are you objecting? 
         23            MR. EGBERT:  Yes.
         24            HEARING OFFICER DAHER:  What is it?
 0111
          1            MR. EGBERT:  My objection is that the 
          2   Commission has no right to go back behind the 
          3   appropriateness or efficacy of a judge's finding.
          4            HEARING OFFICER DAHER:  Response, Mr. Ware? 
          5            MR. WARE:  Your Honor, these are 
          6   credibility issues --
          7            HEARING OFFICER DAHER:  Overruled.  A five- 
          8   minute recess. 
          9            MR. WARE:  Thank you.
         10            (Recess)
         11       BY MR. WARE: 
         12       Q.   Judge, you knew that the findings that were 
         13   personal to Ms. Joseph could harm her career, didn't 
         14   you?
         15       A.   Do I know that -- I mean, I don't 
         16   understand your question, "I knew."  Was it in my 
         17   mind at the time I made these findings? 
         18       Q.   Was it in your mind at the time --
         19       A.   No, it was not.
         20       Q.   Why wasn't it in your mind at the time you 
         21   made your findings that a finding of a young 
         22   district attorney working in the child abuse unit as 
         23   a lawyer for the citizens of Massachusetts would be 
         24   harmed by a finding that says she's unethical?
 0112
          1       A.   First of all, the findings don't say she's 
          2   unethical.  And, secondly, we judges always often 
          3   make findings concerning behavior of lawyers, and 
          4   those are personal to the lawyers. 
          5       Q.   Well, you would agree with me, wouldn't 
          6   you, that these findings went well beyond what a 
          7   lawyer typically sees; isn't that so?
          8       A.   No, I do not agree with you.
          9       Q.   You think this is right in the mainstream 
         10   of findings against individual lawyers?
         11       A.   Yes.
         12       Q.   Can you give me any example, Judge?
         13       A.   I wish I could remember the SJC cases 
         14   excoriating certain lawyers for certain behaviors.
         15       Q.   Those are disciplinary proceedings like 
         16   this one, are they not?
         17       A.   No, they were not disciplinary proceedings.  
         18   They were in the course of appellate review.
         19       Q.   In any event, you would agree with me, 
         20   would you not, that you didn't do Assistant District 
         21   Attorney Joseph any favor by putting her name in 
         22   this order of these kinds of findings; isn't that 
         23   right?
         24            MR. EGBERT:  Objection.  It's irrelevant as 
 0113
          1   to whether or not --
          2            HEARING OFFICER DAHER:  Sustained. 
          3       Q.   You make a finding in Exhibit 17 that there 
          4   is no impact on the victim, which appears -- little 
          5   or no impact I should say in Paragraph 8 on the 
          6   second page of that?
          7       A.   Refer me again to the --
          8       Q.   It's up on the screen, I think, in front of 
          9   you as well.  But do you see in Paragraph 8 you make 
         10   a finding?
         11       A.   Yes.
         12       Q.   And am I correct that you probably meant to 
         13   write "There is little or no impact on the alleged 
         14   victim"?
         15       A.   Yes, that's probably right, or no impact.
         16       Q.   You call him an alleged victim here.  Is 
         17   that because you weren't satisfied that there was a 
         18   victim?
         19       A.   The defendant had not pled yet.
         20       Q.   You knew that the child's grandmother had 
         21   been present all day, did you not?
         22       A.   I don't think I knew that until Mr. Deakin 
         23   made that representation to me, no.
         24       Q.   When did he make the representation?
 0114
          1       A.   When he filed the written request for 
          2   findings in the afternoon.
          3       Q.   My point is, before you made these findings 
          4   you knew that the grandmother had been present all 
          5   day.
          6       A.   Yes.
          7       Q.   Did you call her up to the bench and say to 
          8   her would it be any hardship on you if we put this 
          9   case over for a month?
