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0001
Volume I
Pages 1 to 132
COMMISSION ON JUDICIAL CONDUCT
Complaint No. 2000-110 et seq
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:
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
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