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 0001
                                            Volume IV    
                                            Pages 4-1 to 4-159
                                            Exhibits  See Index
              
                         COMMISSION ON JUDICIAL CONDUCT
                          Complaint No. 2000-110 et seq
              - - - - - - - - - - - - - - - - - - - x   
                                                    :
              In the Matter of Investigation of:    :
              The Honorable Maria I. Lopez,         :
              Associate Justice, Superior Court     :
              Department                            :
              - - - - - - - - - - - - - - - - - - - x 
              
              BEFORE:  Hearing Officer E. George Daher,
                         Chief Justice (Ret.)
              
                       Harvey Chopp, Clerk
              
              APPEARANCES:
              
                  Goodwin Procter LLP
                       (by Paul F. Ware, Jr., Esq., Roberto 
                       M. Braceras, Esq., and Cheryl R.
                       Brunetti, Esq.) Exchange Place, Boston, MA  
                       02109, for the Commission on Judicial 
                       Conduct.
                       
              
                  Law 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
                            Friday, November 22, 2002
                                    9:37 a.m.
              
                         Carol H. Kusinitz, Registered 
                              Professional Reporter
              
              
 0002
          1                         I N D E X
          2   
          3   WITNESS        DIRECT  CROSS  REDIRECT  RECROSS
          4   
          5   Maria Lopez
          6   (By Mr. Egbert) 4-12
          7   
          8                         *  *  * 
          9   
         10                      E X H I B I T S
         11   
         12   EX. NO.                                   ID   EVID
         13   
         14   2   Commonwealth v. Horton Docket              4-12
         15   
         16   3   Psychological Assessment and
         17       Dispositional Plan for (Charles)
         18       Ebony Horton, by Joan Katz                 4-12
         19   
         20   4   "In the Matter of Charles Horton
         21       in Reponse to Media Reports" by
         22       Judge Maria Lopez                          4-12
         23   
         24   
 0003
          1                E X H I B I T S Continued)
          2   
          3   NO.                                    ID       EVD
          4   
          5   5   Birth Certificate of Child Victim
          6       in Commonwealth v. Horton                  4-12                      
          7   
          8   7   8/3/00 DA's Office Press Release           4-12
          9   
         10   16  Motion for Supplemental Expenses
         11       II                                         4-12
         12   
         13   17  Commonwealth's Motion in Opposition
         14       to a Continuance, and Written
         15       Findings of Judge Maria Lopez              4-12
         16   
         17   22  9/6/00 Transcript of Change of Plea
         18       and Sentencing in Commonwealth v.
         19       Horton                                     4-12
         20   
         21   24  Redlined and Drafts, "In the Matter
         22       of Charles Horton in Reponse to
         23       Media Reports," by Judge Maria Lopez       4-12
         24   
 0004
          1                E X H I B I T S Continued)
          2   
          3   NO.                                       ID    EVD
          4   
          5   32  Transcript of the Testimony of Judge
          6       Maria Lopez                                4-12
          7   
          8   41  Videotape of 9/6/00 Change of Plea
          9       and Sentencing in Commonwealth v.
         10       Horton                                     4-12
         11   
         12   42  8/4/00 Transcript of Continuance in
         13       Commonwealth v. Horton                     4-12
         14   
         15   45  Photograph of Beaucage Caller ID           4-12
         16   
         17   46  Robert O'Neill, Breaking Silence,
         18       Judge Lopez Defends Her Rulings
         19       and Slams Critics, ASSOCIATED PRESS
         20       NEWSWIRES, 5/22/01                         4-12
         21   
         22   47  Commonwealth v. Calixte Docket             4-12
         23   
         24   48  Commonwealth v. Estrada Docket             4-12
 0005
          1                E X H I B I T S Continued)
          2   
          3   NO.                                       ID   EVD
          4   
          5   49  8/4/00 4:07 p.m. Fax from Lopez
          6       to Kenney attaching Findings               4-12
          7   
          8   50  9/7/00 Fax Cover from Kenney to
          9       DelVecchio                                 4-12
         10   
         11   51  9/7/00 Fax Cover from DelVecchio to 
         12       Kenney                                     4-12
         13   
         14   A   Order limiting use of cameras              4-60
         15   
         16   G   Commonwealth's statement of case           4-24
         17   
         18   H + I    Documents                             4-11
         19   
         20   P   Judicial notice of Chapter 278,
         21       Section 16F                         4-31
         22   
         23   Q   Document entitled "Commonwealth's
         24       Notice of Disclosure"                      4-90
 0006
          1                   P R O C E E D I N G S
          2            MR. EGBERT:  Good morning, Your Honor. 
          3            HEARING OFFICER DAHER:  How are you?
          4            MR. EGBERT:  Your Honor, before Judge Lopez 
          5   takes the stand, I want to address one matter, if I 
          6   may? 
          7            HEARING OFFICER DAHER:  Sure.  Go ahead. 
          8            MR. EGBERT:  First, let me hand up, if I 
          9   may --
         10            HEARING OFFICER DAHER:  Go ahead.
         11            MR. EGBERT:  Judge, I have handed up an 
         12   article under the byline of David Webber from the 
         13   Boston Herald -- I believe Mr. Webber is here -- and 
         14   I would ask to call him as a witness for a brief 
         15   moment, because I don't want to rely merely on 
         16   newspaper articles. 
