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 0001
                                            Volume III   
                                            Pages 3-1 to 3-165
                                            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
                       Laurence Pierce, 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
                          Wednesday, November 20, 2002
                                    9:33 a.m.
              
                              (Carol H. Kusinitz, 
                        Registered Professional Reporter)
              
 0002
          1                         I N D E X
              
          2   WITNESS        DIRECT  CROSS  REDIRECT  RECROSS
              
          3   Maria Lopez
               (by Mr. Ware)  3-24
          4   
               (by Mr. Egbert)        3-75
          5   
                                    *  *  * 
          6   
                                 E X H I B I T S
          7   
              EX. NO.                                     ID  EVID
          8   
              31  Two complaints filed by                     3-22
          9       Angela Beaucage
              
         10   53)
              to) Complaints                                  3-22
         11   63)
              
         12   M   Document entitled "Diagnostic and          3-113
                  Statistical Manual of Mental Disorders"
         13   
         14   
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   
 0003
          1                   P R O C E E D I N G S
          2            HEARING OFFICER DAHER:  Good morning, 
          3   everyone.  I'm going to deal with two motions, the 
          4   first being the transcript of what occurred on April 
          5   the 18th, 2002.  It seems that at some time prior to 
          6   April 18th, 2002, Mr. Mone had conversations with 
          7   Mr. Ware, who was the agent of the Judicial Conduct 
          8   Commission. 
          9            In no uncertain terms it appears that Mr. 
         10   Ware notified Mr. Mone that he cannot any further 
         11   negotiate with Mr. Mone, because it's outside the 
         12   scope of his authority, and that Mr. Mone should 
         13   deal with the principal directly. 
         14            There is no evidence proffered yesterday to 
         15   indicate that the principal, the JCC, contacted Mr. 
         16   Mone to appear, but rather that Mr. Mone voluntarily 
         17   sought his statutory -- to enforce the statutory 
         18   right to appear before the Judicial Conduct 
         19   Commission. 
         20            At no time was it proffered yesterday that 
         21   any comments other than that made by Mr. Mone and by 
         22   Judge Lopez indicated that there were negotiations 
         23   taking place at this time. 
         24            Therefore, it appears that the offer to 
 0004
          1   compromise was a hope, a desire by Mr. Mone to 
          2   engage the Judicial Conduct Commission to negotiate, 
          3   to enter, hopefully make a response to his proposed 
          4   resolution. 
          5            That being the case, I cannot in good 
          6   conscience find that there was an offer of 
          7   compromise, and the document goes in, the April 18th 
          8   document. 
          9            MR. EGBERT:  Judge.
         10            HEARING OFFICER DAHER:  Yes, sir.
         11            MR. EGBERT:  There are two matters that are 
         12   left out, Your Honor.
         13            HEARING OFFICER DAHER:  I beg your pardon?
         14            MR. EGBERT:  There are two matters that are 
         15   left out.
         16            MR. WARE:  Your Honor, I object.  We have 
         17   been over this issue and over --
         18            HEARING OFFICER DAHER:  I want to hear it.  
         19   Go ahead.  What do you want to say?
         20            MR. EGBERT:  One is, Your Honor, the 
         21   transcript contains the statements of Mr. Mone.  
         22   They should be excluded.
         23            MR. WARE:  No, Your Honor.  He is the agent 
         24   of the Defendant. 
 0005
          1            HEARING OFFICER DAHER:  Go ahead.  I want 
          2   to hear it.
          3            MR. EGBERT:  Whether he be an agent of the 
          4   Defendant or not, much of them are unrelated to the 
          5   factual issues in this case.
          6            HEARING OFFICER DAHER:  But were they in 
          7   the scope?   Again, it's coming down with a 
          8   principal/agency relationship.  Were they within the 
          9   scope of what Mr. Mone was authorized to make?  And 
         10   his client, Judge Lopez, was right next to him.  It 
         11   would appear to me that it was within the 
         12   parameters.
         13            MR. EGBERT:  They're irrelevant as to 
         14   whether or not a violation of the canons took place.  
         15   What Mr. Mone's opinion is, what his statements were 
         16   concerning his opinion of the case or what -- how it 
         17   ought to be disposed of and the like are irrelevant 
         18   to the issue before you as to whether or not there 
         19   were violations of the canons, and if there were, 
         20   what recommendations were to be made. 
         21            Number two, no one has overcome yet, as far 
         22   as I can see, the fact that these were confidential 
         23   communications which have not been lifted by these 
         24   formal proceedings.  The formal proceedings, by 
 0006
          1   rule, only lift the confidentiality of the statement 
          2   of formal procedures, any evidentiary hearings, 
          3   which these clearly were not, and any findings by 
          4   you as a result of those evidentiary hearings.  And 
          5   the Commission rule states clearly, pursuant to 
          6   statute, that those matters remain confidential and 
          7   therefore are not matters which can be put in 
          8   evidence in this case. 
          9            MR. WARE:  Your Honor, first of all, when a 
         10   Hearing Officer makes a ruling here, I don't think 
         11   it is up to us to come back and redebate the issue 
         12   which we have talked about for the last two days.
         13            HEARING OFFICER DAHER:  I would like to 
         14   hear it.
         15            MR. WARE:  But, since we are doing that, 
         16   the Court is absolutely correct in its instinct that 
         17   counsel is an agent, and indeed the cases before 
         18   you, both the Hanson case and the Harvard College 
         19   case, in which I happened to be counsel for Harvard 
         20   College, rule that statements of a lawyer are in 
         21   fact binding on the party.  
         22            This case is an even stronger case for 
         23   admissibility of that evidence, because it wasn't 
         24   simply counsel.  The Respondent, Judge Lopez, was, 
 0007
          1   as you pointed out, sitting right next to him.  She 
          2   was in the room.  So even under traditional rules of 
          3   admission by silence or any other kind of admission, 
          4   they are admissions of the Judge when her lawyer 
          5   makes them in that context. 
          6            So the ruling is entirely correct.  
          7            I think, as I said yesterday -- and I would 
          8   be repeating myself -- the issue of confidentiality 
          9   changes once there are formal charges.  And, 
         10   finally, Your Honor, once again, the parties by 
         11   definition have entrusted to the Court the 
         12   discretion here.  We don't have a jury case.  We 
         13   don't have to worry about prejudice or undue use of 
         14   a particular document.  That's one of the virtues of 
         15   a proceeding in which you, as a judge of 30 years, 
         16   have discretion and can weigh the vitality or 
         17   importance of any particular document. 
         18            And so, again, I think the ruling is 
         19   correct. 
         20            HEARING OFFICER DAHER:  Anything else to 
         21   add, Mr. Egbert? 
         22            MR. EGBERT:  No, Your Honor.
         23            HEARING OFFICER DAHER:  Okay.  Your 
         24   objection is noted.  However, the Court's ruling 
 0008
          1   stands. 
          2            More troublesome was the second motion, the 
          3   Commission's motion on the admissibility of 
          4   newspaper articles and complaints.  I read into the 
          5   record 211C, Section 5(1), entitled "Initiation of 
          6   Proceedings; Inquiry, Investigation and Evaluation; 
          7   Detailed Complaint or Statement of Allegation, 
          8   Formal Charges." 
          9            "1.  The Commission proceedings relating to 
         10   the conduct of a judge may be initiated by an oral 
         11   or written complaint stating facts that, if true, 
         12   would be grounds for discipline, or by the 
         13   Commission's own motion," own motion, emphasis 
         14   added, "when the Commission receives reasonable 
         15   information, including reports in the news media, as 
         16   to conduct that appears to constitute grounds for 
         17   discipline.  Upon receipt of such complaints or 
         18   adoption of such a motion the Commission shall 
         19   promptly notify the judge, except as provided in 
         20   Subdivision 2, and shall conduct a prompt, discrete 
         21   and confidential inquiry, investigation and 
         22   evaluation." 
         23            Follow that up with the careful study of 
         24   Lyons Partnership LP versus Morris Costumes, Inc., 
 0009
          1   243 Federal 3rd., 789,804, 4th Circuit, in 201, 
          2   which support the proposition that these documents 
          3   should be admissible.
          4            That is the ruling of this Court, unless 
          5   you can convince me otherwise, Mr. Egbert. 
          6            MR. EGBERT:  Your Honor --
          7            HEARING OFFICER DAHER:  I've gone through 
          8   the three cases that you've just sent up to me.  
          9   I've gone through them --
         10            MR. EGBERT:  I must confess that I think 
         11   the Court is being misled by the purple dinosaur 
         12   case, the Lyons Partnership case, and it's for the 
         13   following reason:  In that case the newspaper 
         14   articles were let in, not to prove that the dinosaur 
         15   in question was Barney, but to show, because someone 
         16   mistook him for Barney, that that mistake could be 
         17   made.  It didn't matter at all as to whether or not 
         18   it was Barney.  It mattered that, when looking at 
         19   it, people were making mistakes about it. 
         20            In this particular instance, the complaints 
         21   that you've received are only worthy if the 
         22   statements made therein are true, the classic form 
         23   of hearsay.  For example -- I'll take smatterings of 
         24   these complaints.
 0010
          1            "I am so disillusioned with our judicial 
          2   system" --
          3            MR. WARE:  Excuse me, Rich.  Could you give 
          4   me the exhibit number.
          5            MR. EGBERT:  52.
          6            "I am so disillusioned with our judicial 
          7   system."  That is of no consequence if it's not a 
          8   true statement.  If it's being offered for its 
          9   truth, then it's hearsay.  And if it's being offered 
         10   for its truth and it's hearsay, certainly it should 
         11   not be admitted, number one, without an exception to 
         12   the hearsay rule.  
         13            Two, they should be -- if it is going to be 
         14   permitted, then I should be able to bring these 
         15   people in and cross-examine them --
         16            HEARING OFFICER DAHER:  I'm glad you 
         17   brought that up, and I suspected you would.  After 
         18   two years -- and you've had ample opportunity to do 
         19   that -- because of the enormity of this case, I'm -- 
         20   if you make a motion, if you make a motion to bring 
         21   these people in and it's opposed by Mr. Ware, I'm 
         22   going to overrule his opposition and allow you to 
         23   bring these people in.
         24            MR. EGBERT:  Fine.
 0011
          1            HEARING OFFICER DAHER:  If you want to do 
          2   that, subpoena in these people -- I envisioned this 
          3   coming up -- I'm going to allow you to do it, even 
          4   though it's two years --
          5            MR. EGBERT:  Judge, when you say even 
          6   though it's two years, I want --
          7            HEARING OFFICER DAHER:  Go ahead. 
          8            MR. EGBERT:  -- I want the record to be 
          9   quite clear.  Today is the hearing.
         10            HEARING OFFICER DAHER:  Exactly.
         11            MR. EGBERT:  Today is the hearing.  And I 
         12   didn't think for a minute that this Court would 
         13   accept hearsay statements from these people or that 
         14   they would be offered for that regard. 
         15            In fact, the Commission keeps telling you 
         16   that they aren't being offered for the truth of the 
         17   statements, all right, that they're offered only for 
         18   the fact that they were said, which I suggest is not 
         19   something that would cause a subpoena.  It is only 
         20   if they're being offered --
         21            HEARING OFFICER DAHER:  Under 211(5), 
         22   Section 1, Mr. Egbert, it would appear that the 
         23   judicial -- the legitimacy, the statutory basis, the 
         24   underpinnings of their investigation of Judge Lopez 
 0012
          1   was predicated --
          2            MR. EGBERT:  A dead red herring.  A dead 
          3   red herring.  A criminal trial is predicated on an 
          4   indictment.  An indictment is not evidence.  A civil 
          5   trial is predicated on a complaint.  The complaint 
          6   is not evidence.  All of those go to the 
          7   jurisdiction of the Court, the jurisdiction of the 
          8   hearing, and the competency and the ability to 
          9   conduct it.  Those matters are conducted pretrial. 
         10            In other words, an attack on jurisdiction 
         11   warrants a look to see the complaint.  An attack on 
         12   the sufficiency of the complaint looks to the four 
         13   corners of the complaint.  An attack upon the 
         14   jurisdiction of the Court looks to the statute to 
         15   see whether it's been complied with.  None of that 
         16   is going on in this proceeding.  It's simply a 
         17   misdirection to this Court in an attempt to get them 
         18   in. 
         19            As clear and unequivocal proof of that, I 
         20   put on the record today that the jurisdiction of the 
         21   JCC is not challenged in this proceeding and has not 
         22   been challenged in this proceeding.  We are here for 
         23   a hearing on the facts to determine whether or not 
         24   the canons of ethics were violated.
 0013
          1            HEARING OFFICER DAHER:  Let me point you 
          2   to, again -- I spent some time on it carefully last 
          3   night -- "or by the Commission's own motion, when 
          4   the Commission receives reasonable information."  
          5   Wouldn't this fall within the purview of reasonable 
          6   information?
          7            MR. EGBERT:  Judge, respectfully --
          8            HEARING OFFICER DAHER:  Go ahead.  
          9            MR. EGBERT:  -- I think you're on the wrong 
         10   road.
         11            HEARING OFFICER DAHER:  Tell me. 
         12            MR. EGBERT:  Yes, the Commission can 
         13   initiate investigations based upon television shows, 
         14   newspaper articles, whispers, rumors, things they 
         15   heard in the bathroom under a stall.  They can 
         16   initiate -- no one suggests they can't.  They can do 
         17   it on their own motion.  They can wake up one 
         18   morning and say, "Ah, this is something we would 
         19   like to do." 
         20            None of that is evidence, however, of 
         21   conduct, none of it.  That is as to whether or not 
         22   they have the right to conduct a proceeding --
         23            HEARING OFFICER DAHER:  They're not 
         24   introducing it for the truthfulness of the 
 0014
          1   statements.  I mean --
          2            MR. EGBERT:  That's baloney.  Then what is 
          3   its relevant purpose?  If it is not for the 
          4   truthfulness of it, what relevant purpose does it 
          5   have?  Because when you get a statement and it 
          6   says --
          7            HEARING OFFICER DAHER:  Mr. Ware, he's 
          8   stating it's overkill, that you really don't need 
          9   that.   You could have initiated the action without 
         10   these -- without all of these complaints.
         11            MR. EGBERT:  Judge, I'm sorry, I'm not --
         12            HEARING OFFICER DAHER:  Go ahead.
         13            MR. EGBERT:  I may quarrel with the Court, 
         14   but if I'm not making myself understood, then it is 
         15   my fault, and I would like another shot at it.
         16            HEARING OFFICER DAHER:  Go ahead.  Take as 
         17   much time as you need. 
         18            MR. EGBERT:  In a contract case, where this 
         19   typically comes up, "I accept" is not hearsay, 
         20   because the fact that the words were spoken has 
         21   independent legal significance in a contract case.
         22            HEARING OFFICER DAHER:  Right. 
         23            MR. EGBERT:  There is nothing in these 
         24   complaints, in the content of these complaints, 
 0015
          1   which has, by themselves, any independent 
          2   significance evidentiary-wise in this case.  They're 
          3   not relevant to the issues before you. 
          4            The issues that you've been sent to 
          5   determine are not -- by the way, as the Commission 
          6   said so often in their -- in our motion to dismiss, 
          7   they are saying to you, you have no jurisdiction to 
          8   consider whether or not these charges were within 
          9   the jurisdiction of the JCC.  Nor are you here --
         10            HEARING OFFICER DAHER:  But again, Mr. 
         11   Egbert, bear with me.  You know, these statements, 
         12   you know, in a sense brought the judiciary into 
         13   disrepute.  I mean --
         14            MR. EGBERT:  If they're true.  If they're 
         15   true.  That's -- look, that's the issue.  If they 
         16   have a public or if they had a public -- and then 
         17   there is a question of whether it's an objective or 
         18   subjective statute, which I would argue then.  But 
         19   from an evidentiary standpoint, you just hit the 
         20   nail on the head.  It doesn't do any good unless 
         21   these statements are true. 
         22            If you're taking them for the truth, it's 
         23   hearsay.  If it's hearsay, it's inadmissible for all 
         24   the very reasons that one would expect, that you've 
 0016
          1   got out there anonymous --
          2            HEARING OFFICER DAHER:  Wouldn't you 
          3   bifurcate -- help me -- wouldn't you bifurcate them 
          4   in the sense that comments that were made, i.e., in 
          5   regards to sentencing, would be outside the scope, 
          6   something for an appellate tribunal, versus 
          7   statements that the Judicial Conduct Commission 
          8   received, i.e., in regards to her alleged demeanor, 
          9   et cetera, that would be something that they could 
         10   consider? 
         11            MR. EGBERT:  Judge, let me ask this 
         12   question, because I think it sits well. 
         13            If tomorrow this Court receives a thousand 
         14   letters indicating -- indicating that Judge Lopez 
         15   and her conduct did not in any way affect their 
         16   confidence in the judiciary or in any way affect 
         17   their belief in the independence of the judiciary, 
         18   will you admit those? 
         19            HEARING OFFICER DAHER:  Would I admit them? 
         20            MR. EGBERT:  Yes.  Would you admit them in 
         21   evidence?  Because it's the same thing. 
         22            HEARING OFFICER DAHER:  But, again --
         23            MR. EGBERT:  They're offering to you 
         24   unsworn statements, letters --
 0017
          1            HEARING OFFICER DAHER:  These are 
          2   extrajudicial statements.  However, we're talking 
          3   about a Commission that's empowered under 211, 
          4   Section 5, to protect the integrity of the 
          5   judiciary, the public perception.  They get these 
          6   communications.  They're not in for the truthfulness 
          7   of them.  They are in there.  Do we have a statutory 
          8   basis to conduct an investigation on Judge Lopez.
          9            MR. EGBERT:  That's not an issue before 
         10   you.  It is simply not an issue before you.  You're 
         11   taking evidence on an issue that's not before you.  
         12   It's like taking evidence on whether or not the 
         13   Commission's members were duly elected.  It has 
         14   absolutely nothing to do with what's before you, and 
         15   that's what the issue is. 
         16            So if what you're saying is that it's being 
         17   offered to show that the Commission conducted an 
         18   investigation under the statute, that's simply not 
         19   before you, period.  You couldn't rule -- with all 
         20   due respect, Your Honor, you couldn't rule today, 
         21   tomorrow or the next day whether or not that was the 
         22   case.  And in fact the Commission submitted briefs 
         23   to you at the outset of the case saying just that:  
         24   Jurisdictional matters are not before you.  You are 
 0018
          1   here to find facts on these issues and make 
          2   recommendations.  
          3            And that's the problem.  If you let 
          4   these -- if you let these in in any way, then you've 
          5   done nothing more than letting in letters from third 
          6   parties uncross-examined, saying, "We don't like 
          7   it," or "We do like it," without knowing what they 
          8   base it on, what they saw, heard, whether they were 
          9   biased, whether they were put up to it and the like.  
         10   And I suggest to you that's no different than you 
         11   getting a thousand letters tomorrow -- which I can 
         12   assure you you will get; I assure you you will get 
         13   -- in response to these letters. 
         14            This is a hearing with people and evidence. 
         15            HEARING OFFICER DAHER:  Mr. Ware. 
         16            MR. WARE:  Your Honor, I would simply 
         17   observe that the ruling that the Court has announced 
         18   is entirely appropriate.  There are some dramatic 
         19   differences between my colleague's suggestion of 
         20   your getting a thousand letters tomorrow and this 
         21   case, and one of those differences, as I said 
         22   yesterday, is due process. 
         23            This Court is the arbiter of that due 
         24   process.  The rules are set up before the Commission 
 0019
          1   on Judicial Conduct to provide the Judge an 
          2   opportunity to defend herself; and indeed, through 
          3   four lawyers and two years, she has done so.  And 
          4   she's done so by taking a number of depositions out 
          5   of court during which her counsel has been present 
          6   and had an opportunity to question witnesses.  She 
          7   has done so by testing the validity of the charges 
          8   against her, and she is doing so today by sitting in 
          9   this courtroom before this distinguished Judge, 
         10   presenting evidence in her own behalf and responding 
         11   to evidence presented by the Commission. 
         12            That's dramatically different than a 
         13   situation in which a flood of letters comes in and 
         14   the Court is asked to admit those. 
         15            Obviously the Commission would not seek to 
         16   have those letters admitted.  And, among other 
         17   reasons, they would not be the basis for this 
         18   investigation.  As you correctly point out, and have 
         19   pointed out repeatedly, the issue here is not the 
         20   truthfulness of an individual complaint.  And 
         21   Exhibit 52 for identification is an example.  We are 
         22   not seeking to prove that this particular --
         23            HEARING OFFICER DAHER:  That was going to 
         24   be excluded anyhow.  I have it in my notes here. 
 0020
          1            MR. WARE:  We're not seeking to prove that 
          2   a particular individual's view of what the Judge did 
          3   was or was not correct.  
          4            On the other hand, we are seeking to prove 
          5   that the Commission has a basis to act here, number 
          6   one, and number two, as you correctly pointed out 
          7   repeatedly, the issue is public confidence under 
          8   Canon 2, and the issue is standards of integrity and 
          9   conduct such that the image and the substance of the 
         10   judiciary is promoted. 
         11            The issue of promotion of public confidence 
         12   is before the Court, and the very fact that the 
         13   public reacts, which is all a complaint shows us, is 
         14   relevant here.  Even if the public is wrong, it's 
         15   relevant that they've reacted to something they've 
         16   seen the Judge do in the Horton case. 
         17            So I think, Your Honor, for all of those 
         18   reasons, in addition to which -- in addition to 
         19   those that I've stated in the past and given you in 
         20   writing, I think the ruling is absolutely correct. 
         21            HEARING OFFICER DAHER:  Mr. Egbert, 
         22   anything else? 
