Return to Transcript Volume I

Return to index of transcripts.

 0001
                                            Volume II    
                                            Pages 2-1 to 2-150
                                            Exhibits  See Index
              
                         COMMISSION ON JUDICIAL CONDUCT
                          Complaint No. 2000-110 et seq
              - - - - - - - - - - - - - - - - - - - x   
                                                    :
              In the Matter of Investigation of:    :
              The Honorable Maria I. Lopez,         :
              Associate Justice, Superior Court     :
              Department                            :
              - - - - - - - - - - - - - - - - - - - x 
              
              BEFORE:  Hearing officer E. George Daher,
                         Chief Justice (Ret.)
              
                       Harvey Chopp, Clerk
              
              APPEARANCES:
              
                  Goodwin Procter
                       (by Paul F. Ware, Jr., Esq., Roberto 
                       M. Braceras, Esq., and Cheryl R.
                       Brunetti, Esq.) Exchange Place, Boston, MA  
                       02109, for the Commission on Judicial 
                       Conduct.
                       
              
                  Law Offices of Richard M. Egbert
                       (by Richard M. Egbert, Esq.
                       and Patricia A. DeJuneas, Esq.)
                       99 Summer Street, Suite 1800,
                       Boston, MA  02110, for the Honorable 
                       Maria I. Lopez.
              
              
                                    Held at:
                           Edward W. Brooke Courthouse
                              24 New Chardon Street
                              Boston, Massachusetts
                           Tuesday, November 19, 2002
                                    9:30 a.m.
              
                 (Jane M. Williamson, Registered Merit Reporter)
              
                                     * * * *
              
 0002
                                    I N D E X
              
              WITNESS        DIRECT  CROSS  REDIRECT  RECROSS
              
              Maria Lopez
              (By Mr. Ware)   2-5           
              
              Michael E. Mone
              (By Mr. Egbert) 2-129           2-145
              
              (By Mr. Ware)           2-142
              
                                    *  *  * 
              
                                 E X H I B I T S
              
              EX. NO.                                     ID  EVID
              
                64     Boston Herald article, Thursday, 
                       February 11th, 1999, by Andrea 
                       Estes                            2-20  2-22
              
                65     Transcript of the Estrada 
                       Proceedings                            2-22 
              
                43     Column by Eileen McNamara              2-23
              
                26     Police report                          2-77
              
                27     Police report                          2-77
              
                28     Police report                          2-77
              
              
              