         10       A.   No.
         11       Q.   Did you inquire in any way of any 
         12   representative of the victim whether or not it would 
         13   be a hardship for the case to be put over?
         14       A.   No, I did not.
         15       Q.   Do you know how the grandmother gets to 
         16   court?
         17       A.   No, I don't.
         18       Q.   Do you know how long it took her to get to 
         19   court or what she endured to be there for the day?
         20       A.   This statute doesn't serve the purpose that 
         21   you're --
         22       Q.   Judge, please.  Do you know what the 
         23   victim's grandmother went through to get to court?
         24       A.   No.
 0115
          1       Q.   And you made no inquiry to find out on that 
          2   occasion.
          3       A.   No.
          4       Q.   Did you take the time at any time to look 
          5   at the victim's videotape?
          6       A.   I wouldn't be able to -- that was never 
          7   offered to me.
          8       Q.   Well, when you say it was never offered to 
          9   you, surely, had you wanted to do so, you could have 
         10   asked the assistant district attorney to produce the 
         11   tape so that you could see the victim and listen to 
         12   the victim; isn't that right?
         13       A.   Well, Ms. Joseph never represented to me 
         14   that the Commonwealth had such a tape.
         15       Q.   Well, you know very well, do you not, that 
         16   in a case like this where there's an arrest by the 
         17   Boston Police of a child, whether you thought he was 
         18   12 or you thought he was 11, that a statement is 
         19   taken from that child and he is interviewed by a 
         20   professional on videotape, correct?
         21       A.   I don't know if that happens all the time.  
         22   I think that's a practice that they try and carry 
         23   out, yes.
         24       Q.   Did you make any inquiry here whether you 
 0116
          1   could see the tape so that you could judge for 
          2   yourself the victim?
          3       A.   No.
          4       Q.   Now, you make another finding here that the 
          5   district attorney tried to turn the matter into a 
          6   circus, isn't that right, in Paragraph 7, which is 
          7   now on the screen?
          8       A.   Are my findings in here? 
          9       Q.   Yes, Exhibit 17 in the second page. 
         10       A.   Okay.
         11       Q.   And it would be Paragraph 7 in the hard 
         12   copy. 
         13       A.   Yes.  And which one are you referring me to 
         14   now? 
         15       Q.   Finding 7 on the second page. 
         16       A.   Okay. 
         17       Q.   Now, here you find that the district 
         18   attorney sought -- "sought to turn the Court 
         19   proceedings into a circus," is that correct?
         20       A.   Correct.
         21       Q.   And what you meant by that is they had 
         22   called the press, and the press showed up.  And 
         23   then, at least in your view, the press misbehaved; 
         24   is that right?
 0117
          1       A.   No.
          2       Q.   Well, you know that the district attorney 
          3   didn't control the press in the courthouse; isn't 
          4   that so?
          5       A.   I don't understand your question.
          6       Q.   Once the meeting had come to the courtroom 
          7   or the courthouse, it's not the district attorney's 
          8   function to decide where the cameras are.  The 
          9   district attorney's office doesn't go around the 
         10   hallways saying you can do this, you can do that, 
         11   right?
         12       A.   No.  It's the judge's function to decide.
         13       Q.   So the district attorney had nothing to do 
         14   with whether a camera was in someone's face in an 
         15   elevator, isn't that right?
         16       A.   That's right.
         17       Q.   Now, when you say that the district 
         18   attorney sought to turn the Court proceedings into a 
         19   circus, that, too, is a finding that that was an 
         20   intentional act, isn't that right?
         21       A.   Yes.
         22       Q.   And so your intention was to say here that 
         23   Mr. Martin's office purposefully and intentionally 
         24   tried to turn this case into a circus, isn't that 
 0118
          1   so?
          2       A.   Correct.
          3       Q.   And it follows from that, does it not, that 
          4   you are saying the district attorney's office at 
          5   large acted unethically in this case, isn't that so?