         23            MR. EGBERT:  Your Honor, I am just 
         24   astounded that the Commission wants you to go down 
 0021
          1   this road, quite frankly.  And the law is quite 
          2   clear.  The question of public confidence is an 
          3   objective standard, not to be determined by the man 
          4   on the street or by a singular piece of evidence. 
          5            I suggest to you that what they're arguing 
          6   to you is that you can go out on the street and ask 
          7   any uninformed person what their opinion is, and no 
          8   matter what the basis of their opinion is, even if 
          9   it's based upon the fact that they don't like 
         10   Superior Court judges in any event, or they don't 
         11   like our system, or they don't like male judges or 
         12   female judges or the like, that that means that 
         13   that's satisfactory or legitimate evidence in a case 
         14   where due process is required.  So I suggest it's 
         15   wrong, and I think it's a road that will be 
         16   mistakenly traveled. 
         17            HEARING OFFICER DAHER:  What I've 
         18   indicated, in regard to Exhibit No. 2, I'm going to 
         19   exclude that, inasmuch as it deals with -- as it 
         20   deals with sentencing.  On the other hand, the rest 
         21   of the proffered evidence is admitted, as it relates 
         22   in some fashion to conduct and the statutory 
         23   authority of the Judicial Conduct Commission to 
         24   conduct the investigation. 
 0022
          1            You may proceed with the interrogation.
          2            MR. WARE:  Your Honor, I'm not clear what 
          3   you excluded.  Are you saying Exhibit 52?
          4            HEARING OFFICER DAHER:  52. 
          5            MR. WARE:  Your Honor, in that regard, I 
          6   just ask the Court to note that the complaint is 
          7   quite specific to the complainants' observations.  
          8   But if the ruling is that 52 is out and the others 
          9   are in, I'm not going to make an issue.
         10            HEARING OFFICER DAHER:  That's my ruling. 
         11            MR. WARE:  Thank you, Your Honor. 
         12            For the record, Your Honor, the Court has 
         13   admitted, as I understand it, Exhibits 31 and 52 -- 
         14   excuse me -- 53 through 63. 
         15                 (Documents marked as Exhibits 31 and 
         16                 53 through 63 in evidence)
         17            MR. WARE:  With that, I would like to 
         18   resume the examination of Judge Lopez.
         19            MR. EGBERT:  Judge, I'm going to ask --
         20            HEARING OFFICER DAHER:  Yes, what do you 
         21   want to do?
         22            MR. EGBERT:  Judge, again, because I think 
         23   sometimes records are important, would the Court 
         24   respectfully put on the record the use that these -- 
 0023
          1   strike that -- the use that the factfinder may put 
          2   to these exhibits, the purposes for which this Court 
          3   is accepting them.
          4            MR. WARE:  No, Your Honor.  I mean, you are 
          5   the Judge here, not Mr. Egbert, and not me, and 
          6   you're entitled to make such use of them as you 
          7   want. 
          8            I will represent again, on the record, that 
          9   they're not being offered for the truth of the 
         10   matters asserted.  I'm not asking the Court to draw 
         11   an inference from an individual complaint --
         12            HEARING OFFICER DAHER:  Mr. Egbert, we're 
         13   not dealing with a jury, and I --
         14            MR. EGBERT:  Judge, and because we're not 
         15   dealing with a jury -- if we were dealing with a 
         16   jury, I would ask you to instruct the jury.
         17            HEARING OFFICER DAHER:  Right.
         18            MR. EGBERT:  So instead, I think the rules 
         19   require, in civil proceedings, that -- particularly 
         20   then where there is not a jury, that the Court will 
         21   indicate, as if he was instructing a jury, what the 
         22   Court is accepting these for so that there is a 
         23   record of what's happening.  It's done -- that's 
         24   exactly what is done in a civil proceeding, it seems 
 0024
          1   to me, so that any reviewing court, should there 
          2   ever be one, can determine whether or not these were 
          3   admitted for a proper purpose. 
          4            HEARING OFFICER DAHER:  I see no problems 
          5   with that.  Again, Mr. Ware? 
          6            MR. WARE:  If the Court wishes to make such 
          7   a statement, that's okay with me.  I don't think you 
          8   need to do that or are obligated to do that.
          9            HEARING OFFICER DAHER:  At the proper time 
         10   I certainly will.
         11            MR. EGBERT:  Thank you. 
         12            HEARING OFFICER DAHER:  Go ahead.
         13    
         14               MARIA LOPEZ, Previously Sworn
         15               CONTINUED DIRECT EXAMINATION
         16            COURT OFFICER:  Judge, you are still under 
         17   oath.
         18            THE WITNESS:  I am under oath.
         19            MR. EGBERT:  Just quickly, so we can get 
         20   this process moving, I would orally move at this 
         21   time for the right to subpoena the named 
         22   complainants in this case to these proceedings.
         23            HEARING OFFICER DAHER:  Any objection? 
         24            MR. WARE:  Yes.  The Commission objects to 
 0025
          1   subpoenaing the complaining witnesses for precisely 
          2   the reasons that you admitted the documents.  You 
          3   admitted them not for the truth; therefore, the 
          4   content as such, their personal views are irrelevant 
          5   here.
          6            HEARING OFFICER DAHER:  Mr. Egbert pointed 
          7   out yesterday that they may have gotten together in 
          8   some form of a cabal or some kind of -- on the 
          9   Internet or there may be an orchestration of people 
         10   getting together and saying, look, let's write these 
         11   communications against Judge Lopez.  I find it to be 
         12   a very remote possibility.  However, because the 
         13   enormity of what's at stake, I'm going to allow Mr. 
         14   Egbert to do that. 
         15       BY MR. WARE: 
         16       Q.   Good morning, Judge.
         17       A.   Good morning, Mr. Ware. 
         18       Q.   You and I talked briefly yesterday about 
         19   your telephone calls to Ms. Goldbach of the 
         20   Committee for Public Counsel Services, and I would 
         21   like to get back to that for a minute, if I may.
         22       A.   Yes.
         23       Q.   You indicated that you called her sometime 
         24   following the sentencing,in the first few days; 
 0026
          1   isn't that right?
          2       A.   After September 6th, yes. 
          3       Q.   All right.  And can you tell us how many 
          4   phone calls you made to Ms. Goldbach?
          5       A.   I made one phone call, to my recollection.
          6       Q.   Only one phone call; is that your 
          7   testimony?
          8       A.   Yes. 
          9       Q.   In the conversation you discussed with her 
         10   how you were doing --
         11       A.   Well, I just want to go back on that.  
         12   There was that beeper message.  I don't know if you 
         13   would consider that a phone call or not.
         14       Q.   What are you referring to?  Are you saying 
         15   you received a beeper message from Ms. Goldbach?
         16       A.   No.  I received a call from Ms. Goldbach 
         17   giving me Jay Greene's beeper number.
         18       Q.   And was that a separate telephone call from 
         19   what you described as the one time you called her? 
         20       A.   Yes.  But that was a message on the voice 
         21   mail.  It was not a conversation I had with her. 
         22       Q.   So, as I understand your testimony then, 
         23   you called Ms. Goldbach on one occasion, and you had 
         24   a conversation.  On a separate occasion, you 
 0027
          1   received a voice mail from Ms. Goldbach to which you 
          2   responded? 
          3       A.   Correct. 
          4       Q.   Now, in the conversation you had with Ms. 
          5   Goldbach, you discussed with her how you were doing 
          6   and the fact that she as defense counsel was 
          7   sympathetic to your plight, so to speak; is that 
          8   correct? 
          9       A.   That's correct. 
         10       Q.   And she called you, as you previously 
         11   characterized it, to commiserate about the press 
         12   reaction to your sentence; isn't that so? 
         13       A.   We were discussing the frenzy, the frenzy 
         14   that was going on about this case. 
         15       Q.   And defense counsel, in your view, was 
         16   being supportive of you and concerned during that 
         17   conversation; is that right? 
         18       A.   Yes.  I believe that. 
         19       Q.   You said you also received a beeper 
         20   message, and as a result of that message, did you 
         21   speak with Ms. Goldbach? 
         22       A.   No. 
         23       Q.   All you did -- you got a beeper message 
         24   that said what? 
 0028
          1       A.   It wasn't my beeper.  I got a message from 
          2   Ms. Goldbach that said that she was in Dorchester 
          3   District Court with Detective Jay Greene, who wanted 
          4   to speak with me, and then she left Mr. Greene's 
          5   beeper number --
          6       Q.   Was this --
          7       A.   -- for me.
          8       Q.   Was this a handwritten message that you 
          9   received?
         10       A.   No.  It was a voice mail.
         11       Q.   And so Ms. Goldbach called a number at the 
         12   Court which she knew to be your voice mail?
         13       A.   I'm not sure that --
         14            MR. EGBERT:  Objection.
         15            HEARING OFFICER DAHER:  What's the 
         16   objection?
         17            MR. EGBERT:  How can she know what Ms. 
         18   Goldbach knew? 
         19            HEARING OFFICER DAHER:  Sustained.
         20       Q.   Well, tell us what -- on what phone?  What 
         21   number was this message from Ms. Goldbach in which 
         22   she had confidence that she could leave a personal 
         23   phone mail?
         24            MR. EGBERT:  Objection.  Move to strike. 
 0029
          1            HEARING OFFICER DAHER:  Mr. Ware, do you 
          2   want to be heard?
          3            MR. WARE:  No, I don't want to be heard.
          4            HEARING OFFICER DAHER:  Good point.  
          5   Sustained.
          6       Q.   What was the phone number she called and 
          7   left you this message on?
          8       A.   It was -- well, I don't know what number 
          9   she called.  I know where I picked up the voice 
         10   mail. 
         11       Q.   You don't think there's a correspondence 
         12   between those two things?
         13       A.   It could have been transferred in from the 
         14   clerk's office into the voice mail box.
         15       Q.   Where did you find the voice mail message?
         16       A.   On the -- in the phone in the lobby in 
         17   Middlesex. 
         18       Q.   During your conversation with Ms. Goldbach, 
         19   the one in which you actually spoke to her, did you 
         20   give her your phone number? 
         21       A.   No, because I think my conversation with 
         22   her occurred after the message about the beeper 
         23   number.
         24       Q.   So the sequence, as you understand it or as 
 0030
          1   you recall it, is that you received a voice mail 
          2   message at the Court from Ms. Goldbach, and what 
          3   that voice mail message said was, "Detective Greene 
          4   wants to talk to you.  Here is his beeper number," 
          5   more or less? 
          6       A.   Correct.
          7       Q.   What did you do as a result of having 
          8   gotten that beeper number? 
          9       A.   I called the beeper number.
         10       Q.   And --
         11       A.   And left my number.
         12       Q.   And that was the occasion on which you 
         13   spoke to Detective Greene? 
         14       A.   And he returned that beeper call, yes.
         15       Q.   Following all of your dealings with Mr. 
         16   Greene, you then called Ms. Goldbach, correct?
         17       A.   I believe so. 
         18       Q.   And so by the time you talked to Ms. 
         19   Goldbach, you had already spoken with Detective 
         20   Greene.
         21       A.   Correct. 
         22       Q.   When you spoke to Ms. Goldbach, did you 
         23   talk about Mr. Horton? 
         24       A.   No.  We talked about the press surrounding 
 0031
          1   this case, and I was telling her the kinds of things 
          2   that were happening to me and my family, how 
          3   outraged I was that there was this kind of response 
          4   to this; and, you know, we had that kind of a 
          5   conversation.  I may have inquired as to how she was 
          6   doing.
          7       Q.   Did you tell her that you had spoken with 
          8   Detective Greene? 
          9       A.   I might have.  I don't remember. 
         10       Q.   Did you tell her what Mr. Greene said to 
         11   you? 
         12       A.   I don't recall that. 
         13       Q.   Did you have any conversation about the 
         14   fact that she had left you a message on your voice 
         15   mail at the Court to call a Boston police detective, 
         16   you had called the detective, you had gotten some 
         17   information?  Did you tell her anything about that? 
         18       A.   Possibly I could have said -- I did speak 
         19   to --
         20       Q.   I'm asking you a different question.  Do 
         21   you remember saying anything about that? 
         22       A.   I don't have a recollection of it, no. 
         23       Q.   In your conversations with Ms. Goldbach, 
         24   you were talking really about the fallout from the 
 0032
          1   sentencing and the media attention in the Horton 
          2   case, correct? 
          3       A.   Yes, and its impact on me and on my family. 
          4       Q.   And then at some time you had a 
          5   conversation with Mr. Leahy, you told us; is that 
          6   right? 
          7       A.   Yes. 
          8       Q.   And I think you said yesterday that, in 
          9   your conversation with Mr. Leahy, you were asking 
         10   him to defend in public the process, the judiciary, 
         11   your sentence, all of those things; isn't that so? 
         12       A.   All of the above, and however he decided to 
         13   do it, but certainly see if he could speak on the 
         14   issue, yes.
         15            MR. WARE:  Could you put up Slide 56 for 
         16   me. 
         17       Q.   Let me direct you briefly to the testimony 
         18   on the monitor, which appears at Page 109.  Judge, 
         19   if you're working from the transcript, Exhibit 32, 
         20   it is Page 109, I think essentially Lines 2 through 
         21   9.  
         22            In your conversations with Mr. Leahy you 
         23   have indicated in your previous sworn testimony that 
         24   you made the point to him that it was important to 
 0033
          1   you that your sentence not be misperceived or your 
          2   decision not be misperceived; is that correct?
          3       A.   As having released a predatory pedophile, 
          4   yes.
          5       Q.   And so your conversation with Mr. Leahy was 
          6   that you had not released a predatory pedophile; 
          7   isn't that correct?
          8       A.   That's correct.  That's what the public was 
          9   concerned about, that's what the media was 
         10   reporting, and that was of major concern, to put 
         11   some perspective on this case. 
         12       Q.   Now, Mr. Leahy was not counsel in the case, 
         13   was he? 
         14       A.   No.  He is the executive director, I 
         15   believe is his title. 
         16       Q.   And when you talked to him, you say, 
         17   beginning at Line 8, or let's say Line 6,  
         18   "Question:  You wanted him," Mr. Leahy, "to make the 
         19   point that this was not a predatory pedophile?" 
         20            In Lines 9 and 10:  "I wanted that out, 
         21   yes."
         22       A.   Yes.
         23       Q.   "I wanted I did not release a predatory 
         24   pedophile.  I was being accused of this."  Is that 
 0034
          1   what you said on that occasion? 
          2       A.   That's what I said, yes. 
          3       Q.   And you were hopeful, were you not, that 
          4   both Mr. Leahy, as executive director, and for that 
          5   matter Ms. Goldbach would defend your sentence?
          6       A.   Yes.  I mean, I don't think it was explicit 
          7   with Ms. Goldbach.  I don't know if that was on my 
          8   mind when I was talking with her, but it clearly was 
          9   on my mind when I spoke with Mr. Leahy. 
         10       Q.   Let me ask you just briefly to take a look 
         11   at Page 110, Lines 4 through 8.  You were asked, 
         12   when you testified before Commission counsel under 
         13   oath:  "Question:  You were hopeful that Mr. Leahy" 
         14   -- and I've put this up the on monitor as well -- 
         15   "and for that matter Ms. Goldbach would defend the 
         16   system and defend the sentence; isn't that correct?"  
         17   And you said, "Yes"; isn't that so?
         18       A.   Yes.  But in Line 11 I clearly state that 
         19   "To Mr. Leahy."  I don't recall Ms. Goldbach.  So it 
         20   wasn't a clear -- in my deposition I wasn't clear 
         21   what my intent was as to Ms. Goldbach. 
         22            MR. EGBERT:  Judge, I must object to this 
         23   point based -- I object at this point, based upon 
         24   the way this screen is being used to mislead this 
 0035
          1   witness.  They deliberately put up this block to 
          2   cover an answer which clearly says what she has, and 
          3   I think it's important for the record to show the 
          4   kind of manipulation that the JCC and its counsel 
          5   are involved in here with the witness in this 
          6   regard. 
          7            HEARING OFFICER DAHER:  In other words, the 
          8   fact that they're highlighting something? 
          9            MR. EGBERT:  No.  In other words, he 
         10   asked -- he asked Judge Lopez right now this 
         11   question:  "You were hopeful that Mr. Leahy, and for 
         12   that matter, Ms. Goldbach would defend the system 
         13   and defend the sentence."  You can see that block 
         14   there, right? 
         15            HEARING OFFICER DAHER:  Right.
         16            MR. EGBERT:  And it was to impeach her, 
         17   so-called, to show that she never said that it 
         18   wasn't really Ms. Goldbach. 
         19            Well, the line that they're actually 
         20   covering up is where she says, just after that, "To 
         21   Mr. Leahy.  I don't recall Ms. Goldbach as a -- I 
         22   don't recall Ms. Goldbach.  To Mr. Leahy." 
         23            And so by their manipulation of this 
         24   exhibit, they have simply blocked her ability and 
 0036
          1   tried to trick her and misrepresent to her what she 
          2   previously said. 
          3            So it's one thing to use these gadgets to 
          4   assist a witness in a court.  It's another to do it 
          5   with the deliberate attempt to misrepresent the 
          6   facts. 
          7            HEARING OFFICER DAHER:  I'm somewhat of a 
          8   quandary.  Isn't this her testimony?  This is 
          9   what --
         10            MR. EGBERT:  Judge, you can't cover up -- 
         11   they cover up Lines 11, 12 and 13, where she 
         12   completes the answer. 
         13            MR. WARE:  The Judge has the testimony in 
         14   front of her, and in fact she read Line 11.  So I 
         15   don't see the hysteria here.
         16            HEARING OFFICER DAHER:  The objection is 
         17   noted.
         18            MR. EGBERT:  We don't see any hysteria, 
         19   Your Honor.  I'm going to ask right now that this 
         20   exhibit that's up on the board to you, up on the 
         21   screen to you, be put on paper and made a part of 
         22   this record.  I want this as a part of the record in 
         23   this case.  I want exactly how it is shown, with the 
         24   question that was just asked.  That is my right. 
 0037
          1            MR. WARE:  I do not object, so long as all 
          2   of them are admitted as evidence, and we will offer 
          3   a CD with all of them on it.
          4            HEARING OFFICER DAHER:  I was just going to 
          5   say, that will be fine.  Absolutely.  Go ahead. 
          6            MR. WARE:  May I have just a moment, Your 
          7   Honor?
          8            MR. EGBERT:  And I'm going --
          9            HEARING OFFICER DAHER:  Mr. Ware, have you 
         10   been making a CD of this or do you already have it?
         11            MR. WARE:  Yes.  
         12            HEARING OFFICER DAHER:  Fine.  You can make 
         13   a copy and give it to --
         14            MR. EGBERT:  Thank you.  And I'm 
         15   instructing you, Judge Lopez, to use the 
         16   transcript --
         17            MR. WARE:  Your Honor, I object to 
         18   counsel's speech and instruction to a witness on the 
         19   stand.
         20            HEARING OFFICER DAHER:  Mr. Ware.  Mr. 
         21   Ware.  I can take a short recess and he can confer 
         22   with his client.
         23            MR. EGBERT:  I'll do it right now.
         24            HEARING OFFICER DAHER:  Let's do it right 
 0038
          1   now.  
          2            (Brief recess)
          3            HEARING OFFICER DAHER:  Are we still on 
          4   Page 109? 
          5            MR. WARE:  Yes, Your Honor. 
          6            All right.   Could you put Page 109 on the 
          7   screen, and would you please highlight a section of 
          8   Page 109.  
          9       BY MR. WARE:
         10       Q.   Judge, you understand that what's 
         11   highlighted on the screen is a section, and you have 
         12   before you the entire Page 109, do you? 
         13       A.   Yes. 
         14       Q.   And let me specifically, as I have with 
         15   every other question, ask you to look at Lines 10 to 
         16   14.
         17       A.   Yes. 
         18       Q.   If you want to look at any other lines on 
         19   the page, you are free to do so.  Are you clear? 
         20       A.   That's okay.
         21       Q.   Now, at Line 10 you respond to an 
         22   additional question.  "Question:  Did you also 
         23   encourage Ms. Goldbach to come to the defense of the 
         24   case and your sentencing?   "Answer:  I don't 
 0039
          1   recall.  I mean, you know, not explicitly.  I'm sure 
          2   by my feeling, you know, you can interpret -- it was 
          3   conversations.  I was feeling bad."  And you go on; 
          4   is that right? 
          5       A.   Yes. 
          6       Q.   So whether or not you explicitly told Ms. 
          7   Goldbach that she should get out there and defend 
          8   this, you feel that you impliedly told her that by 
          9   your body language, by the context or by whatever 
         10   else; is that right? 
         11       A.   Well, she wasn't looking at me.  This was 
         12   on the phone, so she had no clue what my body 
         13   language was.  But I think that it could possibly be 
         14   construed as a possible, you know -- something that 
         15   she could possibly do after the conversation with 
         16   me.  I mean, that construction is not out of the 
         17   realm of possibilities.
         18       Q.   So you understood that whatever you said, 
         19   it may have encouraged her to go out front and 
         20   defend the sentence or defend you? 
         21       A.   Yes, it could have. 
         22       Q.   Now, you learned at some point that 
         23   Detective Greene, whom you called and with whom you 
         24   had some conversation, was not part of the 
 0040
          1   investigation of the Horton case; isn't that so? 
          2       A.   I knew that from the beginning.  What do 
          3   you mean I learned at some point that he wasn't 
          4   part -- you mean that he wrote the police reports?  
          5   I mean, involved in that way? 
          6       Q.   No.  He was not part of the investigation 
          7   of the case; isn't that correct?