              
 0003
          1                   P R O C E E D I N G S
          2            HEARING OFFICER DAHER:  Mr. Ware, do you 
          3   want to pick it up?  
          4            MR. WARE:  Your Honor, if I could just 
          5   comment on the exhibits in the case.  The Court's 
          6   been given an exhibit -- at the beginning of the 
          7   book, Your Honor, there's an exhibit list.  And just 
          8   so the record is clear and the Court is clear, 
          9   exhibits which are in by agreement are in normal 
         10   typeface, if you will.  Exhibits as to which there 
         11   remains some dispute are in bold, just so the Court 
         12   knows.
         13            HEARING OFFICER DAHER:  Thank you.
         14            MR. WARE:  The tape that will be played 
         15   this morning or the clips of the tape that will be 
         16   played this morning, I would just note Exhibit 41 is 
         17   the entire videotape which I will offer during the 
         18   course of the proceedings.  I may not offer it this 
         19   morning.  And in addition, I intend to offer a 
         20   CD-ROM with those portions that we have in fact 
         21   played, as well as the entire videotape.
         22            MR. EGBERT:  Judge, I have no objection to 
         23   the videotape.  I would object to it being played in 
         24   excerpts.  I think it should be played in full so 
 0004
          1   you have a complete understanding of the proceeding 
          2   that's at hand.
          3            MR. WARE:  Well, again, this is my 
          4   examination.  I don't want to spend the time playing 
          5   the entire videotape.  If counsel wants to do that, 
          6   that's okay.  We have it here.  He can do it.
          7            HEARING OFFICER DAHER:  All right, fine.
          8            MR. EGBERT:  You're the master of the 
          9   efficiency of it.  I'm going to ask that the whole 
         10   thing be played, so it doesn't seem to me to make a 
         11   lot of sense to play 20 minutes of excerpts and then 
         12   play the whole tape, because I assure you that --
         13            HEARING OFFICER DAHER:  He's giving you 
         14   advance notice that he's going to request that the 
         15   entire tape be played.  But how does that fit with 
         16   your presentation?  You can present your 
         17   presentation in segments, and if he wants to play 
         18   the entire tape, he can. 
         19            MR. WARE:  Yes.
         20            HEARING OFFICER DAHER:  That's how it's 
         21   going to come out.
         22            MR. WARE:  Thank you, Your Honor. 
         23            THE CLERK:  You're still under oath. 
         24            THE WITNESS:  Yes. 
 0005
          1                    MARIA LOPEZ, Previously Sworn
          2                     DIRECT EXAMINATION, Resumed
          3       BY MR. WARE: 
          4       Q.   Judge Lopez, before we go to the videotape 
          5   of the hearing on December 6th, I'd like to return 
          6   just for a minute to the findings you made on August 
          7   4th.  And I've put on the monitor the finding with 
          8   respect to -- it should be on the monitor in front 
          9   of you so you don't have to turn around 
         10   uncomfortably there. 
         11            In any event, this was one of the findings 
         12   that you made:  "Ms. Joseph has a habit of doing 
         13   this," and we talked about it in some detail 
         14   yesterday, correct?
         15       A.   Correct.
         16       Q.   Now, leading up to this was the what we've 
         17   called lobbying of the case or plea conference on 
         18   August 1, correct?
         19       A.   Correct.
         20       Q.   That conference in the real world occurred 
         21   at side bar, didn't it?
         22       A.   Yes, it did.
         23       Q.   So even though we've used the term 
         24   "lobbying" or "lobby conference," it is in fact a 
 0006
          1   side-bar conference in the First Session -- or at 
          2   least was in this occasion.
          3       A.   Generally that's -- some judges do it in 
          4   the lobby.  Some judges do it at side bar.
          5       Q.   But in this particular case, in the Horton 
          6   case, on August 1, 2000, it was in fact a side-bar 
          7   conference.
          8       A.   It was.
          9       Q.   And it's length was roughly five minutes; 
         10   is that correct?
         11       A.   I would think not, because I had a lot of 
         12   information to read.
         13       Q.   Well, what is your estimate?
         14       A.   Maybe 15.
         15       Q.   Fifteen minutes?
         16       A.   Yeah.
         17       Q.   In the First Session?
         18       A.   I remember I had to review a police report, 
         19   a psychological evaluation, the defendant's criminal 
         20   record, I had to listen to both counsel, and then I 
         21   had to make up my mind as to what I thought an 
         22   appropriate sentence in this case would be.  So --
         23       Q.   And -- please go ahead. 
         24       A.   I can't imagine I would do that in five 
 0007
          1   minutes.
          2       Q.   I'm not asking you to imagine.  Do you have 
          3   a recollection how long this particular conference 
          4   was on August 1?  Yes or no?
          5       A.   My recollection is it would have been about 
          6   15 minutes.
          7       Q.   Now, Judge, having made the finding that I 
          8   have put on the monitor that "Ms. Joseph has a habit 
          9   of doing this," you've testified, have you not, that 
         10   that was based on the fact of what occurred in the 
         11   Horton case, plus Calixte and Estrada; isn't that 
         12   correct?
         13       A.   Yes.
         14       Q.   And when you testified for the Commission, 
         15   that's indeed what you said; that it was Calixte and 
         16   Estrada and the fact that the press was present in 
         17   this case, isn't that so?
         18       A.   I believe that when I referred to -- can I 
         19   see it again? 
         20       Q.   Yes. 
         21       A.   My findings.
         22       Q.   Your findings would be Exhibit 17, Judge. 
         23       A.   I believe -- and maybe we were confused 
         24   yesterday -- "a habit of doing this" is that when 
 0008
          1   she is unhappy with the disposition that the Court 
          2   imposes, she goes to the press and criticizes the 
          3   judge.
          4       Q.   I'm not asking you for your rationale.  The 
          5   fact is, the experience which gave rise to your 
          6   finding that Ms. Joseph had a habit was Calixte, 
          7   Estrada, and Horton; isn't that right?
          8       A.   Correct.
          9       Q.   And that's indeed what you said when you 
         10   testified before Commission counsel 13 months ago; 
         11   isn't that right?
         12       A.   Yes.
         13       Q.   At some time you mentioned yesterday that 
         14   there was a column by Eileen McNamara, correct?
         15       A.   Yes.
         16       Q.   And you characterized that column as 
         17   representative of Ms. Joseph's criticizing you or 
         18   your sentence, is that so?
         19       A.   In making what I deemed to be inappropriate 
         20   and probably unethical comments to the press.
         21       Q.   All right.  So this Eileen McNamara article 
         22   you would say represented criticizing your sentence, 
         23   criticizing you, and making unethical comments to 
         24   the press; is that correct?
 0009
          1       A.   Yes.
          2       Q.   Let's take a look at that article, just for 
          3   a moment.  I think it's Slide 74, and in hard copy 
          4   this appears as Exhibit 43 for identification. 
          5       A.   I can hardly see this. 
          6       Q.   It may be easier to see in the monitor, but 
          7   in any event, this is the article to which you 
          8   refer; isn't that so?
          9       A.   I believe so.
         10       Q.   And within that article there are some 
         11   comments by Ms. Joseph as a result of an interview 
         12   she was asked to give by the district attorney, 
         13   correct?
         14       A.   I don't know how this conversation with 
         15   Eileen McNamara came about.
         16       Q.   But you know there are some comments in 
         17   here from Ms. Joseph.
         18       A.   I do know that.
         19       Q.   Now, what Ms. Joseph says here -- and I put 
         20   it on the monitor -- is nothing specific to Judge 
         21   Lopez; isn't that true?  This is a discussion of the 
         22   circumstances of sentencing a child abuser, correct?
         23       A.   Can I read the entire article, because you 
         24   asked me --
 0010
          1       Q.   If you would like to read the entire 
          2   article, you may do that.  I will show you all of -- 
          3   on the monitor I will show you all of what Ms. 
          4   Joseph said.
          5       A.   (Witness reviews document)  Yes, I think 
          6   I've been able to read most of it.  It's very hard 
          7   for me to -- my eyes are not -- go ahead.
          8       Q.   Have you had enough time to read the 
          9   article?
         10       A.   I think so, yes.
         11       Q.   All right.  Now, what the article says in 
         12   terms of comments by Ms. Joseph, as is displayed on 
         13   the monitor, "If you say 'he's not a threat because 
         14   he just raped a girl in his own household,' then 
         15   can't you also look at the car thief and say 'this 
         16   guy's not a threat to me because he only steals cars 
         17   in poor neighborhoods' or 'that guy is not a threat 
         18   to me because he only breaks into houses in rich 
         19   neighborhoods'?  Is that how we want to mete out 
         20   justice?" 
         21            At that point that is an accurate quotation 
         22   of what Ms. Joseph says according to the article; 
         23   isn't that so?
         24       A.   That's what the article says, yes.
 0011
          1       Q.   And nothing in that paragraph says anything 
          2   about Judge Lopez.  In fact, it doesn't even say 
          3   much about the Estrada case, does it?
          4       A.   I think it says a lot and it's 
          5   characterized the facts in the Estrada case, and 
          6   those facts I am sure are provided by Ms. Joseph or 
          7   the district attorney's office.
          8       Q.   Do you see anything in that paragraph which 
          9   is specific to Judge Lopez or what kind of a judge 
         10   you are or what kind of sentences you mete out?
         11       A.   Yes.
         12       Q.   All right.  Would you agree that your name 
         13   is not mentioned in the paragraph?
         14       A.   Let me see where it is in context, because 
         15   I think I was mentioned right before that in the 
         16   preceding paragraph.
         17       Q.   By the author, Ms. McNamara?
         18       A.   Where does that come up in this article? 
         19       Q.   Judge, if you would, stick with me.  Let's 
         20   just talk about --
         21            MR. EGBERT:  She's sticking with you.  
         22   She's looking for the answer to your question.
         23            MR. WARE:  I don't believe so.
         24       Q.   Do you see your name in the paragraph 
 0012
          1   that's on the monitor?
          2       A.   Not in that paragraph.
          3       Q.   All right.  Let's look at the rest of what 
          4   Ms. Joseph said. 
          5            Ms. Joseph goes on to say, "Is jail the 
          6   perfect solution in every case?  No.  But even brief 
          7   jail time sends a message to everyone, especially 
          8   the victim, that society does not condone the rape 
          9   and beating of children -- even in your own house.  
         10   If we don't send that message, how else do we break 
         11   the cycle?  All the studies show the abused often 
         12   become abusers.  They learn that violence is an 
         13   acceptable way to deal with stress.  How do we tell 
         14   kids that adults in their lives can beat them or 
         15   rape them and then walk free?"  Do you see that?
         16       A.   Yes.
         17       Q.   Is your name mentioned in that paragraph?
         18       A.   Not in that paragraph.
         19       Q.   And does Ms. Joseph make any comment about 
         20   you in that paragraph?
         21       A.   Absolutely.
         22       Q.   Your view, Judge, is that the district 
         23   attorney is not entitled to comment even on the type 
         24   of child abuse case at issue following your 
 0013
          1   sentence? 
          2       A.   That is not my view.
          3       Q.   Well, what do you think in that paragraph 
          4   the district attorney's office could say?
          5       A.   I'm sure there's a lot of things they could 
          6   have said.
          7       Q.   Why don't you turn your attention to this 
          8   particular language, and you tell us which of that 
          9   language is permissible for a district attorney 
         10   representing the public to say following sentencing 
         11   in this kind of abuse case.
         12       A.   Did you ask me permissible or 
         13   impermissible? 
         14       Q.   Permissible.  What do you think breaks the 
         15   rules in this paragraph, Judge?
         16       A.   I'm not suggesting that this breaks the 
         17   rules.  I'm suggesting it's a criticism of my 
         18   sentence.
         19       Q.   So you're saying that the statement is a 
         20   permissible statement, but it nonetheless criticizes 
         21   you personally.
         22       A.   Correct.
         23       Q.   And where do you see the personal criticism 
         24   in this particular quotation?
 0014
          1       A.   It concerns a sentence I imposed.
          2       Q.   And that is your standard.  That so far as 
          3   the district attorney commented on the sentence you 
          4   imposed and at least impliedly disagreed with that 
          5   sentence, that that is a personal criticism of Maria 
          6   Lopez.  Is that your testimony? 
          7       A.   Of the sentence that Judge Lopez imposed.
          8       Q.   Is the public or a newspaper or any media 
          9   outlet entitled to criticize a sentence of a judge?
         10       A.   Totally.
         11       Q.   What do you see in that paragraph that goes 
         12   beyond, as you've said, criticizing the sentence?
         13       A.   That a member of the bar, an officer of the 
         14   court, went to the press in order to criticize and 
         15   bring pressure on judges whose sentence they don't 
         16   approve of.
         17       Q.   So what you disagreed with here was not 
         18   something specific to you; rather it was the 
         19   district attorney's office was somehow intimidating 
         20   with this article all judges of the Superior Court 
         21   in sentences in criminal cases in the Commonwealth?
         22       A.   I think that these kinds of articles would 
         23   have a chilling effect on the exercise of 
         24   independent judgment by the judiciary, absolutely.
 0015
          1       Q.   In any event, without spending the morning 
          2   on this, this is an impermissible comment or article 
          3   in a newspaper.  The public shouldn't see this 
          4   according to you; is that right?
          5       A.   I don't think it's an impermissible 
          6   comment.  It is just a comment that comes from Leora 
          7   Joseph, who is an officer of the court, who is a 
          8   lawyer before me in a case.
          9       Q.   Let's look at the earlier quotation, the 
         10   previous slide.  This is the beginning of Ms. 
         11   Joseph's comments. 
         12            What is it in the text of that comment that 
         13   you say the district attorney's office is not 
         14   entitled to have said to the public press, or the 
         15   press is not entitled to have printed?
         16       A.   Okay; let me -- I'm trying to find where 
         17   this occurs in this so I can put it into context, 
         18   Mr. Ware.
         19       Q.   Let me see if I can help you on that. 
         20       A.   Take your time. 
         21            MR. EGBERT:  May I suggest that I hand her 
         22   a copy?
         23            MR. WARE:  Sure.
         24            MR. EGBERT:  This is a legible copy.  Why 
 0016
          1   don't you read that.
          2       A.   Okay.
          3       Q.   Take your time and see if you can find this 
          4   paragraph on the Internet version of this article. 
          5       A.   Yes, I got the paragraph, yes. 
          6       Q.   Now, Judge, again, you are saying, with 
          7   respect to these comments by the assistant district 
          8   attorney, that these comments are critical of your 
          9   sentence, correct?
         10       A.   Yes.
         11       Q.   And that you object to that the district 
         12   attorney's office should make statements published 
         13   by the press critical of a sentence handed down in 
         14   this critical case.
         15       A.   And that I object to?  I think Ms. Joseph 
         16   in this statement shows an ignorance, total 
         17   ignorance about the different types of sexual abuse 
         18   cases.  And I believe that there is huge hyperbole 
         19   in this.
         20       Q.   Will you point out to us the huge 
         21   hyperbole, Judge?
         22       A.   Because this shows --
         23       Q.   Please, if you would, point out the huge 
         24   hyperbole, Judge.  Tell us the words. 
 0017
          1       A.   Her equation to it.  It's in response to an 
          2   article.
          3       Q.   Judge --
          4            MR. EGBERT:  Let her finish.
          5       Q.   Judge, point out the words that you are 
          6   characterizing as "huge hyperbole."
          7            HEARING OFFICER DAHER:  It's a very simple 
          8   question, Mr. Egbert.  He asked her to point out and 
          9   explain and show the hyperbole.
         10            MR. EGBERT:  And she was about to show him 
         11   the context --
         12            MR. WARE:  I don't want the context. 
         13       Q.   I want the words you're saying --
         14            MR. EGBERT:  It's not a vacuum cleaner. 
         15            MR. WARE:  You're entitled to question when 
         16   I sit down and not make speeches.
         17            HEARING OFFICER DAHER:  Overruled.  Go 
         18   ahead.
         19            MR. WARE:  Thank you, Your Honor.
         20       Q.   Judge, you said that there are words here; 
         21   that in this statement there is huge hyperbole.  I 
         22   want you to show us the words which you've 
         23   characterized as hugely hyperbolic here. 
         24       A.   The statement is in response to --
 0018
          1       Q.   Judge, are there words in this paragraph or 
          2   are there not which are, in your view, "huge 
          3   hyperbole"?
          4       A.   Correct, because the sentence I imposed 
          5   protected the child.
          6       Q.   All right.  Show us the huge hyperbole. 
          7       A.   The hyperbole is the -- the implication of 
          8   this is that Mr. Estrada remained a threat to the 
          9   victim in this case by analogizing it to, you know, 
         10   stealing cars in poor neighborhoods.  This had 
         11   nothing to do with that, and it doesn't speak to the 
         12   sentence I imposed.
         13       Q.   Are you telling us that the fact that the 
         14   assistant district attorney used a metaphor or an 
         15   analogy of thievery when discussing a Nashua Street 
         16   guard -- excuse me -- a Nashua Street jail guard who 
         17   repeatedly raped his stepdaughter while she was ages 
         18   11 to 15, that that's over the top?  That's 
         19   hyperbole?
         20       A.   I'm not sure that that's the case.  My 
         21   recollection is there were two -- that was not the 
         22   case and the facts of the case.  That may be what 
         23   you've read from the DA's office.
         24       Q.   Yesterday you thought that was the case.  
 0019
          1   You now have a different recollection?
          2       A.   I did not say that was the case.
          3       Q.   Are you saying that for the district 
          4   attorney to talk about a child abuser who has 
          5   admitted guilt with respect to having raped his 
          6   stepdaughter for four years during her age 11 to 15 
          7   is somehow hyperbolic?
          8       A.   Mr. Ware, as you well know, "rape" means a 
          9   lot of things under our laws.
         10       Q.   Well, we won't debate that this morning, 
         11   Judge. 
         12            Other than this article, as I asked you 
         13   yesterday, there is no other article anywhere in 
         14   which Ms. Joseph makes any statement to the press 
         15   regarding your sentence; isn't that correct?
         16       A.   In this article? 
         17       Q.   In any article anywhere ever. 
         18       A.   I'd like to see the one that was 
         19   attached -- there was another article involving 
         20   quotes from her.
         21       Q.   Let me show you a document not yet marked 
         22   for identification -- or is it -- which appears to 
         23   be a Boston Herald article, Thursday, February 11th, 
         24   1999, by Andrea Estes and ask you whether or not 
 0020
          1   that is the article to which you're referring.
          2       A.   I'm not sure this is the article.  I 
          3   thought there was a direct quote in an article from 
          4   her.
          5       Q.   Well, let me represent to you that this is 
          6   in fact the only other article and the one which you 
          7   characterized yesterday as having been brought up in 
          8   deposition.
          9            MR. EGBERT:  Well, I object.
         10            HEARING OFFICER DAHER:  Sustained.
         11       A.   Here it is.
         12       Q.   You now agree that this is the article?
         13       A.   I think so, yes.
         14            THE CLERK:  For the record, this is Exhibit 
         15   64 for ID.
         16                 (Document marked as Exhibit 64 
         17                 for identification)
         18            MR. WARE:  Thank you.
         19       Q.   Now, this article, Judge, is a reporter in 
         20   the courtroom who is quoting what is said in open 
         21   court; isn't that correct?
         22       A.   I don't know.  I don't remember a reporter 
         23   being there. 
         24       Q.   Well, when you say you don't know, you 
 0021
          1   said, and made a finding, that Ms. Joseph had a 
          2   habit of calling in the press, and what distressed 
          3   you was that she commented in interviews regarding 
          4   her sentences; isn't that so?
          5       A.   Correct. 
          6       Q.   How is it, then, that you don't know 
          7   whether this is one of the articles?  There have 
          8   only been at most two.
          9       A.   No.  This is one of the articles where she 
         10   went to the press, presented only the Commonwealth's 
         11   version, no mitigating circumstances, did not 
         12   explain my sentence adequately; so that information 
         13   would have come from her.
         14       Q.   In any event, Judge, you don't know whether 
         15   or not all of the statements in here came right from 
         16   the open courtroom.
         17       A.   I do not know that.
         18            MR. WARE:  I offer this article, Your 
         19   Honor, as Exhibit 64.
         20            HEARING OFFICER DAHER:  Mr. Egbert, any 
         21   objections? 
         22            MR. EGBERT:  No objections.
         23            HEARING OFFICER DAHER:  All right.  Thank 
         24   you.
 0022
          1                 (Document marked as Exhibit 64 
          2                 in evidence)
          3            MR. WARE:  And, Your Honor, I will also 
          4   offer at this time the transcript of the Estrada 
          5   proceedings, which will demonstrate that indeed the 
          6   quotes are from open court.
          7            HEARING OFFICER DAHER:  Any objection, Mr. 
          8   Egbert? 
          9            MR. EGBERT:  No objection.
         10            HEARING OFFICER DAHER:  Thank you.  Let's 
         11   go.
         12            THE CLERK:  Exhibit 65.
         13                 (Document marked as Exhibit 65 
         14                 in evidence)
         15            THE CLERK:  Of the plaintiff's.
         16            HEARING OFFICER DAHER:  Mr. Egbert, is Mr. 
         17   Mone expected here this afternoon? 
         18            MR. EGBERT:  He is at one o'clock, Judge.
         19            HEARING OFFICER DAHER:  That's fine.  Good.
         20            MR. WARE:  Your Honor, before Mr. Mone is 
         21   called, I would like you to hear some further 
         22   argument.
         23            HEARING OFFICER DAHER:  Absolutely. 
         24            MR. WARE:  Thank you.  Your Honor, I'm not 
 0023
          1   sure I offered Exhibit 43, which I now do, that 
          2   being a McNamara column that we've been discussing.
          3            MR. EGBERT:  No objection.
          4            HEARING OFFICER DAHER:  Thank you.  Let's 
          5   go. 
          6                 (Document marked as Exhibit 43 
          7                 in evidence)
          8       Q.   Judge, I'd like to talk with you a little 
          9   bit about September 6th and then we can view 
         10   portions of the proceedings on that day. 
         11            On September 6th, when the sentencing and 
         12   disposition in fact occurred, you made certain 
         13   arrangements for the defendant that morning prior to 
         14   the proceedings, did you not?
         15       A.   I did.
         16       Q.   And will you tell us what arrangements you 
         17   made. 
         18       A.   I had informed my Middlesex personnel --
         19       Q.   Excuse me, Judge.  If possible, without 
         20   telling me conversations, just tell me what the 
         21   arrangements were that you made. 
         22            MR. EGBERT:  I object.  He asked her what 
         23   she did.  She's about to tell him.  He doesn't seem 
         24   to want to know.
 0024
          1            MR. WARE:  I don't want the conversations 
          2   with court officers.  What I'd like to know is what 
          3   arrangements she made.
          4            HEARING OFFICER DAHER:  Again, obviously on 