          6       A.   That is so. 
          7       Q.   And you knew that was the import of your 
          8   order.
          9       A.   Correct.
         10       Q.   Before you made such an order, Judge, did 
         11   you have any colloquy, discussion, phone call, 
         12   communication of any kind with anybody from the 
         13   district attorney's office other than Mr. Deakin?
         14       A.   And Ms. Joseph.
         15       Q.   Yes. 
         16       A.   No, I did not, other than those two people.
         17       Q.   Again, you did not contact Mr. Borghesani, 
         18   Mr. Martin or the first assistant?
         19            MR. EGBERT:  Objection.  Is he asking 
         20   whether or not she had ex parte contacts with these 
         21   people?
         22            MR. WARE:  Ex parte contact with the 
         23   district attorney's office.  What is an ex parte 
         24   conversation --
 0119
          1            MR. EGBERT:  He's asking for contacts with 
          2   people who are neither in this court nor had 
          3   appeared in that case --
          4            HEARING OFFICER DAHER:  What exactly is 
          5   your objection? 
          6            MR. EGBERT:  My objection is that his 
          7   question calls for answers which would be 
          8   inappropriate on her part, in the first place.
          9            MR. WARE:  Well, I hope she'll tell me if 
         10   that's the case, but this is cross examination.
         11            HEARING OFFICER DAHER:  Overruled.  Go 
         12   ahead.  You may have it. 
         13       BY MR. WARE: 
         14       Q.   You certainly could have called Mr. Martin 
         15   or Mr. Borghesani or Elizabeth Keeley, the first 
         16   assistant, couldn't you have?
         17       A.   About what? 
         18       Q.   About their role and their decision to 
         19   issue a press release in this case. 
         20       A.   I could have, yes.
         21       Q.   You did not do that.
         22       A.   No, I did not.
         23       Q.   You make a finding here as well.  Let me 
         24   ask you this.  On August 4th, after you completed 
 0120
          1   writing this order, Exhibit 17, what did you do with 
          2   it?  It indicates it was filed that date in the 
          3   upper left-hand corner; is that correct?
          4       A.   Yes. 
          5       Q.   And so it went to the clerk's office -- or 
          6   at least to the clerk who hand wrote the filing; is 
          7   that correct?
          8       A.   Yes, I gave it to my sessions clerk.
          9       Q.   And did you do anything else with the 
         10   order, that you recall?
         11       A.   I told them to notify people.
         12       Q.   And am I correct that you also took a copy 
         13   of the order and you sent it to Joan Kenney at the 
         14   Office of Public Information of the Supreme Judicial 
         15   Court?
         16       A.   I think that's right. 
         17       Q.   And let me direct you to -- let me direct 
         18   you to Exhibit 49.  That is a copy of the order and 
         19   a fax cover sheet which you wrote to Joan Kenney; is 
         20   that correct?
         21       A.   This is not my writing.  I must have 
         22   requested that someone do this on my behalf.
         23       Q.   So you requested that this be faxed as a 
         24   press release to Channels 4, 5, 7 and 56 and sent to 
 0121
          1   Joan Kenney?
          2       A.   I don't recall asking her to file this as a 
          3   press release, no. 
          4       Q.   Well, you're not suggesting, are you, that 
          5   a clerk took it upon himself to call this a press 
          6   release and indicate to Ms. Kenney that she should 
          7   send it to all of the local television stations on 
          8   his own, are you?
          9       A.   That very well could have happened, because 
         10   I would never have called my findings a press 
         11   release.
         12       Q.   That very well could have happened.  Are 
         13   you now saying that the clerk took it upon himself 
         14   to send this as a press release to all the local 
         15   television media?  Is that your testimony? 
         16       A.   The clerk -- I don't understand what the 
         17   first mark is before "press release" on this.  I 
         18   don't know what that means.
         19       Q.   In any event, Judge, you gave a direction 
         20   to a clerk to send this to Joan Kenney, isn't that 
         21   so?