          8            MR. EGBERT:  I have to object.  Mr. Ware 
          9   well knows that Detective Greene was not only a part 
         10   of the case; he was on the scene, and he took 
         11   statements from the alleged defendant, and it's in 
         12   the police reports.
         13            HEARING OFFICER DAHER:  Again, Mr. Egbert, 
         14   I'm in somewhat of a quandary.  This is 
         15   cross-examination.  You know, I'm --
         16            MR. EGBERT:  Cross-examination is one 
         17   thing, but it's another to assume facts in a 
         18   question which he knows to be false. 
         19            MR. WARE:  Well --
         20            HEARING OFFICER DAHER:  Overruled.  Let's 
         21   go.
         22            MR. WARE:  I'm not assuming any facts that 
         23   I know to be false, and I'm getting a little sick of 
         24   listening to Mr. Egbert' soliloquies.
 0041
          1            HEARING OFFICER DAHER:  Stricken.  Let's 
          2   go.
          3       BY MR. WARE:
          4       Q.   In any event, Judge, you knew that 
          5   Detective Greene was not part of the investigation 
          6   of the Horton case; isn't that so? 
          7       A.   Okay.  So long as that's clear that I knew 
          8   he had been on the scene, but he wasn't formally 
          9   charged with the obligation of doing the 
         10   interviewing, preparing the police reports, doing 
         11   the follow-up.  I knew that he was not one of those 
         12   police officers. 
         13       Q.   All right.  Well, I don't want to split 
         14   hairs here.  Detective Greene told you, did he not, 
         15   that he was not part of the investigation of the 
         16   Horton matter?  Yes or no.
         17       A.   He never represented to me that he was, but 
         18   he never said --
         19       Q.   Judge, did Detective Greene tell you --
         20       A.   I don't recall.
         21       Q.   -- that he was not part of the 
         22   investigation of the Horton matter?  Yes or no.
         23       A.   No, I don't recall. 
         24       Q.   Take a look at your sworn testimony 13 
 0042
          1   months ago when you did recall, and specifically at 
          2   Page 49, beginning at Line 5, which is on the 
          3   monitor, if you want to use it.  It is also in the 
          4   transcript at Exhibit 32.  Do you have it before 
          5   you? 
          6       A.   (Reviewing document)
          7       Q.   At Line 5, "Question:  Did Detective Greene 
          8   indicate to you that he was not part of the 
          9   investigation of the Horton matter?  Answer:  Yes.  
         10   He said the sexual assault team was called in.  They 
         11   took over."  
         12            Do you see that?  Is that what you 
         13   testified to?
         14       A.   That's what I did testify to, and that's my 
         15   understanding.
         16       Q.   Now, the first time you ever heard anything 
         17   about Detective Greene being first on scene was well 
         18   after the plea; is that correct?
         19       A.   Absolutely not. 
         20       Q.   Let me direct your attention, Judge, to 
         21   Page 49 of your sworn testimony of more than a year 
         22   ago, at the bottom of the page, beginning at Line 
         23   22:  "Question:  You were operating on the 
         24   assumption that Detective Greene was first on scene?  
 0043
          1   Answer:  I was.  Well, I was once he told me that.  
          2   But this is days after the plea, okay."  
          3            Isn't that what you testified to, Judge?
          4       A.   My problem --
          5       Q.   Is that what you testified to?
          6       A.   That's taken out of context.
          7       Q.   Pardon me?
          8       A.   It's out of context. 
          9       Q.   All right.  Let's just establish whether or 
         10   not these are the words you said when sworn to tell 
         11   the truth under oath before Commission counsel 13 
         12   months ago.  Is this the testimony you gave? 
         13       A.   "Days after the plea" deals with my 
         14   conversation with Mr. Greene.
         15       Q.   Judge, please.  Let me repeat my question, 
         16   in case it's unclear.  When you testified under oath 
         17   to the following question, "Question:  You were 
         18   operating on the assumption that Detective Greene 
         19   was first on scene?  Answer:  I was.  Well, I was 
         20   once he told me that.  But this is days after the 
         21   plea, okay" -- is that what you testified --
         22       A.   "Days after the plea" refers to my 
         23   conversation with Mr. Greene --
         24       Q.   Judge --
 0044
          1            MR. EGBERT:  Please --
          2       A.   I have to explain it, Mr. Ware.
          3            MR. WARE:  I would like a responsive 
          4   answer.
          5            HEARING OFFICER DAHER:  Please, again, 
          6   Judge, answer the question.  I'm pretty sure that 
          7   Mr. Egbert will elucidate it in the future.  Go 
          8   ahead.
          9       Q.   Is this the sworn testimony that --
         10       A.   The deposition says that.  That is what -- 
         11   that's the language on those lines on that page, 
         12   yes. 
         13       Q.   I'm not asking if that's the language on 
         14   those lines.  I'm asking you whether that is the 
         15   testimony you gave under oath 13 months ago, yes or 
         16   no.
         17       A.   Yes. 
         18       Q.   Whatever information you learned from 
         19   Detective Greene, you have discussed that 
         20   information on hundreds of occasions after the 
         21   sentencing; isn't that correct?
         22       A.   Correct. 
         23       Q.   And you've used Detective Greene in 
         24   conversations to tell people that a local police 
 0045
          1   officer agrees with your view; isn't that right? 
          2       A.   Yes.  To that effect I would say. 
          3       Q.   Now, is it your position, Judge, that 
          4   having accepted a plea to kidnapping, assault with 
          5   intent to rape a child under 16, that you as a Judge 
          6   are acting appropriately in going behind the scene 
          7   and talking to a Boston police detective and giving 
          8   that detective's name to the public information 
          9   office to get additional information not part of the 
         10   record? 
         11            MR. EGBERT:  I object. 
         12            HEARING OFFICER DAHER:  What's the 
         13   objection?
         14            MR. EGBERT:  I object to the words "behind 
         15   the scenes."
         16       A.   It was all up front.
         17            HEARING OFFICER DAHER:  Again, I think 
         18   we're splitting hairs right now, "behind the 
         19   scenes."  I mean, Mr. Ware --
         20            MR. WARE:  I think the Judge has answered 
         21   the question.  She says it was all up front. 
         22       Q.   Judge Lopez, are you telling me that your 
         23   conversations with Detective Greene were part of 
         24   some public record? 
 0046
          1       A.   No.  But the case was not pending, and it 
          2   was not an ex parte communication.
          3       Q.   You say it was all up front.  The district 
          4   attorney was never notified --
          5       A.   Up front --
          6       Q.   Judge, please.
          7       A.   You've misunderstood what I meant by that. 
          8            HEARING OFFICER DAHER:  There is no 
          9   question before you.  Please. 
         10       Q.   You say it was all up front, your 
         11   conversations with Detective Greene. 
         12       A.   In response to "behind the scenes," yes. 
         13       Q.   Now, Judge, I will repeat my question.  Do 
         14   you think that a sitting Superior Court judge is 
         15   acting appropriately, having taken a plea to 
         16   kidnapping, assault with intent to rape a child 
         17   under 16, assault and battery with a dangerous 
         18   weapon, assault on a child under the age of 14, in 
         19   going behind the record in court and behind the 
         20   record identified to you or articulated to you at 
         21   the lobby conference to get additional information 
         22   to be used by the press or the public after the 
         23   sentence? 
         24            MR. EGBERT:  Please don't answer. 
 0047
          1            HEARING OFFICER DAHER:  What is the 
          2   objection, Mr. Egbert? 
          3            MR. EGBERT:  My objection, Your Honor, is 
          4   that he's asking a hypothetical question and using 
          5   words in the hypothetical question "behind this," 
          6   "behind that," "behind this," and "behind that," 
          7   which there is simply no evidence of that.  And it 
          8   puts her in a position that she can't possibly 
          9   answer it with a yes-or-no answer.  And that's what 
         10   you're requiring her to do.  If you want to ask the 
         11   question hypothetically, then use the facts that 
         12   have been adduced in this hearing.
         13            MR. WARE:  There is nothing hypothetical 
         14   about the question. 
         15            HEARING OFFICER DAHER:  Again, Mr. Egbert, 
         16   she has been a judge for 14 years.  She understands 
         17   what the canons, what the rules are.  I mean, in a 
         18   sense if there is anybody -- and if it does break 
         19   down, which I don't see it as a hypothetical, but if 
         20   it does break down to an expert, there could be no 
         21   greater expert than the Judge.  Overruled. 
         22            MR. EGBERT:  Can we ask, "Do you think it's 
         23   appropriate if the Judge jumps off a cliff?"  There 
         24   is no evidence of that in this case.
 0048
          1            HEARING OFFICER DAHER:  Overruled.
          2            MR. WARE:  I don't plan to ask that.
          3            HEARING OFFICER DAHER:  Mr. Ware.  
          4            MR. WARE:  You can --
          5            HEARING OFFICER DAHER:  Mr. Ware.  Let's 
          6   not get into a dialogue.  You may have the question. 
          7            Do you want it played back to you? 
          8            MR. WARE:  No.  I think I can ask it again. 
          9       BY MR. WARE:
         10       Q.   Let me get another fact out here, Judge.  
         11   At no time did you ever tell the District Attorney's 
         12   office that you were in communication either with 
         13   defense counsel or with CPCS or a Boston police 
         14   detective; isn't that correct?
         15       A.   That's correct. 
         16       Q.   You never made that information known to 
         17   the lawyer for the public, the assistant district 
         18   attorney; isn't that right?
         19       A.   That's correct. 
         20       Q.   And let me ask you again, Judge, is it your 
         21   testimony here today that you're promoting public 
         22   confidence in the judiciary by, following a sentence 
         23   in a case in which you accepted a plea of guilty to 
         24   these serious charges, that you're calling up a 
 0049
          1   Boston police detective to see what else he knows 
          2   about the case? 
          3       A.   In my mind and in my opinion, the case was 
          4   over once I imposed sentence, and -- it was over.  
          5   And I --
          6       Q.   Let's take your assumption that it was 
          7   over. 
          8       A.   Yes.
          9       Q.   Let's give you all the benefit of the doubt 
         10   on that.
         11            MR. EGBERT:  Objection.  Move to strike.
         12            HEARING OFFICER DAHER:  Stricken.  Let's 
         13   go. 
         14       Q.   Under any scenario, whether the case is 
         15   over or whether the case is pending, is it your 
         16   testimony here today that it's appropriate for a 
         17   Superior Court judge, having accepted these pleas of 
         18   guilty on the record, following sentence, following 
         19   disposition, to call up a Boston police detective to 
         20   seek additional information about the case that may 
         21   be used in the press? 
         22       A.   Under these unprecedented circumstances, I 
         23   would say it would be appropriate. 
         24       Q.   And in fact you're saying it was 
 0050
          1   appropriate, aren't you? 
          2       A.   I don't believe I did anything wrong by 
          3   having a conversation with Mr. Greene. 
          4       Q.   And you believe that, as part of the 
          5   standards to which we ought to hold a Superior Court 
          6   judge following a guilty plea, following a case in 
          7   which you accepted three pages of factual data from 
          8   the Assistant District Attorney, following a case in 
          9   which the defendant admits to having used a 
         10   screwdriver at the child's neck, that you are 
         11   entitled to go behind that record --
         12            MR. EGBERT:  Objection.
         13       Q.   -- and call a Boston police detective?
         14            MR. EGBERT:  The underlying facts of the 
         15   crime have nothing to do with whether or not it's 
         16   appropriate or not to speak after a plea and 
         17   sentencing.
         18            THE WITNESS:  Right.
         19            MR. WARE:  I'll rephrase the question.
         20            HEARING OFFICER DAHER:  Go ahead. 
         21       Q.   I don't want to retrace all our steps of 
         22   the last two days with respect to the facts that 
         23   were asserted by the assistant district attorney nor 
         24   those which you accepted and the defendant accepted 
 0051
          1   at that time. 
          2            I just do want to be clear, however, on 
          3   what standards you think a Superior Court judge 
          4   should be held to.  And you have told us here this 
          5   morning that you see nothing wrong with your having 
          6   either called defense counsel after this case was 
          7   subjected to disposition and sentencing, without the 
          8   knowledge of the district attorney, right? 
          9       A.   Correct. 
         10       Q.   And you see nothing wrong with your calling 
         11   up someone whom you believed to be a material 
         12   witness in the case --
         13       A.   I didn't believe that.
         14       Q.   -- and having a conversation with him.
         15       A.   I don't agree with that.  I never believed 
         16   Jay Greene was a material witness.  The case was 
         17   over.  There was not going to be a trial.  He was 
         18   not going to be a witness. 
         19       Q.   Let's put it this way, Judge:  You believed 
         20   he was, quote, first on scene, and have said so 
         21   repeatedly under oath; isn't that right? 
         22      *A.   I believe he had information that could 
         23   prove exculpatory.
         24       Q.   Try to answer my question.
 0052
          1            MR. EGBERT:  Objection.
          2       Q.   Try to answer my question.
          3            HEARING OFFICER DAHER:  What's the 
          4   objection? 
          5            MR. EGBERT:  The objection is he 
          6   continually interrupts her.
          7            HEARING OFFICER DAHER:  Again, Mr. Egbert, 
          8   with all due respect, he's not getting a response to 
          9   his question.  Overruled. 
         10            MR. EGBERT:  I think he is getting it.
         11            HEARING OFFICER DAHER:  Overruled.  You may 
         12   have it.  
         13            MR. WARE:  Thank you, Your Honor.
         14            May I have just a moment, Your Honor?
         15            HEARING OFFICER DAHER:  Yes.
         16            Ms. Brunetti, if you want to sit at the 
         17   counsel's table, I have no problems with that.
         18            MR. WARE:  Thank you, Your Honor.  I would 
         19   like her to join us, if the Court is amenable.  Your 
         20   Honor, I don't believe I introduced Cheryl Brunetti 
         21   at the beginning of the case, but I'm happy to do so 
         22   now. 
         23            HEARING OFFICER DAHER:  Okay.  
         24            MR. WARE:  Could I have --
 0053
          1            MR. EGBERT:  You might want to invite the 
          2   rest of the firm up, too.
          3            MR. WARE:  Well, do you want --
          4            HEARING OFFICER DAHER:  Again, Mr. Egbert, 
          5   if you have anyone that you would like, a family 
          6   member or any counsel, to sit next to you, I would 
          7   be delighted.
          8            MR. EGBERT:  We're just fine where we are. 
          9            HEARING OFFICER DAHER:  Okay.  Let's go. 
         10            MR. WARE:  Your Honor, I would like to have 
         11   the witness's last answer read back.  
         12            *(Record read)
         13       BY MR. WARE:
         14       Q.   Your testimony is that you believe a Boston 
         15   police detective had information which might 
         16   constitute exculpatory evidence; is that what you 
         17   are telling us?
         18       A.   Based on what Anne Goldbach had told me at 
         19   the lobby conference, yes. 
         20       Q.   And so it follows from that, does it not, 
         21   that you accepted a plea of guilty to these charges 
         22   knowing that there was exculpatory evidence; is that 
         23   correct? 
         24       A.   I had a representation that there was a 
 0054
          1   failure to pursue exculpatory evidence and that 
          2   there were a number of disputed facts in the case, 
          3   yes. 
          4       Q.   And so with that knowledge you accepted the 
          5   pleas of guilty; isn't that correct? 
          6       A.   Correct.
          7       Q.   So there was nothing knew about the fact of 
          8   their being this, quote, exculpatory evidence that 
          9   you learned after you had sentenced the defendant; 
         10   isn't that correct? 
         11       A.   I don't understand your question, that 
         12   there is nothing new I learned. 
         13       Q.   You just told us that you were already told 
         14   by Ms. Goldbach that there was exculpatory evidence 
         15   regarding this case; isn't that so? 
         16       A.   Yes.
         17       Q.   And you were told that on August 1; is that 
         18   correct? 
         19       A.   That's correct.
         20       Q.   So on September 6th, six weeks later, or 
         21   five weeks later, when you sentenced the defendant 
         22   and accepted the pleas, you were well aware of this 
         23   assertion of exculpatory evidence, correct? 
         24       A.   Correct. 
 0055
          1       Q.   So you didn't learn anything new from 
          2   Detective Greene in terms of their being exculpatory 
          3   evidence; is that right? 
          4       A.   I learned one, I believe, what I consider a 
          5   new fact. 
          6       Q.   Well, you didn't learn anything which 
          7   caused you to say, "I shouldn't have accepted the 
          8   pleas of guilty"?
          9       A.   No.
         10       Q.   Let me repeat my question, because I don't 
         11   think we have had an answer to this question.  Is it 
         12   your view that it promotes public confidence in the 
         13   judiciary and is appropriate for a Superior Court 
         14   judge, following the criminal proceeding in which 
         15   there have been pleas of guilty, to contact 
         16   investigating officers or police officers to learn 
         17   additional information about the case because there 
         18   has been a firestorm in the press? 
         19       A.   Well, is it my view -- I need -- you have a 
         20   lot of assumptions in that question.  So I need 
         21   to -- could you repeat it?
         22       Q.   Let me try to be clearer. 
         23       A.   Yes.  There are a lot of assumptions. 
         24       Q.   Is it your testimony, Judge, that 
 0056
          1   consistent with the canons of judicial conduct, as 
          2   you understand them, that you were entitled, as a 
          3   Superior Court judge, following acceptance of pleas 
          4   of guilty and, therefore, convictions of a 
          5   defendant, to go beyond the record before you to 
          6   contact a Boston police officer for the purpose of 
          7   getting additional information in response to press 
          8   reports? 
          9       A.   I didn't know it was going to be used in 
         10   press reports. 
         11       Q.   Well, what was the reason you were 
         12   contacting Detective Greene?
         13       A.   I had gotten a beeper -- a call with a 
         14   beeper number.  I knew he had been the detective 
         15   that Anne Goldbach had referred to during the lobby 
         16   conference, and -- the other thing is, I remember 
         17   Jay Greene from my days as a district court judge. 
         18            So I knew Jay Greene, I knew his 
         19   reputation, and I wasn't -- you know, when he called 
         20   me -- the message that was left is, "Jay Greene 
         21   wants to talk to you."  You know, it could have been 
         22   he wants to commiserate with me, he thinks I'm 
         23   getting a bum rap on this.  He's a local cop on that 
         24   beat, and I called Jay Greene because he was not an 
 0057
          1   anonymous person to me. 
          2       Q.   And your testimony is, Judge, that you 
          3   didn't call him because of any press response; you 
          4   just called him as a friend?
          5       A.   I think he called me because of the press 
          6   response, and I returned the call. 
          7       Q.   I thought you told us repeatedly here that 
          8   Detective Greene was part of this case in some 
          9   fashion and had information regarding the case and 
         10   was first on scene; isn't that right? 
         11       A.   There is no case once I accept a plea of 
         12   guilty.
         13       Q.   So that gave you license, as you understand 
         14   it, and consistent with the standards you apply to 
         15   yourself as a Superior Court judge, to call any of 
         16   the Boston police for that matter and ask questions 
         17   about the case, because of a firestorm of protest, 
         18   correct? 
         19       A.   Mr. Ware, I am sure --
         20       Q.   Judge, please try to respond to my 
         21   question.  Does it give you license, following your 
         22   having accepted a guilty plea in this case or any 
         23   other case, to call a Boston policeman whom you 
         24   believe to have been somehow involved in the 
 0058
          1   investigation to elicit additional information on 
          2   the case from him in response to press reports?
          3       A.   I think it depends on what the purpose --
          4       Q.   Yes or no?
          5       A.   Depends on the purpose.
          6       Q.   You think you could have done that, and in 
          7   fact you did it here, right? 
          8       A.   Yes. 
          9       Q.   Now, Judge, at this point, following your 
         10   preparation for trial, appropriate preparation for 
         11   trial, you've read the testimony before the 
         12   Commission in its entirety, have you not? 
         13       A.   My testimony? 
         14       Q.   The testimony, the testimony of many of the 
         15   witnesses.
         16       A.   Yes. 
         17       Q.   And you have read the testimony under oath 
         18   of Detective Greene; isn't that correct?
         19       A.   Correct. 
         20       Q.   And you know --
         21            MR. EGBERT:  Objection. 
         22            HEARING OFFICER DAHER:  What's the 
         23   objection? 
         24            MR. EGBERT:  Objection.  I want to be heard 
 0059
          1   at side bar. 
          2            (At side bar)
          3            MR. EGBERT:  This is the height of 
          4   unethical conduct, and I can't wait to send the 
          5   transcript to the BBO.  They know that Jay Greene 
          6   lied during his deposition.  Jay Greene has claimed 
          7   he had no phone calls with anybody. 
          8            Now they want to get her to say she read 
          9   his deposition which is a lie and is not in evidence 
         10   in this case.  They're going to take a statement of 
         11   a witness which is not in evidence, where they know 
         12   he lied, and ask this witness, "Did you read it?"  
         13   and "What did he say?" 
         14            It's preposterous.  It is back door in this 
         15   case, beyond the beyond.  And there is no -- not a 
         16   singular evidentiary basis for it.  What she read of 
         17   Jay Greene's testimony is irrelevant to these 
         18   proceedings.  
         19            MR. WARE:  Your Honor, at this point 
         20   Detective Greene's testimony is no different than 
         21   the police report, and I am entitled to get her 
         22   understanding of what he said.  And that's what I 
         23   intend to do, in a very limited way. 
         24            MS. DeJUNEAS:  They told Detective Greene 
 0060
          1   that they don't intend to call him as a witness 
          2   because he lied.
          3            MR. WARE:  I have never spoken to Detective 
          4   Greene since that deposition. 
          5            MS. DeJUNEAS:  You talked to him last week.  
          6            MR. EGBERT:  Greene lied in his deposition.  
          7   He say he never had any conversations with anybody, 
          8   even Joan Kenney, who is going to come in and say  
          9   they had a conversation. 