          5   examination you can bring that out, Mr. Egbert.
          6            MR. EGBERT:  It's time in a vacuum, except 
          7   counsel knows the arrangements were made by giving 
          8   court officers instructions.  So you can't have it 
          9   without having the truth.  And that's what 
         10   arrangements were made.
         11            HEARING OFFICER DAHER:  Do you have a 
         12   response, Mr. Ware? 
         13            MR. WARE:  Your Honor, I'm interested in 
         14   the arrangements.  We'll get to the details, if, as 
         15   and when it's relevant here.
         16            HEARING OFFICER DAHER:  Overruled.  Go 
         17   ahead.
         18       Q.   What arrangements did you make for the 
         19   defendant?
         20            HEARING OFFICER DAHER:  I'm going to give 
         21   you wide latitude, Mr. Egbert.
         22            MR. EGBERT:  I respect that, Your Honor, 
         23   but as to the question, it's both an unfair vacuum, 
         24   and causing this kind of guesswork, Your Honor, is, 
 0025
          1   I believe, improper.  It is proper to ask her what 
          2   she said and did.  That's an appropriate question.
          3            HEARING OFFICER DAHER:  Mr. Egbert, your 
          4   reputation as an attorney precedes you and I'm 
          5   pretty sure you'll be able to redress that on 
          6   examination.
          7            MR. EGBERT:  The witness ought to be able 
          8   to be given a fair chance to answer a question.
          9            HEARING OFFICER DAHER:  We'll make sure she 
         10   gets that.  Go ahead, Mr. Ware.
         11       Q.   What arrangements did you make?
         12       A.   In the course of my responsibilities as a 
         13   judge, I arranged for the defendant to be located 
         14   and brought into the courthouse in some manner that 
         15   would avoid press frenzy like we had had before in 
         16   Suffolk, yes.
         17       Q.   Let me repeat the question. 
         18            What arrangements did you make?
         19       A.   I asked the court officers to arrange to 
         20   have Ebony Horton met outside the courthouse, to 
         21   have her brought up to a side room and then to be 
         22   brought into the courtroom in a manner where the 
         23   cameras would not affect the orderly administration 
         24   of justice.
 0026
          1       Q.   Where did you have Mr. Horton placed?  What 
          2   room next to the courthouse?
          3       A.   I believe it was one of the jury rooms we 
          4   have there.
          5       Q.   So you instructed the court officers to 
          6   what?  Wait on the street for Mr. Horton?
          7       A.   I believe there might have been a 
          8   conversation with the defense -- I had the clerk 
          9   call the defense attorney.  I believe somehow -- I 
         10   believe there was notice to meet this defendant 
         11   somewhere outside.
         12       Q.   So you believe you had a conversation with 
         13   defense counsel, that you notified defense 
         14   counsel -- excuse me.  You had the court officer 
         15   call the defense counsel, that the court officer and 
         16   the defense counsel made arrangements to meet 
         17   outside the building, and that Mr. Horton was 
         18   escorted up on some elevator other than a public 
         19   elevator; is that correct?
         20       A.   Those were the arrangements I wanted, yes.
         21       Q.   As far as you know, those are the 
         22   arrangements you made, correct?
         23       A.   Right.  I don't know if that's in fact what 
         24   was implemented, though.  I heard different things.
 0027
          1       Q.   And at some point, as you understand it, 
          2   Mr. Horton was in fact placed in a room which you 
          3   believe to have been a jury room next to the 
          4   courtroom.
          5       A.   Correct.
          6       Q.   This was in Middlesex Superior Court, 
          7   right?
          8       A.   Correct.
          9       Q.   And then in order to bring the defendant 
         10   into the courtroom, you had him brought in in some 
         11   way so that he could not be photographed.
         12       A.   I had issued an order limiting the cameras.
         13       Q.   And that order said, among other things, 
         14   that his face was not to be photographed.
         15       A.   Correct.
         16       Q.   What other arrangements did you make during 
         17   the course of the plea?
         18       A.   In order to assure that this plea would 
         19   take place --
         20       Q.   Judge, please, I want to know the 
         21   arrangements.  That's all I want to know.  What did 
         22   you do?
         23       A.   Okay.  I had a chair placed in the 
         24   courtroom, and I allowed the defendant's attorney 
 0028
          1   and some other attorney and a court officer to be 
          2   towards the back of the defendant.
          3       Q.   And when you say "towards the back of the 
          4   defendant," what you mean by that is they in effect 
          5   surrounded the defendant, who was seated in a chair 
          6   for the most part, so that the cameras could not 
          7   photograph the defendant.
          8       A.   Well, the cameras had been told they 
          9   couldn't.
         10       Q.   Yes.
         11       A.   So I didn't think they would.
         12       Q.   Right, but you took the precaution, you 
         13   would say, not only of issuing an order, but in 
         14   fact, screening the defendant so that the cameras 
         15   could not photograph even his back; is that right?
         16       A.   It had nothing to do with the cameras.  I 
         17   had already issued an order about that.
         18       Q.   Judge, let's talk --
         19            MR. EGBERT:  I object.
         20            HEARING OFFICER DAHER:  Sustained.  Go 
         21   ahead.  You ask the question and you can respond.
         22       A.   What was the question? 
         23       Q.   The question was, the arrangements made 
         24   were such that individuals stood behind the 
 0029
          1   defendant, the court officer, counsel, an assistant 
          2   from counsel's office or another lawyer, so that 
          3   even the back of the defendant as a result was not 
          4   photographed; isn't that so?
          5       A.   That was the effect of that, yes.
          6            MR. WARE:  Now I'd like to play portions of 
          7   that sentencing proceeding on September 6th, if I 
          8   may.  Judge, is it possible to darken the overhead 
          9   lights just a bit, briefly? 
         10            MR. EGBERT:  Again, Your Honor, note my 
         11   objection to playing only portions.  The answer, 
         12   Judge, as far as I'm concerned, if they're playing 
         13   portions of the proceedings, then they have to take 
         14   it down stenographically or there will be no record 
         15   of what's being played.
         16            MR. WARE:  I think Mr. Egbert is right on 
         17   that point, Your Honor.  To the extent that we play 
         18   the entire tape, I'll call it, in the courtroom, 
         19   that's another matter.  We have a transcript.  But 
         20   at this point I'm only playing selections and so I'm 
         21   afraid we do have to ask the court reporters to take 
         22   it down.  We'll furnish them with a transcript so 
         23   that they can -- it will be helpful afterwards.
         24            HEARING OFFICER DAHER:  The entire matter 
 0030
          1   will be put in, but you will play excerpts of the 
          2   case.
          3            MR. EGBERT:  I'm sorry; but the court 
          4   reporters will take down what's being said now on 
          5   the tape.
          6            HEARING OFFICER DAHER:  Right.
          7            MR. EGBERT:  Because we have to have what's 
          8   being played on the record so that we'll know what 
          9   the Judge's responses are to.
         10            MR. WARE:  I think that's correct.
         11            HEARING OFFICER DAHER:  That's fine.  
         12            MR. WARE:  Would you play the tape, please.
         13            (Tape playing) (Unintelligible)
         14            HEARING OFFICER DAHER:  Do you understand 
         15   that?  
         16            THE COURT REPORTER:  No.
         17            MR. EGBERT:  I have an objection.
         18            HEARING OFFICER DAHER:  What is your 
         19   objection? 
         20            MR. EGBERT:  It's an unrecognizable 
         21   videotape, where the words cannot be understood by 
         22   any of the listeners.
         23            HEARING OFFICER DAHER:  I can't understand 
         24   it.  Can you?
 0031
          1            THE COURT REPORTER:  No.
          2            MR. BERRIMAN:  I can play it with the 
          3   transcript scrolling.
          4            MR. EGBERT:  Then the transcript becomes 
          5   the evidence; not the tape.
          6            HEARING OFFICER DAHER:  He's right.
          7            MR. WARE:  I don't have an immediate answer 
          8   for that.  Let me consult for a moment.
          9            HEARING OFFICER DAHER:  Indeed. 
         10            MR. EGBERT:  I have no objection to playing 
         11   the videotape --
         12            HEARING OFFICER DAHER:  He's consulting.
         13            (Pause)
         14            MR. WARE:  Your Honor, let's take a shot at 
         15   turning the volume down a little and see if we get a 
         16   little better resolution.  If that doesn't work, 
         17   we'll bring a monitor in and play the tape later, a 
         18   television monitor.  Let's try it again and see if 
         19   we make any progress.  
         20            (Tape playing) (Unintelligible)
         21            MR. EGBERT:  I continue my objection.
         22            HEARING OFFICER DAHER:  Do you want to 
         23   defer on the tape?
         24            MR. WARE:  I think we better do that, yes.  
 0032
          1       BY MR. WARE: 
          2       Q.   By the time September 6th rolled around, 
          3   the date of the sentencing, whatever had transpired 
          4   between you and Ms. Joseph was four or five weeks 
          5   old; isn't that correct?
          6       A.   Correct. 
          7       Q.   You had a month in between to reflect on, 
          8   you would think, her conduct and the temperature in 
          9   the lobby conference; isn't that correct?
         10       A.   Yes.
         11       Q.   You also had a month, had you chosen to do 
         12   so, to make proposed findings with respect to the 
         13   sentence itself; isn't that true?
         14       A.   I did have a month to do that. 
         15       Q.   But chose not to make such findings or 
         16   draft findings in anticipation of the plea; isn't 
         17   that correct? 
         18            MR. EGBERT:  Judge, I'm confused.
         19       A.   You mean before the plea or after the plea?
         20       Q.   Before the plea.
         21            CHECK HEARING OFFICER DAHER:  Excuse me one 
         22   second.
         23            MR. EGBERT:  Are you talking about in the 
         24   Horton case? 
 0033
          1            MR. WARE:  Yes.
          2       BY MR. WARE:
          3       Q.   On August 4th you had a conference with 
          4   counsel.  You anticipated there would be a plea and 
          5   sentencing.  It was continued to September 6th, 
          6   correct?
          7       A.   Correct.
          8       Q.   At that time you had what you say is 
          9   considerable information, you told us this morning.  
         10   You had police reports, you had something from a 
         11   social worker from CPCS; isn't that correct?
         12       A.   Correct.
         13       Q.   You had, I think you've said, other 
         14   information regarding the case.  You had --
         15       A.   Record.
         16       Q.   The record.
         17       A.   Record information.
         18       Q.   You had the indictments.
         19       A.   I had the indictments.
         20       Q.   You had statements and representations from 
         21   the assistant district attorney with respect to the 
         22   underlying facts and the evidence which the 
         23   Commonwealth expected to prove in the event of 
         24   trial.
 0034
          1       A.   Correct.
          2       Q.   Now, since you announced an intended 
          3   decision of probation on August 4th -- so actually 
          4   on August 1 --
          5       A.   Right.
          6       Q.   -- you had made at least a tentative 
          7   decision of the sentence that you were going to 
          8   impose; isn't that so?
          9       A.   Yes.
         10       Q.   And accordingly, you had gone through some 
         11   reasoning and come to a conclusion; isn't that 
         12   correct?
         13       A.   Yes.
         14       Q.   You did not attempt to put down those 
         15   reasons or conclusions in any kind of a draft 
         16   memorandum for your own purposes in anticipation of 
         17   the plea on September 6th.
         18       A.   No, I did not draft any potential 
         19   memorandum in anticipation, no.
         20       Q.   And I think, as you said yesterday, it is, 
         21   of course, possible that the defendant could have 
         22   shown up on September 6th and could have said, Well, 
         23   I'm not going to plead guilty, or there could have 
         24   been additional facts brought to your attention; 
 0035
          1   isn't that so?
          2       A.   That's true.
          3       Q.   For that matter, the district attorney 
          4   might have brought additional facts to your 
          5   attention.
          6       A.   That's right.
          7       Q.   And that's one of the reasons that in the 
          8   course of the plea colloquy -- excuse me -- the 
          9   disposition phase of what happened on September 6th, 
         10   you indeed asked the assistant district attorney for 
         11   not only a factual basis, but a sentencing 
         12   recommendation; isn't that right?
         13       A.   I asked both -- what did you say?  What was 
         14   the purpose I asked them for?  I missed the first 
         15   part of your question. 
         16       Q.   One of the reasons you asked for a factual 
         17   basis is that you might learn a fact which they had 
         18   not brought to your attention which could 
         19   conceivably change your view of the case; isn't that 
         20   so?
         21       A.   Not in this case.
         22       Q.   No, it didn't happen that way.  But one of 
         23   the precautions you take as a judge is, in order to 
         24   satisfy yourself that there is a factual basis for 
 0036
          1   the indictments, you ask the assistant district 
          2   attorney to recite those facts he would expect to 
          3   prove if the case went to trial; isn't that so?
          4            MR. EGBERT:  Judge, that's about four 
          5   questions.  And no answer will accurately reflect 
          6   what is appropriate.
          7            HEARING OFFICER DAHER:  Compound question.  
          8   Pretty simple.  Overruled. 
          9       A.   The recitation of facts is not an 
         10   opportunity for the Commonwealth to present 
         11   additional facts.  That would be done before the 
         12   plea, before I took the plea.  They would have had 
         13   to file a motion or request an additional hearing.  
         14   So no, I would not expect in any way that the 
         15   Commonwealth would add additional facts not 
         16   previously made known to me during this plea.
         17       Q.   Accordingly, you're saying that all of the 
         18   facts recited to you during the course of the 
         19   factual basis were facts that had been previously 
         20   brought to your attention on August 1.
         21       A.   Not only recited; that I had read in the 
         22   various documents that were presented to me.
         23       Q.   You would agree, would you not, that even 
         24   though the Commonwealth -- that is, in the person of 
 0037
          1   the assistant district attorney -- and defense 
          2   counsel anticipate that there will be a plea and 
          3   that that plea will be accepted and that they'll be 
          4   able to sentence, they still have a job to do in the 
          5   courtroom; isn't that right?
          6       A.   Yes.
          7       Q.   And that job is important to a thorough 
          8   plea which will stand the test of any possible 
          9   challenge by the defendant after he has indeed pled 
         10   guilty; isn't that so?
         11       A.   Absolutely.  Everyone involved I think has 
         12   that interest in mind.
         13       Q.   And the district attorney has an obligation 
         14   to the Court and to the public in that regard, does 
         15   he not?
         16       A.   To the Court, to the public, and to the 
         17   law, yes.
         18       Q.   Following the sentence, you had occasion -- 
         19   first of all, you became aware of a storm of 
         20   protest, for wont of a better way to put it; isn't 
         21   that so?
         22       A.   I became aware of the media frenzy, the 
         23   feeding frenzy, yes.
         24       Q.   And that frenzy, as you're describing it, 
 0038
          1   consisted of, among other things, criticism of the 
          2   sentence that was imposed; is that so?
          3       A.   Yes.
          4       Q.   Following that, you contacted the Office of 
          5   Press Information of the Supreme Judicial Court -- 
          6   excuse me -- Office of Public Information of the 
          7   Supreme Judicial Court.
          8       A.   No.  I had contacted Joan Kenney before 
          9   that --
         10       Q.   You had --
         11       A.   -- about this case.
         12       Q.   Excuse me.  You had contacted her initially 
         13   on August 4th; isn't that so?
         14       A.   Yes.
         15       Q.   And you had sent her the findings that we 
         16   see in Exhibit 17 as we discussed yesterday.
         17       A.   Correct.
         18       Q.   But after the media story started to break 
         19   following the sentencing, you called her up again, 
         20   isn't that so, to confer with her about how to 
         21   handle the press relations?
         22       A.   Yes, I did, but I had actually spoken to 
         23   her before -- again, on the 6th, I think -- 
         24   concerning my order limiting the use of cameras.
 0039
          1       Q.   So you think you spoke to her before you 
          2   actually imposed sentence, do you mean?
          3       A.   I think I discussed the issue of limiting 
          4   the cameras with her that morning, yes.
          5       Q.   Following the media blitz after the 
          6   sentencing, did you and Ms. Kenney have additional 
          7   conversation?
          8       A.   We did.
          9       Q.   You understand that Ms. Kenney, as Public 
         10   Information Officer, has a number of duties, but one 
         11   of them is to assist judges in dealing with the 
         12   media; is that correct?
         13       A.   Yes.
         14       Q.   Among other things, to field phone calls 
         15   and to run some interference, if you will, for calls 
         16   from the press; isn't that so?
         17       A.   Yes.  To act as a liaison between the 
         18   judiciary and members of the press, yes.
         19       Q.   And you and Ms. Kenney discussed your 
         20   putting out a statement through that office as a 
         21   result of the sentencing proceeding; isn't that so?
         22       A.   That's right, we did.
         23            MR. WARE:  May I have just a moment, Your 
         24   Honor?
 0040
          1            (Pause)
          2       BY MR. WARE: 
          3       Q.   Let me direct your attention to Exhibit 24.  
          4   Do you have that before you?
          5       A.   Yes.
          6            MR. WARE:  And for the record, I'm going to 
          7   explain what Exhibit 24 is.
          8            MR. EGBERT:  Judge, I think the witness 
          9   ought to explain Exhibit 24. 
         10            MR. WARE:  That's fine. 
         11       Q.   If you know what it is, why don't you tell 
         12   us.  This is a three-page document, is it not?
         13       A.   Well, it's not one document.  It's related 
         14   to the same thing, but it's not -- not all of 
         15   them --
         16            HEARING OFFICER DAHER:  Mr. Ware, is it 
         17   going to be on the screen? 
         18            MR. WARE:  No, Your Honor. 
         19       A.   Some are drafts of what ended up being a 
         20   final version.
         21       Q.   Okay.  So if we look at Exhibit 24, the top 
         22   page is a document which shows all of the -- or 
         23   shows the draft -- shows changes made to the draft 
         24   and shows the final version; isn't that so?
 0041
          1       A.   Correct.
          2       Q.   In other words, the words that are struck 
          3   out on the face page of Exhibit 24 are the changes 
          4   made from the original draft to the final version.
          5       A.   Yes.  But is the first draft and this first 
          6   document the same thing? 
          7       Q.   Let me tell you what I believe it is and 
          8   you tell me if I'm right.  Let's go to the second 
          9   page, the middle page that says in the upper 
         10   right-hand corner "First Draft."
         11       A.   Correct.
         12       Q.   It is my understanding -- and you correct 
         13   me if I'm not right -- that this was a first draft 
         14   of a statement that was written initially by Joan 
         15   Kenney of the Public Information Office.
         16       A.   Correct.
         17       Q.   The last document, which says in the upper 
         18   right-hand corner "Final Version," is the version 
         19   which actually went out to the press.
         20       A.   Correct.
         21       Q.   The top document, which appears as the 
         22   first document in Exhibit 24, combines Pages 2 and 
         23   3, and it shows with strike-outs, so-called red 
         24   lines, the words that were taken out of the draft 
 0042
          1   and the words that were put in instead.
          2       A.   Was this a document created by you?
          3       Q.   Yes. 
          4       A.   Okay.  That's what I want to make sure; 
          5   that it's not a document that Joan Kenney ever 
          6   created.
          7       Q.   No.  As I think was explained when you 
          8   testified before the Commission, this is a 
          9   combination of the two documents, just for ease of 
         10   reference. 
         11       A.   Okay.
         12       Q.   So again, just to be clear, the version 
         13   which went out to the press is Exhibit 24.  It's the 
         14   last page, and it says in the upper right "The Final 
         15   Version"; is that right?
         16       A.   That's correct.
         17       Q.   In that final version, the first sentence 
         18   says, "The canons of judicial conduct prohibit 
         19   judges from commenting on pending and impending 
         20   cases."  Do you see that?
         21       A.   Yes.
         22       Q.   Now, that's not a statement with which you 
         23   agree; isn't that right?
         24       A.   I do agree with that statement for purposes 
 0043
          1   of a press release, yes.
          2       Q.   In this particular instance you did not 
          3   believe that there was any prohibition to your 
          4   making a statement of any kind; isn't that so?
          5       A.   It depends on what the statement was.
          6       Q.   Let me ask you to turn to what I think is 
          7   Exhibit 32, which is your sworn testimony before the 
          8   Commission --
          9       A.   Yes.
         10       Q.   -- at Page 139, and specifically, beginning 
         11   at Line 3. 
         12       A.   Yes.
         13       Q.   And the following colloquy occurred:  
         14            "Question:  I understood you to say earlier 
         15   you were not prohibited by Justice DelVecchio from 
         16   saying anything.  You were advised.
         17            "Answer:  Exactly.
         18            "Question:  So any prohibition I presume 
         19   would have been a legal prohibition.  
         20            "Answer:  I had no legal prohibition.  I 
         21   didn't believe I had a legal prohibition." 
         22            Do you see that?
         23       A.   Yes.
         24       Q.   And the next question:  
 0044
          1            "Did you have a legal prohibition as you 
          2   understood it with respect to any aspect of the 
          3   case, meaning could you discuss any --" and you 
          4   interrupt me and you say, beginning on Line 14:  
          5            "Answer:  The truth is I believe I could 
          6   have discussed anything I wanted about that case."  
          7   Is that your testimony? 
          8       A.   In the sentencing memorandum.
          9       Q.   Is that your testimony? 
         10       A.   That is my testimony, but it is in a 
         11   sentencing memorandum.
         12       Q.   Judge, is that your sworn testimony 13 
         13   months ago?
         14       A.   Yes, it is.
         15       Q.   Do you see the words "in a sentencing 
         16   memorandum" there?
         17       A.   No.  But I think if you read several pages 
         18   around it, you will see that's exactly what we were 
         19   discussing.
         20       Q.   I see.  Here at this point in your sworn 
         21   testimony before the Commission you said there's no 
         22   legal prohibition; isn't that right?
         23       A.   I have no legal prohibition as a judge --
         24       Q.   Judge, I'm asking you what you said in 
 0045
          1   sworn testimony 13 months ago before your trial --
          2            MR. EGBERT:  Why don't you let her read the 
          3   whole page.
          4       A.   I said that. 
          5            MR. EGBERT:  Why don't you let her read the 
          6   whole page.
          7       Q.   And you say, do you not, "I believe I could 
          8   have discussed anything I wanted about that case"?  
          9   Isn't that true?
         10       A.   I could have discussed anything I wanted in 
         11   my judicial capacity, yes.
         12       Q.   I'm asking you what you said in your sworn 
         13   testimony, not now, not as you gear up from this 
         14   proceeding --
         15            MR. EGBERT:  I object.  I object and move 
         16   to strike. 
         17            HEARING OFFICER DAHER:  Grounds? 