         17            But if the article is true, then Jillian 
         18   Pearson, the Executive Director of the Judicial 
         19   Conduct Commission, gave statements to Mr. Webber 
         20   sometime before this morning, which he published, in 
         21   which she described, one, complaints that were sent 
         22   to the Commission but were not issued by the 
         23   Commission, a violation of both the statute and 
         24   rules of the Commission. 
 0007
          1            Two, she discussed a pending case, pending 
          2   before you.  She is in fact a combined litigant and 
          3   the ultimate -- member of the ultimate factfinder 
          4   and decisionmaker in this case.  And she has 
          5   violated both the canons of ethics and the rules of 
          6   the Commission on Judicial Conduct in a number of 
          7   ways. 
          8            It is, in my judgment, both inappropriate, 
          9   bad judgment and the height of stupidity for this to 
         10   occur in the midst of a proceeding where it has been 
         11   and continues to be an allegation of the Respondent 
         12   that the Commission has kowtowed and played to the 
         13   press in many ways and pandered to the press in many 
         14   ways, and now is violating their own rules by 
         15   dealings with the press.
         16            HEARING OFFICER DAHER:  What exactly -- 
         17   after that presentation, what exactly -- what are 
         18   you looking for?  I'm still in a quandary.  You are 
         19   on record making a comment.
         20            MR. EGBERT:  I'm putting it on the record 
         21   of these proceedings.  I want it on the record of 
         22   these proceedings, that's all. 
         23            HEARING OFFICER DAHER:  You have recorded 
         24   your anger and your dissatisfaction.  And indeed, 
 0008
          1   there may be some action, I don't know, if indeed 
          2   justified against Ms. Pearson.  But you're on 
          3   record.  It is part of the transcript.  And we can 
          4   move on, I take it.
          5            MR. EGBERT:  Except I would like to call 
          6   Mr. Webber to confirm the statements. 
          7            HEARING OFFICER DAHER:  Confirm what 
          8   statements? 
          9            MR. EGBERT:  The statements made by Ms. 
         10   Pearson, or allegedly made by Ms. Pearson. 
         11            HEARING OFFICER DAHER:  Motion is denied. 
         12            MR. WARE:  Your Honor, may I respond 
         13   briefly to --
         14            HEARING OFFICER DAHER:  I've already ruled 
         15   on it, but again --
         16            MR. WARE:  Not on the Court's ruling with 
         17   respect to Mr. Webber, but I think that in fairness 
         18   to Ms. Pearson, I should make a couple of 
         19   observations so that we do have a record here that 
         20   can be considered at the appropriate time.
         21            HEARING OFFICER DAHER:  But, again, if you 
         22   notice precisely what Mr. Egbert did, he took 
         23   something from the newspaper and commented on that.  
         24   Are you going to offer testimony in regards --
 0009
          1            MR. WARE:  No.
          2            HEARING OFFICER DAHER:  -- to Ms. Pearson 
          3   or what her motivation was or anything like that?
          4            MR. WARE:  No, your Honor. 
          5            HEARING OFFICER DAHER:  You can --
          6            MR. WARE:  No, I don't want to do that.  
          7   But all I would like to do is point out that the 
          8   issue here, and in any proceeding, whether criminal 
          9   or this proceeding, is prejudice.  And in this 
         10   instance all the article really says is that there 
         11   are a number of additional complaints which were 
         12   screened out because those complaints were not a 
         13   basis for the investigation. 
         14            If anything, it would seem to me that 
         15   that's --
         16            HEARING OFFICER DAHER:  The record says -- 
         17   the report says what it says, Mr. Ware.
         18            MR. WARE:  It says what it says.
         19            HEARING OFFICER DAHER:  Anything else?
         20            MR. WARE:  Just that the rules provide that 
         21   there's a screening function, and obviously the 63 
         22   complaints which have been given to the Judge are 
         23   those complaints which have been screened. 
         24            HEARING OFFICER DAHER:  Okay.  You're on 
 0010
          1   record. 
          2            Let's pick it up. 
          3            THE WITNESS:  I'm still under oath, I 
          4   understand. 
          5            HEARING OFFICER DAHER:  I think we left on 
          6   Page 76 where somebody was going to do their nails 
          7   or something? 
          8            MR. EGBERT:  That's right.
          9            THE HEARING OFFICER:  That's where we were?
         10            MR. EGBERT:  We were about to have our 
         11   nails done.  But before we do, Judge --
         12            THE HEARING OFFICER:  Is this hooked up, by 
         13   the way?
         14            MR. WARE:  We are not intending to use the 
         15   screen today. 
         16            HEARING OFFICER DAHER:  Fine.  Go ahead. 
         17            MR. EGBERT:  Judge, we referred last 
         18   Wednesday to Defendant's Exhibits H and I.
         19            HEARING OFFICER DAHER:  Yes, you did. 
         20            MR. EGBERT:  Apparently, or at least I 
         21   don't think that was moved into evidence formally.
         22            HEARING OFFICER DAHER:  If I'm not 
         23   mistaken, I had Mr. -- Mr. Pierce put them in 
         24   evidence.  He marked them.