         10            They had him on the witness list, and they 
         11   called his attorney.  Then they said, "No, we're not 
         12   going to call him because we know he is lying."  Now 
         13   they want to put that lie into evidence through her.
         14            MR. WARE:  I'm not intending to elicit 
         15   anything about his lie. 
         16            MR. EGBERT:  What are you going to ask?
         17            HEARING OFFICER DAHER:  What's the 
         18   question?
         19            MR. WARE:  I'm not going to announce my 
         20   question.
         21            MR. EGBERT:  Well --
         22            HEARING OFFICER DAHER:  I'm going to 
         23   sustain the objection.
         24            (End of side bar)
 0061
          1            HEARING OFFICER DAHER:  At this particular 
          2   point we're going to have a little change of clerks.  
          3   Harvey is giving a lecture on landlord/tenant law in 
          4   Worcester.  Mr. Laurence Pierce, a very eminent 
          5   assistant clerk, is going to substitute for Mr. 
          6   Chopp. 
          7            We can proceed. 
          8            MR. WARE:  Thank you, Your Honor. 
          9       BY MR. WARE:
         10       Q.   Whatever information you got from Detective 
         11   Greene, one of the things you did --
         12            HEARING OFFICER DAHER:  I just want to make 
         13   sure it is on the record, your objection is 
         14   sustained for the record.   
         15       Q.   One of the things you did is call the 
         16   Office of Public Information of the Supreme Judicial 
         17   Court and ask Joan Kenney to call Detective Greene; 
         18   isn't that correct? 
         19       A.   Yes.  I don't know if I spoke to her 
         20   directly, but I know I called and left a message for 
         21   her with the beeper number I had, yes. 
         22       Q.   And it was your intention in doing so that 
         23   she contact Detective Greene to obtain some 
         24   information; isn't that so?
 0062
          1       A.   Correct. 
          2       Q.   Information which you believed might be 
          3   helpful in dealing with the press and deflecting 
          4   criticism of the sentence or the process or you, 
          5   correct? 
          6       A.   Correct. 
          7       Q.   You indicated yesterday that at this point 
          8   you have read, you believe, all of the complaints 
          9   before the Commission; is that so? 
         10       A.   I think so. 
         11       Q.   And you believe that some of those 
         12   complaints may be fictitious, correct? 
         13       A.   Correct. 
         14       Q.   And let me ask you briefly to look at Page 
         15   159 of your testimony before the Commission, and I 
         16   ask that that be put on the screen.  And you can 
         17   look at the whole page, if you are confused, or you 
         18   can look at the highlighted portion, or you can look 
         19   at anything you want. 
         20            Specifically at Lines 15 -- beginning at 
         21   Line 13  "Question:  Are there any other 
         22   complaints" -- you had been talking about one 
         23   particular complaint; isn't that so? 
         24       A.   That's correct. 
 0063
          1       Q.   And here you were asked the following 
          2   question:  "Are there any other complaints which you 
          3   deem or suspect as being fictitious or problematic?  
          4   Answer:  I have a real question about a number of 
          5   the complaints, yes."  Isn't that so? 
          6       A.   Yes. 
          7       Q.   And your suspicion, according to your 
          8   testimony at that time, was that this may have 
          9   something to do with individuals involved in the 
         10   Demoulas case; isn't that right?
         11       A.   Amongst others, yes. 
         12       Q.   Are there other individuals who may have 
         13   filed fictitious complaints, in your view?
         14       A.   More that 50 percent of the people that 
         15   appear before a judge go away mad, Mr. Ware. 
         16       Q.   So it's your feeling, Judge, that you have 
         17   enemies out there, not just from the Demoulas case, 
         18   but others who may have filed fictitious complaints?
         19       A.   I wouldn't say enemies, but people who may 
         20   not be happy with certain decisions I have made.  
         21   But the Demoulas case is certainly the biggest case 
         22   that I have dealt with.  I'm sure there are 
         23   individuals that I have made rulings on cases about 
         24   who are not happy with me. 
 0064
          1       Q.   And is it your view, Judge, that this whole 
          2   investigation arises out of something your enemies 
          3   are doing or fictitious complaints?
          4       A.   I believe it is all about my sentence.
          5       Q.   You don't think it has anything to do with 
          6   fictitious complaints or Demoulas.  You think it's 
          7   your sentence; is that right?
          8       A.   No, no -- I don't understand your question.  
          9   Do I think there are some illegitimate complaints 
         10   amongst those?  I do believe that, yes. 
         11       Q.   Which ones are they?
         12       A.   I am not sure I can identify particular 
         13   complaints; but given my experience in the last few 
         14   years, where numerous false, bogus, illegitimate 
         15   complaints have been filed against me -- and in fact 
         16   one was filed before the Commission, and they know 
         17   that there was a complaint that was falsely filed 
         18   against me before them. 
         19       Q.   All right.  So the Commission knows that 
         20   because they investigated it and found it to be 
         21   false?
         22       A.   Because the lawyer withdrew it. 
         23       Q.   Just if you would, I don't want to get all 
         24   that through that problem --
 0065
          1            MR. EGBERT:  Let --
          2            HEARING OFFICER DAHER:  I want to hear it.  
          3   You asked it and this is the response.  Go ahead.
          4       A.   What was the question?  I forget. 
          5            Basically the reason it was disposed of is, 
          6   the lawyer that was in fact representing the affiant 
          7   in that false affidavit found out about it and 
          8   withdrew it, sent a letter to the Commission saying 
          9   this was falsely -- to the effect -- I mean, not 
         10   exactly these words, but it was falsely procured and 
         11   contained false information. 
         12       Q.   And so that matter never came to 
         13   investigation, certainly never came to charges, and 
         14   certainly did not result in a hearing; isn't this 
         15   correct? 
         16       A.   That's correct.
         17       Q.   And you know that during the last two 
         18   years, you've had the opportunity to investigate any 
         19   of these complaints or take depositions of these 
         20   witnesses or do anything else you wanted to do 
         21   through your counsel to determine the validity of 
         22   these complaints?
         23       A.   I'm here because I investigated one on my 
         24   own. 
 0066
          1       Q.   Can you respond to my question.  You 
          2   understand that you and your legal team have had two 
          3   years to investigate any of these complaints, talk 
          4   with the complainants, take their sworn testimony, 
          5   to determine whether or not they were valid 
          6   complaints; isn't that correct?  Yes or no.
          7       A.   We certainly have had that opportunity, 
          8   yes.
          9       Q.   You have had that opportunity?
         10       A.   If we wanted to depose them, bring them in, 
         11   ask them questions.  But they all were generally 
         12   about the same thing, the demeanor and the sentence, 
         13   so...
         14       Q.   So you chose, as a matter of election or 
         15   strategy or whatever, not to take pretrial or 
         16   prehearing testimony from those witnesses; is that 
         17   correct? 
         18       A.   I guess.  I mean, no specific decision was 
         19   made, but we didn't choose to do that. 
         20       Q.   Now, Judge, one of the complaining 
         21   witnesses here is a woman named Beaucage; is that 
         22   correct?
         23       A.   Correct.
         24       Q.   And directing your attention to Exhibit 31, 
 0067
          1   that is the complaint or complaints filed by Ms. 
          2   Beaucage; is that correct? 
          3       A.   Correct. 
          4       Q.   Exhibit 31 consists of two separate 
          5   complaints; is that correct? 
          6       A.   I did not receive them together. 
          7       Q.   No, but it consists of two complaints; you 
          8   understand that?
          9       A.   Yes. 
         10       Q.   The first two pages of Exhibit 31 
         11   represent, let's say, the older of those complaints, 
         12   which bears a date stamp of October 20 in the upper 
         13   right, correct? 
         14       A.   Yes. 
         15       Q.   Has a date October 20, 2000; is that 
         16   accurate?
         17       A.   That's the date on this, yes.
         18       Q.   And the second complaint consists of a 
         19   one-page letter which is dated with the same kind of 
         20   date stamp, January 23, 2001; is that correct?
         21       A.   Correct. 
         22       Q.   When you received a copy of this complaint, 
         23   you received it from the Commission itself; isn't 
         24   that so? 
 0068
          1       A.   Yes.  It was a single complaint.
          2            MR. EGBERT:  Excuse me, Your Honor.
          3            HEARING OFFICER DAHER:  What's the 
          4   objection?
          5            MR. EGBERT:  Your Honor, these are not in 
          6   evidence.
          7            MR. WARE:  They are in evidence. 
          8            MR. EGBERT:  These are not in evidence.
          9            MR. WARE:  They are in evidence.  They were 
         10   admitted today as among the complaints, Your Honor. 
         11            MR. EGBERT:  Exhibit 31 was not admitted.
         12            MR. WARE:  Yes, it was.  It was admitted 
         13   today.
         14            HEARING OFFICER DAHER:  It was admitted.  I 
         15   have it in.  Exhibit 31, complaints by Angela 
         16   Beaucage.
         17            MR. EGBERT:  It is in, Your Honor, not for 
         18   the truth of this matter asserted as alleged by the 
         19   Commission.  And I would urge the Court to not 
         20   permit any examination on those matters. 
         21            And I would add, so the record is clear, 
         22   Ms. Beaucage, as you know, who was being deposed by 
         23   us, left the deposition and never returned, and is 
         24   scheduled again to be deposed on Thursday.  Whether 
 0069
          1   or not she ever shows up is a matter of speculation, 
          2   I suppose. 
          3            In the event that she does not show up for 
          4   the deposition, I reserve my right to move to strike 
          5   Exhibit 31. 
          6            MR. WARE:  Your Honor, whether or not this 
          7   woman is a witness has nothing to do with the 
          8   Commission's charge that it was improper for the 
          9   Judge to be calling individuals who filed complaints 
         10   during a pending investigation when represented by 
         11   counsel.  That's fundamentally the issue.
         12            HEARING OFFICER DAHER:  That's the limited 
         13   purpose that you are asking?
         14            MR. WARE:  Yes.  That is what this issue is 
         15   all about.  That's what these complaints are all 
         16   about.
         17            HEARING OFFICER DAHER:  Not for the 
         18   truthfulness of it.
         19            MR. EGBERT:  The allegation in the 
         20   Commission's filing and the formal charges is that 
         21   Judge Lopez called Ms. Beaucage and she was 
         22   intimidated, and words to that effect.  But there is 
         23   nothing in evidence, nor could there be in evidence 
         24   in this case, unless Ms. Beaucage takes the witness 
 0070
          1   stand in that regard.  So that's the purpose of my 
          2   objection. 
          3            HEARING OFFICER DAHER:  For the purpose -- 
          4   for the limited purpose that Mr. Ware intends to 
          5   interrogate Judge Lopez, your objection is 
          6   overruled.  Go ahead. 
          7       BY MR. WARE: 
          8       Q.   In any event, you called this particular 
          9   witness, did you not?
         10       A.   I called a number on this complaint 
         11   purporting to belong to this person, yes. 
         12       Q.   And you made that call on November 1st, 
         13   shortly after 11:00 p.m.; is that correct? 
         14       A.   I think it was like 11:02 or 11:03, yes. 
         15       Q.   And you made the call from your home, 
         16   correct?
         17       A.   From my home. 
         18       Q.   You made that call at a time when you knew 
         19   the investigation was pending; isn't that correct?
         20       A.   Yes. 
         21       Q.   The investigation had begun, as you 
         22   understood it, in September 2000, correct? 
         23       A.   Correct. 
         24       Q.   At that time you were represented by 
 0071
          1   competent counsel, were you not?
          2       A.   Yes, I was. 
          3       Q.   And you knew that if you had any questions 
          4   about any complaint, you had a number of options 
          5   short of calling a complaining witness yourself; 
          6   isn't that correct? 
          7       A.   If I had thought about it that way, I would 
          8   agree with you, yes. 
          9       Q.   Thinking about it now, you understand that 
         10   obviously you could have gone to Mr. Mone, your 
         11   counsel, and raised any questions you had with him 
         12   and let him do the investigating; isn't that right? 
         13       A.   Correct.
         14       Q.   You could have also opened the phone book 
         15   to determine whether or not this particular 
         16   individual was listed; isn't that true? 
         17       A.   No.  I don't have a Tewksbury -- I think 
         18   she's from Tewksbury or Billerica.  I live in 
         19   Newton.  So I would not --
         20       Q.   Do you have a computer?
         21       A.   Yes, but I have never done that, searched 
         22   for people's phone numbers on a computer, or 
         23   address.  So...
         24       Q.   So you could not, through your office or at 
 0072
          1   home, through one of your children, who is perhaps 
          2   more literate, at least if it's like my house, than 
          3   you are on the computer had someone look up a phone 
          4   number?
          5       A.   I suppose I could have, yes.
          6       Q.   Those options were available to you, right? 
          7       A.   Yes. 
          8       Q.   You did not avail yourself of those 
          9   options, correct? 
         10       A.   No, I did not. 
         11       Q.   You did not call the Commission or 
         12   Commission's counsel and ask them whether they would 
         13   a take a look at this particular complaint, because 
         14   you had some doubt about it; is that right?  You did 
         15   not do that? 
         16       A.   I did not do that.
         17       Q.   You did not ask your lawyer to call the 
         18   Commission to determine whether or not this 
         19   complaint or any other complaint might have some 
         20   characteristic to it that made it inauthentic? 
         21       A.   I believe I told my lawyer about this call, 
         22   either the following day or shortly thereafter.
         23       Q.   You told him --
         24       A.   -- I had made this call to verify the 
 0073
          1   legitimacy of this complaint, yes.  I don't think a 
          2   decision was made to look further into it. 
          3       Q.   Now, you're aware now, are you not, that 
          4   this particular complaining witness happened to have 
          5   caller ID; isn't that so? 
          6       A.   That's correct.
          7       Q.   And when you called the witness that night, 
          8   you didn't know that, did you?
          9       A.   No, I didn't. 
         10       Q.   It was, from your point of view, an 
         11   anonymous phone call; isn't that right?
         12       A.   Correct. 
         13       Q.   Which is to say, when you reached someone 
         14   on the other end of the line, you didn't tell them 
         15   who you were, did you?
         16       A.   I never identified myself to her, no. 
         17       Q.   And so in this call, which occurred, you 
         18   say, at 11:03, and you reached a woman on the other 
         19   end of the phone, you didn't introduce yourself or 
         20   in any way give that individual any indication who 
         21   was calling at that hour, did you? 
         22       A.   That's right. 
         23       Q.   If that witness had not had caller ID, no 
         24   one would have known about this call but you; isn't 
 0074
          1   that correct? 
          2       A.   Correct. 
          3       Q.   You believed at this period of time that 
          4   you were being persecuted in various ways by 
          5   powerful enemies through Demoulas or other channels; 
          6   is that correct?
          7       A.   I believe it to this day. 
          8       Q.   And that's what gives rise to your 
          9   suggestion here today that some of these complaints 
         10   that were not investigated may yet be fictitious; is 
         11   that so?
         12       A.   Correct.
         13       Q.   So your testimony is that even here today, 
         14   notwithstanding all that surrounds us and the 
         15   distinguished court who is spending his time 
         16   listening to this, you are not even satisfied that 
         17   these complaints are real as we sit here today, 
         18   right? 
         19       A.   I am not satisfied they're real, correct.
         20       Q.   You think all of this may be inspired by 
         21   your enemies, correct? 
         22       A.   Some of it.  I'm not saying all of it.  I'm 
         23   sure there are some legitimate citizens who saw the 
         24   tape and got upset about it.  But I believe that 
 0075
          1   there are a number of complaints and a number of 
          2   the -- a lot of the press frenzy, some of it was 
          3   motivated, inspired, which is the word you like to 
          4   use, by my enemies, yes. 
          5       Q.   And you believe that even as you sit here 
          6   testifying today, correct?
          7       A.   Correct. 
          8       Q.   And you believe that indeed you are the 
          9   victim here, don't you? 
         10       A.   With regards to these proceedings? 
         11       Q.   Yes.
         12       A.   Yes, I do.
         13       Q.   You're the victim, correct?
         14       A.   Yes, I do. 
         15            MR. WARE:  I have nothing further.  Thank 
         16   you, Your Honor.
         17                     CROSS EXAMINATION
         18       BY MR. EGBERT:
         19       Q.   Let's start where you left off.
         20            MR. WARE:  Your Honor, could we take the 
         21   morning break at this point?
         22            HEARING OFFICER DAHER:  Is that okay?
         23            MR. EGBERT:  No.  It's not okay with me.  
         24   If that's what you want, fine.
 0076
          1            HEARING OFFICER DAHER:  If is not okay with 
          2   you, fine.  We can go another 25 or 30 minutes or 
          3   so.  Go ahead. 
          4       BY MR. EGBERT: 
          5       Q.   You left off by talking about the impact 
          6   some important enemies have had upon you, right?
          7       A.   Correct. 
          8       Q.   For those who don't know, let's talk about 
          9   the Demoulas case.  First of all, what was the 
         10   Demoulas case about? 
         11       A.   The Demoulas case involved two trials that 
         12   I presided over.  They occurred in late 1994 and 
         13   then again at the beginning of 1995.  The first one 
         14   was a stock transfer, fraudulent stock transfer case 
         15   that was tried to a jury; and the allegations were, 
         16   from the plaintiffs who were the nephews of the 
         17   Defendant, that their stock had been fraudulently 
         18   transferred through a number of mechanisms.  That 
         19   was about a four-month trial.
         20       Q.   And that case involved a good deal amount 
         21   of money? 
         22       A.   It involved what I understand to be over a 
         23   billion dollars. 
         24       Q.   And were you subject to conduct by lawyers 
 0077
          1   and others after that proceeding and your findings 
          2   in that proceeding which you thought to be unusual? 
          3       A.   Yes. 
          4       Q.   Tell the Court, after all of these Demoulas 
          5   proceedings and during them, some of the things that 
          6   were done to you by lawyers for the losing side. 
          7       A.   Well, amongst the things that were done -- 
          8   I mean, they were responsible for that false 
          9   complaint that was filed with the Commission in the 
         10   Trios matter.  But they also obtained false 
         11   affidavits alleging that I had engaged in improper 
         12   social conduct with the lawyer -- the lead lawyer on 
         13   the winning side of the case.  And they had moved to 
         14   recuse me on that basis. 
         15            Then they perpetrated this unbelievable 
         16   ruse on the law clerk that was assigned to me during 
         17   the second trial, the derivative action, which was a 
         18   jury-waived trial.  It was tried to me.  But they 
         19   perpetrated an unbelievable ruse against my law 
         20   clerk, flying him out of state so that they could 
         21   tape him and not have to comply with our, you know, 
         22   both-party-consent laws in Massachusetts.  They 
         23   threatened him.  I mean, I'm sure the Judge might be 
         24   familiar that this is now in fact involved -- well, 
 0078
          1   it was a federal investigation.  There was a grand 
          2   jury convened.  They are now before the Board of Bar 
          3   Overseers.
          4       Q.   Let me stop you.  When you say they are now 
          5   before the Board of Bar Overseers, who is now before 
          6   the Board?
          7       A.   Richard Donahue, Gary Crossen and Kevin 
          8   Curry.
          9       Q.   And were these the lawyers related to the 
         10   losing side on the case that you presided over? 
         11       A.   Yes. 
         12       Q.   And are they charged with multiple counts 
         13   of interfering with the judicial process by bringing 
         14   your clerk to foreign countries and taping him? 
         15       A.   Yes, they are.
         16       Q.   By filing false affidavits with regard to 
         17   your clerk? 
         18       A.   Yes. 
         19       Q.   Were you informed that you had been 
         20   followed during some of those proceedings? 
         21       A.   That's correct.  I mean, they had done 
         22   things like illegally obtained financial records of 
         23   mine.
         24       Q.   Were you informed that your trash was gone 
 0079
          1   through by members of the losing side to look for, 
          2   quote, dirt on you? 
          3       A.   Correct.  And I had to have the State 
          4   Police come and search for bugs at my house and in 
          5   my lobbies. 
          6       Q.   How long -- we'll get into this in more 
          7   detail tomorrow or Friday, but how long was the, 
          8   quote, Demoulas process -- how long did it go on? 
          9       A.   Well, it actually began in the fall of 
         10   1994, and I believe the last decision affirming my 
         11   denial of a recusal motion based on the Paul Walsh 
         12   matter, the law clerk matter, was rendered in June 
         13   of 2000. 
         14       Q.   So June of 2000 was the last, at least as 
         15   far as you know, judicial action in the Demoulas 
         16   matter?
         17       A.   Yes.  I think the appellate process is over 
         18   in the cases.
         19       Q.   And in essence, were all of your findings 
         20   and rulings relating to who won and who lost and the 
         21   like affirmed by the Supreme Judicial Court?
         22       A.   I was affirmed in everything.  There was a 
         23   remand concerning some tax calculations that had to 
         24   be redone, but on every legal issue and every 
 0080
          1   evidentiary issue I was affirmed.
          2       Q.   And on these motions to recuse, and for 
          3   those who may not know, that means to disqualify you 
          4   as a Judge because of bias; is that right?
          5       A.   That's correct.
          6       Q.   Were any of those motions granted by you? 
          7       A.   No, I denied them -- there were three 
          8   motions.  I denied them all.
          9       Q.   And were each of those affirmed -- your 
         10   decisions in that regard affirmed by the Supreme 
         11   Judicial Court?
         12       A.   Correct.  They were.
         13       Q.   And when you talk about these false 
         14   complaints at the Judicial Conduct Commission, and 
         15   you mentioned the Trios matter --
         16       A.   Correct.
         17       Q.   -- did it come to your attention that 
         18   affidavits and complaints were filed with the 
         19   Judicial Conduct Commission at the behest of the 
         20   Demoulas lawyers? 
         21       A.   Correct. 
         22       Q.   And that after a period of time, those 
         23   people who signed the affidavits and filed the 
         24   complaints through their attorneys came forward and 
 0081
          1   indicated that they were all false, that everything 
          2   that they had filed was a falsity, and they had done 
          3   so by trickery? 