         18            MR. WARE:  I withdraw it, Your Honor.
         19            HEARING OFFICER DAHER:  Go ahead.
         20       Q.   You testified on that occasion, "The truth 
         21   is I believe I could have discussed anything I 
         22   wanted about the case."  Isn't that what you said?  
         23   Yes or no?
         24       A.   I said that, yes.
 0046
          1            HEARING OFFICER DAHER:  The answer is 
          2   "Yes."  Let's move on. 
          3       Q.   And in fact, you believed you could discuss 
          4   anything; isn't that correct?
          5       A.   In a sentencing memorandum.
          6       Q.   You didn't say "in a sentencing 
          7   memorandum," did you, Judge?
          8       A.   If you put it all in context --
          9       Q.   Judge, did you say "in a sentencing 
         10   memorandum" 13 months ago?
         11       A.   I did.  There are other places in this 
         12   deposition where I in fact refer to it.
         13       Q.   Did you say it here?
         14       A.   Not in those lines, no.
         15       Q.   This is the testimony you gave on that 
         16   occasion at this time, at this point in the 
         17   testimony before the Commission; isn't that right?
         18       A.   On that page in those sentences, that's 
         19   correct. 
         20       Q.   And the fact is you testified that you 
         21   didn't believe there were any facts which you could 
         22   not talk about; isn't that right?  
         23            MR. WARE:  Put up the next slide. 
         24       A.   In a sentencing memorandum, that's correct.
 0047
          1       Q.   Do you see on the monitor, Judge, the 
          2   question, "Could you have discussed, in your view, 
          3   facts brought to your attention in the reports which 
          4   were not public, had you chosen to do so?  
          5            "Answer:  I don't think there are any such 
          6   facts." 
          7            Did you say that?
          8       A.   What page is it on here? 
          9       Q.   That is Page --
         10       A.   The same page? 
         11       Q.   Page 139, yes.
         12            MR. EGBERT:  I think that it is absolutely 
         13   inappropriate to read CHECK half of the incident and 
         14   ask about it.  It's bad enough we have testimony 
         15   about one page out of a deposition where the subject 
         16   was discussed, but to not show her whole answer and 
         17   put the whole answer in front of her is 
         18   inappropriate.
         19            HEARING OFFICER DAHER:  What I have before 
         20   me -- obviously it's cross examination.  I'm going 
         21   to allow him that latitude and I'm going to allow 
         22   you as much freedom as you need, Mr. Egbert. 
         23            You may proceed.
         24       Q.   Do you have Page 139 before you?
 0048
          1       A.   I do.
          2       Q.   So let's take Mr. Egbert's suggestion and 
          3   go to the end of that page.  You say fully, in 
          4   addition to what's on the monitor:  
          5            "Answer:  I don't think there are any such 
          6   facts," meaning facts that you couldn't discuss.  
          7   Correct? 
          8       A.   Correct.
          9       Q.   And you go on to say, "I put it in my 
         10   findings when I continued the case that she suffered 
         11   from a sexual identity disorder." 
         12       A.   Yes.
         13       Q.   "The very confidential nature of what was 
         14   in that report I put on the record the day I 
         15   continued the case August 4th.  So once I put it on 
         16   the record, once it's an in-court statement, I can 
         17   talk about that all I want."  Isn't that your 
         18   testimony?
         19       A.   Once it's part of the record --
         20       Q.   Is that your testimony?
         21       A.   Yes.
         22       Q.   When you contacted Ms. Kenney, you asked 
         23   her, among other things, whether she would assist 
         24   you in handling the press calls; is that right?
 0049
          1       A.   Yes.
          2       Q.   And you -- I think you said earlier you did 
          3   have some conversation with respect to a statement 
          4   to be issued under your name, which she initially 
          5   drafted; isn't that so?
          6       A.   Right.
          7       Q.   You knew at the time that this was your 
          8   statement, correct?
          9       A.   That it was going to be issued on my 
         10   behalf, yes.
         11       Q.   Let me ask you to take a look at your sworn 
         12   testimony before the Commission, specifically at 
         13   Page 26, beginning on Line 17.  
         14            "Question:  The statement indicates that it 
         15   is your statement.  Did you understand that at the 
         16   time?  
         17            "Answer:  Yes."
         18       A.   Correct.
         19       Q.   Correct?
         20       A.   Yes.
         21       Q.   And when you discussed matters with Ms. 
         22   Kenney, you told her, among other things, that you 
         23   had some background information on the case, isn't 
         24   that so, on the basis of which you had made a 
 0050
          1   tentative sentencing decision back on August 1?
          2       A.   I didn't say that to her.  I told her what 
          3   the background information was.
          4       Q.   You gave her some of the background 
          5   information.
          6       A.   Yes.
          7       Q.   All right.  And part of that information 
          8   was that she should call someone named Detective 
          9   Greene; is that so?
         10       A.   That was after the press release issued.
         11       Q.   So at the time of the press release you had 
         12   not yet told Ms. Kenney about Detective Greene; is 
         13   that so?
         14       A.   I had told Ms. Kenney that Detective Greene 
         15   had come up in the course of the lobby conference as 
         16   exculpatory evidence that was never pursued by the 
         17   Commonwealth, since the case was in the district 
         18   courts, yes.
         19       Q.   It's your testimony that you said all of 
         20   that to Ms. Kenney prior to the point at which this 
         21   statement was prepared?
         22       A.   Probably not in those words, but I am sure 
         23   I mentioned to her that there was information of 
         24   exculpatory evidence in this case.
 0051
          1       Q.   And what is the exculpatory evidence, 
          2   Judge, that you say was brought up to you on the 
          3   basis of which you made that statement to Ms. 
          4   Kenney?
          5       A.   What was represented to me by Anne Goldbach 
          6   during the lobby conference was that there was a 
          7   detective from the Boston Police who had arrived on 
          8   the scene before the sexual assault unit had arrived 
          9   there and that contrary to the -- and it conflicted 
         10   with a number of the statements -- his observations 
         11   were in conflict with a number of the statements 
         12   made in the police report.
         13       Q.   Now, you had read the police report, so you 
         14   knew that Detective Greene was not the first officer 
         15   on the scene; isn't that correct?
         16       A.   That's a report by the sexual assault unit, 
         17   yes.
         18       Q.   No.  You told us yesterday, when we looked 
         19   at the -- well, let me ask you to look at Exhibit 
         20   27, which is the police report -- or one of the 
         21   police reports.  Exhibit 28 is as well. 
         22       A.   Yes.
         23       Q.   This is one of the reports that you looked 
         24   at on August 1; isn't that correct?
 0052
          1       A.   Yes.
          2       Q.   And it says in the very first line that the 
          3   two officers who came upon the scene were Officers 
          4   Rose and Sweeney; isn't that correct?
          5       A.   That's what the report says, yes.
          6       Q.   So you knew that Detective Greene was not 
          7   the first officer there and didn't make the initial 
          8   observations; isn't that correct?
          9       A.   I didn't know that.  It was represented to 
         10   me that there was a detective that arrived before 
         11   the sexual assault unit.
         12       Q.   Well, these officers are not from the 
         13   sexual assault unit.  The sexual assault unit comes 
         14   later.  You know that, don't you?
         15       A.   I thought the sexual assault unit was 
         16   called to the scene.
         17       Q.   Is it your testimony that on August 1, when 
         18   you made your sentencing decision or your tentative 
         19   decision, that you thought the sexual assault unit 
         20   arrived on the scene before a patrol car?
         21       A.   Oh, no.  No, that's not my testimony.
         22       Q.   All right.  The police report says there 
         23   was a patrol car in the area, he happened on the 
         24   scene, and the two officers were Rose and Sweeney, 
 0053
          1   isn't that so?
          2       A.   Yes.
          3       Q.   And you knew that the officers who were in 
          4   fact first on scene were Officers Rose and Sweeney, 
          5   correct?
          6       A.   I knew that those were the officers 
          7   preparing this report.
          8       Q.   You knew that the officers, because it says 
          9   so right in the report, were the officers who 
         10   actually came upon the scene, put on their lights, 
         11   got out of the car and made the observation; isn't 
         12   that true?
         13       A.   That's what the report says, yes.
         14       Q.   And you had the report at the time you made 
         15   your initial decisions; isn't that so?
         16       A.   Correct.
         17       Q.   And then, when in fact the district 
         18   attorney recited the factual basis, he identified 
         19   Officers Rose and Sweeney to you, as you told us 
         20   yesterday, correct?
         21       A.   I believe so.  I'm sure he did.
         22       Q.   The upshot of all of this is that you knew 
         23   that this Detective Greene was not first on scene; 
         24   isn't that correct?
 0054
          1       A.   I didn't know that.
          2       Q.   Did you think he was riding in the patrol 
          3   car?
          4       A.   Mr. Ware, just because it's not in this 
          5   report doesn't mean that he wasn't there. 
          6       Q.   Do you think he was riding in the patrol 
          7   car, Judge?
          8       A.   I don't -- I'm just repeating what was 
          9   represented to me.
         10       Q.   Did you understand from Ms. Goldbach that 
         11   Detective Greene had somehow come upon the scene 
         12   before the police car that actually made the arrest?
         13       A.   No.  I didn't really understand that.  I 
         14   mean, he could have arrived at about the same time.
         15       Q.   Well, if you didn't understand that, what 
         16   did you do to get clarification about Detective 
         17   Greene's role before you took into account, as 
         18   you're now saying you did, this, quote, exculpatory 
         19   evidence?
         20       A.   I didn't take it into account.  All I said 
         21   was that I considered a representation by an officer 
         22   of the court that the Commonwealth had failed to 
         23   pursue what the defense perceived to be exculpatory 
         24   evidence.
 0055
          1       Q.   In any event, you did not take Detective 
          2   Greene's -- the assertions about Detective Greene 
          3   into account in making your decision; is that what 
          4   you're saying?
          5       A.   I can't say that because --
          6       Q.   Well, you just said that.
          7       A.   I didn't say that.
          8            MR. EGBERT:  She didn't just say it.  You 
          9   said it.
         10            HEARING OFFICER DAHER:  Stricken.
         11            MR. EGBERT:  There's a certain point --
         12            HEARING OFFICER DAHER:  Stricken.
         13            MR. EGBERT:  This witness ought to be 
         14   treated with the same respect as any other witness.
         15            HEARING OFFICER DAHER:  Your objection is 
         16   sustained.  The comment of Mr. Ware, the last 
         17   comment is stricken.  Go ahead.
         18            MR. WARE:  Thank you, Your Honor. 
         19       BY MR. WARE: 
         20       Q.   The information which you've provided to 
         21   Ms. Kenney was information, as you've said, about 
         22   circumstances of the case as you understood them; is 
         23   that so?
         24       A.   Right. 
 0056
          1       Q.   And you knew that Ms. Kenney was dependent 
          2   upon you for that information; isn't that right?
          3       A.   That would be her only source of it at that 
          4   point, yes.
          5       Q.   You were the only source of information for 
          6   the Public Information Office; is that right?
          7       A.   Oh, I don't know that to be the case.  I 
          8   believe she talked to a number of other people.
          9       Q.   At the time the statement was being 
         10   prepared, you were the source of information.  It 
         11   was your statement; isn't that right?
         12       A.   Yes.
         13       Q.   And you understood that the statement 
         14   contained representations regarding the sentencing 
         15   process in the case.  
         16            MR. WARE:  And could you show us Slide 34, 
         17   Jim, please.  33 and 34.
         18       Q.   Isn't that so, Judge?
         19       A.   Excuse me.  I'm looking for it in my book.
         20       Q.   Take a look at 32, which is your sworn 
         21   testimony before the Commission. 
         22       A.   Okay.  And what page should I refer to? 
         23       Q.   I've put it on the monitor.  But as you --
         24            MR. EGBERT:  Why don't you look at the 
 0057
          1   exhibit. 
          2       Q.   Take a look at Line 15 to 18.
          3       A.   On what page? 
          4       Q.   On Page 31. 
          5       A.   Yes.
          6       Q.   And so the information with which Ms. 
          7   Kenney responded was based on the information which 
          8   you provided her, correct?
          9       A.   Yes.  Yes. 
         10       Q.   But you understood that those 
         11   representations were being attributed to you in the 
         12   statement; isn't that so?
         13       A.   Yes.
         14       Q.   And you so testified before the Commission, 
         15   at the bottom of that same page, 31, and the top of 
         16   Page 32, where you say:  
         17            "Question," beginning at Line 19:  "You 
         18   understood, when you received Exhibit 4" -- that is 
         19   the statement -- "that it contained representations 
         20   regarding the sentencing process in the case.
         21            "Answer:  Yes.  
         22            "Question:  And you understood that those 
         23   representations were ones that were being attributed 
         24   to you.  
 0058
          1            "Answer:  Yes."  
          2            Correct?
          3       A.   Correct.
          4       Q.   You received a draft of the statement 
          5   before it was issued; isn't that so?
          6       A.   I believe it was read to me over the phone.
          7       Q.   Did you have a physical draft of it?
          8       A.   I can't recall.
          9       Q.   Let me ask you to take a look at your sworn 
         10   testimony on Page 24 and ask you whether that 
         11   refreshes your recollection --
         12       A.   What page? 
         13       Q.   Page 24, beginning at Line 13:  
         14            "Question:  You believe you received a 
         15   draft at some point following September 6th.  
         16            "Answer:  Right."  
         17            Is that so?
         18       A.   Yes.
         19       Q.   Now, the statement actually went out on 
         20   September 7th; is that true?
         21       A.   Yes.
         22       Q.   So you had a draft -- since it's a draft, 
         23   you had the draft before the final statement went 
         24   out, correct?
 0059
          1       A.   I knew about the language in the draft, 
          2   yes.
          3       Q.   You had the draft, Judge, did you not?  
          4   Isn't that what you testified to?
          5            MR. EGBERT:  She testified that she 
          6   believed she received a draft.  That's what she 
          7   testified to.
          8       Q.   Fine.  You believe you received a draft, 
          9   correct?
         10       A.   I believed that at the time of this 
         11   deposition, yes.
         12       Q.   And you had conversations with Ms. Kenney 
         13   and at some point on September 7th a final statement 
         14   went out, correct?
         15       A.   Yes.
         16       Q.   You understood as well that Justice 
         17   DelVecchio was reviewing the statement and, in fact, 
         18   made some changes to it, some minor changes; isn't 
         19   that so?
         20       A.   That's so, yes.
         21       Q.   And at some point you had conversations 
         22   directly with Justice DelVecchio.
         23       A.   It appears that I did, yes.
         24       Q.   And let me show you in that regard Exhibit 
 0060
          1   51, which is on the monitor and is also in the book.  
          2            MR. WARE:  And if we could show the next 
          3   slide --
          4       A.   51? 
          5       Q.   51, yes. 
          6       A.   (Witness reviews document)
          7       Q.   It indicates there, does it not, that there 
          8   was a revision to the original draft by Justice 
          9   DelVecchio following a telephone consultation with 
         10   you?
         11       A.   Yes.
         12       Q.   Does that refresh you that in fact you 
         13   talked with Justice DelVecchio?
         14       A.   Yes.
         15       Q.   You made no changes or suggested changes on 
         16   the draft; isn't that so?
         17       A.   That is so. 
         18       Q.   You weren't prohibited at any time from 
         19   making such changes, were you?
         20       A.   No, I wasn't.
         21       Q.   And you had disagreements at that time with 
         22   the language which you did not raise with Justice 
         23   DelVecchio or Joan Kenney; isn't that true?
         24       A.   That's not true, not at the time. 
 0061
          1       Q.   Let me ask you to look at Page 28.  
          2       A.   Page 28 of my deposition? 
          3       Q.   Yes.  You refer to it as a deposition.  In 
          4   fact, this was sworn testimony before a Commission 
          5   of Special Counsel, was it not?
          6       A.   It was a deposition, wasn't it?  I mean, 
          7   the same thing, under oath, ask questions, you 
          8   answer them.  So it's a deposition.
          9       Q.   Is that the way you understood it?
         10       A.   I understood I was subpoenaed for a 
         11   deposition, yes.
         12       Q.   In any event --
         13       A.   Page 28? 
         14       Q.   Yes.  You indicated a number of differences 
         15   with the language --
         16       A.   During our deposition.
         17       Q.   And you did not make any -- you didn't tell 
         18   Justice DelVecchio or Joan Kenney about those 
         19   differences, correct?
         20            MR. EGBERT:  The question he asked her was, 
         21   "Did you agree with the language of that" -- strike 
         22   that.  "Did you disagree with the language at that 
         23   time?"  She then said --
         24            MR. WARE:  Your Honor, please.
 0062
          1            MR. EGBERT:  Counsel is now impeaching, 
          2   with a new question instead of the same one, to 
          3   leave a false impression with the Court as to what 
          4   is going on here. 
          5       BY MR. WARE: 
          6       Q.   The question you were asked at Page 28 at 
          7   Line 14 was:  
          8            "You indicated a number of differences or 
          9   disagreement with the specific language of this 
         10   statement.  Why did you not raise those with Justice 
         11   DelVecchio or Joan Kenney at the time?  
         12            "Answer:  Because I just chose to let them 
         13   handle it."  
         14            Isn't that what you testified to?
         15       A.   That's what I testified to, yes.  So long 
         16   as you understand that you've indicated those were 
         17   indicated in the course of my deposition.
         18       Q.   Judge, you didn't have any doubt that we 
         19   were talking about your interaction with the Public 
         20   Information Office at the time; isn't that so?
         21       A.   Correct.  I knew we were discussing the 
         22   statement.
         23       Q.   And as you said, there was no prohibition 
         24   on your making any changes when you received the 
 0063
          1   draft back on September 6th or 7th, correct?
          2       A.   Correct.
          3       Q.   You refer in the statement -- again, 
          4   Exhibit 24 -- where the statement says, "My 
          5   statement in open court that it was a low-scale 
          6   matter pertained solely to the appropriate level of 
          7   the sentencing guidelines used by judges in 
          8   sentencing convicted defendants," correct?
          9       A.   Yes.
         10       Q.   Now, when you saw that statement, you 
         11   disagreed with it and you disagreed with the 
         12   characterization that "low scale" was referencing 
         13   the sentencing guidelines; is that right?
         14       A.   No, I didn't.
         15       Q.   You did not disagree with it?
         16       A.   That "low scale" was referring to the same 
         17   and similar factors that would be used by sentencing 
         18   guidelines.  We don't have sentencing guidelines in 
         19   Massachusetts.
         20       Q.   The statement which you received under your 
         21   name on September 7th that you sent out as your 
         22   statement to the press says that your reference to, 
         23   quote, low scale in the courtroom was a reference, 
         24   quote, solely to the appropriate level of the 
 0064
          1   sentencing guidelines; isn't that so?
          2       A.   That's correct.
          3       Q.   At the time you saw the statement you 
          4   knew -- you realized that that was not true; isn't 
          5   that so?
          6       A.   Well, no, I don't think it wasn't true.
          7       Q.   Judge, was it so or wasn't it so?
          8       A.   It was not so.  It was inartful, but it 
          9   wasn't so. 
         10       Q.   Judge, please.  The reference to "low 
         11   scale" as you used it in the courtroom was not a 
         12   reference to sentencing guidelines, was it?
         13       A.   Not to any particular sentencing 
         14   guidelines.
         15       Q.   It was not a reference to sentencing 
         16   guidelines at all, was it?
         17       A.   Well, I have no idea what sentencing 
         18   guidelines you would be talking about.
         19       Q.   You testified -- let me direct your 
         20   attention to Page 38 of your sworn testimony 13 
         21   months ago, at the top of the page, and the question 
         22   beginning on Line 3. 
         23       A.   Yes.
         24       Q.   "Your reference to 'low scale' during the 
 0065
          1   course of the sentencing was a reference to 'the 
          2   appropriate level of sentencing guidelines.'  
          3            "answer:  That's correct."  
          4            That's quoting the statement, correct? 
          5       A.   The appropriate level of matters that would 
          6   be considered under sentencing guidelines, because 
          7   we don't have sentencing guidelines.
          8       Q.   Your statement says "appropriate" -- that 
          9   it pertains solely to the appropriate level of 
         10   sentencing guidelines, correct?
         11       A.   That's what this statement says, yes.
         12       Q.   And you acknowledge that that's what the 
         13   statement says on Line 6, and you say, "That's not 
         14   what I intended when I said 'low scale,'" correct?
         15       A.   That was not what was going through my 
         16   mind.
         17       Q.   Judge, I'm asking you how you testified 
         18   when you were testifying under oath more than a year 
         19   ago.  You testified at that time, "That's not what I 
         20   intended when I said 'low scale'"; isn't that so?
         21       A.   Not a reference to any particular set of 
         22   sentencing guidelines, that's correct.
         23       Q.   Let's see if we can focus on your sworn 
         24   testimony under oath 13 months ago when you came 
 0066
          1   before Commission counsel. 
          2            At that time you said that it was not a 
          3   reference to sentencing guidelines; that, "that's 
          4   not what I intended when I said 'low scale'."  
          5   Period end quote; isn't that right?
          6       A.   That's what I said, yes.
          7       Q.   And I asked you the next question:  
          8            "Question:  So this statement is erroneous 
          9   in that respect?  
         10            "Answer:  Right."  
         11            That's what you testified to, correct?
         12       A.   Correct. 
         13       Q.   And at the top of the next page, Line 2 -- 
         14   this is Page 39, Slides 38 and 39.  
         15            "Question," beginning at Line 2:  "And 
         16   you're saying that, as characterized here in the 
         17   statement, it is in fact incorrect.  It does not 
         18   accurately reflect your thinking.
         19            "Answer:  It does not reflect what was on 
         20   the tape.  I know that's my thinking."  
         21            And that's what you said.
         22       A.   Correct.  I referred to a scale of 1 to 10.  
         23   We do not have sentencing guidelines that go 1 to 
         24   10.
 0067
          1       Q.   Judge, let's focus again on your sworn 
          2   testimony under oath 13 months ago.  You swore at 
          3   that time that the characterization of "low scale" 
          4   was not what you had in mind during the sentencing 
          5   proceeding; isn't that so?
          6       A.   When I said --
          7       Q.   I don't want an explanation, Judge.  I want 
          8   your testimony 13 months ago. 
          9       A.   Yes.
         10       Q.   You said at that time that the reference to 