 0011
          1            MR. EGBERT:  I thought so, too, but in any 
          2   case --
          3            HEARING OFFICER DAHER:  I have the exhibit 
          4   list.
          5            MR. EGBERT:  -- I offer them again. 
          6            HEARING OFFICER DAHER:  H and I.  
          7            THE CLERK:  They are in there.
          8            HEARING OFFICER DAHER:  I know they are 
          9   marked.
         10            MR. EGBERT:  So I would offer them.
         11            HEARING OFFICER DAHER:  Any objections?
         12            MR. WARE:  No objection, Your Honor. 
         13                  (Documents marked as Exhibits H 
         14                   and I in evidence)
         15            MR. WARE:  While we're on the subject, at 
         16   the beginning of the hearing, both counsel agreed 
         17   that on the exhibit list before the Court, those 
         18   exhibits identified not in bold -- that is, with 
         19   normal typeface on the exhibit list -- are 
         20   undisputed.  And to the extent those need to be 
         21   formally offered, I now do so.  The ones that were 
         22   in bold are the disputed ones, and we are offering 
         23   those as we get to them.
         24            HEARING OFFICER DAHER:  No problems with 
 0012
          1   that? 
          2            MR. EGBERT:  No.
          3            HEARING OFFICER DAHER:  Good.
          4                 (Documents marked as Exhibits 2, 3, 4, 
          5                  5, 7, 16, 17, 22, 24, 32, 41, 42, 45, 
          6                  46, 47, 48, 49, 50, 51 in evidence)
          7            HEARING OFFICER DAHER:  Pick it up.  Let's 
          8   go.
          9                    MARIA LOPEZ, Previously Sworn
         10                     CROSS EXAMINATION, Resumed
         11       BY MR. EGBERT: 
         12       Q.   Judge, when we left, we were talking about 
         13   the conference that you had in your chambers with 
         14   Ms. Joseph on August 4th of the year 2000, correct? 
         15       A.   Correct.
         16       Q.   And you recall that there was some 
         17   discussion of the statement that "you belong in the 
         18   suburbs"?
         19       A.   Correct. 
         20       Q.   And would you turn to Page 76 of your own 
         21   testimony. 
         22       A.   Yes. 
         23       Q.   And this was at a deposition you gave to 
         24   the Commission, correct? 
 0013
          1       A.   Correct. 
          2       Q.   And would you read into the record your 
          3   answer to the question, "What did you mean by that?"
          4       A.   "What I meant by that is that she really, 
          5   you know -- she wouldn't be able to understand an 
          6   Ebony Horton; that if she understood -- if her life 
          7   experience was a little broader, if she was a little 
          8   more sophisticated about people who are marginalized 
          9   in our society and had a little more compassion 
         10   about it, she would understand better.  And I guess 
         11   when I said the suburbs -- I mean, I live in the 
         12   suburbs.  Okay.  So it was sort of a 
         13   characterization about the woman who, you know, 
         14   stays home, goes to the beauty parlor and does her 
         15   nails.  That's all." 
         16       Q.   Did you say that to Ms. Joseph? 
         17       A.   I did -- no, I didn't -- I didn't say this 
         18   to Ms. Joseph.  I said this to Mr. Ware, the nail 
         19   characterization.
         20       Q.   And when you made that characterization to 
         21   Mr. Ware, what did you mean by that? 
         22       A.   It really didn't capture what I meant.  I 
         23   had given Mr. Ware a number of other definitions and 
         24   descriptions of my opinion about Ms. Joseph and what 
 0014
          1   I meant by the suburbs argument.  So it was a sort 
          2   of, I don't know, maybe a flippant comment directed 
          3   to Mr. Ware, something like that, but --
          4       Q.   Was it a flippant comment when you directed 
          5   it to Ms. Joseph?
          6       A.   No.  But I never made the nails comment to 
          7   Ms. Joseph.
          8       Q.   When you said, "you belong in the suburbs," 
          9   was that flippant? 
         10       A.   Oh, no.
         11       Q.   What you were trying to describe to her 
         12   was, as you stated earlier, that you thought that 
         13   she was having some difficulty dealing with urban 
         14   issues and urban crimes? 
         15       A.   Correct. 
         16       Q.   And then you also said:  "And so I said -- 
         17   it's almost like this case is just too edgy, 
         18   involves issues that someone that is just such -- 
         19   wouldn't understand."
         20       A.   That's correct.
         21       Q.   And had she exhibited to you a lack of 
         22   desire and/or ability to try to understand issues 
         23   that were before you at the time?
         24       A.   Did she demonstrate her evidence?  No, she 
 0015
          1   did not.
          2       Q.   Well, did she demonstrate by her conduct or 
          3   her statements that she was indifferent to the 
          4   problems which you were describing?
          5       A.   Absolutely. 
          6       Q.   You testified on your direct examination, I 
          7   think you said that -- you were saying that she 
          8   couldn't do her job? 
          9       A.   Did I say that in my deposition or did I 
         10   say it in my direct? 
         11       Q.   In your direct examination.  You made some 
         12   reference --
         13       A.   Oh, I agreed with Mr. Ware when he said -- 
         14   you meant -- I said -- I think that's what happened. 