          4       A.   Correct.
          5       Q.   With regard to the Demoulas lawyers?
          6       A.   That's right.
          7       Q.   And that each of those -- and each of those 
          8   complaints accused you of various forms of 
          9   impropriety? 
         10       A.   That's right.
         11       Q.   Both social and judicial? 
         12       A.   That's correct.
         13       Q.   And they were all thrown out at that time?
         14       A.   Yes, they were.
         15       Q.   How did you feel going through the process 
         16   of these lawyers during that period of time trying 
         17   to affect --
         18            HEARING OFFICER DAHER:  What's your 
         19   objection?
         20            MR. WARE:  I was going to let him finish 
         21   his question.
         22            HEARING OFFICER DAHER:  Well, I can 
         23   anticipate.  What is your objection?
         24            MR. WARE:  To her feeling.  It's 
 0082
          1   irrelevant.
          2            MR. EGBERT:  Her state of mind coming into 
          3   these events I think is perfectly appropriate.
          4            HEARING OFFICER DAHER:  I think because of 
          5   the nature of the charges, I'm going to overrule 
          6   that objection.  You may have it.  You may continue 
          7   with it. 
          8       Q.   How did you feel -- how did you feel, going 
          9   through that period of time in the Demoulas case 
         10   with these lawyers conducting themselves in this 
         11   way, attacking you, filing false affidavits, filing 
         12   false affidavits with the Judicial Conduct 
         13   Commission, filing false affidavits in your court, 
         14   and doing the kinds of things that you just 
         15   described to us? 
         16            HEARING OFFICER DAHER:  You already 
         17   objected to it, how she feels.
         18            MR. WARE:  Objection, Your Honor.  I was 
         19   just going to ask if we have a time frame here.  I'm 
         20   not clear at all what year we're talking about.
         21            HEARING OFFICER DAHER:  You are entitled to 
         22   that.
         23       Q.   Take us through, Judge Lopez, take us 
         24   through basically as best you can the time from '97 
 0083
          1   through the year 2000. 
          2       A.   Regarding the motions for recusal and what 
          3   happened? 
          4       Q.   No.  Regarding your feelings concerning 
          5   what was going on. 
          6       A.   Well, I mean, I was very upset that my 
          7   professional reputation was being impugned that way.  
          8   I mean, I knew that what was being alleged in those 
          9   affidavits -- I knew that to be false. 
         10            I was very upset, and I was angry that 
         11   there would be such an effort, not only to attack me 
         12   personally, but to use those kinds of means to 
         13   undermine a decision that had been rendered in 
         14   accordance with our laws, fairly decided.  And I 
         15   thought it as an attempt on their part to disqualify 
         16   me in some way -- and in fact the SJC saw it that 
         17   way too -- to get me disqualified so they could get 
         18   a new trial on the cases, because they were unhappy 
         19   with the results in that case. 
         20            So they marshalled every force they could 
         21   to see what they could come up with to get me -- to 
         22   get a new Judge to retry the case.  And so I felt 
         23   attacked.  I felt besieged. 
         24            MR. EGBERT:  I want to take up one other 
 0084
          1   matter, and then if you want to take a break.
          2            HEARING OFFICER DAHER:  I don't have to 
          3   take a break.  If you're on a roll, go ahead.
          4            MR. EGBERT:  No, I'm not on a roll. I just 
          5   wanted to take up one other matter quickly, and then 
          6   we'll take a break.
          7       Q.   You were asked a bunch of questions this 
          8   morning about Jay Greene not being in the 
          9   investigation, Jay Greene not being a part of the 
         10   case against Horton, Jay Greene not being a person 
         11   who was on the scene, Jay Greene not being a part of 
         12   the investigation.  Do you remember all those 
         13   questions? 
         14       A.   Yes. 
         15       Q.   Would you turn -- do you have the exhibit 
         16   book in front of you?
         17       A.   I do.
         18       Q.   Let's not use any screens.  Let's use real 
         19   paper, all right? 
         20       A.   Okay.
         21       Q.   Turn to Exhibit 27, if you would.  Now, in 
         22   your years of experience in practice and as a Judge, 
         23   do you recognize what this document is? 
         24       A.   I've seen hundreds if not thousands of 
 0085
          1   them.
          2       Q.   What is it? 
          3       A.   It's a police report.  It's an incident 
          4   report.
          5       Q.   And an incident report -- this is the first 
          6   report, basically, of the police officers with 
          7   respect to a criminal conduct? 
          8       A.   Correct. 
          9       Q.   Now, I want you to turn to Page 2 at the 
         10   bottom, and start with -- I want you to go, on the 
         11   second line from the bottom, from the word "the." 
         12       A.   Yes.  "The VD63 unit."
         13       Q.   Would you read that out loud.
         14       A.   "The --" I think it is supposed to be "VS"; 
         15   I don't know what "VD" means -- "63 unit, Officer 
         16   Goldy was on scene."  I guess that's -- oh, that's a 
         17   badge.  "Sergeant Detective Downey, Sergeant Burns, 
         18   Detective Greene and McCarthy --" and I think those 
         19   are their badges. 
         20       Q.   Keep reading.
         21       A.   "-- were on scene."
         22       Q.   "Were on scene"?
         23       A.   Right.
         24       Q.   And now you also were asked if Detective 
 0086
          1   Greene had anything to do with the investigation of 
          2   this case.  Please read on from after on scene. 
          3       A.    "The Sexual Assault Unit was notified, the 
          4   V825, Detective Keeley, and V823, Detective 
          5   Hartgrove, continued the investigation." 
          6       Q.   Stop right there for a minute.  Does that, 
          7   in your understanding, lead you to believe that the 
          8   people who were on scene and listed were there 
          9   before the so-called sexual assault unit? 
         10       A.   Correct. 
         11       Q.   Now, keep reading, please. 
         12       A.   "Detective Hartgrove continued the 
         13   investigation.  Officers administered suspect's 
         14   Miranda rights at the scene.  Suspect denied any 
         15   involvement post-Miranda to Officers Sweeney and 
         16   Detective Greene." 
         17       Q.   So Detective Greene was on scene, according 
         18   to this report --
         19       A.   Correct.
         20       Q.   -- interviewed the Defendant, according to 
         21   the report? 
         22       A.   Correct. 
         23            MR. WARE:  Objection. 
         24            HEARING OFFICER DAHER:  What is the 
 0087
          1   objection? 
          2            MR. WARE:  Gave Miranda rights.  That's 
          3   all.
          4            MR. EGBERT:  "Suspect denied any 
          5   involvement --"
          6            HEARING OFFICER DAHER:  Overruled.  You can 
          7   have it.
          8            MR. EGBERT:  "-- post Miranda."
          9            HEARING OFFICER DAHER:  Overruled.  You got 
         10   it. 
         11       Q.   Now, without regard to what your testimony 
         12   before the Commission may have been some year or so 
         13   after these events as to whether or not you 
         14   remembered him being on scene or not being on scene 
         15   or the like, having looked at this report, do you 
         16   now have a basis in your mind to determine whether 
         17   or not Detective Greene was on scene?
         18       A.   Yes. 
         19            MR. EGBERT:  Your Honor, would this be a 
         20   good time for a break?
         21            HEARING OFFICER DAHER:  Fine.
         22            (Recess)
         23            (Side bar off the record)
         24            HEARING OFFICER DAHER:  Pick it up.  
 0088
          1       BY MR. EGBERT: 
          2       Q.   Judge Lopez, just recently, on your direct 
          3   examination, you were asked whether or not you 
          4   thought of yourself as a victim in this matter.  Do 
          5   you recall that questioning?
          6       A.   Yes, I do.
          7       Q.   What do you mean by that? 
          8       A.   Well, what I meant by that, and what I mean 
          9   by that, is that I mean as to these proceedings.  I 
         10   certainly was not suggesting -- and I hope it was 
         11   not interpreted -- that I was equating myself to a 
         12   victim such as the victim in the Horton case or a 
         13   victim in any kind of a criminal matter. 
         14            When I said "victim," what I meant is that 
         15   in the course of these proceedings I have gone 
         16   before the Commission, I have apologized for my 
         17   demeanor issues, and I really believe that this 
         18   matter should have been resolved in the way that 
         19   most, if not the overwhelming majority, of 
         20   complaints before the Commission are resolved, given 
         21   the nature of the allegations, and that -- I mean, 
         22   this is -- I'm not trying to suggest that these are 
         23   not legitimate proceedings, but I do believe that 
         24   the Commission has, in my case, gone beyond what it 
 0089
          1   has done in other cases.  So in that sense I feel 
          2   victimized.
          3       Q.   And in that regard, have you ever had a 
          4   complaint before the Commission where there has been 
          5   any affirmative action or finding that you have done 
          6   anything in violation of any canons of the ethics?
          7       A.   No.
          8       Q.   Have you ever had any case before the 
          9   Commission go to an informal adjustment or private 
         10   admonition or the like? 
         11       A.   I have had no sanction possible, whether 
         12   it's private, confidential, public, from the 
         13   Commission in my entire career as a judge. 
         14       Q.   And also just a few moments ago you were 
         15   asked about your phone call to Ms. Beaucage.  Do you 
         16   recall that?
         17       A.   Yes. 
         18       Q.   And whether or not you were suspicious and 
         19   why you were suspicious at that particular time? 
         20       A.   Correct.
         21       Q.   The call you made to Ms. Beaucage was 
         22   around when? 
         23       A.   It was on November 1st.
         24       Q.   Of the year? 
 0090
          1       A.   2000. 
          2       Q.   Just before November 1st of the year 2000, 
          3   did you have an occasion to experience false and 
          4   fraudulent letter writing or complaints, so called?
          5       A.   Yes. 
          6       Q.   I'm going to -- and I'm going to hand up to 
          7   you, if I may -- 
          8            MR. EGBERT:  May I approach, Judge? 
          9            THE WITNESS:  Yes.  I can't believe I -- do 
         10   you know how tough it is?  I want to rule on the 
         11   objections myself. 
         12       Q.   I'm handing Respondent's Exhibits H and I, 
         13   which the Court has the originals, I believe.  And I 
         14   ask you, first of all, can you identify what these 
         15   are?
         16            HEARING OFFICER DAHER:  What exhibits are 
         17   we dealing with? 
         18            MR. EGBERT:  H and I.  They won't be in the 
         19   book, Judge.  They will be in the exhibits we 
         20   submitted to you. 
         21            HEARING OFFICER DAHER:  All right.  Go 
         22   ahead. 
         23       Q.   Let's start with H.  That's a letter dated 
         24   October 10th of 2000. 
 0091
          1       A.   Correct. 
          2       Q.   Do you recognize it?
          3       A.   Yes. 
          4       Q.   And what is it? 
          5       A.   It's a letter I received at the courthouse, 
          6   probably on October 13th or 14th. 
          7       Q.   Of 2000?
          8       A.   Of 2000, yes. 
          9       Q.   And could you read that letter into the 
         10   record, please. 
         11       A.   Okay.  It says, "To Maria.  We demand to 
         12   know what you are doing to" -- wait a minute -- 
         13   "what you are going to do to correct your ignorant 
         14   ruling on the child attacker, Ebony.  Are you so 
         15   politically correct that you do not see right from 
         16   wrong?  You and your husband have the moral value 
         17   and character of a common criminal, but that 
         18   probably is not even an insult to you, because you 
         19   are in bed with the criminals anyway.  You cannot 
         20   realize how much you are loathed in this state." 
         21       Q.   And who signed it? 
         22       A.   Somebody by the name of Patricia Steinborn. 
         23       Q.   Now, after --
         24            HEARING OFFICER DAHER:  I have to interrupt 
 0092
          1   you.  I don't -- I have all of your suggested 
          2   exhibits, but I don't have H and I in the -- I'll 
          3   need a copy, please. 
          4            MR. EGBERT:  May I approach? 
          5            HEARING OFFICER DAHER:  That will be fine. 
          6            MR. EGBERT:  I'll give you these. 
          7       Q.   Now, after receiving that -- did you 
          8   receive that at the Superior Court? 
          9       A.   Yes, I did. 
         10       Q.   And what -- did it come in an envelope?
         11       A.   It came in an envelope.
         12       Q.   With a return address? 
         13       A.   Correct.
         14       Q.   What did you do with that when you received 
         15   it? 
         16       A.   I received these together. 
         17       Q.   Let's start with this one. 
         18       A.   Okay.  What I did with it -- well, what 
         19   happened was, my court officer was in fact reading 
         20   my mail, because I was getting thousands and 
         21   thousands of letters excoriating me and threatening 
         22   me.  So he would -- by this time I was only getting 
         23   a few of them.  Anyway, I gave it to my court 
         24   officer for him to verify whether or not this was a 
 0093
          1   legitimate letter. 
          2       Q.   And what did you learn from your court 
          3   officer in that regard? 
          4       A.   I learned he called --
          5            MR. WARE:  Objection.  Hearsay, Your Honor.
          6            HEARING OFFICER DAHER:  Sustained.
          7            MR. EGBERT:  It goes to her state of mind 
          8   at this period of time in her belief that there were 
          9   people writing false letters.  It does not go to 
         10   whether or not they're false, and --
         11            HEARING OFFICER DAHER:  That's under the 
         12   exception to the hearsay rule.  You may have it.
         13       A.   Excuse me.  The question was, what did 
         14   he --
         15       Q.   What did you learn from Mr. Hart?
         16       A.   From Mr. Hart, that he had called the 
         17   business that was -- the return address on the 
         18   envelope and inquired as to whether or not a 
         19   Patricia Steinborn worked there, and they said they 
         20   had never heard of a Patricia Steinborn. 
         21       Q.   And would you a look at Exhibit I, please. 
         22       A.   Yes. 
         23       Q.   And is that a letter that you also received 
         24   at or about the same time? 
 0094
          1       A.   Correct. 
          2       Q.   And was that in fact in the same envelope 
          3   as the previous exhibit? 
          4       A.   Not in the same envelope.  In a separate 
          5   envelope, but with the same return address. 
          6       Q.   And would you read that one. 
          7       A.   It says, "To Maria.  You are a disgrace to 
          8   Massachusetts.  There are so many people that are 
          9   disgusted with your work.  You have no dignity or 
         10   shame.  You must not be a parent or grandparent the 
         11   way you callously ruled in the case with the child 
         12   rapist Ebony.  We are watching you and you better 
         13   clean up your act." 
         14       Q.   And "we are watching you and you better 
         15   clean up your act," did you take that as a threat?
         16       A.   Yes.
         17       Q.   What did your court officer do about that?
         18       A.   He again, when he called the return address 
         19   business, he inquired about this Jessica Fernandez, 
         20   and they had never heard of her. 
         21       Q.   And so at least as of about October 13th or 
         22   14th of the year 2000, you at least had some 
         23   experience with receiving false or fictitious 
         24   complaints, correct? 
 0095
          1       A.   Correct. 
          2       Q.   Now, when did you receive Exhibit 31, which 
          3   is the complaint filed by Ms. Beaucage against you? 
          4       A.   I received it on November 1st. 
          5       Q.   And that was approximately how long after 
          6   the Ebony Horton sentencing?
          7       A.   Well, September 6th.  So we're talking 
          8   seven and a half weeks.
          9       Q.   And was that unusual, in your mind? 
         10       A.   It was very unusual, this one.
         11       Q.   Why? 
         12       A.   Well, at the beginning I would get an 
         13   envelope from the Commission that had 30 or 40 
         14   complaints or whatever; a number of complaints.  And 
         15   this one -- and I had not received a Commission 
         16   envelope in a number of weeks.  And then this one 
         17   came alone.  It was a single complaint, and -- does 
         18   that answer the question?
         19       Q.   Were you suspect of it?
         20       A.   I was absolutely suspect of it. 
         21       Q.   And you've indicated that you made a phone 
         22   call to Ms. Beaucage or to a phone number?
         23       A.   I did.
         24       Q.   What was your purpose in making the phone 
 0096
          1   call?
          2       A.   I wanted to verify whether or not this was 
          3   a legitimate person that was filing a complaint 
          4   against me. 
          5       Q.   And when you made that phone call, do 
          6   you -- you have something that's -- do you have 
          7   caller ID on your phones? 
          8       A.   Yes.
          9       Q.   And your phones give out caller ID?
         10       A.   They give it out, yes.
         11       Q.   Is that correct? 
         12       A.   Correct.
         13       Q.   And you did nothing to block your caller 
         14   ID, did you? 
         15       A.   Correct.
         16       Q.   And you did nothing to stop your 
         17   information flowing in that phone call, correct? 
         18       A.   No.  I -- I truly believed that I was going 
         19   to find out that there was no such person at that 
         20   phone number.
         21       Q.   What happened when you called?
         22       A.   When I called, a woman answered the phone.  
         23   I asked, "Is there a person by the name of Angela 
         24   Beaucage there?"  She paused and said, "Yes."  And 
 0097
          1   at that point I said, "Thank you," and I hung up. 
          2       Q.   Did you say anything else to her?
          3       A.   No. 
          4       Q.   Did you threaten her, intimidate her? 
          5       A.   No, absolutely not. 
          6       Q.   Did you mean to threaten her or --
          7       A.   Absolutely not.
          8       Q.   It was your firm belief that you were going 
          9   to find out that there was no such person there, 
         10   right? 
         11       A.   Correct.
         12       Q.   And as soon as you found out that person 
         13   existed, you said good-bye?
         14       A.   I hung up and I told my lawyer I think the 
         15   following day. 
         16       Q.   I'd like to go back, if we could, to the 
         17   beginning of these matters and to discuss with you 
         18   the various events that led up to the sentencing in 
         19   the Ebony Horton matter; all right? 
         20       A.   Okay.
         21       Q.   And let's start, if we could, with August 
         22   1st of the year 2000.  You know what that date was 
         23   about, correct? 
         24       A.   Correct.  That was the date of the lobby 
 0098
          1   conference at side bar. 
          2       Q.   Now, approximately how many cases a day do 
          3   you handle in the First Session of Suffolk County? 
          4       A.   We probably on the list could have, you 
          5   know, 50, 60 matters. 
          6       Q.   And of those matters, how many of them end 
          7   up with lobby conferences, so called?
          8       A.   They try and put on maybe -- depending on 
          9   the judge, actually, but between, around six, eight 
         10   of them.
         11       Q.   During the course of those lobby 
         12   conferences -- what is the purpose of them? 
         13       A.   The lobby conference is an opportunity, an 
         14   effort -- an opportunity for the lawyers for both 
         15   sides to present their best case to the judge and 
         16   see if they can reach some kind of a disposition. 
         17       Q.   And during that, when you say "present 
         18   their best case to the judge," the prosecutor is 
         19   permitted to tell the facts of the case, I take it.
         20       A.   Correct.  He tells me or tells the judge 
         21   what he expects the evidence in the case to be. 
         22       Q.   And there are references to the criminal 
         23   record of the defendant? 
         24       A.   Correct. 
 0099
          1       Q.   Any extraordinary circumstances that the 
          2   prosecution thinks is appropriate?
          3       A.   Yes.
          4       Q.   And the defense basically does the same on 
          5   the other side of the coin?
          6       A.   The defense has the opportunity to present 
          7   their best scenario.
          8       Q.   During those lobby conferences, each one 
          9   advocates for their position, correct?
         10       A.   Correct. 
         11       Q.   Now -- and we talk about lobby conferences, 
         12   is that the way you refer to these plea conferences? 
         13       A.   Yes.  They're plea conferences.
         14       Q.   Let's go to the conference that was had 
         15   with regard to the Ebony Horton case.  First of all, 
         16   was Ms. Joseph there? 
         17       A.   Yes, she was. 
         18       Q.   Now, you've indicated that you had some 
         19   prior experience with Ms. Joseph, correct? 
         20       A.   Correct.
         21       Q.   And that you had, I think you said, a less 
         22   than favorable opinion of her anyway.
         23       A.   That's right. 
         24       Q.   At the beginning, as she came to you that 
 0100
          1   day, did your opinion of her affect you in any way 
          2   as to the manner or means in which you would treat 
          3   that case? 
          4       A.   Absolutely not. 
          5       Q.   Do you have opinions, both good and bad, of 
          6   many lawyers and prosecutors who appear before you 
          7   over the years? 
          8       A.   Absolutely. 
          9       Q.   And do you permit your opinions in those 
         10   regards to have any impact upon your decision 
         11   making? 
         12       A.   No, not at all. 
         13       Q.   And if you thought or believed that you had 
         14   an opinion for which would require -- strike that.  
         15   If you had an opinion which would prohibit you from 
         16   being unbiased, what would you do? 
         17       A.   I would recuse myself. 
         18       Q.   And if you thought that there was a 
         19   circumstance which would indicate to the public that 
         20   you were biased, what would you do? 
         21       A.   I would recuse myself. 
         22       Q.   During the course of any proceeding that 
         23   you had had with Leora Joseph, up through and 
         24   including the lobby conference on August 1st of the 
 0101
          1   year 2000, had she or any member of the district 
          2   attorney's office asked you to recuse yourself in 
          3   any case involving Leora Joseph? 
          4       A.   No.  No one has ever asked me that. 
          5       Q.   And when a lawyer, particularly a lawyer 
          6   with the -- who represents the people, as Mr. Ware 
          7   has described, believes that he or she will suffer 
          8   bias at the hands of a judge, what is their 
          9   obligation? 
         10       A.   They bring it to the Court's attention and 
         11   request that the Judge recuse herself, himself. 