         11   "low scale" was not a reference to the sentencing 
         12   guidelines; isn't it that simple?  Yes or no? 
         13       A.   The sentencing guidelines that may be 
         14   referred to in the vernacular, yes.
         15       Q.   And you did nothing at that time -- that 
         16   is, back in September of 2000 -- either to correct 
         17   the statement or bring that error to the attention 
         18   of either Justice DelVecchio or Joan Kenney; isn't 
         19   that true?
         20       A.   That's true. 
         21       Q.   Do you agree that you could have made them 
         22   aware of that error, that characterization of "low 
         23   scale"; isn't that so?
         24       A.   I could have, yes.  And I might have even 
 0068
          1   made Justice DelVecchio aware of it.  I'm not sure.
          2       Q.   Now you're speculating that you might have 
          3   said something about it?
          4       A.   Well, clearly she would know that there are 
          5   no sentencing guidelines that go 1 to 10.
          6       Q.   Judge, we're not talking about what's in 
          7   Justice DelVecchio's mind in September of 2000.  I'd 
          8   like your testimony based on what you said before 
          9   the Commission.  And let me refer you to Slide 42, 
         10   to Line 15 on Page 40, which is on the monitor as 
         11   well, where I ask you the following question and you 
         12   respond as follows under oath:  
         13            "Question:  The bottom line here is you 
         14   believe this characterization of what you were doing 
         15   in open court is not accurate.
         16            "Answer:  The characterization of what I 
         17   was doing in open court, that it referred to 
         18   sentencing guidelines, is not accurate."  
         19            Correct? 
         20       A.   That's correct. 
         21       Q.   You did not at that time bring any 
         22   inaccuracy to the attention of Justice DelVecchio or 
         23   to Ms. Kenney, isn't that so?
         24       A.   That's so. 
 0069
          1       Q.   Now, the reason you didn't bring anything 
          2   to the attention of Justice DelVecchio or Ms. Kenney 
          3   was that you were hopeful that the statement would 
          4   assist you in the public press; isn't that correct?
          5       A.   No.
          6       Q.   Well, you weren't putting out a statement 
          7   which you believed would be harmful to you, were 
          8   you?
          9       A.   There was a bigger concern than to just me 
         10   in this situation, Mr. Ware.
         11       Q.   You were putting out a statement which you 
         12   viewed as assisting you in deflecting press 
         13   criticism; isn't that right?
         14       A.   Press criticism with respect to the 
         15   judiciary and a judge as a member of that 
         16   institution, yes.
         17       Q.   So are you now saying that your motivation 
         18   in having a statement put out under your name, which 
         19   you knew to have errors in it, which you did not 
         20   bring to the attention of the Press Information 
         21   Office, was to assist the judiciary?  Is that what 
         22   you're telling us?  Yes or no?
         23       A.   I did not believe it had errors in it, so 
         24   no.
 0070
          1       Q.   I'm not going to retrace those steps, 
          2   Judge.
          3            MR. EGBERT:  Objection and move to strike.
          4            HEARING OFFICER DAHER:  Allowed.
          5       Q.   "Low scale" was not a reference to 
          6   sentencing guidelines as you used it in the 
          7   courtroom, was it?
          8       A.   Not to any of these sentencing guidelines 
          9   that are out there, but it was a reference to the 
         10   same or similar factors that we use in evaluating a 
         11   case for the purposes of determining an appropriate 
         12   sentence.
         13       Q.   Have you anywhere ever given that 
         14   explanation to anyone other than today in this 
         15   courtroom?
         16       A.   I believe if you read the deposition, you 
         17   will find --
         18       Q.   Let's get back to your conversations and 
         19   your statement as issued to the public press.  The 
         20   reason you didn't want to make this information 
         21   known or any corrections to Ms. Kenney or Justice 
         22   DelVecchio was that you viewed this as an exercise 
         23   in spin, didn't you?
         24       A.   That's correct. 
 0071
          1       Q.   Well, didn't you view this statement, 
          2   Judge, as trying to explain away your statement of 
          3   "low scale" in open court?
          4       A.   It was a way of informing the public that 
          5   the reference to "low scale" was to the sentence 
          6   that the Court determined was appropriate in this 
          7   case.
          8       Q.   In fact, weren't you trying to explain away 
          9   your reference to "low scale" because you were 
         10   embarrassed by that reference?
         11       A.   No.
         12       Q.   Isn't it that simple?
         13       A.   It was taken out of context.
         14       Q.   Regardless whether it was taken out of 
         15   context, you realized after the fact that the 
         16   reference to "low level" or "low scale" was an 
         17   unfortunate reference; isn't that so?
         18       A.   Regrettable and unfortunate.  I should have 
         19   never asked Mr. Deakin the question of rating it 1 
         20   to 10, you're right.
         21       Q.   Is it Mr. Deakin's fault or is it your 
         22   fault for having made the statement?
         23       A.   It's my fault.
         24       Q.   And so you regretted having said "low 
 0072
          1   scale" or "low level"; is that true?
          2       A.   I regret the entire exchange with Mr. 
          3   Deakin concerning the evaluation of the case.
          4       Q.   You regret your personal response to Mr. 
          5   Deakin in which you characterized something as "low 
          6   level" or "low scale," correct?
          7       A.   For purposes of the sentencing 
          8   guidelines -- for purposes of the factors we would 
          9   consider in determining a sentence, yes.
         10       Q.   You regretted your choice of words "low 
         11   level" or "low scale"; isn't that right, Judge?
         12       A.   If I had to take it back today, I would.
         13       Q.   You regretted it.
         14       A.   I do.
         15       Q.   And when it came to your discussions with 
         16   the Office of Public Information, you viewed that as 
         17   an exercise in spin, right?
         18       A.   Well, that's a generic term we use when 
         19   you're going to deal with public relations or press 
         20   releases, so yes.  I mean...
         21       Q.   You thought it was an exercise in spin.
         22       A.   In the way something is presented to the 
         23   public and how to present it, that is an exercise 
         24   that I guess is in spin, yes.
 0073
          1       Q.   And you viewed the effort with the Public 
          2   Information Office of the Supreme Judicial Court as, 
          3   in part trying to explain away this reference to, 
          4   "low scale" or "low level," correct?
          5       A.   Not explain away.  Explain it. 
          6       Q.   Let me direct your attention to Page 40, 
          7   beginning at Line 6.  You're giving an answer.  And 
          8   you say, in part -- I'm beginning actually at Line 
          9   7.  Do you see the language that says, "If you're 
         10   trying to explain away that statement" -- meaning 
         11   the "low level" statement -- "that 'low-scale' 
         12   statement on the tape, this makes sense."  You're 
         13   referring to characterization in the press release 
         14   that's to go out under your name?
         15       A.   Correct.  Read the entire thing.
         16       Q.   All right.  And you say, "Fine.  Let's 
         17   refer to it as 'low scale' in terms given the, you 
         18   know, the sentencing guidelines." 
         19            Again, you say "sentencing guidelines."  
         20   Your choice, right?
         21       A.   Exactly, but that's my point.
         22       Q.   And you go on to say, "The minor record the 
         23   defendant had.  You could say in the scheme of 
         24   things, that it refers to low guidelines 
 0074
          1   sentencing."  Isn't that what you said?
          2       A.   That is what I said, yes.
          3       Q.   And you further characterize your effort 
          4   with the Public Information Office as giving some 
          5   sort of spin to the "low-scale" statement, don't 
          6   you?
          7       A.   Yes.
          8       Q.   Let me ask you to take a look at your sworn 
          9   testimony on Page 38, Lines 19 and 20, and it's on 
         10   the monitor. 
         11       A.   (Witness reviews document)
         12       Q.   You say, beginning at Line 14: 
         13            "Answer:  Because I thought they would -- 
         14   the fact that I called it 'low scale.'  Look, I had 
         15   a bad day that day.  Okay?  So I called it 'low 
         16   scale.'  I shouldn't have called it 'low scale' in 
         17   the scheme of things.  All right?"  And you go on, 
         18   "And they were giving some sort of spin to the 'low- 
         19   scale' statement that was in the tape."  
         20            That was your characterization of what was 
         21   going on, wasn't it? 
         22       A.   That's how I explained, yes.
         23       Q.   And this wasn't once.  Back on Page 32 of 
         24   your sworn testimony, you likewise characterized 
 0075
          1   this as an exercise in spin, beginning at Line 15.  
          2   And you say -- let me read my question beginning at 
          3   Line 7 to the end of your answer, Line 15:  
          4            "Question:  You would have let the 
          5   statement go out under your name with inaccurate 
          6   representations in it, knowing that she" -- Ms. 
          7   Kenney -- "depended upon you for the factual basis 
          8   of this statement?  
          9            "Answer:  Well, first of all, I don't see 
         10   anything here that is materially inaccurate.  Okay?  
         11   And I thought they would have better expertise as to 
         12   how to frame or what spin to give, whatever, than I 
         13   would.  So I let them handle it."  
         14            Isn't that right?
         15       A.   That's right.
         16            MR. WARE:  Your Honor, are we going to take 
         17   a morning break? 
         18            HEARING OFFICER DAHER:  Right now.  I was 
         19   hoping someone would bring that up.  We'll take a 
         20   short recess.
         21            (Recess)
         22            MR. WARE:  Your Honor, before I go further, 
         23   I'd like to offer at this time Exhibits 26, 27 and 
         24   28, which are the police reports from which the 
 0076
          1   witness referred.
          2            HEARING OFFICER DAHER:  Any objections? 
          3            MR. EGBERT:  Can I have a moment?
          4            HEARING OFFICER DAHER:  Take your time. 
          5            MR. EGBERT:  I suppose my question is for 
          6   what purpose.
          7            MR. WARE:  For all purposes.
          8            MR. EGBERT:  If it's for the purpose of the 
          9   truth of the matter, I object.  If it's for the 
         10   purpose of notice of information that she was 
         11   provided, I don't object.
         12            CHECK MR. WARE:  It's offered generally, 
         13   Your Honor, for purposes, among other things, to 
         14   show what Judge Lopez saw at the time of the 
         15   sentencing.
         16            MR. EGBERT:  If it's being offered for what 
         17   she saw, then it's not for the truth of the matter.  
         18   You can't take it for the truth of the matter as 
         19   asserted.  For that purpose, it will be hearsay.
         20            MR. WARE:  I'm offering Exhibits 26, 27 and 
         21   28 without restriction.
         22            MR. EGBERT:  Then I object to it as being 
         23   offered without restriction.  It's clearly hearsay.
         24            HEARING OFFICER DAHER:  Overruled. 
 0077
          1                 (Documents marked as Exhibits 26 
          2                 through 28 in evidence)
          3            MR. WARE:  At this time, Your Honor, I'd 
          4   like to play a segment of the -- the tape of the 
          5   sentencing proceeding, which we're going to do on 
          6   videotape.  And for the Court's reference, the 
          7   transcript of this portion of the tape -- first of 
          8   all, the transcript itself is Exhibit 22, I think -- 
          9   Exhibit 22.  And the portion that will be played at 
         10   this point begins at Page 29, Line 1, and goes 
         11   through Page 31, Line 7 or 8.
         12            MR. WARE:  Excuse me, Your Honor, I 
         13   misspoke with respect to the end point.  It's Page 
         14   33, Line 5. 
         15            So to repeat, Exhibit 22, beginning at the 
         16   top of Page 29 of the transcript, following through 
         17   to Page 33, Line 5.  
         18            (Tape playing)
         19            THE COURT:  Okay.  Let me just ask you 
         20   something.  How long have you been in charge of the 
         21   sexual assault unit?
         22            MR. DEAKIN:  Twenty-one months.
         23            THE COURT:  Okay.  And how many of these 
         24   sex cases have you seen?
 0078
          1            MR. DEAKIN:  I'm not sure that I can answer 
          2   that with an exact figure.  
          3            THE COURT:  A ballpark figure.
          4            MR. DEAKIN:  We see approximately 500 such 
          5   investigations.  
          6            THE COURT:  No, the ones that get indicted. 
          7            MR. DEAKIN:  I think, Your Honor, and I'm 
          8   not prepared with the figures, but I expect that we 
          9   indict close to a hundred cases a year.
         10            THE COURT:  Okay.  And of those 100 cases, 
         11   in terms of the facts of this case, on a scale of 1 
         12   to 10, where would you put this case? 
         13            MR. DEAKIN:  Depends -- I would say to Your 
         14   Honor that it depends on -- there are several axes 
         15   that one can evaluate a case on.  
         16            In terms of the lack of a relationship 
         17   between the perpetrator and the victim, I would say 
         18   this is a ten, because what is relatively rare in 
         19   fact but perhaps most frightening to the general 
         20   population is the case of a person without a 
         21   relationship to a child who abducts the child off 
         22   the street, takes it to a secret location, and 
         23   sexually assaults the child.  In terms of the age of 
         24   the child, I would say it's in the quite serious 
 0079
          1   range as well.  The child was 12 years old at the 
          2   time.  
          3            In terms of the completed sexual assault 
          4   that the child has disclosed, I would say that the 
          5   facts are in the moderately serious range.  I would 
          6   also note, however, Your Honor, that the assault was 
          7   interrupted by police who came to a -- just happened 
          8   upon this on routine patrol.  And as a prosecutor 
          9   who has prosecuted a number of these cases, I would 
         10   remain concerned that this assault might have been 
         11   quite a bit worse had they not quite -- had they not 
         12   quite fortuitously come upon what they came upon. 
         13            THE COURT:  Well, let me just say that I've 
         14   been a judge now since 1988, and I have seen many of 
         15   these cases.  And in the scale of cases that charge 
         16   sexual assault of children, this is on a very low 
         17   level.  Okay?  And, so, I really think it's 
         18   disingenuous for you to tell me that this is a ten.  
         19            I'll hear from the defense attorney.
         20            MR. DEAKIN:  Your Honor, if I may --
         21            THE COURT:  No, you may not.  You may sit 
         22   down now. 
         23            MR. DEAKIN:  I -- 
         24            THE COURT:  You may sit down now or I'll 
 0080
          1   get a court officer to make you sit down.  And I'll 
          2   hear from the defense attorney. 
          3            MR. DEAKIN:  I object to being charged with 
          4   being disengenuous.
          5            THE COURT:  I find it was disingenuous, and 
          6   I know better than that.  Go ahead.
          7            MS. GOLDBACH:  Your Honor, on behalf of my 
          8   client, you know my client's background, you know 
          9   what kind of work and things that my client has done 
         10   since she was charged in this case.  And for reasons 
         11   of my client's privacy, I'm not going to go into 
         12   those details at this time.  But I'd ask Your Honor 
         13   to sentence my client as you indicated earlier this 
         14   morning. 
         15            THE COURT:  Okay.  Let's sentence her as I 
         16   indicated.  Five years' probation, one year of that 
         17   on electronic monitoring, counseling, stay away from 
         18   children under the age of 16. 
         19            THE CLERK:  DNA sample? 
         20            THE COURT:  Yes.
         21            THE CLERK:  As to all indictments, 
         22   concurrent, Your Honor.
         23            MR. DEAKIN:  Your Honor, if I may --
         24            THE COURT:  I don't want to hear from you 
 0081
          1   anymore.  Do you understand?
          2            MR. DEAKIN:  Your Honor, if I may be heard.
          3            THE COURT:  No.  You will not be heard.  I 
          4   said I've heard enough. 
          5            MR. DEAKIN:  I'm only inquiring as to one 
          6   of the conditions of the electronic monitoring.  
          7   It's not clear to me that the Probation Department 
          8   will know the conditions of the electronic 
          9   monitoring; that is, what is being monitored.
         10            (End of tape)
         11            MR. WARE:  Thank you, Your Honor. 
         12       BY MR. WARE: 
         13       Q.   Now, Judge Lopez, directing your attention 
         14   to the transcript of the hearing on September 6th 
         15   and specifically to Exhibit 22, Page 29 -- Page 29 
         16   and 30. 
         17       A.   Yes.
         18       Q.   You asked Mr. Deakin, beginning at Line 19 
         19   on Page 29, "And of those 100 cases, in terms of the 
         20   facts of this case, on a scale of 1 to 10, where 
         21   would you put this case?"  And Mr. Deakin responds, 
         22   beginning at Line 3 of Page 30; is that correct?  
         23   Substantively responds; is that correct?
         24       A.   Well, if you want to skip that, that would 
 0082
          1   be fine.
          2       Q.   Skip what? 
          3       A.   Well, in fact, Mr. Deakin understood 
          4   exactly what I meant when I said 1-to-10 scale.
          5       Q.   Let's not talk about what Mr. Deakin may 
          6   have understood, all right, Judge? 
          7       A.   Okay. 
          8       Q.   Let's talk about the transcript and the 
          9   words that were said in the hearing.  Okay? 
         10       A.   Yes.
         11       Q.   Mr. Deakin does in fact give you an 
         12   explanation of his recommendation or his statement 
         13   that he believes -- or he rates the case in response 
         14   to your question; isn't that right?
         15       A.   Yes, he does for purposes of sentencing.  
         16   We're at the sentencing stage of this.
         17       Q.   Okay.  And he does that substantively 
         18   beginning on Line 3 of Page 30, correct?
         19       A.   Correct.
         20       Q.   And what he says is that the case is a ten, 
         21   quote, in terms of the lack of a relationship 
         22   between the perpetrator and the victim, correct?
         23       A.   Yes.  That's what he said.
         24       Q.   That's the only basis on which he rates it 
 0083
          1   as a ten; isn't that so?
          2       A.   No.  He goes on to explain a couple of 
          3   other things.
          4       Q.   How else does he rate it as a ten, Judge?
          5       A.   He says, "In terms of the age of the child, 
          6   I would say it's in the quite serious range."  He 
          7   goes on to say, "In terms of the completed sexual 
          8   assault that the child has disclosed, I would say 
          9   that the facts are in the moderately serious range."  
         10   So he refers to a number of factors.
         11       Q.   Well, in fact, he gave you three different 
         12   ratings, did he not?  He rates the case as a 10 with 
         13   respect to, as he says, "In terms of the lack of a 
         14   relationship between the perpetrator and the 
         15   victim."  That he rates a 10, correct?
         16       A.   Yes.
         17       Q.   All right. 
         18       A.   Well, with the other factors.  I just don't 
         19   want you to say that that alone formed the basis of 
         20   his evaluation.
         21       Q.   Well, you don't know what he was thinking, 
         22   do you?
         23       A.   I know what he said to me.
         24       Q.   So let's go down to what he did say, 
 0084
          1   beginning on Line 10.
          2       A.   Yes.
          3       Q.   In each aspect of his rating of the case he 
          4   begins with the words "In terms of" at Line 3?
          5       A.   Yes.
          6       Q.   A second time at Line 10 and a third time 
          7   at Line 14; isn't that so?
          8       A.   Correct.
          9       Q.   And you understood that he was rating 
         10   different aspects of the facts of this case; isn't 
         11   that so?
         12       A.   For purposes of sentencing, yes.
         13       Q.   For purposes of sentencing?
         14       A.   Yes.
         15       Q.   And so once again, because he says, "In 
         16   terms of the lack of relationship between the 
         17   perpetrator and the victim," he says it's a 10, 
         18   correct?
         19       A.   Yes.
         20       Q.   And going down to Line 10 on Page 30, he 
         21   says, "In terms of the age of the child, I would say 
         22   it's in the quite serious range," correct?
         23       A.   Correct.
         24       Q.   And then going down to Lines 14 through 17 
 0085
          1   he says, in terms of whether it was a completed 
          2   sexual assault, he rates it moderately serious, 
          3   correct?
          4       A.   Correct.
          5       Q.   So indeed, he did not rate each aspect of 
          6   the case as a 10.  He rated different aspects of the 
          7   case:  One of them, moderately seriously, one of 
          8   them quite serious, and one that is, the fact of no 
          9   relationship between the perpetrator and the victim, 
         10   as a 10; isn't that so?
         11       A.   That is not what I understood.  He labeled 
         12   it a 10 and then went on to explain.
         13       Q.   You understood Mr. Deakin to mean something 
         14   other than this; is that correct?
         15       A.   No.  I understood him to mean exactly what 
         16   he said here.  That based on the facts of the case, 
         17   in his opinion, it would be a 10.
         18       Q.   And that's all you heard; that the entire 
         19   case is a 10, not different aspects of it?
         20       A.   That is what I understand he is explaining 
         21   to me.  That's what I asked him.
         22       Q.   I'd like to go back, if I can, Judge, to -- 
         23   it actually appears in Exhibit 4 and Exhibit 24, 
         24   which is a statement issued by you through the 
 0086
          1   Public Information Office on September 7th. 
          2       A.   Correct.
          3       Q.   Now, in addition to the "low-level" or 
          4   "low-scale" statement, there is reference in the 
          5   statement to certain facts before you; isn't that 
          6   correct?
          7       A.   Correct.
          8       Q.   This was at a time when you believed that 
          9   there were no facts that you could not reveal; is 
         10   that correct?
         11       A.   In the sentencing memorandum.
         12       Q.   Let's take a look again at Page 139, Line 
         13   14, the question beginning at Line 11:  
         14            "Did you have a legal prohibition, as you 
         15   understood it, with respect to any aspect of the 
         16   case, meaning could you discuss any --" and you 
         17   interrupt and you say: 
         18            "Answer:  Truth is I believe I could have 
         19   discussed anything I wanted about that case."  
         20            Isn't that correct?
         21       A.   In the course of my judicial duties, yes.
         22       Q.   What you said here is, "I could have 
         23   discussed anything I wanted about that case," 
         24   correct?
 0087
          1       A.   I did say that, correct.
          2       Q.   Now, when you were asked in your testimony 
          3   before the Commission what are the facts to which 
          4   you were alluding in this statement when you said 
          5   "certain facts," you said "I don't know"; isn't that 
          6   correct?
          7       A.   What the facts that the drafter of the 
          8   statement had in mind?  Yes, I said that.
          9       Q.   And you say it at the bottom of Page 146 
         10   and the top of Page 147 of Exhibit 32, your 
         11   transcript; isn't that so?  And it's on the monitor 
         12   before you.
         13       A.   Correct. 
         14       Q.   And then you go on to say at Page 147, 
         15   Lines 5 to 7 -- actually -- yes, on Page 147, you go 
         16   on to say, in response to my question:  
         17            "Question:  That's because you take the 
         18   view that this wasn't your statement.  
         19            "Answer:  Right."
         20       A.   I did not draft it.
         21       Q.   But you didn't say you didn't draft it.  
         22   You said, in response to my question:  
         23            "Question:  That's because you take the 
         24   view that this wasn't your statement.  
 0088
          1            "Answer:  Right."  
          2            Isn't that what you testified to, Judge?
          3       A.   That's what I said there.
          4       Q.   You then say in your sworn testimony that 
          5   you don't know what was in Joan Kenney's mind or 
          6   Justice DelVecchio's mind when the statement was 
          7   drafted; isn't that correct?