         15       Q.   Well, let me ask you, were you telling her 
         16   she couldn't do her job? 
         17       A.   No, I wasn't telling her she couldn't do 
         18   her job.  I was telling her that she wasn't 
         19   performing her job in the way that a lawyer in her 
         20   position should have been doing it. 
         21       Q.   And that was as a result of the hysteria or 
         22   hoopla that had been caused on August 4th by the 
         23   press release and the conduct that went on in the 
         24   courthouse? 
 0016
          1       A.   Was that the only reason I believe she 
          2   wasn't conforming --
          3       Q.   No.  That was at or about that time? 
          4       A.   Yes. 
          5       Q.   And based on the factors you had described 
          6   previously? 
          7       A.   Correct. 
          8       Q.   In cases of child sexual abuse and the 
          9   like, is it normal for the district attorney's 
         10   office to draw attention to those kinds of cases, in 
         11   your experience? 
         12       A.   Unless you are dealing with, you know, a 
         13   situation involving many victims, generally when you 
         14   have a case such as this particular one, where it 
         15   involved one victim --
         16            MR. WARE:  I'm going to object, Your Honor, 
         17   as to what is normal for the --
         18            HEARING OFFICER DAHER:  Sustained. 
         19       Q.   In your experience with these cases, what 
         20   have you observed to be the normal function in that 
         21   regard? 
         22            MR. WARE:  Objection to "the normal 
         23   function." 
         24            HEARING OFFICER DAHER:  Sustained. 
 0017
          1       Q.   What do you regularly see? 
          2       A.   Okay.  In the past -- and I have had many 
          3   of these cases involving child sexual abuse victims,  
          4   and I have never had the press brought in on a case 
          5   of this nature before in my 14 years. 
          6       Q.   And can you imagine or envision -- strike 
          7   that.  Can you, in your experience, understand the 
          8   likely or potential harm to the child victim by 
          9   creating this kind of press hysteria? 
         10            MR. WARE:  Objection to this notion of 
         11   creating press hysteria, Your Honor. 
         12            HEARING OFFICER DAHER:  I think the choice 
         13   of words -- that's sustained.  If she wants to 
         14   testify as to her experience of 14 years as a judge, 
         15   that's fine, but I'm going to sustain Mr. Ware's 
         16   objection.  Go ahead. 
         17       Q.   And can you, from your 14 years of 
         18   experience, tell us some of the problems that might 
         19   be created by attracting large amounts of press 
         20   coverage to a case such as the Horton case as far as 
         21   the victim is concerned. 
         22       A.   Well, in this particular case, where we had 
         23   a possible plea, if there was -- if the press was to 
         24   affect the opportunity to secure that plea from the 
 0018
          1   defendant, then the matter would have to go to 
          2   trial.  And child victims of sexual abuse have 
          3   already undergone the traumatic experience involved 
          4   in the incident.  Putting them through a trial 
          5   process is always of utmost consideration and should 
          6   be of utmost consideration to the district 
          7   attorney's office as well as to the court system. 
          8            So bringing attention to a case such as 
          9   this, where there was a possible plea, affected the 
         10   possibility or could have affected the possibility 
         11   of getting that plea done that day.  And if that 
         12   happened, then you would have to subject the child 
         13   to the trauma of the court proceedings. 
         14       Q.   And in fact did the manner -- strike that.  
         15   Did the press, on this particular occasion, August 
         16   4th of 2000, affect the ability to conduct the plea 
         17   hearing that day?
         18       A.   On that day, yes.  There was an emotional 
         19   catastrophe going on. 
         20       Q.   And was the defendant in court?
         21       A.   The defendant was in court with her mother.
         22       Q.   Was the defendant in the courtroom? 
         23       A.   No, not in the courtroom on August 4th, no.
         24       Q.   And why didn't the defendant come in the 
 0019
          1   courtroom? 
          2            MR. WARE:  Objection. 
          3            HEARING OFFICER DAHER:  Sustained. 
          4       Q.   What were you told as to why the defendant 
          5   didn't come in the courtroom? 
          6            MR. WARE:  Objection.
          7            HEARING OFFICER DAHER:  Sustained.
          8            MR. EGBERT:  Judge, her specific --
          9            HEARING OFFICER DAHER:  I know you have 
         10   tremendous latitude in this case --
         11            MR. EGBERT:  Judge, there are specific 
         12   findings at issue here that the Judge made as to the 
         13   continuance, specific findings on these very issues.  
         14   The information she had as to those findings is -- 
         15   must be fully relevant.
         16            HEARING OFFICER DAHER:  Mr. Ware. 
         17            MR. WARE:  Your Honor, I don't dispute the 
         18   Judge's understanding of certain facts is relevant 
         19   here.
         20            HEARING OFFICER DAHER:  I think in this 
         21   case she is entitled to it.  Overruled.  Go ahead. 
         22       Q.   What information did you have as to why the 
         23   defendant wasn't in your courtroom?
         24       A.   My understanding was that the defendant and 
 0020
          1   mother were in some other room in the courthouse, 
          2   that they were extremely upset, emotionally 
          3   distraught, were upset with the defendant's lawyer, 
          4   in fact, and did not want to come into the 
          5   courtroom.