         12       Q.   And at any time, up to and including August 
         13   1st of the year 2000, had any such motion been made 
         14   by Leora Joseph?
         15       A.   No. 
         16       Q.   Had any such motion been made by anyone on 
         17   her behalf? 
         18       A.   No. 
         19       Q.   Had she talked to you at any time, 
         20   privately or publicly, about any feeling she had 
         21   that you were treating her unfairly?
         22       A.   No.
         23       Q.   During the lobby conference on August 1st 
         24   of the year 2000, did Leora Joseph have a chance to 
 0102
          1   state her position? 
          2       A.   Yes, she did. 
          3       Q.   Was -- did you at any time hinder her from 
          4   saying anything she wanted during the lobby 
          5   conference in any way? 
          6       A.   No, I did not. 
          7       Q.   Did she say to you at any time at that 
          8   lobby conference words to the effect of, "Judge, I 
          9   have more to say," "I'd like to say more," or "I 
         10   would like to put more time into this," or anything 
         11   of the like? 
         12       A.   No, she said nothing like that.
         13       Q.   Did she do anything to indicate to you that 
         14   she was lacking in judicial time to present her 
         15   case? 
         16       A.   No.
         17       Q.   Did she do anything by representation to 
         18   you that she was lacking in judicial demeanor to 
         19   present her case? 
         20       A.   No. 
         21       Q.   And did you in fact give her all the time 
         22   she needed?
         23       A.   I gave her all the time she needed.
         24       Q.   And, by the way, during the course of that 
 0103
          1   lobby conference did you also give the attorney for 
          2   the defendant, Anne Goldbach, time to speak?
          3       A.   Correct. 
          4       Q.   And did you, in the first instance -- did 
          5   she in the first instance -- strike "the first 
          6   instance."  Did she provide to you a psychosocial 
          7   report as it related to Ebony Horton? 
          8       A.   Yes, she did. 
          9       Q.   To step back a minute, you've been a judge 
         10   in the criminal courts for how many years?
         11       A.   Fourteen years about.
         12       Q.   And you have recognized in the past, have 
         13   you not, an interplay or byplay between mental 
         14   health issues and criminal law issues?
         15       A.   That's always there, yes. 
         16       Q.   And have you, on your own, and as a judge, 
         17   studied many of those issues in the past? 
         18       A.   I have.  Not on my own, but through 
         19   conferences, and in the course of cases I have 
         20   listened to experts on these issues.
         21       Q.   And have you also attended conferences with 
         22   your judicial colleagues with relation to mental 
         23   health issues and their impact vis-a-vis the 
         24   criminal law?
 0104
          1       A.   Many.
          2       Q.   And so -- and would it be fair to say that 
          3   those who know you in the criminal justice system, 
          4   lawyers, district attorneys, know of your 
          5   understanding in that regard and interest in that 
          6   regard? 
          7            MR. WARE:  Objection as to --
          8            HEARING OFFICER DAHER:  Again, that's a 
          9   stretch.  Sustained.
         10       Q.   Let me ask it more specifically.  In the 
         11   Calixte case that you had with Leora Joseph, do you 
         12   recall that? 
         13       A.   Yes.
         14       Q.   Was there a mental health issue involved in 
         15   that case? 
         16       A.   Yes.
         17       Q.   Was it one involving an undiagnosed 
         18   schizophrenic? 
         19       A.   Right.
         20       Q.   And during that case was there medical and 
         21   psychological evidence presented to you? 
         22       A.   There was a letter from the doctor that was 
         23   treating her.  At the time of the incident, the 
         24   crime, she was undiagnosed, and then she was 
 0105
          1   subsequently involuntarily committed, medicated, and 
          2   she was in treatment to recognize that she had this 
          3   mental illness; so the doctor that was treating her 
          4   sent me a letter. 
          5       Q.   And was that something that, during the 
          6   course of the Calixte sentencing and plea hearings 
          7   and the like, was discussed by you with Miss Joseph 
          8   as counsel?
          9       A.   Yes.
         10       Q.   And was it a matter where you expressed 
         11   your views to her in conference and otherwise that 
         12   these mental health issues had to be considered by 
         13   you in determining what an appropriate sentence may 
         14   be in that case? 
         15       A.   Absolutely. 
         16       Q.   So it was certainly known to Miss Joseph by 
         17   the time of the Horton case that you would consider 
         18   mental health issues in determining or fashioning an 
         19   appropriate sentence in a criminal case.
         20       A.   Right.  I think every judge has to.
         21       Q.   Forget what every judge has to for a 
         22   minute.  Stick with my question. 
         23       A.   All right.
         24       Q.   Was it known to her from those proceedings? 
 0106
          1       A.   Yes, it was. 
          2       Q.   Thank you.  Now, during the course of the 
          3   presentation by Ms. Goldbach, one of the things she 
          4   presented to you in conjunction with her 
          5   representation of Mr. Horton was a psychosocial 
          6   assessment and dispositional plan for Charles Ebony 
          7   Horton; is that correct? 
          8       A.   That's correct.
          9            MR. EGBERT:  May I approach? 
         10            HEARING OFFICER DAHER:  Please. 
         11            MR. WARE:  Your Honor, this is Exhibit 3. 
         12       BY MR. EGBERT:  
         13       Q.   I want to show you what's in Exhibit 3 in 
         14   this case, and ask you, first of all, can you 
         15   identify it?
         16       A.   Yes. 
         17       Q.   What is it? 
         18       A.   That's the psychosocial report that was 
         19   presented to me at the August 1st lobby conference. 
         20       Q.   Now, did you read this at the time? 
         21       A.   Yes, I did. 
         22       Q.   And when you -- give us the backdrop or the 
         23   setup of how this conference took place.  Was it at 
         24   a bench, such as Judge Daher is sitting at? 
 0107
          1       A.   Yes.  A bigger one, I must say, in the 
          2   First Session probably.  A bigger, wider one, longer 
          3   one.
          4       Q.   And where would this conference take place? 
          5       A.   It would take place at side bar. 
          6       Q.   And the lawyers would go over on the side 
          7   and you would confer with them for whatever period 
          8   of time was necessary for the conference?
          9       A.   Correct. 
         10       Q.   Now, were you handed this document, Exhibit 
         11   3, by Ms. Goldbach with Ms. Joseph standing there?
         12       A.   Yes, she was. 
         13       Q.   And did Ms. Joseph exhibit any surprise or 
         14   objection to you reading this document? 
         15       A.   No.
         16       Q.   Did she indicate to you in any way that she 
         17   hadn't seen the document? 
         18       A.   No, she did not.
         19       Q.   Did she ask you for a copy of the document? 
         20       A.   She did not.
         21       Q.   During the course of plea conferences that 
         22   you've held over the period of years, has it been 
         23   your custom to accept documents from people at the 
         24   conferences? 
 0108
          1       A.   Always. 
          2       Q.   And has it been your understanding and 
          3   practice that if a lawyer was lacking in a document, 
          4   they would ask you for a copy?
          5       A.   Yes. 
          6       Q.   Was there any -- did you have any reason to 
          7   believe whatsoever that Leora Joseph did not have a 
          8   copy of this psychosocial assessment? 
          9       A.   No.  I had no reason to believe that at 
         10   all.
         11       Q.   Was there any discussion about that at all? 
         12       A.   No. 
         13       Q.   And she was there with you when you were 
         14   reading it? 
         15       A.   Yes, she was.
         16       Q.   And she was there with you while you 
         17   discussed the contents of it with both her and Ms. 
         18   Goldbach, right? 
         19       A.   That's right. 
         20       Q.   Now, as an advocate for one side or the 
         21   other, and I'm not asking you to be, but in your 
         22   experience as a judge, when presented -- when a 
         23   judge is presented with something like this 
         24   psychosocial assessment, if the opposing side wished 
 0109
          1   to confront that issue, what generally would they 
          2   seek to do? 
          3       A.   They would inform the Court that they -- 
          4   either they would dispute or challenge this, or they 
          5   would request an opportunity to conduct their own 
          6   evaluation. 
          7       Q.   Did, during that conference, Leora Joseph 
          8   dispute the accuracy of the report? 
          9       A.   No, she did not.
         10       Q.   Did she dispute the validity of the report? 
         11       A.   No, she did not.
         12       Q.   Did she dispute the reliability of the 
         13   report?
         14       A.   No, she did not.
         15       Q.   Did she seek to have you continue the case 
         16   for any period of time so that she could conduct her 
         17   own investigation in this regard?
         18       A.   No, she did not. 
         19       Q.   Did she seek an order from the Court asking 
         20   you to order the defendant, Mr. Horton, to 
         21   participate in an independent evaluation at any 
         22   time?
         23       A.   No, she did not. 
         24       Q.   Did she do anything in regard to this 
 0110
          1   report? 
          2       A.   She did not. 
          3       Q.   So, is it fair to say that during the 
          4   course of this conference, based upon the conduct of 
          5   counsel, the statements of counsel, and the like, 
          6   that by the end of the conference you had an 
          7   undisputed, unrebutted psychosocial assessment and 
          8   dispositional plan for Charles Ebony Horton?
          9       A.   That's correct. 
         10       Q.   Now, there are a number of --
         11            MR. EGBERT:  May I approach the side bar 
         12   for a moment?  
         13            (At side bar)
         14            MR. EGBERT:  I'm looking for your guidance.  
         15   It's not my desire to put Ebony Horton's full 
         16   psychosocial records in the public domain, but I 
         17   think, unfortunately, based upon the manner this 
         18   case has gone in, it is important to get her 
         19   considerations and the conduct of the DA's office.
         20            HEARING OFFICER DAHER:  Do you have any --
         21            MR. WARE:  I'm prepared to work with any 
         22   code that protects Mr. --
         23            MR. EGBERT:  I think the press should be 
         24   excluded from these details.
 0111
          1            HEARING OFFICER DAHER:  Do you?
          2            MR. WARE:  I would not agree to have the 
          3   press excluded from this.  The Judge specifically 
          4   refers to -- the Judge in fact makes findings from 
          5   this. 
          6            MR. EGBERT:  The ultimate disease, but not 
          7   as to all the underlying characteristics.
          8            HEARING OFFICER DAHER:  Let me see if I can 
          9   understand.
         10            MR. EGBERT:  My request is that this part 
         11   of the examination of Judge Lopez be -- the press be 
         12   excluded.  
         13            CHECK MR. WARE:  No, Your Honor. 
         14            HEARING OFFICER DAHER:  Overruled. 
         15            MR. EGBERT:  I'm doing the best I can --
         16            HEARING OFFICER DAHER:  You have it on 
         17   record.  
         18            (End of side bar)
         19       BY MR. EGBERT: 
         20       Q.   And, Judge, I'm sorry and I indicate to you 
         21   that there is no order excluding the confidentiality 
         22   with regard to this document as of now.
         23       A.   As of now. 
         24       Q.   Right.  First of all, Judge, have you, in 
 0112
          1   the past, been involved in seminars and discussions 
          2   and your own private readings concerning the issue 
          3   of sexual identity disorder? 
          4       A.   Yes. 
          5       Q.   And do you know what it is, for lack of a 
          6   better word? 
          7       A.   Yes.  It's a gender identity disorder.  
          8   It's a psychological impairment where a person is 
          9   born of one sex, but feels that they are of another 
         10   sex.
         11       Q.   And do you know whether or not sexual 
         12   identity disorder is a disorder which is recognized 
         13   by the American Psychiatric Association? 
         14       A.   Yes, it is. 
         15       Q.   And do you know something referred to as 
         16   the "Diagnostic and Statistical Manual of Mental 
         17   Disorders"? 
         18       A.   Yes. 
         19            MR. EGBERT:  May I approach the witness? 
         20            HEARING OFFICER DAHER:  Please. 
         21            MR. EGBERT:  Let's hope, Judge, you have 
         22   this as M. 
         23       Q.   I'm providing to you Defendant's Exhibit M.
         24            MR. EGBERT:  Which I would offer at this 
 0113
          1   time, Judge. 
          2            MR. WARE:  No objection. 
          3            HEARING OFFICER DAHER:  Go ahead.  
          4                 (Document marked Exhibit M
          5                  received into evidence)
          6       Q.   This is -- well, tell me what this manual 
          7   is; what it means to you.
          8       A.   This is what is used by the medical 
          9   profession, psychiatric profession, to diagnose 
         10   mental illness, emotional illness.
         11       Q.   And is gender identity disorder recognized 
         12   as a mental disorder by the American Psychiatric 
         13   Association? 
         14       A.   Yes, it is. 
         15       Q.   With recognized characteristics?
         16       A.   Yes. 
         17       Q.   You can put that down for the moment. 
         18       A.   Okay.
         19       Q.   Now, you were provided Exhibit 3, which is 
         20   the psychosocial assessment for Mr. Horton, and you 
         21   learned a number of facts during the course of your 
         22   reading of this document; is that right?
         23       A.   Yes. 
         24       Q.   None of these facts that we're about to go 
 0114
          1   into were on the record anywhere in the proceedings 
          2   of Charles Ebony Horton; is that correct? 
          3       A.   Correct. 
          4       Q.   And they were not made a part of the 
          5   sentencing record, correct?
          6       A.   Correct. 
          7       Q.   And in fact, Ms. Goldbach, during the 
          8   sentencing, you recall asked that she not have to go 
          9   through these factors so it would not be made a 
         10   public record in that regard.
         11       A.   That's right.  She knew I was aware of 
         12   them.
         13       Q.   And with regard to this psychosocial 
         14   assessment, you ultimately provided a copy to the 
         15   probation department, did you not, that would 
         16   supervise Mr. Horton?
         17       A.   Right. 
         18       Q.   During the course of your review of this 
         19   document, you found out, No. 1, that Mr. Horton had 
         20   been treated with female hormones, correct?
         21       A.   Yes.
         22       Q.   And that she had not had a surgical 
         23   castration, correct?
         24       A.   Correct.
 0115
          1       Q.   And that she was struggling with a variety 
          2   of psychological and social issues around her sexual 
          3   identity.
          4       A.   Yes. 
          5       Q.   That, for the most part, her life had been 
          6   defined by gender issues?
          7       A.   Yes. 
          8       Q.   She recognized early on that she was 
          9   different? 
         10       A.   Yes. 
         11       Q.   And that Ebony and a cousin have the same 
         12   concerns and often dressed up in female clothes as 
         13   young children for which Ebony, at least, was 
         14   beaten.
         15       A.   Yes.
         16       Q.   What did you understand that to mean 
         17   historically?
         18       A.   That when she was in junior high and high 
         19   school she would dress as a female, and she would be 
         20   taunted at school. 
         21       Q.   When you say "taunted at school" --
         22       A.   Beaten.
         23       Q.   Does the report indicate she was beaten?
         24       A.   Yes, the report indicates she was beaten.
 0116
          1       Q.   Then the following sentence indicates that 
          2   she was taunted at schools at all levels.
          3       A.   Right.
          4       Q.   And dropped out in the 12th grade.
          5       A.   Right. 
          6       Q.   Did you also learn that her parents had 
          7   separated when she was young because her father had 
          8   had an affair with a younger woman? 
          9       A.   Yes. 
         10       Q.   And that since that time, Ebony's mother 
         11   refused to allow her children any contact with the 
         12   father; is that correct? 
         13       A.   Right. 
         14       Q.   And that there is some discussion of the 
         15   relationship with the father.
         16       A.   Yes. 
         17       Q.   And then during her childhood Ebony's 
         18   mother became a drug addict?
         19       A.   Right.
         20       Q.   And was both physically and verbally 
         21   abusive to Ebony Horton, correct? 
         22       A.   Correct. 
         23       Q.   You also learned that sometime in her 
         24   teenage life, I believe, that her father died of 
 0117
          1   sickle cell anemia, correct?
          2       A.   Yes.
          3       Q.   And she was around 12 at the time? 
          4       A.   Yes. 
          5       Q.   And then you learned something about the 
          6   progress that Ebony Horton had made over a period of 
          7   time, correct? 
          8       A.   Yes.
          9       Q.   And that her mother had made.
         10       A.   Yes. 
         11       Q.   And can you tell us a bit about that. 
         12       A.   Yes.  The report states that the mother has 
         13   been drug free for seven years --
         14            MR. WARE:  Objection.  The report is in 
         15   evidence.  I think the question is what the Judge 
         16   understood. 
         17            HEARING OFFICER DAHER:  Sustained.
         18       Q.   You can refer to the report for your 
         19   understanding. 
         20       A.   That the mother had rehabilitated herself, 
         21   that she was now drug free for a number of years, 
         22   that she was an active participant in a church. 
         23       Q.   And was there some discussion or learning 
         24   as to whether or not Ebony, after these events, had 
 0118
          1   turned to the church? 
          2       A.   Yes.
          3       Q.   When I say "after these events," I mean the 
          4   events for which he was arrested.
          5       A.   What was the last part of that question? 
          6       Q.   That Ebony Horton had turned to the church 
          7   sometime after the events which caused his arrest.
          8       A.   Yes. 
          9       Q.   And that -- can you tell us a bit about 
         10   what you learned there? 
         11       A.   That she became a member of the church, 
         12   that there was a minister that had taken an interest 
         13   in her, and that she was being accepted by that 
         14   congregation. 
         15       Q.   And did you also learn that she had been in 
         16   counseling at the Sidney Borum Health Center? 
         17       A.   Yes. 
         18       Q.   And that she wanted and expected to 
         19   continue on with counseling in some other facility, 
         20   correct? 
         21       A.   Correct. 
         22       Q.   And that -- did you also learn that she was 
         23   supposed to be on medication, but was frightened off 
         24   medication because of incidents that had occurred 
 0119
          1   with some of her friends? 
          2       A.   That's right. 
          3       Q.   Did you also then learn that Ebony had a 
          4   severe chronic depression along with suicidal 
          5   thoughts that surfaced when she is under severe 
          6   pressure? 
          7       A.   That's correct. 
          8       Q.   And would you switch to the page that deals 
          9   with clinical impressions.  "Ebony is a 
         10   transgendered individual with all of the problems 
         11   that produces, especially for a young person.  She 
         12   has been struggling with gender issues for years.  
         13   She is socially and emotionally immature and needs 
         14   to work on maturational issues.  Her life is 
         15   difficult.  Her mother is supportive, but less 
         16   accepting than her older sister.  The Fenway 
         17   Community Health Center is the best place for her to 
         18   receive counseling at the time.  She is also being 
         19   treated with hormone therapy, and needs to continue 
         20   with the medication," correct?
         21       A.   I learned that, yes. 
         22       Q.   Now, would you read the next line?
         23       A.   "I find it highly unlikely that Ebony will 
         24   repeat the behavior that brought her to court in 
 0120
          1   this case.  Jail has been a chilling experience for 
          2   her." 
          3       Q.   So she had been jailed for a period of time 
          4   until she was bailed? 
          5       A.   Awaiting -- yes, she was on bail.
          6       Q.   And, by the way, are you the judge that 
          7   released her on bail? 
          8       A.   No.
          9       Q.   Now, read on, if you would. 
         10       A.   "Further incarceration will be a disaster 
         11   for Ebony, and place her at considerable risk.  I do 
         12   not believe that Ebony would survive the prison 
         13   system.  She is who she is not by choice, but by 
         14   birth." 
         15       Q.   Did anyone from the district attorney's 
         16   office at any time, from the beginning of the case 
         17   of Ebony Horton to the end of the case of Ebony 
         18   Horton, supply you with a singular piece of 
         19   information to refute what is in this report? 
         20       A.   No. 
         21       Q.   Did they ever attempt to?
         22       A.   No. 
         23       Q.   This report goes on to recommend that 
         24   Charles Ebony Horton be allowed to go home, 
 0121
          1   continuing therapy, and have certain conditions; is 
          2   that correct?
          3       A.   Correct. 
          4       Q.   In your course of duties as a Superior 
          5   Court judge, do you consider reports like this? 
          6       A.   Always.
          7       Q.   And do you permit --
          8       A.   When they're made available to me. 
          9       Q.   And do you permit counsel from both sides 
         10   to refute or rebut matters in those reports? 
         11       A.   Absolutely. 
         12       Q.   Did you do anything to dissuade the 
         13   district attorney's office in this case, the Ebony 
         14   Horton case, from doing that? 
         15       A.   No.
         16       Q.   Did they ever take any such action? 
         17       A.   They never did.
         18       Q.   Now, also during the course of your plea 
         19   conference on Ebony Horton on August 1st of the year 
         20   2000, there were some discussions of some disputed 
         21   facts, were there not? 
         22       A.   Yes. 
         23       Q.   That's not unusual, is it? 
         24       A.   Happens all the time. 
 0122
          1       Q.   When you get these disputed facts in a plea 
          2   conference, what do you do with them?
          3       A.   I just register them as disputes.  What it 
          4   indicates to me is that certainly the cases are not 
          5   going to come in as has been represented.  I mean, 
          6   there's a question as to that. 
          7       Q.   So is it fair to say that as a judge, you 
          8   have used your experience to determine that 
          9   sometimes there is always a third story besides the 
         10   one on the left and the one on the right? 
         11       A.   That's right.
         12       Q.   And do you take those disputed facts and 
         13   add them into the mix of your sentencing calculation 
         14   if in fact you have an impression as to those and 
         15   feel them relevant?
         16       A.   Correct. 
         17       Q.   One of those disputed facts that was 
         18   disputed in this case was whether or not -- at least 
         19   it became a discussion between Ms. Joseph and Ms. 
         20   Goldbach -- was whether or not Ebony Horton was 
         21   crying when the police came. 
         22       A.   Not Ebony Horton.  The victim.
         23       Q.   I'm sorry.  The victim was crying when the 
         24   police came.