          8       A.   That's correct.
          9       Q.   And if we could put that on the monitor at 
         10   Slide 50, and let me direct you to Page 149.  Let me 
         11   begin at Line 16.
         12       A.   Page 149? 
         13       Q.   Actually, let's go to 148, beginning on 
         14   Line 16.  And what I have on the monitor I think is 
         15   Page 149 -- but in any event, backing up to Line 16, 
         16   Page 148, you were asked the following question:  
         17            "Question:  Were there other facts which 
         18   you understood could not be revealed by you which 
         19   informed this view that people would react 
         20   differently if they knew those facts?  
         21            "Answer:  I think I could have revealed all 
         22   the facts.  And if I had been allowed to -- if I 
         23   could have issued a sentencing memorandum, I could 
         24   have justified my sentence." 
 0089
          1            And then the colloquy goes on.  
          2            "Question:  At the risk of repeating 
          3   myself, you're not sure what facts this is referring 
          4   to when it says 'certain facts'."  
          5            Beginning on Line 4:  
          6            "Answer:  I would be repeating myself.  I 
          7   don't know exactly what was in Joan Kenney's mind or 
          8   Chief Justice DelVecchio's mind when that sentence 
          9   was put in there.  
         10            Question:  You did nothing to get that 
         11   clarified, I take it, prior to this being issued?  
         12            Answer:  No."  
         13            Is that correct?
         14       A.   Correct. 
         15       Q.   Now, after this statement was issued, the 
         16   media did indeed pick up on the "certain facts" 
         17   statement, didn't they?
         18       A.   The media had picked up on them before.
         19       Q.   Well, they didn't pick up on it before the 
         20   statement was issued, right?
         21       A.   What specifically are you referring to?  
         22       Q.   Let me see if I can be clear. 
         23            Following the issuance of your statement 
         24   through the Public Information Office, a theme began 
 0090
          1   to play in the media that there might be other facts 
          2   out there that would change the public's view of the 
          3   sentence and its appropriateness; isn't that 
          4   correct?
          5       A.   That's correct.
          6       Q.   And at that time, among the things you told 
          7   Ms. Kenney, was there was no screwdriver used in 
          8   this case as a weapon; isn't that true?
          9       A.   That is not true.  That's not what I said.
         10       Q.   And didn't you tell her there was no 
         11   kidnapping in the usual sense?
         12       A.   I did not say that.  I told her those were 
         13   disputed facts.
         14       Q.   So your recollection is that what you told 
         15   Ms. Kenney was not that this was not a kidnapping in 
         16   the usual sense or that a screwdriver wasn't used as 
         17   a weapon, but, rather, that there was dispute about 
         18   that?
         19       A.   Correct.  And I think it's in my 
         20   deposition, Mr. Ware.
         21       Q.   And so if there was dispute about it, you 
         22   mean by that that you had to take into account at 
         23   the time of your sentencing that the screwdriver was 
         24   used as a weapon; isn't that right?
 0091
          1       A.   The defendant pled to an assault by means 
          2   of a dangerous weapon, so that was part of the plea.
          3       Q.   The defendant agreed to the fact that the 
          4   screwdriver was used as a weapon and put to the 
          5   boy's neck, wasn't it?
          6       A.   That's correct.
          7       Q.   And the defendant agreed to the fact that 
          8   he approached the boy in a car, that he -- dressed 
          9   as a woman, that he asked the boy to get into the 
         10   car to help him look for his son, quote, Michael, 
         11   and that the boy got in with the offer of money; 
         12   isn't that correct?
         13       A.   I'd have to go back to see exactly what the 
         14   presentation was, because I don't know if I can 
         15   agree with your characterization of those facts. 
         16       Q.   Well, you can at least agree that the 
         17   defendant admitted, in pleading guilty and in not 
         18   taking issue with the factual bases asserted by the 
         19   assistant district attorney, that he approached the 
         20   child in a car while the child was walking on the 
         21   street, correct?
         22       A.   Correct.
         23       Q.   And he was dressed as a woman at the time, 
         24   correct?
 0092
          1       A.   She always dresses as a woman.
          2       Q.   Judge, you understood that at the time that 
          3   Mr. Horton, however dressed and with whatever 
          4   misfortune there may be in his life, approached the 
          5   child on November 20th, 1999, he was in fact dressed 
          6   as a woman; isn't that so?
          7       A.   Correct.
          8       Q.   And he asked the child to help him look for 
          9   his son, Michael; and he agreed to that fact, didn't 
         10   he?
         11       A.   I don't recall that's what the factual 
         12   presentation is.  I'll take your representation for 
         13   it that he said -- that the defendant said there was 
         14   a son, Michael. 
         15       Q.   Let me ask you to look at Exhibit 22, then, 
         16   and let's be sure.  And specifically to the bottom 
         17   of Page 12, beginning at roughly Line 20.
         18       A.   Yes.
         19       Q.   The factual recitation of the assistant 
         20   district attorney was as follows, beginning at Line 
         21   19:  "As he, the victim, walked on Corona Street 
         22   heading towards Geneva Avenue, a car pulled up 
         23   beside him.  In the car was the defendant, who 
         24   appeared to the boy to be a woman he did not know."
 0093
          1            Let's just take that much.  Mr. Horton did 
          2   not take issue with the plea that he did not know 
          3   the child and the child did not know him; isn't that 
          4   correct?
          5       A.   Not at the plea, not when this was -- they 
          6   did take issue with it during the lobby conference.
          7       Q.   But at the time you accepted the plea and 
          8   statements were made on the record and you based 
          9   your decision to accept the plea as knowing and 
         10   intelligent under whatever legal requirements there 
         11   are, Mr. Horton admitted this fact, did he not?
         12       A.   He did.  Sufficient facts -- let's remember 
         13   the standard that we use for a plea.
         14       Q.   No, Judge --
         15            MR. EGBERT:  Objection, and move to strike.  
         16   Ask a question.  If you want to be a witness --
         17            HEARING OFFICER DAHER:  Sustained.  Let's 
         18   go.
         19       BY MR. WARE:
         20       Q.   Let me direct you to the question you put 
         21   to the defendant on Page 18, Lines 4 and 5.  After 
         22   the Commonwealth had represented what the evidence 
         23   would be and what the facts were, you asked, at 
         24   Lines 4 and 5:  
 0094
          1            "Now, does the defendant agree with all of 
          2   those facts?"  Isn't that the question you put?
          3       A.   Yes, that is the question I put.
          4       Q.   And then the defendant had certain 
          5   disagreements that we went over yesterday; isn't 
          6   that so?
          7       A.   Yes.
          8       Q.   None of those had to do with -- he did not 
          9   challenge that he did not know the child or the 
         10   child did not know him; isn't that correct?
         11       A.   The ones we discussed yesterday, that's 
         12   correct.
         13       Q.   And now I'm asking you to go back to Page 
         14   13 of the transcript, at the top.  The assistant 
         15   district attorney further represented, as part of 
         16   the factual basis, that the defendant, Mr. Horton, 
         17   told the boy, top of Page 13, "The defendant was 
         18   searching for a missing son named Michael and that 
         19   the defendant would pay $100 to anyone who found the 
         20   missing boy.  The defendant asked the victim to get 
         21   into the car, and the boy agreed."  Isn't that so?
         22       A.   Yes, that is the representation made by the 
         23   assistant district attorney.
         24       Q.   And Mr. Horton took no issue with those 
 0095
          1   facts as represented; isn't that correct?
          2       A.   Correct, at that hearing.
          3       Q.   Well, Your Honor, you keep saying "at that 
          4   hearing."  That was the hearing that counted.  
          5   That's where you accepted the guilty plea; isn't 
          6   that right?
          7       A.   Correct.
          8       Q.   Following the statement -- your statement 
          9   issued by the Public Information Office, the media, 
         10   in fact, adopted it as a statement from you, did 
         11   they not?
         12       A.   Correct.
         13       Q.   And there are a number of media outlets 
         14   which characterize the statement as your statement; 
         15   isn't that so?
         16       A.   Yes.
         17       Q.   You intended that, didn't you?  You knew 
         18   that would be an obvious consequence of issuing a 
         19   statement under your name?
         20       A.   Yes.
         21       Q.   In this case, following the sentencing, you 
         22   were asked to retain jurisdiction, were you not?
         23       A.   For probation purposes, yes.
         24       Q.   Well, you were asked whether or not you 
 0096
          1   would retain jurisdiction, correct?
          2       A.   For probation supervision purposes.
          3       Q.   Let me direct you back to Exhibit 22.  And 
          4   let me just see if I can locate the colloquy on that 
          5   for you.  Directing you specifically to Page 34 of 
          6   the transcript, Line 18.  And there you say, at Line 
          7   18 -- defense counsel says:  
          8            "Your Honor, I'd ask you to retain 
          9   jurisdiction of this case.  
         10            "The Court:  And I will."  Isn't that 
         11   correct?
         12       A.   I had sentenced the defendant.  So she was 
         13   placed on probation.  And if you read before that, 
         14   we were discussing probationary issues.
         15       Q.   What you said on the record was "I will 
         16   retain jurisdiction," correct?
         17       A.   Absolutely, for probation purposes.
         18       Q.   And what that meant was for whatever 
         19   purposes this case might come back before the 
         20   Superior Court with this defendant on a violation of 
         21   probation or some other issue, you would be the 
         22   judge before whom he came; is that right?
         23       A.   I could be the judge, yes.
         24       Q.   You would be the judge, because you 
 0097
          1   retained jurisdiction; isn't that right?
          2       A.   Under normal circumstances, that would be 
          3   the case, yes.
          4       Q.   Absent something extraordinary, you would 
          5   be the judge, correct?
          6       A.   Correct.
          7       Q.   That's the purpose of your retaining 
          8   jurisdiction; isn't that correct?
          9       A.   Correct.
         10       Q.   And, accordingly, you understood that if 
         11   the case were to come back before you again, you 
         12   would be the judge, you would have the district 
         13   attorney, you would have the defense counsel, 
         14   correct?
         15       A.   Not correct.
         16       Q.   You understood absolutely that Mr. Horton 
         17   could come back before you again; isn't that so?
         18       A.   There was a possibility, if there was a 
         19   probation violation, that that defendant would be 
         20   brought back before me.
         21       Q.   Let me ask you to look at Page 13 of your 
         22   sworn testimony before the Commission and see if we 
         23   can put on the monitor 54. 
         24            Specifically beginning on Line 20:  
 0098
          1            "Question:  You understood" --
          2       A.   I'm sorry; I don't know what page you're 
          3   referring to.
          4       Q.   Go to Exhibit 32, which is your transcript.
          5       A.   Yes.
          6       Q.   And go to Page 13, toward the bottom. 
          7       A.   Okay.
          8       Q.   And if you would, take a look beginning at 
          9   Line 20. 
         10            MR. EGBERT:  Your Honor, I think we've 
         11   reached the point of misrepresentation --
         12            HEARING OFFICER DAHER:  Speak into the 
         13   microphone.
         14            MR. EGBERT:  It should be solely 
         15   impermissible.  I would ask the Court to look at the 
         16   full page, instead of the little bit that they're 
         17   showing to this witness, where she says, in answer 
         18   to the question just before this, when asked, "What 
         19   does it mean to you," "I suppose it means if there 
         20   are any probation violations, the case would come 
         21   back to me.  It changes the probationary 
         22   conditions." 
         23            MR. WARE:  Fine.
         24       BY MR. WARE:
 0099
          1       Q.   So you understood that in the event of a 
          2   violation of probation or some other issue that 
          3   caused Mr. Horton to have to be resentenced, he 
          4   would be back before you; isn't that correct?
          5       A.   He could be back before me, yes.
          6       Q.   He would be back before you because you 
          7   retained jurisdiction, absent some unusual event, 
          8   correct?
          9       A.   Yes, yes. 
         10       Q.   Since September of 2000, you have in fact 
         11   continued to handle Mr. Horton's probation; is that 
         12   right?
         13       A.   I have supervised the probation or I have 
         14   been -- the probation department has made inquiries 
         15   of me concerning the defendant, yes.
         16       Q.   And would you describe in general, without 
         17   going into any particulars here, the nature of the 
         18   decisions you've had to undertake in that role.
         19            MR. EGBERT:  Judge, I would respectfully 
         20   object.  I don't think that this is appropriate for 
         21   public comment.
         22            HEARING OFFICER DAHER:  In general. 
         23            MR. WARE:  I'm not asking anything 
         24   specific.
 0100
          1            HEARING OFFICER DAHER:  Go ahead. 
          2       A.   At one point the defendant was moved to a 
          3   different county.  I was requested to approve that.  
          4   There were several points where the defendant needed 
          5   to be off the electronic bracelet in order to attend 
          6   medical appointments.  I believe there was a curfew 
          7   involved, and we had to -- I guess one time I was 
          8   asked to modify a curfew for a particular purpose.
          9       Q.   Following the sentencing on September 6th, 
         10   you had occasion, as you said earlier, to talk with 
         11   Justice DelVecchio; is that correct?
         12       A.   Yes.
         13       Q.   And among the things she suggested to you 
         14   was that you not talk to the press, correct?
         15       A.   That's what she suggested, yes.
         16       Q.   You also had advice from counsel not to 
         17   talk to the press; isn't that correct?
         18       A.   Correct.  That was his opinion.  That would 
         19   be the best way of dealing with this.
         20       Q.   And at some time following the sentencing 
         21   on September 6th, you talked with defense counsel in 
         22   the case, Ms. Goldbach, correct?
         23       A.   I did.
         24       Q.   You called her at sometime between 
 0101
          1   September 7th and September 10th; is that right?
          2       A.   Yes, that's about right.  What day of the 
          3   week is the 10th?  I'm not sure.
          4       Q.   The 6th was a Wednesday.
          5       A.   Yes.
          6       Q.   The 7th would be Thursday, the 8th would be 
          7   Friday.  Then a weekend. 
          8       A.   It could have been the possible -- the 
          9   early part of the following week.
         10       Q.   You viewed -- well, you knew Ms. Goldbach 
         11   was defense counsel, and you knew that the Committee 
         12   for Public Counsel Services was, in effect, her law 
         13   firm; isn't that so?
         14       A.   That she was employed by the Committee for 
         15   Public Counsel Services; I knew that.
         16       Q.   Well, you understood that the Committee for 
         17   Public Counsel Services functioned, in effect, as 
         18   the law firm at which she practiced; isn't that 
         19   right?
         20       A.   The Committee for Public Counsel Services 
         21   is in some respects like a law firm and in other 
         22   respects it is not.  It is a constitutionally- 
         23   mandated publicly-funded agency for the purposes of 
         24   representing only indigent defendants.  It's very 
 0102
          1   different than a traditional law firm.
          2       Q.   Let me direct your attention to your sworn 
          3   testimony before Commission counsel 13 months ago, 
          4   specifically to Page 89.  Do you have that before 
          5   you?
          6       A.   Yes.
          7       Q.   The question beginning at Line 10:  
          8            "And you viewed CPCS as, in effect, a law 
          9   firm from which Ms. Goldbach came?
         10            "Answer:  Right."  
         11            Is that correct?
         12       A.   And I agree with that. 
         13       Q.   When you called Ms. Goldbach, you felt at 
         14   the time that you were hamstrung by your 
         15   conversations with Justice DelVecchio, advice from 
         16   your lawyer, perhaps other things that inhibited 
         17   your -- maybe you thought even prevented you from 
         18   talking to the press; isn't that so?
         19       A.   Yes.  That's generally accurate.
         20       Q.   And so you called CPCS, hoping that in one 
         21   way or another, they could come to your defense, 
         22   correct?
         23       A.   I thought CPCS was the agency that could, 
         24   in fact, in this instance speak on behalf of the 
 0103
          1   judiciary in this issue.
          2       Q.   And speaking on behalf of the judiciary on 
          3   this issue meant speaking on behalf of Maria Lopez; 
          4   isn't that so?
          5       A.   It was my sentence that was --
          6       Q.   Let me ask you, Judge, please, if you could 
          7   try to respond to my question. 
          8            When you called CPCS, you were hopeful that 
          9   they would make some kind of a sentence supportive 
         10   of your decision, correct?
         11       A.   Correct.
         12       Q.   And, therefore, supportive of you 
         13   personally; isn't that so?
         14       A.   Well, yes, I guess in some ways, yes.
         15       Q.   And when you talked to Ms. Goldbach and 
         16   eventually to Mr. Leahy, the chief counsel, you were 
         17   trying to encourage them to get out front of the 
         18   problem; isn't that correct?
         19       A.   I'm not sure that -- I mean, I could have 
         20   interpreted it that way with respect to Ms. 
         21   Goldbach; but with Mr. Leahy, I specifically did 
         22   discuss this issue with him, yes.
         23       Q.   When you say "discussed this issue," what's 
         24   the issue to which you're referring?
 0104
          1       A.   The issue I'm referring to is whether or 
          2   not CPCS would have an institutional interest to 
          3   speak on this particular sentence and on the 
          4   wholesale attack on the judiciary that was going on 
          5   in the media and affecting public opinion about the 
          6   judiciary. 
          7       Q.   Let me ask you to take a look at Page 110 
          8   of your sworn testimony, beginning at Line 4, and 
          9   Slide 58. 
         10       A.   What line? 
         11       Q.   Let's take a look at Line 4 and 5.  
         12            "Question:  You were hopeful that Mr. 
         13   Leahy, and for that matter Ms. Goldbach, would 
         14   defend the system and defend the sentence, correct?  
         15            "Answer:  Yes.  I was hopeful that somebody 
         16   else could get out there and do it." 
         17            Right?
         18       A.   Correct. 
         19       Q.   Am I also correct that, in fact, Mr. Leahy 
         20   went on television on more than one occasion and 
         21   gave interviews in support of the sentence?
         22       A.   I believe he did.
         23       Q.   At some time you spoke with Detective 
         24   Greene, didn't you?
 0105
          1       A.   Yes.
          2       Q.   And you did that because you received a 
          3   call from defense counsel, who passed along his 
          4   telephone number?
          5       A.   His beeper number.
          6       Q.   And, accordingly, you took the beeper 
          7   number and did a couple of things.  No. 1, you 
          8   called him; is that correct?
          9       A.   I did.
         10       Q.   And, No. 2, you gave that number or a phone 
         11   number to Ms. Kenney of the SJC's Office of Public 
         12   Information; is that correct?
         13       A.   Yeah.  I mean, the only thing I had was the 
         14   beeper number, so I believe I gave her the beeper 
         15   number.
         16       Q.   You asked her on that occasion to give 
         17   Detective Greene a call.
         18       A.   Yes.
         19       Q.   Have you read the complaints filed with the 
         20   Commission in this case, Judge?
         21       A.   Yes.
         22       Q.   Have you read all of those complaints at 
         23   this time?
         24       A.   By this time I have read, I think, most of 
 0106
          1   them.  I can't say I read every single one of them.
          2            MR. WARE:  At this time, Your Honor, I 
          3   offer the complaints into evidence.
          4            MR. EGBERT:  I object.
          5            HEARING OFFICER DAHER:  I'll hear you.
          6            MR. EGBERT:  Your Honor, the complaints 
          7   aren't evidence in this case.  This is the 
          8   evidentiary aspect of the case.  They have no 
          9   evidentiary value for you.  They are not statements 
         10   which are subject to cross examination.  The rules 
         11   of evidence apply here.
         12            HEARING OFFICER DAHER:  Mr. Ware? 
         13            MR. WARE:  Your Honor, these statements are 
         14   not hearsay, because they are not offered for the 
         15   truth.  For example, if an individual complainant 
         16   characterized what the Judge did in some way, they 
         17   are not offered for the truth for that 
         18   characterization, so they are not hearsay.  They are 
         19   relevant to the Commission on Judicial Conduct's 
         20   authority here, they're relevant to the 
         21   jurisdictional right of the Commission to conduct an 
         22   investigation, and they --
         23            HEARING OFFICER DAHER:  You've made your 
         24   point.  Last word, Mr. Egbert? 
 0107
          1            MR. EGBERT:  The authorization of the 
          2   Commission is not at issue for you.  The 
          3   jurisdiction of the Commission is not at issue for 
          4   you.  And this is really nothing more than an 
          5   attempt to put confidential complaints without any 
          6   evidentiary value in a public record, where they 
          7   don't belong.  There is so far not yet one piece of 
          8   evidentiary right suggested to the Court.
          9            MR. WARE:  Your Honor, these -- what makes 
         10   these public is the fact of the public hearing.  
         11   Like the statement of allegations, up to a certain 
         12   point in this proceeding, many things remained 
         13   confidential.  But having proceeded to formal 
         14   charges, a great many things become public, among 
         15   them the complaints.  As I say, they are not offered 
         16   for the truth --
         17            HEARING OFFICER DAHER:  The objection is 
         18   overruled.  Go ahead.
         19            MR. WARE:  Thank you, Your Honor. 
         20            Those will be, for the record, Exhibit 
         21   Nos. --
         22            MR. EGBERT:  Your Honor, I must ask the 
         23   Court, this Court is accepting those as evidence of 
         24   what?  We got a nice speech about public records.  
 0108
          1   This is an evidentiary proceeding being held by this 
          2   Court under the rules of evidence of the 
          3   Commonwealth of Massachusetts, and I would ask on 
          4   what evidentiary issue they are being offered and 
          5   accepted by this Court.
          6            MR. WARE:  If I may, Your Honor, you, as 
          7   Hearing Officer, have a broad discretion to accept 
          8   these into evidence and to use them for whatever 
          9   purpose may be helpful to the Hearing Officer.  
         10   Among those purposes, certainly the scope of the 
         11   investigation is appropriate and that it stay within 
         12   the confines of the complaint --
         13            HEARING OFFICER DAHER:  Mr. Egbert, they're 
         14   in evidence.  And obviously, once all the factual 
         15   presentation is in, I'll give it the weight that it 
         16   properly deserves.
         17            MR. EGBERT:  Let me make my intention known 
         18   now.
         19            HEARING OFFICER DAHER:  Yes.
         20            MR. EGBERT:  I am now requesting from the 
         21   Court a subpoena for each of the people who have 
         22   filed these complaints, and I intend to examine each 
         23   one of them in full.  I'm not going to have 
         24   statements by people uncross-examined here before 
 0109
          1   this Court.  The rule provides specifically the 
          2   Judge should be given due process and a right of 
          3   cross examination.  So for every person they want to 
          4   put a complaint in, I'm moving now for a subpoena to 
          5   be issued for those people, and I will call them in 
          6   this case.