          6       Q.   And if the defendant was indicating that he 
          7   would not go forward with the plea that day, what 
          8   were your options? 
          9       A.   Mark it down for trial. 
         10       Q.   Could you force a plea?
         11       A.   I can't force a plea, no.
         12       Q.   Could you force the defendant to come in 
         13   that day and plead guilty?
         14       A.   I could not. 
         15       Q.   And the options were to continue the case 
         16   or mark it down for trial; is that correct? 
         17       A.   Correct. 
         18       Q.   Was that fact, in your mind, that the case 
         19   had been derailed in that fashion, good for the 
         20   victim? 
         21       A.   It was not good for the victim at all. 
         22       Q.   Why not? 
         23       A.   Because that meant that there was -- 
         24   there's the possibility now that there would be a 
 0021
          1   trial, that this victim would be put through a trial 
          2   process.  I was aware, based on representations made 
          3   to me during the lobby conference, that there were 
          4   some discrepancies in the different versions given 
          5   by the victim to the police and then to the sexual 
          6   assault unit, and, I guess, on the interview that 
          7   they did of him. 
          8            So I knew that this was a case that 
          9   presented some rather traumatic possibilities for 
         10   the victim. 
         11       Q.   And in fact -- in fact, Judge, you knew, 
         12   didn't you, that if the case went to trial, there 
         13   would be allegations by the defense that there were 
         14   consensual acts of sexual conduct and the like and 
         15   matters which would put the victim in a bad light; 
         16   is that right? 
         17       A.   Correct.
         18       Q.   And it would then be up for a jury to 
         19   determine which of those disputed facts were true, 
         20   correct?
         21       A.   That's right. 
         22       Q.   And you knew that there were a number of 
         23   statements made by the victim on videotape which 
         24   would affect his credibility, didn't you? 
 0022
          1       A.   Yes, I knew that.
          2            MR. WARE:  I'm going to object again to 
          3   trying the victim in this case.
          4            HEARING OFFICER DAHER:  I understand --
          5            MR. EGBERT:  I'm not trying the victim.
          6            HEARING OFFICER DAHER:  But again, when she 
          7   started in this line of inquiry, there wasn't any 
          8   really seasonable objection to it.  Overruled.  You 
          9   can continue with this line. 
         10       BY MR. EGBERT: 
         11       Q.   Judge, so that it's clear, the Court 
         12   doesn't try the victim, do you? 
         13       A.   No.  The defense attorney does.
         14       Q.   And you have been around criminal cases 
         15   long enough to know that if they're litigated 
         16   criminal cases, oftentimes the victim will go on 
         17   trial by the defense, correct?
         18       A.   Absolutely. 
         19       Q.   That could be a fairly ugly affair at 
         20   times?
         21       A.   It certainly can.  It is part of our 
         22   adversarial system.
         23       Q.   And would you agree with me that it is not 
         24   a particularly pleasant experience for a 12-year-old 
 0023
          1   boy?
          2       A.   It would not be for the child or the 
          3   child's family. 
          4       Q.   And, by the way, I keep using the words 
          5   "12-year-old boy."  Is that how old you thought this 
          6   boy was?
          7       A.   Based on the date of birth on the police 
          8   report, yes. 
          9       Q.   And isn't it also based on the 
         10   representations of counsel? 
         11       A.   Yes. 
         12       Q.   Judge, I show you Defendant's Exhibit G.  
         13   Do you recognize what that is? 
         14       A.   Yes. 
         15       Q.   What is it? 
         16       A.   It's the Commonwealth's statement of the 
         17   case, which was provided to me by the assistant 
         18   district attorney during the August 1st lobby 
         19   conference. 
         20       Q.   And in that statement of the case, what is 
         21   that generally used for? 
         22       A.   It's used as -- this is what they base the 
         23   summary of the evidence that they present to the 
         24   judge during the lobby conference. 
 0024
          1       Q.   And would you categorize it as laying out 
          2   kind of the important facts? 
          3       A.   Yes.
          4            MR. EGBERT:  Your Honor, I would offer the 
          5   Commonwealth's statement of case in evidence.
          6            HEARING OFFICER DAHER:  Do you have a copy 
          7   of it, Mr. Ware?  Do you want a copy? 
          8            MR. WARE:  Yes, Your Honor, I have a copy. 
          9            HEARING OFFICER DAHER:  All right. 
         10            MR. WARE:  I do not object. 
         11            HEARING OFFICER DAHER:  Okay. 
         12                 (Document marked as
         13                 Exhibit G moved into evidence)
         14       BY MR. EGBERT:
         15       Q.   Judge, do you have that before you? 
         16       A.   I do. 
         17       Q.   And what age did the Commonwealth indicate 
         18   to the Court the victim was? 
         19       A.   Twelve years old. 
         20       Q.   And during -- in the statement of the case, 
         21   by the way, was there any mention of the fact that 
         22   the defendant was transgendered and dressed like a 
         23   woman? 
         24       A.   No, there wasn't. 
 0025
          1       Q.   And during -- and at the time, by the way, 
          2   of that statement of the case in these proceedings, 
          3   are you familiar with whether or not the 
          4   Commonwealth ever asked that the defendant be held 
          5   because he was a danger? 