 0123
          1       A.   There was a dispute as to whether or not 
          2   the victim was crying.
          3       Q.   And the Commonwealth was telling you that 
          4   the victim was crying, and you should -- and you 
          5   should consider that and use that in part of your 
          6   mix at sentencing, correct?
          7       A.   Yes.
          8       Q.   And Ms. Goldbach was telling you that no; 
          9   she had other information that in fact that wasn't 
         10   the case, and you should use that in your mix.
         11       A.   Right.
         12       Q.   None of it determinative of what you would 
         13   do, correct? 
         14       A.   Correct.
         15       Q.   But in the mix.
         16       A.   In the mix.
         17       Q.   And didn't Ms. Goldbach tell you that there 
         18   was a tape in which the victim himself said he 
         19   wasn't crying when the police came? 
         20       A.   She told me that the tape of the victim 
         21   stated that he wasn't crying in that tape. 
         22       Q.   And you were asked by Mr. Ware whether or 
         23   not you asked to see the tape.  Do you remember 
         24   that? 
 0124
          1       A.   Yes. 
          2       Q.   Is that your job? 
          3       A.   No.  That's never done.  I have never heard 
          4   of a judge in a lobby conference requesting to see 
          5   the tape.
          6       Q.   Whose job is it -- let's take a 
          7   hypothetical -- let's take this case.  Here you have 
          8   Anne Goldbach telling you.  She is a lawyer that has 
          9   been practicing in the criminal courts for how many 
         10   years as far as you know?
         11       A.   I think over 20.
         12       Q.   Do you respect her? 
         13       A.   Yes.
         14       Q.   And has she ever lied to you that you know 
         15   of?
         16       A.   Not that I know of. 
         17       Q.   In any event, she says to you at a 
         18   conference, they have a tape, and I have it, and 
         19   this is what the victim says on it.  He says he was 
         20   not crying when the police came.  What would -- 
         21   what's the prosecutor supposed to do if Ms. Goldbach 
         22   is not representing the facts to you properly?
         23       A.   The prosecutor would then say, Judge, I 
         24   want you to see the tape.  That representation was 
 0125
          1   inaccurate.
          2       Q.   Was that said to you? 
          3       A.   No.
          4       Q.   Was that requested of you?
          5       A.   No. 
          6       Q.   Also during the course of this whole event 
          7   of these -- leading up to the sentencing of Ebony 
          8   Horton, there was this issue of the victim having 
          9   been required or caused to put his mouth on a 
         10   screwdriver.
         11       A.   Correct.
         12       Q.   That was an allegation, correct?
         13       A.   Yes.
         14       Q.   An allegation by the Commonwealth, correct?
         15       A.   Yes.
         16       Q.   And you knew from what Ms. Goldbach said to 
         17   you at the conference that in fact there had been 
         18   testing done on the screwdriver, correct?
         19       A.   Yes. 
         20       Q.   And that the Commonwealth had failed to 
         21   provide the results of that testing to the 
         22   defendant.
         23       A.   Correct.  I did not know -- she did not 
         24   know the results of that test.
 0126
          1       Q.   And she was concerned about that as far as 
          2   exculpatory evidence, correct? 
          3       A.   Yes.
          4       Q.   Do you now know what the results of that 
          5   test were?
          6       A.   Yes.  It came back negative.
          7       Q.   It came back negative of any evidence of 
          8   DNA or the like on that screwdriver where it was 
          9   alleged to have been sucked on, right? 
         10       A.   Correct. 
         11       Q.   Now, also during the course of that 
         12   conference the prosecutor was telling you, were they 
         13   not, that this victim got into the car, Ebony 
         14   Horton, voluntarily under some ruse, correct?
         15       A.   Right.
         16       Q.   Didn't Ms. Goldbach tell you at that time 
         17   that on the very tape that we've just discussed that 
         18   in fact that's not at all what the victim was saying 
         19   happened?  He said he was pulled by the arm through 
         20   a window of the car? 
         21       A.   Yes.  I believe she had a different version 
         22   of how the kid got into the car, and it involved 
         23   some pulling into it, yes.
         24       Q.   And that that was actually on the tape of 
 0127
          1   the victim?
          2       A.   That's correct. 
          3       Q.   Now, when addressed with that, did the 
          4   prosecutor stand up and say to you, that's not true; 
          5   that's not on the tape? 
          6       A.   No.
          7       Q.   Did they ask you to look at the tape?
          8       A.   No.
          9       Q.   Did they present you with the tape? 
         10       A.   No.
         11       Q.   Did they do anything to dissuade you from 
         12   the information being provided to you by the 
         13   defense? 
         14       A.   They rebutted none of that information, or 
         15   attempted to.
         16       Q.   Had they asked you to do so, would you have 
         17   done so?
         18       A.   Probably, because those are critical 
         19   issues.  I probably would have looked at it, 
         20   although it's not my practice to. 
         21       Q.   And with regard to -- well, certainly you 
         22   would have let them talk to you about it, wouldn't 
         23   you?
         24       A.   Yes.
 0128
          1       Q.   And if there was a substantial issue as to 
          2   what the tape said, would you have looked at the 
          3   tape at their request? 
          4       A.   Yes.  If it was --
          5       Q.   If it was relevant.
          6       A.   Yes, if it was relevant to this lobby 
          7   conference. 
          8       Q.   Now, all of these discussions were being 
          9   held for the purpose of asking you, based on 
         10   everything that these two sides were feeding you --
         11       A.   Yes. 
         12       Q.   -- what it is you thought would be an 
         13   appropriate sentence if Mr. Horton pled guilty, 
         14   correct? 
         15       A.   That's correct.
         16       Q.   The defense still maintained that there 
         17   were a number of these crimes that he wasn't guilty 
         18   of, right?
         19       A.   Yes.
         20       Q.   It was a settlement conference, wasn't it? 
         21       A.   Right.  It was an effort to plead the case. 
         22       Q.   And that goes on in the First Session of 
         23   each county in this state every day, correct? 
         24       A.   Yes. 
 0129
          1       Q.   Was there anything that occurred on August 
          2   1st of the year 2000 with regard to leading up to 
          3   your determination of an appropriate sentence for 
          4   which Leora Joseph ever made an objection?
          5       A.   I think she was unhappy with my sentence, I 
          6   mean, but she didn't object to anything else. 
          7       Q.   I said leading up to the time you made your 
          8   sentence.
          9       A.   Oh.
         10       Q.   So let me make it clear.  Did she object to 
         11   the way you conducted the proceeding?
         12       A.   No.
         13       Q.   Did she object to the information you were 
         14   provided?
         15       A.   No.
         16       Q.   Did she object to the time she had to 
         17   speak? 
         18       A.   No.
         19       Q.   Did she object to anything about the 
         20   process?
         21       A.   Nothing about the process, no. 
         22       Q.   And then you announced your sentence, 
         23   right? 
         24       A.   Yes. 
 0130
          1       Q.   And did anybody tell you you hadn't taken 
          2   enough time?
          3       A.   No.
          4       Q.   Did anybody tell you you hadn't thought 
          5   about enough things?
          6       A.   No.
          7       Q.   Did anybody tell you they needed more time 
          8   to present evidence? 
          9       A.   No, they didn't.
         10       Q.   And as of August 1st of the year 2000, when 
         11   you announced your sentence, what you said, and 
         12   meant to say, was if Ebony Horton pleads guilty, he 
         13   can count on the fact that this is the sentence I 
         14   will deliver, correct? 
         15       A.   Yes. 
         16       Q.   And you meant that for them to rely on it, 
         17   correct? 
         18       A.   Right. 
         19       Q.   When Ms. Joseph, just before they left the 
         20   bench or the like, did she evidence to you her 
         21   displeasure with your sentence?
         22       A.   Yes. 
         23       Q.   What did she say? 
         24       A.   She made some mention that, you know, that 
 0131
          1   she -- she didn't agree with the sentence.  She made 
          2   some face about it, and --
          3       Q.   Did she tell you she thought it was 
          4   outrageous?
          5       A.   Yes.  She emoted about it.  She emoted.  
          6   She thought it was out of line.  I don't remember 
          7   exactly the words she used.
          8       Q.   But she certainly registered her 
          9   displeasure.
         10       A.   Correct. 
         11       Q.   But other than registering her displeasure, 
         12   did she present you with any further evidence, facts 
         13   or seek to do so in order to dissuade you from 
         14   making that sentence? 
         15       A.   No. 
         16       Q.   Now comes -- I take it the case was 
         17   continued to August 4th for a possible plea. 
         18       A.   Right. 
         19       Q.   At the end of the day, on August 1st when 
         20   you left court, did you know whether or not there 
         21   would be a plea on August 4th? 
         22       A.   No.
         23       Q.   Why not? 
         24       A.   Because I believe Anne Goldbach said she 
 0132
          1   would go back and talk to her client about it.
          2       Q.   The client wasn't in court that day; is 
          3   that right?
          4       A.   No; the client was in court on August 1st.
          5       Q.   And it wasn't resolved on that date? 
          6       A.   No, it was not resolved on that date.
          7       Q.   That was because Ms. Goldbach said she had 
          8   to go and take time and speak with the client.
          9       A.   That's right.
         10       Q.   And determine whether our not the client 
         11   wanted to waive the many rights that he had with 
         12   regard to a trial, correct? 
         13       A.   Correct. 
         14       Q.   And accept basically the disposition which 
         15   you were offering.
         16       A.   Correct. 
         17       Q.   When you walked into court on the morning 
         18   of August 4th of the year 2000, did you know whether 
         19   or not there would be a plea in the Ebony Horton 
         20   case? 
         21       A.   No.
         22       Q.   Did you have in your mind, as you woke up 
         23   on the morning of August 4th, that today is the day 
         24   Ebony Horton will be before you? 
 0133
          1       A.   No.  It was not in my mind at all. 
          2       Q.   Did you have any concerns or interest in it 
          3   at all as you went to court that day? 
          4       A.   No.  We handle many cases in the First 
          5   Session.  You engage these lawyers in the lobby 
          6   conferences, and, you know, even if you give them a 
          7   date for a return, it doesn't mean they're going to 
          8   come back on that date.  It could be continued by 
          9   agreement.  There could be a million things.
         10       Q.   And you don't monitor that.
         11       A.   No.
         12       Q.   Did you take any special interest in the 
         13   Horton case? 
         14       A.   No.
         15       Q.   Did you monitor it? 
         16       A.   No.
         17       Q.   Did you ask for reports on it or event 
         18   reports on it? 
         19       A.   No. 
         20       Q.   When you came into court on August 4th, 
         21   what did you find? 
         22       A.   I found that there was an unusual number of 
         23   people milling around the hallway right before the 
         24   First Session.  I then proceeded to the lobby -- 
 0134
          1   actually, my court officer, I think, came and got 
          2   me, escorted me through the corridor.  And when I 
          3   got into my lobby, I -- I think it was the clerk --  
          4   it could have been the court officer -- told me 
          5   about the cameras in the courtroom, and that there 
          6   appear to be some emotional issues involving Anne 
          7   Goldbach. 
          8       Q.   Let me stop you and put that in two parts.  
          9   You were told that there were cameras in the 
         10   courtroom.
         11       A.   Right. 
         12       Q.   You've had cameras in your courtrooms 
         13   before, haven't you?
         14       A.   Many times.
         15       Q.   And what's the regular -- strike that.  
         16   What's the Supreme Judicial Court dictated procedure 
         17   for cameras in the courtroom? 
         18       A.   They have to request permission from the 
         19   judge to put cameras in the courtroom. 
         20       Q.   And was that -- did anyone request 
         21   permission from you before setting up in the 
         22   courtroom?
         23       A.   No. 
         24       Q.   So did you ask them to leave? 
 0135
          1       A.   I didn't ask them to leave, no.
          2       Q.   Did you throw them out? 
          3       A.   No.
          4       Q.   Now, you also said there was a second part 
          5   of this statement, and that is that there was 
          6   some -- what did you say -- emotional issues as 
          7   regards to Anne Goldbach? 
          8       A.   Yes.  I was told that Anne Goldbach was 
          9   very distraught, was crying, and wanted to see me. 
         10       Q.   Now, is it unusual for your court officers 
         11   or clerks to come to you and tell you there are 
         12   lawyers who want to see you on a particular case?
         13       A.   No.  It happens all the time.
         14       Q.   And did you in fact permit Ms. Goldbach to 
         15   come in to see you? 
         16       A.   With Ms. Joseph. 
         17       Q.   And -- we're going to get to that.  So a 
         18   conference was had where in the courthouse?
         19       A.   It was in the lobby, in the chambers.
         20       Q.   So this is not by the side bar that we 
         21   talked about earlier, but actually the judge's 
         22   chambers which are off the court; is that correct? 
         23       A.   Correct. 
         24       Q.   And what -- if you would, to the best of 
 0136
          1   your memory -- well, first tell me, what were the 
          2   demeanor of the parties?  When I say "the parties," 
          3   I mean Ms. Joseph --
          4       A.   The lawyers.
          5       Q.   -- and Ms. Goldbach. 
          6       A.   Well, Ms. Goldbach was very distraught.  
          7   She had tears in her eyes.  She said something like, 
          8   "Never in my 20 years as a lawyer has something like 
          9   this happened to me," and she was very upset.  Ms. 
         10   Joseph sat there -- they were both sitting, and I 
         11   was behind the desk -- with her arms crossed and 
         12   looking indifferent, in my opinion, about the whole 
         13   thing.
         14       Q.   And, by the way, have you ever seen Ms. 
         15   Goldbach cry in your courtroom?
         16       A.   No.
         17       Q.   Was that an unusual --
         18       A.   It is very rare for a lawyer to start 
         19   crying. 
         20       Q.   And so this was a rather unusual event for 
         21   you, I take it.
         22       A.   Right.
         23       Q.   And what did Ms. Goldbach ultimately tell 
         24   you she was so upset about? 
 0137
          1       A.   What she told me was that when her client 
          2   and her mother were getting off the elevator, there 
          3   were cameras waiting for them, that there was an 
          4   altercation between, I think, the defendant's mother 
          5   and the camera person and the press that was waiting 
          6   for her, that they got very upset.  They refused to 
          7   get off the elevator. 
          8       Q.   They?
          9       A.   The defendant and her mother refused to get 
         10   off the elevator; that they were brought then by 
         11   Anne Goldbach to another room in the courthouse, and 
         12   that the defendant and her mother were very, very 
         13   mad at Anne Goldbach, because they believed that 
         14   Anne was responsible for this and that they were 
         15   distraught and crying and didn't want to come into 
         16   the courtroom with the cameras.
         17       Q.   Let's stop there for a moment.  When you 
         18   say -- this was the day for a possible plea, 
         19   correct? 
         20       A.   Correct. 
         21       Q.   Now, a plea can only be done if the 
         22   defendant agrees to it, correct? 
         23       A.   Right. 
         24       Q.   No one can force a plea on a defendant.
 0138
          1       A.   They have to agree to plea, yes.  There 
          2   could be agreed pleas, unagreed pleas. 
          3       Q.   I understand that, but don't get too 
          4   technical on me for a minute.  A defendant cannot be 
          5   forced to plead guilty in a case, correct?
          6       A.   No.  They have a constitutional right to 
          7   have a jury trial.
          8       Q.   And so -- and the plea of guilty to be 
          9   accepted by you has to be done knowingly, 
         10   voluntarily --
         11       A.   And intelligently.
         12       Q.   -- and intelligently, correct?
         13       A.   That's correct.
         14       Q.   And generally do you accept pleas with 
         15   people who are hysterical, crying, won't come in the 
         16   room and the like?
         17       A.   No. 
         18       Q.   And was there a further consideration to 
         19   you in this case of the fact that the defendant was 
         20   suffering from a mental illness? 
         21       A.   That was a big consideration for me. 
         22       Q.   And why is that? 
         23       A.   Because I understood the defendant to be 
         24   very fragile, and that if she was in that state, I 
 0139
          1   would not be able to complete the plea.  I would not 
          2   get that done that day. 
          3       Q.   And so at least as to the anticipated 
          4   events of the day -- and that was a possible plea -- 
          5   it was at least suspect to you that that could take 
          6   place because of the incidents that had taken place; 
          7   is that right?
          8       A.   It was a concern not only for the 
          9   defendant's emotional state, but also Ms. Goldbach's 
         10   emotional state.  It was quite an emotional 
         11   situation. 
         12       Q.   And did you find out from Anne Goldbach 
         13   what else she was upset about with regard to the 
         14   nature of the press?
         15       A.   Yes.  She said that the DA's office had 
         16   issued some press release about this plea. 
         17       Q.   You've testified earlier the DAs have all 
         18   the right in the world to issue press releases, 
         19   right?
         20       A.   Absolutely.
         21       Q.   But they're also limited by certain rules, 
         22   are they not?
         23       A.   That's correct. 
         24       Q.   While Ms. DeJuneas finds that for me, are 
 0140
          1   you generally familiar with the canons of ethics for 
          2   lawyers? 
          3       A.   Yes, I am.
          4       Q.   And are you familiar with -- are there 
          5   special rules for prosecutors in criminal cases?
          6       A.   There are.
          7       Q.   And do those special rules affect a 
          8   prosecutor's ability to provide information to the 
          9   press during a pending criminal case? 
         10       A.   Yes, there are such rules. 
         11       Q.   Now, let's talk about that for a minute.  
         12   For example, is it generally appropriate, in your 
         13   mind, for the prosecutor to announce the possibility 
         14   of a plea or the potential for a plea in a criminal 
         15   case? 
         16       A.   They generally don't announce the 
         17   possibility of pleas.  They would announce that a 
         18   plea would take place, but the possibility is not 
         19   something that I have seen them do. 
         20       Q.   And there's a reason for that, isn't there? 
         21       A.   Correct. 
         22       Q.   What's the reason? 
         23       A.   Because it may not happen. 
         24       Q.   And is it -- and one of the reasons that we 
 0141
          1   regulate the way lawyers and prosecutors talk to the 
          2   press is so that criminal trials will not be 
          3   affected by public information being disseminated; 
          4   isn't that correct?
          5       A.   That's right.
          6       Q.   And so if one is to put out to the world in 
          7   press releases that Ebony Horton is going to plead 
          8   guilty in a criminal case, and Ebony Horton doesn't 
          9   plead guilty in a criminal case, does that have a 
         10   potential to impact the jury pool?
         11       A.   Yes, it could taint the jury if there was 
         12   some information, public information, that this 
         13   person was willing to plead guilty.
         14       Q.   Which would be inappropriate for any jury 
         15   to know; is that correct? 
         16       A.   That's correct.
         17       Q.   And so is that one of the parts of this 
         18   element or events that concerned you? 
         19       A.   Yes. 
         20       Q.   And then also did you learn from Ms. 
         21   Goldbach that the press release was provocative? 
         22       A.   I don't know if she used that in the lobby.  
         23   I saw the press release after that initial lobby 
         24   situation.
 0142
          1       Q.   And --
          2       A.   But I know she was upset about the press 
          3   release. 
          4       Q.   Let's go back to the lobby still.  And Ms. 
          5   Goldbach -- did she say something to Ms. Joseph 
          6   concerning the press release? 
          7       A.   I think she blamed the district attorney's 
          8   office and Ms. Goldbach -- I'm sorry -- and Ms. 
          9   Joseph for the press release. 
         10       Q.   And what did -- did Ms. Joseph respond in 
         11   any way to that? 
         12       A.   Well, she -- actually, she said nothing to 
         13   Anne Goldbach when Anne Goldbach said that. 
         14       Q.   And do you recall her commenting -- do you 
         15   recall Ms. Joseph commenting that she was shocked 
         16   that there were cameras in the courtroom for her 
         17   case? 
         18       A.   I believe maybe Anne Goldbach made that 
         19   representation as to a conversation they may have 
         20   had before the lobby conference.
         21       Q.   So --
         22       A.   The cameras.  Yes.
         23       Q.   Do you want to think about that for a 
         24   minute?
 0143
          1       A.   Yes, I recall that.  I don't know --
          2       Q.   Well, let me ask it another way.
          3            HEARING OFFICER DAHER:  Are you objecting, 
          4   Mr. Ware? 
          5            MR. WARE:  I object if it is conversation 
          6   between two people, neither of which is the Judge.
          7            MR. EGBERT:  It's the information that the 
          8   Judge is getting --
          9            HEARING OFFICER DAHER:  Sustained.  Let's 
         10   go.  
         11            MR. EGBERT:  I'm sorry?
         12            HEARING OFFICER DAHER:  I just sustained 
         13   his objection. 
         14       Q.   Judge, did someone report to you in the 
         15   lobby what Ms. Joseph's response was to an 
         16   accusation that she was involved in calling the 
         17   press? 
         18       A.   Yes. 
         19       Q.   And what information did you receive? 
         20            MR. WARE:  Objection.  That's by definition 
         21   hearsay.
         22            MR. EGBERT:  Your Honor, it's to provide 
         23   the information received by this judge upon which 
         24   she acted.  
 0144
          1            MR. WARE:  I don't have an objection to 
          2   what the Judge's understanding was of what was going 
          3   on.
          4            HEARING OFFICER DAHER:  Sustained. 
          5            MR. EGBERT:  Her understanding, Your Honor, 
          6   comes from what she heard.
          7            HEARING OFFICER DAHER:  Why don't you go 
          8   ahead and rephrase the question.
          9            MR. EGBERT:  So long as no one is going to 
         10   argue later on that she didn't have a factual basis. 