         22       A.   To send it to Joan Kenney, it appears that 
         23   way, yes. 
         24      *Q.   And the document says "Press release to 
 0122
          1   Channels 4, 5, 7 and 56," does it not?
          2            MR. EGBERT:  It does not say that.
          3            MR. WARE:  Objection.  Your Honor, I'm 
          4   entitled to cross examine.
          5            HEARING OFFICER DAHER:  What is your 
          6   objection? 
          7            MR. EGBERT:  He's misreading the document 
          8   to the witness and that is unfair.
          9            HEARING OFFICER DAHER:  What is that 
         10   question again?
         11            *(Question read)
         12            MR. EGBERT:  What it says is "Re: Press 
         13   release," which gives it --
         14            MR. WARE:  Your Honor, I do not want 
         15   counsel's testimony in the courtroom.
         16            MR. EGBERT:  But you must read the document 
         17   appropriately.
         18            HEARING OFFICER DAHER:  Go ahead.
         19            MR. EGBERT:  When you read a document to 
         20   the witness, you must read it appropriately and not 
         21   leave out words, which changes the meaning.
         22            HEARING OFFICER DAHER:  I think the 
         23   question is absolutely lucid.  The objection is 
         24   overruled.
 0123
          1            MR. WARE:  Thank you, Your Honor.  I'll 
          2   repeat it.
          3       Q.   The document says -- there's a mark to the 
          4   left -- who knows what it means -- but it goes on to 
          5   say "Press release to Channels 4, 5, 7 and 56," 
          6   correct?
          7       A.   That's what the document says, yes.
          8       Q.   And you understand that what Joan Kenney 
          9   did was take this as a press release from you and 
         10   send it to those channels; isn't that correct?
         11       A.   No, I don't believe so.
         12       Q.   Isn't that in fact what she did?
         13       A.   I don't know that she did that.  I have no 
         14   recollection of that.
         15       Q.   But your testimony here is that's not what 
         16   you intended.
         17       A.   Right.  I would have faxed her my findings 
         18   because I knew there might be some press attention 
         19   to the continuance.  So I would have sent her my 
         20   findings -- I'm sure what happened was I called 
         21   her --
         22       Q.   Judge, wait a minute.  I have no question 
         23   before you at this point.  What you know is, 
         24   according to your testimony, that you spoke with Ms. 
 0124
          1   Kenney; isn't that so?
          2       A.   Correct.
          3       Q.   You told her about the case; isn't that so?
          4       A.   Yes, I'm sure that's what happened.
          5       Q.   You told a clerk or someone to send your 
          6   findings, including the findings about ADA Joseph, 
          7   to Joan Kenney, correct?
          8       A.   Yes.
          9       Q.   And according to this document, it was 
         10   either termed a press release or she was told to 
         11   send it to Channels 4, 5, 7 and 56, isn't that so?
         12       A.   I have no idea what that says.
         13       Q.   How do you interpret that language?
         14       A.   Because I can't decipher what that first 
         15   mark is.  I can't figure out what the purpose of 
         16   it -- I don't know what it says. 
         17       Q.   Well, if indeed this was sent to local 
         18   television stations, you would agree that that 
         19   scaled up the interest in the Horton case, isn't 
         20   that so?
         21       A.   If it was sent?  I don't believe it was 
         22   sent. 
         23       Q.   I thought you just told us you don't know. 
         24       A.   It's speculative.  I don't know. 
 0125
          1       Q.   Assume for the moment that Ms. Kenney 
          2   received this document, believed it was from you, 
          3   and said ,in effect ,this is a press release.  Send 
          4   it to Channels 4, 5, 7 and 56, and she did so.  Just 
          5   assume those facts for me, would you?
          6            MR. EGBERT:  I object.
          7            HEARING OFFICER DAHER:  What's the 
          8   objection? 
          9            MR. EGBERT:  The hypothetical cannot being 
         10   given to an expert for opinion. 