          6       A.   No. 
          7       Q.   At --
          8       A.   There was never -- they never sought a 
          9   dangerousness petition in the District Court, later 
         10   on when she was arraigned in the Superior Court --
         11       Q.   There was never --
         12       A.   They never sought a dangerousness 
         13   determination.
         14       Q.   And a dangerousness determination by the 
         15   Court could cause the defendant to be held without 
         16   bail, for example; is that right? 
         17       A.   That's right.
         18       Q.   And that was never sought? 
         19       A.   Never sought.
         20       Q.   After you had this conference in the lobby 
         21   with Ms. Joseph and Ms. Goldbach, did you indicate 
         22   to them in the lobby that the case would probably be 
         23   continued?
         24       A.   I did. 
 0026
          1       Q.   Did you go right out and continue the case?
          2       A.   No. 
          3       Q.   Where did Ms. Joseph go in this lobby 
          4   conference? 
          5       A.   After the lobby conference?  I don't know 
          6   where she went, but obviously she went and got Mr. 
          7   Deakin, who eventually showed up in the courtroom.
          8       Q.   Did you see Ms. Joseph at any time before 
          9   the case was called again, sometime in the 
         10   afternoon?
         11       A.   Not before it was called, no. 
         12       Q.   At some point in time you came out on the 
         13   bench -- strike that.  You had come out on the bench 
         14   and done a number of cases during that day; is that 
         15   right? 
         16       A.   Correct.
         17       Q.   And is it the custom in the First Session 
         18   that the Court will handle a number of cases and 
         19   then recess to lobby other cases and the like? 
         20       A.   Correct.  There were no lobbies that day, 
         21   though, because it was my last day in the session. 
         22       Q.   And did you come out on the bench at some 
         23   point in time and address the Horton case? 
         24       A.   Yes, I did. 
 0027
          1       Q.   Do you recall approximately what time that 
          2   was? 
          3       A.   It was after lunch.  I mean, it could have 
          4   been 2:00, 2:30.  I'm not quite sure. 
          5       Q.   Now, when you came out on the bench, it was 
          6   your intention to continue the case? 
          7       A.   Well, I was -- I was going to continue the 
          8   case if I couldn't get a plea that day.  But I was 
          9   hopeful that I would get a plea, because if I had to 
         10   continue the case, it would then have to go over to 
         11   Middlesex, and that is a burden to the system.
         12       Q.   Was it apparent to you by the time you came 
         13   out on the bench and addressed the Horton case that 
         14   there would be no plea that day? 
         15       A.   Yes.  When I saw that the defendant and 
         16   mother were not in the courtroom, I just determined 
         17   that, okay, this has to be continued.
         18       Q.   Now, you could have ordered him into the 
         19   courtroom, correct?
         20       A.   I could have. 
         21       Q.   And did you make a judgment as to why that 
         22   wouldn't be a good idea? 
         23       A.   Because I believed it would just be an 
         24   emotional plea.  I didn't know if we would get 
 0028
          1   through with it, and, you know, I was concerned 
          2   about the emotional state of everybody involved in 
          3   this case. 
          4       Q.   At some point in time, up until then, you 
          5   had found out that both the defense lawyer and the 
          6   prosecutor had been crying, correct? 
          7       A.   Right.
          8       Q.   And you found out that the defendant and 
          9   his mother had been crying, correct?
         10       A.   Correct. 
         11       Q.   And that they were up in some other room, 
         12   not in the courtroom? 
         13       A.   That's right. 
         14       Q.   And you made the judgment at the time that 
         15   that wasn't likely to produce a knowing, voluntary 
         16   intentional plea; is that right? 
         17       A.   Correct.
         18       Q.   When you came out on the bench, did you 
         19   announce that the case would be continued?
         20       A.   I believe I did. 
         21       Q.   I want to -- this is Exhibit 42 from the 
         22   Commission's exhibits. 
         23       A.   I have a transcript of those proceedings. 
         24       Q.   When you came out, Mr. Deakin was there and 
 0029
          1   addressed you, correct? 
          2       A.   Yes. 
          3       Q.   And he told you that -- and you announced, 
          4   didn't you, that the case was going to be continued 
          5   until the week of August 21st?
          6       A.   That's correct. 
          7       Q.   And "You can come and see me in Middlesex 
          8   County"? 
          9       A.   That's correct. 
         10       Q.   You said, "I have sixteen bails and a lot 
         11   of other things to take care of.  So this case is 
         12   being put over for the plea at another time in 
         13   Middlesex," correct?
         14       A.   Correct.
         15       Q.   Now, was that a true statement? 
         16       A.   Absolutely. 
         17       Q.   Did you have 16 bails to take care of? 
         18       A.   I believe there were 18.
         19       Q.   And did you have much left to do that day? 
         20       A.   Yes.
         21       Q.   And had you made the determination that, in 
         22   fact, as you said before, you didn't think the plea 
         23   was going to go forward under its current 
         24   circumstances and you weren't going to wait any 
 0030
          1   longer and keep it around? 
          2       A.   That's right.
          3       Q.   Were those your only reasons for continuing 
          4   the case? 