         11       Q.   What was your understanding of what had 
         12   occurred out in the hallway with Ms. Goldbach and 
         13   Ms. Joseph?
         14       A.   My understanding was that Ms. Joseph had 
         15   indicated that she had no idea what -- she had no 
         16   idea what the cameras would be there for.  She was 
         17   shocked --
         18            MR. WARE:  I object now, Your Honor.  This 
         19   is just a repetition of a conversation at which the 
         20   Judge is not present, and she is now purporting to 
         21   relate the conversation.  Ms. Joseph is going to be 
         22   here as a witness.  Ms. Goldbach is on the witness 
         23   list for both sides.  I think this is pretty 
         24   unreliable.
 0145
          1            HEARING OFFICER DAHER:  Go ahead.
          2            MR. EGBERT:  Judge, she had -- she has been 
          3   quizzed by Mr. Ware over and over concerning the 
          4   findings she made that day on the continuance, and 
          5   information which she had and had been given to her 
          6   and went into her considerations of the findings 
          7   that were made are clearly relevant in this case.
          8            MR. WARE:  Well, I think Ms. Goldbach can 
          9   be asked by Mr. Egbert what she told the Judge.
         10            MR. EGBERT:  No.  The Judge is going to be 
         11   asked what she knew and what she learned when she 
         12   made her findings.
         13            MR. WARE:  That's a different question, and 
         14   I don't object to that question. 
         15            HEARING OFFICER DAHER:  Mr. Egbert, aren't 
         16   they going to be here to testify?
         17            MR. EGBERT:  Judge, Judge Lopez was 
         18   continually quizzed by Mr. Ware --
         19            HEARING OFFICER DAHER:  Right.
         20            MR. EGBERT:  -- concerning what information 
         21   made up her findings.  Well, he left out a few 
         22   things, and I'm going to put in all the information 
         23   she had in front of her that day which led up to her 
         24   making findings. 
 0146
          1            HEARING OFFICER DAHER:  All right.  Over -- 
          2   go ahead, Mr. Ware.
          3            MR. WARE:  Then ask her what the 
          4   information was she had.  I don't object to that.
          5            HEARING OFFICER DAHER:  I think he's 
          6   getting to it.  Overruled.  Go ahead.  You can have 
          7   it.
          8       Q.   What information did you have with regard 
          9   to the Joseph/Goldbach conversation vis-a-vis the 
         10   press?
         11       A.   The information I had was that Ms. Joseph 
         12   was shocked by the presence of the cameras there.  
         13   She had no idea what they might be there for.
         14       Q.   Did you have a conversation with Ms. Joseph 
         15   in the lobby concerning the press?
         16       A.   Yes, I did.
         17       Q.   To the best of your memory, tell us the 
         18   substance of what was said. 
         19       A.   Well, after Anne Goldbach told me about the 
         20   press release, and, you know, I asked Ms. Joseph if 
         21   she had anything to do with it.
         22       Q.   What did she tell you?
         23       A.   She said, "I had nothing to do with it.  I 
         24   can't control what my office does." 
 0147
          1       Q.   Now, when she said that -- first of all, 
          2   what was her demeanor when she said that to you?
          3       A.   Insolent.
          4            MR. WARE:  Objection.  I move that that be 
          5   struck.  The Judge can testify not to conclusions, 
          6   but observations.
          7            HEARING OFFICER DAHER:  That was a 
          8   conclusion.  Sustained.
          9       Q.   What was her tone of voice?
         10       A.   What was her tone of voice.  Sort of fresh, 
         11   angry.
         12       Q.   When you heard those words that she had 
         13   nothing to do with it, did you believe that she was 
         14   being candid with you? 
         15       A.   No, not at all. 
         16       Q.   Now, first of all, we talked a minute ago 
         17   about a lawyer's responsibilities as it relates to 
         18   the press.  Do you recall that? 
         19       A.   Yes. 
         20       Q.   And I want to put before you -- I'm sorry; 
         21   I pulled out the wrong package.  Here it is.  Rule 
         22   3.8 of the rules of conduct for Massachusetts 
         23   lawyers.  Are you familiar with that?
         24       A.   Yes. 
 0148
          1            (Document handed to the 
          2            witness by Mr. Egbert)
          3            MR. EGBERT:  Your Honor, I have one for the 
          4   Court.  I would ask the Court to take judicial 
          5   notice of the rules of the court. 
          6            HEARING OFFICER DAHER:  Mr. Ware, any 
          7   objection? 
          8            MR. WARE:  No, Your Honor. 
          9            HEARING OFFICER DAHER:  Fine, then.
         10            MR. WARE:  I might note it is on Page 345 
         11   of the rulebook, if the Court has that.
         12            HEARING OFFICER DAHER:  Okay.  I've got it.
         13       BY MR. EGBERT: 
         14       Q.   Judge, would you look at Rule 3.8(G), and 
         15   let me read it to you for a moment.  "The prosecutor 
         16   in a criminal case shall, except for statements that 
         17   are necessary to inform the public of the nature and 
         18   extent of the prosecutor's action and that serve a 
         19   legitimate law enforcement purpose, refrain from 
         20   making extrajudicial comments that have a 
         21   substantial likelihood of heightening public 
         22   condemnation of the accused."  Do you see that?
         23       A.   Yes. 
         24       Q.   In your judgment, does putting out a press 
 0149
          1   release saying that Ebony Horton --
          2            HEARING OFFICER DAHER:  What's the 
          3   objection? 
          4            MR. WARE:  This is now asking for an expert 
          5   opinion.  There is no evidence in this case that 
          6   Judge Lopez is an expert with respect to Rule 3.8 or 
          7   the ethical responsibilities of the prosecutor. 
          8            MR. EGBERT:  She was an expert judge for 
          9   them and she's an expert lawyer and judge for me. 
         10            HEARING OFFICER DAHER:  Well, not --
         11            MR. EGBERT:  They asked her specifically --
         12            HEARING OFFICER DAHER:  But not in re the 
         13   conduct of attorneys.  She's an expert -- not in 
         14   that field.
         15       Q.   Judge, you've been a lawyer for how many 
         16   years?
         17            HEARING OFFICER DAHER:  I still don't think 
         18   she's an expert on that.  There's experts on the 
         19   canons of judicial conduct or experts in the 
         20   behavior and demeanor of attorneys.  I'm going to 
         21   sustain the objection.
         22            MR. EGBERT:  Judge, let me just be heard 
         23   for a moment.
         24            HEARING OFFICER DAHER:  Go ahead.  I'd love 
 0150
          1   it.
          2            MR. EGBERT:  You permitted her to be 
          3   questioned about her opinion of the meaning of the 
          4   judicial ethics on the grounds that she is a judge 
          5   and she knows the ethics.  Well, she's a lawyer and 
          6   knows the ethics as a lawyer, too.  There is no 
          7   difference. 
          8            HEARING OFFICER DAHER:  Sustained. 
          9       Q.   Did you have in mind these canons of ethics 
         10   when you were talking to Leora Joseph? 
         11       A.   Yes, I did, because judges have a 
         12   responsibility and an obligation to make sure that 
         13   attorneys' conduct conforms to the rules of ethics. 
         14       Q.   Now, also with regard to this matter, I 
         15   want to show you Rule 3.6 of the canons of ethics.
         16            HEARING OFFICER DAHER:  Let me take a look 
         17   at it first. 
         18       A.   (Reviewing document)
         19       Q.   Does 3.6 generally relate to trial 
         20   publicity and the obligations of lawyers? 
         21       A.   Yes, it does.
         22       Q.   And does it indicate what, in a criminal 
         23   case, is appropriate to be released for information? 
         24       A.   Yes, it does. 
 0151
          1       Q.   And what is it -- let's take a look at it 
          2   for a moment.  "A lawyer who is participating and 
          3   has participated in the investigation or litigation 
          4   of a matter shall not make an extrajudicial 
          5   statement" -- right? 
          6       A.   Yes.
          7       Q.   -- "that a reasonable person would expect 
          8   to be disseminated by means of public communication 
          9   if the lawyer knows or reasonably should know that 
         10   it will have a substantial likelihood of materially 
         11   prejudicing an adjudicative proceeding in the 
         12   matter," correct?
         13       A.   Correct.
         14       Q.   And then it goes on to say, "A lawyer may 
         15   state, in a criminal case," and it lists a number of 
         16   items; is that correct? 
         17       A.   Yes.
         18       Q.   Would you read those items.
         19       A.   Do you want me to read them? 
         20       Q.   Yes.
         21       A.   One is, "The claimed offense or defense 
         22   involved, and, except when prohibited by law, the 
         23   identity of the persons involved."  No. 2 is, "the 
         24   information contained in a public record"; 3, "that 
 0152
          1   investigation of the matter is in progress"; 4, "the 
          2   scheduling or result of any step in litigation"; 5, 
          3   "a request for assistance in obtaining evidence and 
          4   information necessary thereto"; 6, "a warning of 
          5   danger concerning the behavior of the person 
          6   involved when there is reason to believe that there 
          7   exists the likelihood of substantial harm to an 
          8   individual or to the public interest"; and, 7, "in a 
          9   criminal case, in addition to 1 through 6" --
         10       Q.   Let me stop you.  Okay.  Now you get in a 
         11   criminal case certain specifics, correct?
         12       A.   Yes. 
         13       Q.   And would you just quickly read those.
         14       A.   It says, "In a criminal case, the identity, 
         15   residence, occupation and family status of the 
         16   accused; if the accused has not been apprehended, 
         17   information necessary to aid in the apprehension of 
         18   that person; the fact, time, and place of arrest; 
         19   the identity of investigating and arresting officers 
         20   or agencies; and the length of the investigation."
         21       Q.   Is there anything in that listing which you 
         22   have seen which permits the dissemination of a 
         23   mental disorder of a defendant appearing before the 
         24   Court which is not a matter of public record?  
 0153
          1            MR. WARE:  Objection. 
          2            HEARING OFFICER DAHER:  What is the 
          3   objection? 
          4            MR. WARE:  First of all, this is just 
          5   argument.  Secondly -- and the Court has already 
          6   said that you're going to take judicial notice --
          7            HEARING OFFICER DAHER:  I have.
          8            MR. WARE:  It is matter of law for you to 
          9   interpret.  Secondly, the Judge is no more an expert 
         10   in the prosecution's obligation now than she was ten 
         11   minutes ago. 
         12            HEARING OFFICER DAHER:  Mr. Egbert.
         13            MR. EGBERT:  These are lawyers' 
         14   obligations; not prosecutors' obligations.
         15            HEARING OFFICER DAHER:  I've taken judicial 
         16   notice of it.  Sustained.  Let's go.
         17       Q.   Lastly, when you were meeting with Ms. 
         18   Joseph, were you aware of the Section 3.8, which you 
         19   previously had before you --
         20       A.   Yes.
         21       Q.   -- which reads as follows:  "The prosecutor 
         22   in a criminal case shall exercise reasonable care to 
         23   prevent investigators, law enforcement personnel, 
         24   employees or other persons assisting or associated 
 0154
          1   with the prosecutor in a criminal case from making 
          2   an extrajudicial statement that the prosecutor would 
          3   be prohibited from making under Rule 3.6."  do you 
          4   see that?
          5       A.   Yes, I do. 
          6       Q.   Now, having all of those rules in mind, 
          7   when Leora Joseph appeared before you and said I had 
          8   nothing to do with it, it might have been my office, 
          9   did you believe at that time that she was carrying 
         10   out her ethical responsibilities as a prosecutor in 
         11   the case before you? 
         12       A.   Absolutely not. 
         13       Q.   Did she indicate to you that she had taken 
         14   any reasonable efforts whatsoever to prevent others 
         15   in her office from releasing information?
         16       A.   No. 
         17       Q.   Who was the lawyer for the district 
         18   attorney's office on the case of Commonwealth versus 
         19   Ebony Horton from the moment you came into the case 
         20   until the moment on August 4th you were in the 
         21   lobby?
         22       A.   Leora Joseph.
         23       Q.   Who was the person in charge of that 
         24   prosecution? 
 0155
          1       A.   It was Leora Joseph.
          2       Q.   Who was the person that you understood to 
          3   have the file in that prosecution? 
          4       A.   Leora Joseph.
          5       Q.   And in your experience as a judge in the 
          6   various counties in which you've practiced, is it 
          7   your understanding that press releases in cases get 
          8   released without the line prosecutor knowing it? 
          9            MR. WARE:  Objection.  How would the Judge 
         10   know that?  Objection, Your Honor. 
         11            HEARING OFFICER DAHER:  I think, again, Mr. 
         12   Ware, I think she's been on the bench for 14 years.  
         13   I think she would know.  Overruled.  You may have 
         14   it. 
         15       A.   My experience is that it's the line 
         16   prosecutor that provides the information to the 
         17   press office of the district attorney's office. 
         18       Q.   And when she told you in no uncertain terms 
         19   that she had nothing to do with it, did you say 
         20   anything to her? 
         21       A.   I told her I did not believe her. 
         22       Q.   And what did she say? 
         23       A.   Well, then I said I intend to continue the 
         24   case.  And I think she just got up in a huff and 
 0156
          1   left.
          2       Q.   Well, before that -- let's take it in 
          3   steps.  When you said "I don't believe you" or words 
          4   to that effect, did she respond to that? 
          5       A.   I can't recall if she responded verbally.  
          6   She certainly responded in demeanor and -- I can't 
          7   recall. 
          8       Q.   What --
          9       A.   I don't remember. 
         10       Q.   What did you take -- strike that. You 
         11   recognized in this case that there was an alleged 
         12   victim in this case, correct? 
         13       A.   Yes. 
         14       Q.   And that that victim was deserving of 
         15   certain rights and responsibilities of the Court? 
         16       A.   Yes. 
         17       Q.   And also that there was an alleged 
         18   defendant in the case?
         19       A.   Yes. 
         20       Q.   Involving similar rights, other 
         21   constitutional rights? 
         22       A.   Correct.
         23       Q.   What did you perceive the harm done by this 
         24   press release and the press conduct and the press 
 0157
          1   presence on this particular occasion? 
          2       A.   Well, that it could abort the plea, and 
          3   that would mean then that everyone involved -- the 
          4   victim would have to testify, the defendant would be 
          5   put through a trial, that the plea that we thought 
          6   was going to happen would not happen ever. 
          7       Q.   Did you think it was a good thing, in your 
          8   opinion, for the victim to have to come in and 
          9   testify in this case? 
         10       A.   Absolutely not. 
         11       Q.   Was the plea a good thing for the victim in 
         12   this case?
         13       A.   Many times in child abuse cases, child sex 
         14   cases --
         15            MR. WARE:  Objection, Your Honor.  
         16            HEARING OFFICER DAHER:  What's the 
         17   objection.
         18            MR. WARE:  The answer is entirely 
         19   nonresponsive.
         20            HEARING OFFICER DAHER:  But it is very 
         21   important.  Overruled.  You may have it. 
         22       A.   Many times that is a major consideration in 
         23   child sexual abuse cases, putting a victim through a 
         24   court proceeding, cross-examination.  So that's a 
 0158
          1   major consideration for the Court, for the lawyers 
          2   involved, yes. 
          3       Q.   And is that so for a 12-year-old child? 
          4       A.   Absolutely. 
          5       Q.   And, by the way, at the time can you tell 
          6   me what age you thought the victim was in this case?
          7       A.   The police report indicated that he was six 
          8   weeks short of 13. 
          9       Q.   And is that also the information provided 
         10   to you by the prosecution?
         11       A.   That's what they always represented. 
         12       Q.   Were you ever at any time -- in all of 
         13   these proceedings, while you were presiding over the 
         14   case of the Commonwealth versus Horton, did anyone 
         15   from the Commonwealth ever tell you that this victim 
         16   was 11, not almost 13? 
         17       A.   No.  No one.  Everyone was operating on the 
         18   assumption that the date of birth on the police 
         19   report was accurate.
         20       Q.   And in fact on each occasion that you were 
         21   addressed by the Commonwealth, they addressed you to 
         22   the fact that this was a 12-year-old boy just short 
         23   of his 13th birthday.
         24       A.   Correct.
 0159
          1            (Discussion off the record)
          2       BY MR. EGBERT:
          3       Q.   Now, did it concern you as a judge that the 
          4   press attention that developed in the Horton case on 
          5   the 4th and its resulting displacement of the plea 
          6   that day would have an unfortunate impact for the 
          7   victim?
          8       A.   Absolutely. 
          9       Q.   And what was that? 
         10       A.   The impact would be that if the plea did 
         11   not go forward, if this was not a plea, this child 
         12   would have to be put through a trial, which means 
         13   having to be prepared, having to go over and over 
         14   the testimony he would give concerning this event.  
         15   Then the child would be subjected to 
         16   cross-examination.  I knew, based on the lobby 
         17   conference, that there were some inconsistencies, so 
         18   I was concerned about the child having to be put 
         19   through this process. 
         20       Q.   Were you also -- did you also have concern 
         21   for the defendant? 
         22       A.   Absolutely. 
         23       Q.   And what were those concerns? 
         24       A.   Well, I was aware of the defendant's 
 0160
          1   psychological, psychiatric history, and knew that 
          2   this was an individual that had depression, suicidal 
          3   ideation, and I was worried about that. 
          4       Q.   And did you then, during the lobby 
          5   conference, indicate your displeasure with Ms. 
          6   Joseph? 
          7       A.   I did. 
          8       Q.   And what did you say to her? 
          9       A.   When she got up, I said something to the 
         10   effect like, "This is a mean thing for you to do.  
         11   You belong in the suburbs."
         12       Q.   And when you said "you belong in the 
         13   suburbs," what did you mean by that? 
         14       A.   What I meant by that was that she lacked 
         15   the sophistication, the experience, the judgment to 
         16   deal with individuals who are -- who exist on the 
         17   fringes of our society, who have been marginalized 
         18   in our society, and these are individuals that for 
         19   the most part one finds in urban communities.  So I 
         20   did not -- I thought she lacked the judgment and the 
         21   experience to handle a case such as this one that 
         22   presented some unique urban issues. 
         23       Q.   And did you also feel that she or the 
         24   office had done a disservice to their own client in 
 0161
          1   essence, the victim?
          2       A.   Absolutely.
          3       Q.   In this regard --
          4            MR. WARE:  Objection. 
          5            HEARING OFFICER DAHER:  What's your 
          6   objection?
          7            MR. WARE:  Too late now.  The witness has 
          8   answered. 
          9       A.   Absolutely. 
         10       Q.   Now, were you shown some prior statements 
         11   that you had made on this very subject, and one of 
         12   them one I want to talk about.  Why don't you turn 
         13   to Page 76 -- no; sorry.  Let's start at 66 of your 
         14   prior testimony. 
         15       A.   Okay.  66.  Yes. 
         16       Q.   Would you go -- on that prior testimony, 
         17   you were asked, on the prior page, 65, at the end, 
         18   "What was your opinion as regards the Assistant 
         19   District Attorney Leora Joseph prior to the Horton 
         20   matter in terms of her professional demeanor or 
         21   competence or any other opinion you held of her 
         22   professional abilities?"  And how did you respond?
         23       A.   I said, "Not a particularly high one."
         24       Q.   And then you were asked, "What do you mean 
 0162
          1   by that," and what did you respond to that? 
          2       A.   I said, "I found her to be immature, 
          3   personalized things, would make faces when things 
          4   didn't go her way, not particularly worldly, or in 
          5   terms of life experience in judgment, I didn't think 
          6   she brought much to bear in that way." 
          7       Q.   Did that mean you couldn't be fair to her? 
          8       A.   Absolutely not.
          9       Q.   That you were biased against her?
         10       A.   I was not biased against her.
         11       Q.   This was an opinion that you delivered at 
         12   the request of Mr. Ware at your prior testimony, 
         13   correct? 
         14       A.   Correct. 
         15       Q.   Now, would you turn to Page 76.  And here 
         16   we have the comment or the statement about the 
         17   suburbs.
         18       A.   Right.
         19       Q.   And you were asked, "Did you make a 
         20   statement to her along the lines of you should be in 
         21   the suburbs?"  And you answered, "I think I did," 
         22   right. 
         23       A.   Yes.
         24       Q.   And then you were asked, "What do you think 
 0163
          1   you said?"  And you answered, "I think I said, 'You 
          2   belong in the suburbs," correct?
          3       A.   Correct. 
          4       Q.   And what did you mean -- then you were 
          5   asked, "What did you mean by that?"  And read what 
          6   you said.
          7       A.   "What I meant by that is that she really, 
          8   you know -- she wouldn't be able to understand an 
          9   Ebony Horton; that if she understood -- if her life 
         10   experience was a little broader, if she was a little 
         11   more sophisticated about people who are marginalized 
         12   in our society and had a little more compassion 
         13   about it, she would understand better.  And I guess 
         14   when I said the suburbs -- I mean, I live in the 
         15   suburbs.  Okay.  So was sort of a characterization" 
         16   -- and this is what I didn't mean -- "about the 
         17   woman who, you know, stays home, goes to the beauty 
         18   parlor and does her nails.  That's all."
         19       Q.   Well, let's get to that.  You said --
         20            HEARING OFFICER DAHER:  Can we do that on 
         21   Friday morning?  Start with that?
         22            MR. EGBERT:  Start with her nails on Friday 
         23   morning?
         24            THE WITNESS:  I do mine.
 0164
          1            HEARING OFFICER DAHER:  If that's one 
          2   little issue that you want to address now.  But if 
          3   you're going to develop that --
          4            MR. EGBERT:  Yes, I am.  That's perfectly 
          5   fine, Judge. 
          6                 (Whereupon, at 12:47 p.m. 
          7                 the hearing was adjourned)
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          1                   C E R T I F I C A T E
          2            I, Carol H. Kusinitz, Registered 
          3   Professional Reporter, do hereby certify that the 
          4   foregoing transcript, Volume III, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on September 20, 2002.
          7   
          8   
          9                  _____________________________
         10                         Carol H. Kusinitz
         11                  Registered Professional Reporter
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