          7            MR. WARE:  Your Honor, you have the 
          8   discretion, and it would be appropriate for you to 
          9   deny that request for subpoenas.  The complainants 
         10   here -- the public is not on trial in this 
         11   proceeding any more than the victim is on trial in 
         12   this proceeding. 
         13            The issue here is the public's reaction to 
         14   what they learned, correctly or incorrectly, from 
         15   the news media or other sources.  That forms the 
         16   basis of why we're present here in court.  That does 
         17   not give Judge Lopez or her counsel the right to 
         18   drag in here individual members of the public and to 
         19   depose them or to take their testimony.  At most, 
         20   any of those individuals could only say "I saw it on 
         21   television.  Here was my recollection," none of 
         22   which is probative.  
         23            The Court has very different issues before 
         24   it; namely, whether in fact the Judge's conduct was 
 0110
          1   inappropriate. 
          2            Second, Mr. Egbert has in fact subpoenaed 
          3   one such complainant, and could have subpoenaed them 
          4   all had he wanted to do so in advance of the 
          5   hearing.  So it's sophistry and showmanship to stand 
          6   here before you and claim that now he needs a right 
          7   to --
          8            HEARING OFFICER DAHER:  Mr. Egbert, help me 
          9   out.  Does this come as a surprise to you?  Weren't 
         10   you aware of the complainants and that you could 
         11   have subpoenaed them?
         12            MR. EGBERT:  Wait a minute, Judge.  I'm 
         13   aware of the rules of evidence as a beginning point, 
         14   and I'm aware that the rules of evidence do not 
         15   permit third-party statements as hearsay to come 
         16   into a proceeding.  That's what I base the first on. 
         17            Mr. Ware's virtually preposterous remark 
         18   that says that the public's reaction, whether it was 
         19   based on real facts or not, is appropriate for you 
         20   to consider, puts us into the land of Kafka, because 
         21   I want to know, for example, if somebody who wrote a 
         22   complaint was relying on the fact that their 
         23   next-door neighbor told them that Maria Lopez and 
         24   all other women judges are bums or whether someone 
 0111
          1   said that Maria Lopez and all other Cuban judges are 
          2   bums or whether or not they said all judges are bums 
          3   or whether or not they were influenced by any other 
          4   people to write those complaints.  The only 
          5   complainant I ever subpoenaed -- so that the record 
          6   is clear -- is a person who is specifically put on 
          7   the witness list by the Commission.  
          8            And so I subpoenaed Ms. Beaucage, as you 
          9   know, to depose her.  She has specifically alleged 
         10   in the complaint to be a witness.  She is the only 
         11   complainant that has been subpoenaed.  It seems to 
         12   me to be preposterous to say, at least in this 
         13   country, that we will accept a bunch of letters from 
         14   third parties without cross examination, to take 
         15   that as some kind of evidence that what they say is 
         16   true or what beliefs they espouse are true, without 
         17   right of cross examination.  He had put on his 
         18   exhibit list a week ago that he wished to introduce 
         19   these complaints.  I objected to them as being rank 
         20   hearsay.
         21            MR. WARE:  Your Honor, if I may, I don't 
         22   think we could have a better illustration of why the 
         23   Court should not permit these individuals to be 
         24   subpoenaed than Mr. Egbert's argument.  And while 
 0112
          1   I'm rusty on Kafka, I can say that his illustration 
          2   that some of these people may have had something 
          3   else in their mind, they may have been motivated by 
          4   a misperception of what went on in court, is utterly 
          5   irrelevant.  It doesn't matter whether they had a 
          6   misperception of what they saw on the television 
          7   set. 
          8            The Judge's conduct is before you, not 
          9   before those individuals.  We are not offering their 
         10   complaints for the truth of the matter asserted.  
         11   That's why they're not hearsay.  They are offered 
         12   for the purpose of showing that, in fact, the public 
         13   reacted to the Judge and that, in fact, the 
         14   Commission has investigated the issues brought 
         15   before it.  That's important, because the canons 
         16   talk about the Judge's conduct as perceived by the 
         17   public, upholding the public's view, promoting 
         18   public confidence in the judiciary.  The public's 
         19   view, whether it's right or wrong, may be for you to 
         20   determine, but their view is admissible here. 
         21            MR. EGBERT:  Judge, a view is not 
         22   admissible if their view was the result of what they 
         23   read in a newspaper, for example, which we can't 
         24   tell from these complaints.  So if their view is 
 0113
          1   what they read in a newspaper, Judge Lopez is not 
          2   responsible for that.  She can't control -- if Mr. 
          3   Ware would have his way, then the fact of the matter 
          4   is I could go out tomorrow and get 40 people who 
          5   never saw one inch of this proceeding and have them 
          6   write letters to the JCC saying that Judge Daher was 
          7   a terrible judge, did a horrible job, and made a 
          8   disgrace of the proceeding.  They write them in.  
          9   And then at your hearing, as to discipline upon you, 
         10   we have 40 uninformed people who write and say that 
         11   they think your conduct is a disgrace, and that 
         12   comes into evidence.
         13            HEARING OFFICER DAHER:  Mr. Ware, his 
         14   argument -- you could get involved in a letter- 
         15   writing campaign and that would, in a sense, negate 
         16   your argument.
         17            MR. WARE:  No, Your Honor.  These, again, 
         18   are not offered for the truth of what any particular 
         19   individual thought or didn't think.  They are 
         20   offered for specific purposes; namely, to establish 
         21   the Commission's right to investigate, to establish 
         22   the scope of that investigation, and to establish 
         23   that the public reacted to what the Judge did; and 
         24   therefore, we can say with some assurance that this 
 0114
          1   conduct did not promote --
          2            HEARING OFFICER DAHER:  Why couldn't you 
          3   say the same thing if Mr. Egbert went out and got 40 
          4   to 50 letter-writers and communicated with the 
          5   Judicial Conduct Commission?  Wouldn't you be in the 
          6   same situation? 
          7            MR. WARE:  That is in effect what Mr. 
          8   Egbert's witness list may be.  I don't know.  That 
          9   is, he can bring people in here --
         10            MR. EGBERT:  I don't understand that 
         11   statement.
         12            MR. WARE:  He can bring witnesses in here 
         13   to say anything they want about Judge Lopez, and 
         14   presumably the Court may prevent that.  We have a 
         15   defined issue here, which is whether, in a 
         16   disciplinary proceeding before the Commission on 
         17   Judicial Conduct, Commission's complaints can come 
         18   before the Hearing Officer.  This isn't a jury case.  
         19   We don't have to worry here about prejudice with 
         20   respect to lay people who may misinterpret the 
         21   complaints.  
         22            Your Honor has been a judge for 30 years.  
         23   That's the issue here; that these should be before 
         24   you for your consideration for such purposes as you 
 0115
          1   think are appropriate and nothing further.  
          2            HEARING OFFICER DAHER:  Go ahead, Mr. 
          3   Egbert.  What do you have for me? 
          4            MR. EGBERT:  Just a moment, Judge.  
          5            (Pause)
          6            HEARING OFFICER DAHER:  Do you need time? 
          7            MR. EGBERT:  Hold on.
          8            HEARING OFFICER DAHER:  Mr. Ware, do you 
          9   want to move on and we can address the issue later? 
         10            MR. WARE:  No, Your Honor.  I'd like to 
         11   resolve this issue.
         12            HEARING OFFICER DAHER:  Why don't we take 
         13   five minutes. 
         14            (Recess)
         15            HEARING OFFICER DAHER:  Okay.  Where are 
         16   we, Mr. Egbert?  
         17            Again, while you're going through your 
         18   material there, the public perception is absolutely 
         19   crucial in this case, but the issue that you've 
         20   introduced, an orchestration, is obviously of great 
         21   concern to me.  Could there be a stipulation that 
         22   there was a public -- the public's perception in 
         23   this matter?
         24            MR. EGBERT:  Judge, here's the problem, and 
 0116
          1   it's a part of what I was about to argue to you.
          2            HEARING OFFICER DAHER:  Go ahead. 
          3            MR. EGBERT:  The public's perception, at 
          4   least segments of the public as we've seen, is a 
          5   perception of her sentence and is driven by their -- 
          6   in many cases, we know, driven by their failure to 
          7   accept the Judge's sentence or displeasure with her 
          8   sentence.  It's off-limits.  It has nothing to do 
          9   with this case.  And the fact of the matter is, by 
         10   way of example, when you look at some of these 
         11   complaints, so called, most of those are in the 
         12   nature of, We don't like her sentence.  She did a 
         13   bad thing by sentencing this person to a particular 
         14   sentence.  And that's driving what we're thinking.  
         15            Now, I'm entitled -- if you're going to use 
         16   any of that, I'm entitled to -- if you're going to 
         17   say, well, here it is; these people sent you letters 
         18   saying she was cruel to the prosecutor, whatever the 
         19   case may be, you have to look at it in its context.  
         20   And in its context they're saying, We don't like her 
         21   sentence.  One of them says, Thank God that this one 
         22   isn't dead and that one isn't dead, and the like.  
         23   So that goes to what's driving what they say.  
         24            Her sentence was lawful, it was within the 
 0117
          1   Superior Court's discretion, it was within the 
          2   statutory discretion, it is inviolate.  And so to 
          3   put in evidence like that without being able to 
          4   cross-examine people to find out what it is their 
          5   perception is and is based on, what it is they 
          6   object to, what it is they saw that was wrong and 
          7   what they based that on, would deny due process to 
          8   this Judge, particularly.  Period.  
          9            It is not in a vacuum.  It is not all 
         10   alone.  We recognize that there are those out there 
         11   who disagree with the Judge's sentence, and some of 
         12   them quite vehemently and vociferously.  To them, I 
         13   say that's their right, but it has nothing to do 
         14   with judicial discipline.  And so to start letting 
         15   in wholesale newspaper articles and complaints 
         16   without any basis for what motivation, bias, and 
         17   what's driving it is simply to deny due process in 
         18   this case.  
         19            And what it means is that if, for example, 
         20   Judge, if whatever you rule in this case, if the 
         21   public doesn't like it and starts sending in 
         22   letters, then you have acted in a fashion which has 
         23   provoked the public's perception of the judiciary as 
         24   being bad.  That is not a relevant consideration 
 0118
          1   here. 
          2            The public perception or a question of a 
          3   public perception or an appearance of a propriety or 
          4   an appearance of impropriety is not the standard of 
          5   seven individuals.  It is an objective standard 
          6   which has to be applied across the board, not based 
          7   upon what some nut may think and not based on what 
          8   some scholar may think.  It's what the law thinks 
          9   about it.  
         10            And so I suggest to you that to permit 
         11   these in under these circumstances denies to the 
         12   defendant her right of cross examination, her right 
         13   to due process.  It is based on no evidentiary 
         14   foundation.  And the fact of the matter is -- and 
         15   I'll make an offer of proof to the Court -- it is 
         16   crystal clear that legislators who had it out for 
         17   Judge Lopez did seek people to write letters, did 
         18   encourage people to write letters to the Judicial 
         19   Conduct Commission.  
         20            Mr. Marini publicly called out to people to 
         21   send letters to the Judicial Conduct Commission 
         22   because he didn't like her sentence.  And so under 
         23   those circumstances, to take in these broad 
         24   statements and not permit examination and cross 
 0119
          1   examination --
          2            HEARING OFFICER DAHER:  Bear with me for a 
          3   moment, Mr. Egbert.  The public perception; the 
          4   Judicial Conduct Commission is apprised of this 
          5   quote, end of quote, public perception, and they 
          6   conduct an investigation.  They don't buy what the 
          7   public is telling them.  I mean, what they say is, 
          8   Look, we may have grounds here for an investigation.  
          9   That's what happened.  That's what the public 
         10   perception, as recognized by the Judicial Conduct 
         11   Commission, initiated.  That's what it did.
         12            MR. EGBERT:  I couldn't agree with you 
         13   more, Judge.
         14            HEARING OFFICER DAHER:  How are you hurt by 
         15   it? 
         16            MR. EGBERT:  I'm obviously hurt by it.  I'm 
         17   hurt when any fact finder, such as yourself, is 
         18   exposed to uncross-examined complaints.  I'm 
         19   troubled by that.  You are a fact finder, and I have 
         20   to believe that the rules of evidence require, for 
         21   that very reason, that you not be prejudiced or 
         22   poisoned by the kinds of information which our 
         23   courts have consistently failed to recognize.
         24            HEARING OFFICER DAHER:  If the Court did 
 0120
          1   accept -- it's not accepting it for the truthfulness 
          2   of the statements made.  It's, was there sufficient 
          3   material, if I may use that term, for the Judicial 
          4   Conduct Commission to conduct an investigation.  I'm 
          5   not buying it.  But go ahead.
          6            MR. EGBERT:  If that were your job or the 
          7   function of this hearing, I would say to you, you're 
          8   right.  If this was a motion to dismiss, saying the 
          9   Judicial Conduct Commission never had before it a 
         10   complaint, as required by statute, I would agree 
         11   you're right.  That as to that motion to dismiss, 
         12   those would be relevant to show that, in fact, 
         13   jurisdiction was encountered.  But that's not an 
         14   issue, nor are you to decide it.  It's got nothing 
         15   to do with what's before you.  It is simply an 
         16   attempt to try to put in unsworn hearsay -- with all 
         17   due respect -- noninformation into --
         18            HEARING OFFICER DAHER:  It's not being 
         19   offered for that.  It's being offered -- it's not 
         20   being offered for the truthfulness of it.  In a 
         21   sense, to me, it was the fact of, was there 
         22   sufficient material evidence, if I may use that, for 
         23   the Judicial Conduct Commission to conduct -- to 
         24   move in conducting a hearing.
 0121
          1            MR. EGBERT:  That's not an issue.  And if 
          2   that were really what it was about, then I'll 
          3   stipulate on the record, as I always have, that the 
          4   Commission on Judicial Conduct have jurisdiction of 
          5   this matter.  That's not what this is about.  This 
          6   is about an attempt to get this trash into the 
          7   public record.
          8            HEARING OFFICER DAHER:  Mr. Ware?
          9            MR. WARE:  The Commission is not willing to 
         10   stipulate to anything in this case, and I'm not 
         11   prepared to agree with my colleague's assertion that 
         12   the public's reaction to this was trash.  I do not 
         13   agree with that. 
         14            I think the Court has an obligation to hear 
         15   the public in this case.  Defense counsel and Judge 
         16   Lopez have been in this case for two years.  They 
         17   made a heavy point of it in their opening statement 
         18   to this Court, how long this has gone on, what a 
         19   hardship it is on the Judge.  
         20            Sauce for the goose is sauce for the gander 
         21   here.  Mr. Mone, Mr. Silverglate, Mr. Good, now Mr. 
         22   Egbert, have had two years to dig into these 
         23   complaints and their validity.  
         24            This Court should not listen for one moment 
 0122
          1   to some argument that there's a violation of due 
          2   process here.  This is not as if a bunch of people 
          3   sitting in the courtroom wrote letters about the 
          4   Honorable Judge Daher.  The difference is due 
          5   process had been applied here.  It's been applying 
          6   for two years.  It's applying today.  You are the 
          7   arbiter of that process and you have the absolute 
          8   right to hear the public and their reaction not to 
          9   the Judge's sentence, but to her conduct.
         10            HEARING OFFICER DAHER:  Mr. Egbert, do you 
         11   want to address the seasonableness of your motion?  
         12            MR. EGBERT:  I'm not arguing that I don't 
         13   have time to prepare.  I looked at these complaints 
         14   and said to myself, Under the rules of evidence, 
         15   they are not admissible.  We're not waiving the 
         16   rules just because two years went by.  The rules of 
         17   evidence apply and due process applies.  
         18            Mr. Ware says he wants to hear from the 
         19   public.  Bring them in.  Let them be cross-examined, 
         20   as every witness is.  Let us find out what their 
         21   motives and bias are.  If it's to be relevant at 
         22   all, we need to know where it came from.  We do 
         23   know is that he stands up and says, Oh, these are 
         24   this, that and the other thing.  He doesn't know 
 0123
          1   them any more than I do.
          2            HEARING OFFICER DAHER:  The relevance here, 
          3   according to you, would be, as I take it, didn't the 
          4   Judicial Conduct Commission have enough before it to 
          5   conduct an investigation? 
          6            MR. EGBERT:  We have never asserted that 
          7   the Judicial Conduct Commission did not have 
          8   jurisdiction.
          9            HEARING OFFICER DAHER:  Does that satisfy 
         10   your concerns? 
         11            MR. WARE:  Absolutely not.  We're entitled 
         12   to prove the requirements of this case.  We're 
         13   entitled to present evidence to you and ultimately, 
         14   of course, to present this record to the Commission 
         15   and to the Supreme Judicial Court.  It should be a 
         16   record.
         17            MR. EGBERT:  The Commission has the 
         18   complaints.  There's no issue as to what the 
         19   Commission has.  And, Judge, there's no issue that 
         20   these complaints exist.  The question is, do they 
         21   come into evidence in the proceeding before you with 
         22   the task that you are charged with.  And the task 
         23   you are charged with is to find the facts and make 
         24   recommendations based upon a due-process hearing 
 0124
          1   with witnesses being cross-examined.  It's like 
          2   taking a complaint in a civil case and saying, Okay, 
          3   ladies and gentlemen of the jury, this complaint is 
          4   Exhibit A and it's evidence in this case.  We know 
          5   it's not.
          6            HEARING OFFICER DAHER:  Mr. Ware, his 
          7   concern is that you introduce a document and you 
          8   argue that it's not there for the -- I think in Page 
          9   3 -- not for the truth of their allegations, but for 
         10   the limited purposes of establishing the authority 
         11   of the Commission.  His argument is going to be, in 
         12   the record anyhow, for the whole world to see, not 
         13   for the truth of the allegation, but for the limited 
         14   purpose of establishing the JCC's statutory basis 
         15   for the Commission's investigation.
         16            MR. EGBERT:  Which is not at issue.
         17            HEARING OFFICER DAHER:  You've made that 
         18   point.
         19            MR. WARE:  Your Honor, there are two 
         20   reasons that the Court -- there are a lot of 
         21   reasons.  There are two legal reasons why these are 
         22   admissible. 
         23            First of all, as Your Honor has correctly 
         24   said several times, they're simply not hearsay.  If 
 0125
          1   they're not hearsay, then the question is, are they 
          2   relevant.  They are relevant to establish 
          3   jurisdiction.  They are relevant also as an 
          4   indication that, rightly or wrongly, the public's 
          5   confidence, the public's reaction to what they saw 
          6   on the videotape or on television was outrage.  
          7   That's relevant here.  We must prove that that's in 
          8   fact how the public perceived things.  It may be you 
          9   might decide that that isn't the Judge's fault.  But 
         10   we have to prove that.  And the Court ought to take 
         11   these complaints on those issues. 
         12            I am prepared to give you two cases.  
         13   Neither is a Judicial Conduct Commission case, but I 
         14   will hand up copies of two cases, Commonwealth 
         15   against Serrano-Ortiz, 53 Mass. App, 608.
         16            HEARING OFFICER DAHER:  I have it on Page 
         17   2.
         18            MR. WARE:  And lines --
         19            MR. EGBERT:  Do you have copies for me, Mr. 
         20   Ware? 
         21            MR. WARE:  Yes. 
         22            MR. EGBERT:  Judge, I'm going to suggest 
         23   that it's twenty minutes to one.  Mr. Ware is 
         24   handing up cases.  Quite frankly, he had a memo 
 0126
          1   prepared on this matter and handed it to me a few 
          2   minutes ago.  I don't think anybody should have to 
          3   fly by the seat of their pants, and I would like to 
          4   address this issue tomorrow morning.
          5            MR. WARE:  I object to that, Your Honor.  
          6   We submitted an exhibit list in accordance with the 
          7   Court's request and schedule last week.  These 
          8   exhibits are clearly marked as in dispute --
          9            MR. EGBERT:  Just yesterday --
         10            HEARING OFFICER DAHER:  I don't think, Mr. 
         11   Ware, you're going to be heard.  I thought I saw Mr. 
         12   Mone in the courtroom.  We can pick up without 
         13   missing a breath. 
         14            MR. WARE:  Fine.
         15            HEARING OFFICER DAHER:  So why don't we get 
         16   organized, and we'll pick up this very nice issue 
         17   tomorrow morning.  We'll take another five. 
         18            (Recess)
         19            HEARING OFFICER DAHER:  Mr. Ware, you had 
         20   some comment about some motions or some preliminary 
         21   matters prior to Mr. Mone taking the stand, if 
         22   indeed he does.
         23            MR. WARE:  Yes, Your Honor.  The Commission 
         24   objects to having Mr. Mone testify at all, because I 
 0127
          1   don't think there's anything that he can say that's 
          2   going to inform this issue. 
          3            As I've said in the past, it's not a 
          4   question of the accuracy of Mr. Mone's 
          5   representations. 
          6            The hearing before the Commission is a 
          7   statutory creature, and his views of that hearing or 
          8   my views of that hearing really don't matter.  It is 
          9   what it is.  And it doesn't get transformed because 
         10   either one of us chooses to characterize it in a 
         11   particular way.  So that's my principal argument.  
         12            And as I said the other day, it's in the 
         13   nature of allocution for a defendant in a criminal 
         14   case.  It's in the nature of an answer or response 
         15   to the statement of allegations.  These are matters 
         16   which are voluntary in our choices by the judge 
         17   under investigation; and as such, they become 
         18   admissible. 
         19            And if you think about it, one point I made 
         20   the other day was that the statement's recorded.  
         21   The only reason it could be recorded is because it 
         22   is not a settlement discussion.  If it were a 
         23   settlement discussion, there's no point in recording 
         24   it, because everybody would understand that it's 
 0128
          1   inappropriate to use it.  In addition to which, Your 
          2   Honor, I think in this case, Massachusetts law is 
          3   extremely strict about this issue.  We're not 
          4   dealing here with Rule 408 of the Federal Rules of 
          5   Evidence.  That's not the standard.  
          6            The standard in Massachusetts is a good 
          7   deal tighter than that.  And even if it were a 
          8   settlement discussion, any factual statements made 
          9   during the course of that would nonetheless be 
         10   admissible.  And the only thing that wouldn't be 
         11   admissible is a specific offer in the terms of that 
         12   offer. 
         13            So on that basis, while I have the greatest 
         14   respect and admiration and, for that matter, 