          5       A.   My only reasons being the emotional 
          6   disarray? 
          7       Q.   No.  That you had 16 bails.
          8       A.   Oh, no. 
          9       Q.   What were your other reasons for continuing 
         10   the case? 
         11       A.   All of the reasons included into my 
         12   findings, that this plea had essentially been 
         13   aborted by the -- what caused it -- by the press 
         14   causing an emotional reaction to the entire 
         15   scenario.
         16       Q.   Why didn't you come out and say all the 
         17   things that you ultimately found in your findings 
         18   with regard to the continuance? 
         19       A.   Well, no one up to that point had objected 
         20   to the continuance.  I thought everyone was on the 
         21   same page on it.  So by saying I have 16 bails and a 
         22   lot of other things to do, I'm going to continue it, 
         23   was my way of telling the lawyers, I don't want to 
         24   hear further argument.  I heard you all in the 
 0031
          1   lobby, and let's just get a date and move on. 
          2       Q.   And then what happened? 
          3       A.   Then Mr. Deakin stood up and asked me to 
          4   make findings pursuant to Chapter 278, Section 16F.  
          5   He presented me with a written motion requesting 
          6   those findings. 
          7       Q.   And that written motion with regard to the 
          8   278, 16F, what is that statute about? 
          9       A.   It's a statute that requires a judge to 
         10   make findings on continuances where there is a 
         11   Commonwealth objection, and it specifically relates 
         12   to cases involving child victims. 
         13       Q.   I want to show you, as -- 
         14            MR. EGBERT:  I ask the Court to take 
         15   judicial notice of 278, Section 16F.  
         16                 (Document marked as Exhibit P
         17                 for identification)
         18       Q.   Do you have that before you? 
         19       A.   Yes.
         20       Q.   Are you familiar with that statute?
         21       A.   Yes, I am. 
         22       Q.   That statute requires the Commonwealth to 
         23   do certain things in regard to informing the judge 
         24   of matters concerning a child victim; is that right?  
 0032
          1       A.   That's correct.
          2       Q.   And what it says is, doesn't it, that, 
          3   number one, it must tell you whether or not the 
          4   child or the child's representative agrees to such 
          5   request for a continuance, correct?
          6       A.   That's right. 
          7       Q.   Number two, what effect the granting of the 
          8   continuance will have on the child?
          9       A.   Correct.
         10       Q.   Correct?  It is basically an impact 
         11   statement?
         12       A.   That's right.
         13       Q.   And that has to be in the filing with that 
         14   document, correct?
         15       A.   That's right. 
         16       Q.   Did the Commonwealth ever allege, in its 
         17   motion in opposition to a continuance, that there 
         18   would be an adverse impact to the child? 
         19       A.   No.  The representation concerned the 
         20   grandmother being there. 
         21       Q.   And I'm going to show you now, if I may -- 
         22   turn to Commission's Exhibit No. 17, if you would. 
         23       A.   Yes. 
         24       Q.   That's the motion and findings; is that 
 0033
          1   correct? 
          2       A.   Yes. 
          3       Q.   Now, the motion -- the motion says, "As 
          4   reasons therefore," as to their opposition, "the 
          5   Commonwealth states that the child victim in this 
          6   case and his family was made aware that the case 
          7   would be resolved today." 
          8       A.   Correct.
          9       Q.   "The child's guardian, his maternal 
         10   grandmother, has been present in the courtroom since 
         11   early this morning," correct?
         12       A.   Correct.
         13       Q.   "She would like to be present when her 
         14   impact statement is read in court"?
         15       A.   Correct.
         16       Q.   Is there anything in there about an adverse 
         17   impact to the child?
         18       A.   No.
         19       Q.   Is there a singular statement under the 
         20   statute that the child will be adversely impacted by 
         21   a continuation of this plea? 
         22       A.   No. 
         23       Q.   In fact, when it says "The child's 
         24   guardian, his maternal grandmother, has been present 
 0034
          1   in the courtroom since early this morning.  She 
          2   would like to be present when her impact statement 
          3   is read in court," that was not of any consequence, 
          4   was it?
          5       A.   It was of no consequence to the purposes of 
          6   this particular statute, no. 
          7       Q.   And in fact it was clear to you, wasn't it, 
          8   that when the plea took place at another time, she 
          9   would be able to read her impact statement in open 
         10   court, right? 
         11       A.   Correct.
         12       Q.   And, by the way, did the Commonwealth ever 
         13   ask you to let the grandmother read the impact 
         14   statement that day so she wouldn't have to come 
         15   back? 
         16       A.   No. 
         17       Q.   Mr. Ware asked you if you brought the 
         18   grandmother up to the bench to talk to her.  Did 
         19   you? 
         20       A.   No, I did not.
         21       Q.   Whose job is it to present the information 
         22   to the Court under this statute so the Court has the 
         23   facts before it as to the impact on a child? 
         24       A.   It is the Commonwealth's burden to put that 
 0035
          1   forth to the Court.
          2       Q.   Isn't it in fact required by the statute 
          3   that they file an impact statement in those regards? 
          4       A.   That is correct.
          5       Q.   And did they do so under the statute? 
          6       A.   No, they did not. 
          7       Q.   Did you consider this to be a good-faith 
          8   opposition to the continuance under 278, Section 
          9   16F? 