         11            MR. WARE:  Your Honor, this witness is 
         12   entirely competent to --
         13            HEARING OFFICER DAHER:  Sustained.  Let's 
         14   go. 
         15       Q.   Have you spoken to Ms. Kenney about what 
         16   she did with the document?
         17       A.   No, I have not.
         18       Q.   If Ms. Kenney sent this to the television 
         19   stations, one effect of that would be to increase 
         20   the attention to the Horton case; isn't that so?
         21       A.   If she did that, that could be a possible 
         22   effect.
         23       Q.   And if the television stations and media 
         24   received your written findings, Exhibit 17, attached 
 0126
          1   to this document, they would have known of your 
          2   findings against Ms. Joseph, as well; isn't that so?
          3       A.   If my findings were sent, yes, they would 
          4   have been aware of what findings I made when I 
          5   continued the case.
          6       Q.   And in those findings, among other things, 
          7   you make specific findings about the defendant 
          8   having a sexual identity disorder, do you not?
          9       A.   Correct.
         10       Q.   So if the district attorney's press release 
         11   used the word "transgendered," you've here diagnosed 
         12   the defendant as having a sexual identity disorder, 
         13   correct?
         14       A.   I didn't diagnose him.
         15       Q.   You labeled him as having a sexual identity 
         16   disorder, correct?
         17       A.   I didn't do that.  I had information that 
         18   established that this was an individual with a 
         19   sexual identity disorder. 
         20       Q.   Judge, you wrote these findings, did you 
         21   not?
         22       A.   I did.
         23       Q.   This was a public document, right?
         24       A.   Correct.
 0127
          1       Q.   You put in a public document for the first 
          2   time that the defendant has a sexual identity 
          3   disorder, correct?
          4       A.   I did.
          5       Q.   You also put in the document that he has a 
          6   psychological disorder?  You make that finding as 
          7   well at the top of the next page, don't you?
          8       A.   Yes.
          9       Q.   You would agree that the findings that the 
         10   defendant suffers from a sexual identity disorder or 
         11   a psychological disorder go well beyond simply 
         12   identifying him as a transgendered person; isn't 
         13   that correct?
         14       A.   No.
         15       Q.   You think that's the same thing?
         16       A.   I think that oftentimes people who suffer 
         17   from sexual identity disorders are referred to as 
         18   "transgendered." 
         19       Q.   Are you saying that all transgendered 
         20   individuals have a sexual identity disorder?
         21       A.   I believe that's the case, yes.
         22       Q.   And they all, by definition, have a 
         23   psychological disorder?
         24       A.   Yes.
 0128
          1            MR. WARE:  At this time, Your Honor, I'd 
          2   like to play part of the proceedings as they 
          3   occurred on September 6th, and I can do that now or 
          4   I can do it at the beginning of tomorrow, whatever 
          5   you think --
          6            HEARING OFFICER DAHER:  Inasmuch as we 
          7   started somewhat later, the openings took an 
          8   extraordinarily long period of time -- how long is 
          9   it going to take?  I'd just as soon stay until maybe 
         10   1:30, two o'clock.  Is that okay with you, Mr. 
         11   Egbert, or do you want to suspend until tomorrow?
         12            MR. EGBERT:  I'll do what you want, Judge, 
         13   but I don't know that keeping the Judge on the stand 
         14   beyond 1:00 without any nourishment makes any sense.
         15            HEARING OFFICER DAHER:  How long is the 
         16   playback of the tape? 
         17            MR. WARE:  Your Honor, this line of 
         18   questioning and the videotape will be substantial.
         19            HEARING OFFICER DAHER:  And you want to 
         20   maintain continuity? 
         21            MR. WARE:  Yes. 
         22            MR. EGBERT:  I have no objection, Your 
         23   Honor.
         24            HEARING OFFICER DAHER:  You want to suspend 
 0129
          1   right now; is that correct? 