         15   friendship for and with Mr. Mone, I don't think the 
         16   testimony is helpful to this legal issue.
         17            HEARING OFFICER DAHER:  Mr. Egbert, do you 
         18   want to respond? 
         19            MR. EGBERT:  I'm not sure I understood Mr. 
         20   Ware's argument.  If his argument is that you don't 
         21   have to decide whether or not it is an offer in 
         22   compromise or a settlement discussion, I think you 
         23   should reject that.
         24            HEARING OFFICER DAHER:  It basically comes 
 0129
          1   down to that, but give me your position.
          2            MR. EGBERT:  I think that should be 
          3   rejected forthwith.  The rules of evidence apply, 
          4   and the maxim of the rules of evidence is that the 
          5   Court must make preliminary findings and 
          6   determinations as to whether or not evidentiary 
          7   exclusion exists or an evidentiary reason for 
          8   admission exists.  You need the predicate facts in 
          9   order to make that finding, and the facts have to 
         10   come through the parties that were there --
         11            HEARING OFFICER DAHER:  Let me hear from 
         12   Mr. Mone.  Swear him in.  Let's go.  
         13                    MICHAEL E. MONE, Sworn
         14                      DIRECT EXAMINATION
         15       BY MR. EGBERT: 
         16       Q.   State your name, please. 
         17       A.   Michael E. Mone.
         18       Q.   And Mr. Mone, what is your occupation?
         19       A.   I'm an attorney.
         20       Q.   How long have you been practicing?
         21       A.   Since 1967.
         22       Q.   Could you give me a brief history of your 
         23   professional background?
         24       A.   I graduated from Boston College Law School 
 0130
          1   in 1967.  That fall I went to work for what was then 
          2   known as Schneider, Reilly & Swartz.  I stayed there 
          3   and became a shareholder --
          4            HEARING OFFICER DAHER:  Do we need a CV on 
          5   this? 
          6            MR. EGBERT:  I think we do, Your Honor, 
          7   because I think it goes to the question of his 
          8   good-faith belief as to what he was doing at the 
          9   Commission and his experience in that regard.
         10            MR. WARE:  I'm not here to question this 
         11   witness' good faith, Your Honor.
         12            HEARING OFFICER DAHER:  Go ahead.
         13            MR. EGBERT:  I'm sorry?
         14            HEARING OFFICER DAHER:  Go ahead.  He 
         15   stipulates as to his CV and his qualifications and 
         16   the fact that he's been a practicing attorney for 
         17   many years.
         18            MR. EGBERT:  Well, I think the Court should 
         19   know.  Let me take a brief minute, if I may.
         20            HEARING OFFICER DAHER:  All right.
         21       BY MR. EGBERT:
         22       Q.   Mr. Mone, how long have you been practicing 
         23   law?
         24       A.   Thirty-five years this fall.
 0131
          1       Q.   And how much of that practice has been 
          2   devoted to the litigation of civil and criminal 
          3   cases?
          4       A.   All of it.
          5       Q.   And how much of that practice has been 
          6   devoted to the practice before the Board of Bar 
          7   Overseers or the Judicial Conduct Commission?
          8       A.   It's my pro bono practice, so I would say 
          9   it's probably -- in any given year I would probably 
         10   have two or three cases at the Board, and I probably 
         11   have had five or six judicial conduct cases.
         12       Q.   And have you been selected to be a special 
         13   counsel or hearing officer by the Board of Bar 
         14   Overseers or the Judicial Conduct Commission?
         15       A.   I was a member of the Board of Bar 
         16   Overseers.  I served as special counsel to the 
         17   Commission on Judicial Conduct in the Basbas matter.
         18       Q.   And are you generally familiar with the 
         19   Rules of Evidence for civil proceedings?
         20       A.   I like to think so.
         21       Q.   Are you familiar with the Rules of 
         22   Procedures before the Judicial Conduct Commission?
         23       A.   I am.
         24       Q.   Mr. Mone, at some point in time did you 
 0132
          1   represent judge Maria Lopez?
          2       A.   Yes, I did.
          3       Q.   During what period of time was that, both 
          4   in years and in events, if you could?
          5       A.   I first represented Judge Lopez in 
          6   connection with complaints that were filed by the 
          7   Demoulases in connection with her work in that case.  
          8   They filed complaints at the Commission.  I 
          9   represented her in connection with those complaints 
         10   and complaints that were ancillary to that 
         11   complaint. 
         12            I began to represent her in this matter -- 
         13   to the best of my memory, it was about three or four 
         14   days after the sentencing.  In other words, there 
         15   had been the initial fire storm.  And then I think 
         16   she called me either that weekend or that Monday.  
         17   I'm not sure.  And I represented her from then until 
         18   the Commission issued the formal charges in this 
         19   case.
         20       Q.   During the course of your representation of 
         21   Judge Lopez with regard to the issues that are 
         22   pending here, did you have -- strike that.  Who was, 
         23   if anyone, named as special counsel for the 
         24   Commission at that time?
 0133
          1       A.   Mr. Ware.
          2       Q.   And did you engage with Mr. Ware in 
          3   conversations concerning the resolution of this 
          4   matter?
          5       A.   I did.
          6       Q.   During what period of time did those 
          7   conversations take place?
          8       A.   I would say that they were from some time 
          9   late last fall -- I had asked Mr. Ware on several 
         10   occasions, "What do they want?"  In other words, I 
         11   was trying to explore an agreed disposition.  And I 
         12   kept saying to him, "What do they want?  What do 
         13   they want?"  And eventually --
         14            HEARING OFFICER DAHER:  Mr. Mone, again, at 
         15   this particular point let me interject and say I 
         16   don't want to hear in re any possible specific 
         17   resolution of the matter. 
         18            THE WITNESS:  Okay.
         19       Q.   Let me see, then, if I can ask some 
         20   questions with that in mind. 
         21            Did you have conversations with Mr. Ware 
         22   wherein you proposed a resolution of the matter 
         23   short of formal charges and public hearing?
         24       A.   Yes.
 0134
          1       Q.   And did there come a point in time where 
          2   Mr. Ware proposed to you on behalf of the Commission 
          3   a resolution of the matter short of formal charges 
          4   and public hearings?
          5       A.   He told me that there was a bottom line 
          6   that the Commission had.
          7       Q.   When you say "a bottom line," is it fair to 
          8   say that he suggested to you a disposition which 
          9   would satisfy --
         10            MR. WARE:  Objection, Your Honor.
         11            HEARING OFFICER DAHER:  I want to hear the 
         12   question before you object.  Go ahead.
         13       Q.   That he suggested to you a disposition 
         14   which would satisfy the Commission to resolve this 
         15   case without formal charges and public hearing?
         16            HEARING OFFICER DAHER:  Are you still 
         17   objecting to that? 
         18            MR. WARE:  No, Your Honor.
         19            HEARING OFFICER DAHER:  You have it. 
         20       A.   He gave me a bottom line.  Yes, yes. 
         21       Q.   When you say "a bottom line," did I 
         22   describe the concept correctly?
         23       A.   Well, an agreed disposition.  I mean, under 
         24   the rules, she would have to admit to some statement 
 0135
          1   of charges.  It would be an agreed disposition.  And 
          2   that disposition I think under the rules would have 
          3   to go to the Court.
          4       Q.   And that would not be -- strike that.  That 
          5   resolution would not require formal charges or a 
          6   public hearing; is that correct?
          7       A.   Correct.
          8       Q.   Now, I take it that your idea of 
          9   disposition and the Commission's idea of disposition 
         10   were not the same?
         11       A.   Correct.
         12       Q.   And during the time -- and during the time 
         13   that you were offering dispositions in this case, 
         14   there was a motivation, was there not, to avoid a 
         15   formal proceeding in a public trial, so to speak?
         16       A.   I thought the expense of this to the judge, 
         17   both emotionally and financially, would be enormous; 
         18   and I thought that if we could reach a disposition, 
         19   that it would be in her interest, as well as in the 
         20   interests of the Commission and the Court.
         21       Q.   And during sometime in March of the Year 
         22   2002, did you have any conversation with Mr. Ware, 
         23   again, about disposing of this case?
         24       A.   Yes.
 0136
          1       Q.   Without mentioning the specific 
          2   disposition, what was the conversation?
          3       A.   That I was not going to get -- they were 
          4   not going to go below what they wanted and that the 
          5   only possibility would be for me to make, you know, 
          6   an argument before them and to come in with a judge 
          7   and make an argument before them on disposition.
          8       Q.   In an attempt to get them to resolve the 
          9   matter in a particular way?
         10       A.   Yes.
         11       Q.   And did you, in fact, appear before the 
         12   Commission in April of 2002?
         13       A.   I did.
         14       Q.   When you appeared before the Commission, 
         15   did you have an understanding as to whether or not 
         16   your appearance and Judge Lopez's appearance was 
         17   confidential?
         18       A.   I believed that everything up to the 
         19   statement of formal charges was confidential.
         20       Q.   I want to, if I may, bring your 
         21   attention --
         22            MR. EGBERT:  May I approach for a moment?
         23            MR. WARE:  What page, please? 
         24            MR. EGBERT:  1098.  Do you have it? 
 0137
          1       Q.   Mr. Mone, I put before you I think it's 
          2   Rule 5 of the Rules of the Commission on Judicial 
          3   Conduct. 
          4       A.   Yes.
          5       Q.   And is that rule entitled 
          6   "Confidentiality"?
          7       A.   Yes.
          8       Q.   And could you read the first section of 
          9   that rule. 
         10       A.   5(A)? 
         11       Q.   Yes. 
         12       A.   "All proceedings prior to a determination 
         13   of sufficient cause in the filing of formal charges 
         14   shall be confidential." 
         15       Q.   And what did you understand that to mean?
         16       A.   Just what it says.
         17       Q.   That everything that occurs before the 
         18   issuance of formal charges is confidential?
         19       A.   Yes.
         20       Q.   What did you understand the word 
         21   "confidential" to mean?
         22       A.   Confidential, private, cannot be used, 
         23   cannot be released.  I could get a dictionary, but 
         24   my view was that it was private.
 0138
          1       Q.   And would you go down to I think it's 
          2   paragraph -- I don't have it in front of me, but I 
          3   put a red check mark next to it.  Can you read that?
          4       A.   That's B(4).  "Upon filing of formal 
          5   charges, in which case only the formal charges, the 
          6   answer thereto, the evidentiary hearings thereon and 
          7   the final recommendation of the Commission as to 
          8   disposition shall become public, except as provided 
          9   in Paragraph D below." 
         10       Q.   And can you read Paragraph D. 
         11       A.   I think that's the waiver position, that 
         12   the judge can waive confidentiality. 
         13       Q.   Now, in these particular proceedings -- 
         14   strike that. 
         15            When you appeared before the Commission, 
         16   what was your task, as you understood it?
         17       A.   My task was to attempt to talk them off 
         18   their bottom line.
         19       Q.   And I want to put before -- let me get a 
         20   clean copy. 
         21            MR. EGBERT:  May I approach, Your Honor?
         22            HEARING OFFICER DAHER:  Yes. 
         23       Q.   I'm putting before you a transcript of a 
         24   proceeding which occurred on April 18, 2002; is that 
 0139
          1   correct?
          2       A.   Yes.
          3       Q.   And did you understand that to be 
          4   confidential?
          5       A.   Yes.
          6       Q.   And your appearance to be confidential?
          7       A.   Yes.
          8       Q.   When you arrived at that proceeding, am I 
          9   correct that you stated the following:  "I would 
         10   like to talk to you about a disposition in the case, 
         11   and I would like to talk to you about why I 
         12   believe," and then you go on to discuss specific 
         13   disposition, correct?
         14       A.   Yes.
         15       Q.   And then you also indicate, "Now, putting 
         16   aside for a minute the fact that we have legal and 
         17   factual defenses to a lot of what is in the 
         18   statement of allegations; that is, the way the facts 
         19   are cast," et cetera, et cetera, you basically say 
         20   that you're not going to discuss those at the 
         21   meeting; is that right?
         22       A.   Yes.
         23       Q.   And so that your purpose was solely to 
         24   discuss or offer a disposition of the case?
 0140
          1       A.   I was trying to settle the case. 
          2       Q.   And did you offer a disposition of the 
          3   case?  Did you offer a resolution of the case?
          4       A.   Yes, I did.
          5       Q.   Did you offer a settlement of the case?
          6       A.   I thought I did.  I know I did. 
          7       Q.   After your offer of settlement, did you 
          8   receive a response from anyone on the Commission or 
          9   representing the Commission with regard to your 
         10   offer?
         11       A.   Yes.
         12       Q.   And who did you receive that -- strike 
         13   that. 
         14            Who did you speak with?
         15       A.   Paul Ware called me later on that 
         16   afternoon. 
         17       Q.   So that we can avoid what the judge does 
         18   not want to put on the record, is it fair to say 
         19   that your offer to settle was rejected?
         20       A.   Yes.
         21       Q.   Did Mr. Ware reject it in toto or was there 
         22   further conversation in that regard?
         23       A.   There was conversation about that we could 
         24   continue to talk about how the disposition could be 
 0141
          1   cast -- without talking about the disposition, we 
          2   were talking about how -- whether the Commission 
          3   could be satisfied in some fashion.  So we did 
          4   continue to talk about it, but I essentially told 
          5   him that he would be dealing with you in the future.
          6       Q.   And that was because formal charges were 
          7   going to be brought?
          8       A.   Right.
          9       Q.   So is it fair to say -- how would you 
         10   characterize your conversation with Mr. Ware?  Would 
         11   it be fair to say that it was a further discussion 
         12   of a future possibility of settlement?
         13       A.   I viewed it as a continuation of the 
         14   discussion I had with the Commission, which was an 
         15   attempt to settle the case. 
         16       Q.   And when you went before the Commission in 
         17   an attempt to settle, did you at that time have -- 
         18   did you at that time attempt to discuss the 
         19   allegations against the judge and provide defenses 
         20   that the judge had?
         21       A.   No.  I was trying to settle the case.  And 
         22   I was talking more about disposition and trying to 
         23   put into context what had happened.  And also, the 
         24   talk about -- I mean, I believed -- and I have not 
 0142
          1   read my statement -- I had intended to say -- and I 
          2   don't know whether I got to it, since it was 
          3   limited, what their precedent was.  I didn't think 
          4   they had precedent for what they wanted.
          5       Q.   So you were basically giving your reasons 
          6   for your settlement offer?
          7       A.   Yes.
          8       Q.   At the time that you and Judge Lopez 
          9   appeared before the Commission, was that in any way 
         10   believed to be by you a statement of the defense of 
         11   the case or the allegations?
         12       A.   No.  I made that clear at the beginning of 
         13   my statement; that I was not going to address those 
         14   issues. 
         15            MR. EGBERT:  I have no further questions.
         16            HEARING OFFICER DAHER:  Mr. Ware, you may 
         17   examine. 
         18            MR. WARE:  Thank you, Your Honor. 
         19                   CROSS EXAMINATION
         20       BY MR. WARE: 
         21       Q.   Mr. Mone, during the course of the 
         22   proceedings on April 18, you would agree, sir, that 
         23   there was no back and forth between you and the 
         24   Commission with respect to what you're saying was a 
 0143
          1   settlement offer; is that correct?
          2       A.   They said "hello" and "good-bye." 
          3       Q.   There was no give-and-take among any of the 
          4   Commission members and you with respect to any 
          5   particular settlement offer that you made; is that 
          6   right?
          7       A.   Nor did I expect one.
          8       Q.   And during the course of that proceeding, I 
          9   had no speaking role at all; isn't that so?
         10       A.   I think you said "hello" to me.  But other 
         11   than that, you did not say anything.
         12       Q.   We certainly did not negotiate in that 
         13   Commission proceeding; isn't that correct?
         14       A.   Well, I disagree.  I believe that I was 
         15   negotiating.
         16       Q.   Well, when you say you were negotiating, 
         17   what you mean is that you hoped and, from what you 
         18   say, intended that the Commission would take into 
         19   account your remarks and might subsequently offer 
         20   some disposition short of formal charges, correct?
         21       A.   No.  I was making an offer and I hoped the 
         22   Commission would accept it.
         23       Q.   Have you got a copy of your transcript?
         24       A.   Yes, I have it right here.
 0144
          1       Q.   Where is it that you believe in the 
          2   transcript you make a specific offer of settlement, 
          3   other than saying, "I would like to talk to you 
          4   about a disposition"?
          5       A.   I believe that's where I made the offer, in 
          6   the first paragraph.
          7       Q.   Well, you say "I'd like to talk to you 
          8   about a disposition in the case.  And I'd like to 
          9   talk to you about why I believe that a public 
         10   disposition without sanctions -- without a 
         11   suspension" --
         12       A.   "Without a suspension" is what I meant. 
         13       Q.   But in effect, you came before the 
         14   Commission, and both you and Judge Lopez spoke; 
         15   isn't that correct?
         16       A.   Yes.
         17       Q.   And your hope was the Commission would take 
         18   that into account and there would be some 
         19   subsequent, but specific offer of a way in which to 
         20   resolve the case?
         21       A.   That's really not what happened.
         22       Q.   I know it's not what happened --
         23       A.   That's not what I expected.
         24       Q.   Did you expect in the Commission proceeding 
 0145
          1   itself that one of the Commissioners would say, 
          2   "Here's what we'll do"?
          3       A.   No.  Having sat where you sit, Mr. Ware, 
          4   and being aware of how they worked, I did not expect 
          5   someone to come up with a proposal then.  I expected 
          6   someone would get back to me in regards to my offer.
          7       Q.   In fact, at least in the proceeding itself, 
          8   which is what we're talking about here, there was no 
          9   response from the Commission, and I made no offer of 
         10   settlement; is that correct?
         11       A.   That is correct.
         12            MR. WARE:  I have no further questions, 
         13   Your Honor.
         14            HEARING OFFICER DAHER:  Anything else? 
         15                     REDIRECT EXAMINATION
         16       BY MR. EGBERT: 
         17       Q.   Did the fact that this was being recorded 
         18   in any way make you think that this wasn't a 
         19   settlement discussion?
         20       A.   No.
         21       Q.   Have you been involved in settlement 
         22   discussions in cases over your life where they were 
         23   on the record -- or on a record?
         24       A.   Oh, sure.
 0146
          1       Q.   In both Judge's chambers, for example?
          2       A.   Well, usually not Judge's chambers, but 
          3   certainly I've stood in open court and said things.  
          4   And you know, there's someone taking it down.
          5       Q.   And those were in the course of settlement 
          6   discussions?
          7       A.   Yes.  And it did not occur to me the fact 
          8   that there was somebody there changed the nature of 
          9   the discussion.
         10            MR. EGBERT:  No further questions.
         11            HEARING OFFICER DAHER:  Help me out.  In 
         12   regards to your appearance before the Commission, it 
         13   was because Attorney Ware told you that his hands 
         14   were tied and he couldn't go any further.  And if 
         15   you wanted to attempt to negotiate something, you'd 
         16   have to go before the JCC; is that correct?
         17            THE WITNESS:  I suppose, Your Honor, the 
         18   best way to answer that is he appealed to my ego, by 
         19   saying, essentially, "If anyone could talk them into 
         20   this, you could talk them into it."  So he hit me 
         21   right in my most vulnerable place, which is my ego.
         22            HEARING OFFICER DAHER:  And you did appear 
         23   there?
         24            THE WITNESS:  I did appear there.
 0147
          1            HEARING OFFICER DAHER:  Did anyone at the 
          2   Commission indicate to you, "Mr. Mone, we're not 
          3   here to negotiate?"  They just let you appear?  You 
          4   made your introduction, and you told them that you'd 
          5   like to resolve it, you felt it should be resolved, 
          6   and then you moved on; is that correct?
          7            THE WITNESS:  And I had written them a 
          8   letter that said that.  I had written them a letter 
          9   in advance that said I was coming to see if I could 
         10   reach an agreed disposition.  So I had no --
         11            HEARING OFFICER DAHER:  Was there any 
         12   response to that letter?
         13            THE WITNESS:  Other than, Please come at 
         14   such and such a time and date.
         15            HEARING OFFICER DAHER:  Okay.  Anything 
         16   else? 
         17            MR. EGBERT:  Nothing.
         18            MR. WARE:  No.
         19            HEARING OFFICER DAHER:  I'll have an answer 
         20   on this tomorrow morning for you at 9:30 when we 
         21   pick it up.
         22            Anything else? 
         23            MR. WARE:  Could I just, for the Court's 
         24   convenience, submit copies of Judge Liacos'  
 0148
          1   treatise on a couple of cases that may be helpful.
          2            HEARING OFFICER DAHER:  Let me ask you a 
          3   question before you leave, in regards to the 
          4   admissibility of the articles and complaints and the 
          5   letters:  Could we bifurcate them, in re letters 
          6   that were communications, in re sentencing versus 
          7   communications that were in re conduct?  Is such a 
          8   thing possible? 
          9            MR. WARE:  No, Your Honor.
         10            HEARING OFFICER DAHER:  Okay.  You'll have 
         11   a memo for me by tomorrow? 
         12            MR. EGBERT:  I'll have --
         13            HEARING OFFICER DAHER:  You'll have an 
         14   argument? 
         15            MR. EGBERT:  Either an argument or a memo.
         16            HEARING OFFICER DAHER:  Okay. 
         17            MR. EGBERT:  I just want to make sure what 
         18   they gave you, which is this Handbook of 
         19   Massachusetts Evidence -- I don't think they gave 
         20   you the most recent version of it.  I will provide 
         21   to you -- you may have it.  I'm assuming you have 
         22   it.
         23            HEARING OFFICER DAHER:  I've been sleeping 
         24   with it every night.
 0149
          1            MR. EGBERT:  There's a more recent version 
          2   than what they gave you.
          3            HEARING OFFICER DAHER:  Is that it?  See 
          4   you tomorrow morning at 9:30. 
          5                 (Whereupon, the hearing was
          6                 adjourned at 1:20 p.m.)
          7   
          8   
          9   
         10   
         11   
         12   
         13   
         14   
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   
 0150
          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 II, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on Tuesday, November 19, 2002.
          7   
          8   
          9                  _____________________________
         10                            Jane M. Williamson
         11                  Registered Merit Reporter
         12   
         13   
         14                        -  -  -  -
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   

View next Volume of transcripts.

Return to index of transcripts.