          2            MR. WARE:  I think that's appropriate, Your 
          3   Honor, in light of where we are and it being 20 
          4   minutes of one or thereabouts.
          5            HEARING OFFICER DAHER:  Okay.  Query of Mr. 
          6   Egbert:  When is Mr. Mone going to be here tomorrow?  
          7   As to what transpired on April 18th, I have the 
          8   entire transcript?  Has anything been deleted? 
          9            MR. WARE:  No.
         10            HEARING OFFICER DAHER:  That is the entire 
         11   transcript?
         12            MR. WARE:  It is, Your Honor.
         13            HEARING OFFICER DAHER:  When they mention 
         14   male in the transcript, who are they referring to?  
         15   A board member?
         16            MR. BRACERAS:  Yes, Your Honor, it was a 
         17   member of the Commission.
         18            HEARING OFFICER DAHER:  Okay.  Who's known 
         19   by the moniker of "male" -- identified by the term 
         20   "male", is that correct?
         21            MR. BRACERAS:  Yes.
         22            HEARING OFFICER DAHER:  There isn't 
         23   anything in addition to this.
         24            MR. EGBERT:  Judge, what you don't have and 
 0130
          1   I don't have, of course, is what went on with the 
          2   Commission just before this and just after.  In 
          3   other words, you don't have the deliberations or 
          4   discussions of the Commission with regard to what 
          5   message to send back.  And those are recorded, but 
          6   have not been provided.
          7            HEARING OFFICER DAHER:  Well, that's what I 
          8   just asked.
          9            MR. WARE:  I don't recall there being any 
         10   recording of the Commission's deliberations, which 
         11   are always in executive session.
         12            MR. EGBERT:  I understand that all 
         13   Commission meetings were recorded.
         14            MR. WARE:  I will check.  I'm not aware of 
         15   that if that's the case.
         16            MR. EGBERT:  That's my understanding, Your 
         17   Honor.  And in particular, that all matters before 
         18   the Commission are recorded.
         19            MR. WARE:  Even if that were the case, it's 
         20   irrelevant here.  It has nothing to do with this 
         21   whole argument that the Judge shouldn't produce her 
         22   statement because this was some kind of a settlement 
         23   meeting.  That stands in its own right.
         24            MR. EGBERT:  It's certainly relevant, Your 
 0131
          1   Honor, to what I think the Court was asking before; 
          2   and that is, we now know what Ms. Lopez and Mr. Mone 
          3   were doing there.  What was the Commission doing 
          4   there?
          5            HEARING OFFICER DAHER:  There isn't any 
          6   mention of disposition by the Commission at all.  
          7   But I do want to hear from Mr. Mone tomorrow.  It's 
          8   Mr. Mone who brings up disposition; no one else.
          9            MR. EGBERT:  It's Commission's counsel, Mr. 
         10   Ware, who talks about his position with Mr. Mone 
         11   both before the meeting and after the meeting.
         12            HEARING OFFICER DAHER:  I have that in the 
         13   affidavit.  I have that comment in his November 15th 
         14   affidavit from Mr. Mone.  But the transcript of the 
         15   record indicates that the only party seeking 
         16   disposition personally at that time was Mr. Mone.  
         17   But I do want to hear from him.  If there's anything 
         18   else, I'd appreciate that very much.  
         19            And what we will do is we will suspend 
         20   until tomorrow morning at 9:30 promptly.
         21                 (Whereupon, the hearing was
         22                 adjourned at 12:42 p.m.)
         23   
         24   
 0132
          1                   C E R T I F I C A T E
          2            I, Jane M. Williamson, 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 Monday, November 18, 2002.
          7   
          8   
          9                  _____________________________
         10                            Jane M. Williamson
         11                  Registered Merit Reporter
         12   
         13   
         14                        -  -  -  -
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   

View next Volume of transcripts.

Return to index of transcripts.