         10       A.   No. 
         11       Q.   Did it provide any of the details which are 
         12   the norm in a case like this?
         13       A.   No, not -- it provided nothing -- not the 
         14   details that would be required under the statute, 
         15   no. 
         16       Q.   And after being presented with that, Mr. 
         17   Deakin asked you to make findings, and then you said 
         18   he would get findings; is that correct? 
         19       A.   Correct. 
         20       Q.   And then you made certain findings with 
         21   regard to these proceedings; is that correct? 
         22       A.   Yes. 
         23       Q.   And when you made these findings, you did 
         24   so based upon the information you had before you as 
 0036
          1   you wrote the findings; is that correct? 
          2       A.   That's correct. 
          3       Q.   Now, you were asked whether or not you 
          4   called up Ralph Martin or anybody in his office to 
          5   get information ex parte.  Did you do that? 
          6       A.   No.
          7       Q.   Would you do that? 
          8       A.   No. 
          9       Q.   Was it your obligation to do it? 
         10       A.   No, it was not.
         11       Q.   Would it be right for you to do it? 
         12       A.   I wouldn't think so. 
         13       Q.   Would you consider it appropriate to call 
         14   up the district attorney and get private information 
         15   in order to make a ruling? 
         16       A.   No.  I would never do that. 
         17       Q.   Did the Commonwealth seek to provide you 
         18   with any further information? 
         19       A.   No. 
         20       Q.   Did they ask to be heard and you turned 
         21   them down? 
         22       A.   No. 
         23       Q.   Did they ask to make a written submission 
         24   and did you turn them down? 
 0037
          1       A.   No. 
          2       Q.   Let's get to the findings that you made.  
          3   First of all, let me ask you, did you make these 
          4   findings in good faith?
          5       A.   I certainly did.
          6       Q.   Did you believe them when you made them? 
          7       A.   Absolutely. 
          8       Q.   And, by the way, has anybody ever appealed 
          9   these findings?
         10       A.   No. 
         11       Q.   Has anybody asked you to reconsider these 
         12   findings? 
         13       A.   No.
         14       Q.   Has anybody ever asked you to have a 
         15   hearing on these findings? 
         16       A.   No. 
         17       Q.   Is there a right of appeal from findings by 
         18   a court?
         19       A.   They could have appealed me on this, yes. 
         20       Q.   And wouldn't they be able to appeal under 
         21   Chapter 211, Section 3?
         22       A.   Absolutely. 
         23       Q.   Did they take such an appeal?
         24       A.   They did not. 
 0038
          1       Q.   Had they come to you for reconsideration 
          2   and asked you to reconsider this matter, that might 
          3   have been subject to an evidentiary hearing, 
          4   couldn't it? 
          5       A.   It could have.
          6            MR. WARE:  Objection.
          7            HEARING OFFICER DAHER:  What's the 
          8   objection?
          9            MR. WARE:  As to what would have happened.
         10            HEARING OFFICER DAHER:  Sustained. 
         11            MR. EGBERT:  Judge, may I be heard for a 
         12   moment? 
         13            HEARING OFFICER DAHER:  Sure.  Go ahead.
         14            MR. EGBERT:  I think the fact, Your Honor, 
         15   is that, although the Commission's position in this 
         16   regard is that these findings are somehow 
         17   misrepresentative, the fact that the district 
         18   attorney didn't want to take the chance of coming 
         19   back on a reconsideration motion and have an 
         20   evidentiary hearing where they would be placed under 
         21   oath seems to me to speak to the legitimacy of the 
         22   filing.
         23            HEARING OFFICER DAHER:  Sustained.  The 
         24   objection is still sustained.  Let's go. 
 0039
          1       BY MR. EGBERT:
          2       Q.   In the findings you make the following 
          3   findings:  "The case was on for a change of plea 
          4   today," number one?
          5       A.   Yes.
          6       Q.   And was that a true statement? 
          7       A.   Correct.  Yes, it is.
          8       Q.   It was scheduled for a possible change of 
          9   plea, correct?
         10       A.   Yes.
         11       Q.   Did you know at the time whether it would 
         12   actually be a plea? 
         13       A.   At which time? 
         14       Q.   When you came in in the morning, for 
         15   example?
         16       A.   No, I did not.
         17       Q.   And then, "ADA Joseph, unhappy with the 
         18   Court's position."  Let's stop there.  Had the 
         19   district attorney indicated to you that she was 
         20   unhappy with your position?
         21       A.   Yes, she did.  During the August 1st lobby 
         22   conference she indicated her unhappiness and 
         23   disagreement with me.
         24       Q.   When you say your "position," do you mean 
 0040
          1   the sentence that you were going to impose? 
          2       A.   I think that says "disposition."
          3       Q.   "Disposition."
          4       A.   Yes.  That's the sentence, yes.
          5       Q.   The sentence you were going to impose? 
          6       A.   Yes. 
          7       Q.   And then you said "called the press in. Ms. 
          8   Joseph has a habit of doing this," right?
          9       A.   Correct.
         10       Q.   Now, what do you mean by "called the press 
         11   in"?
         12       A.   I believed that she was, as the line 
         13   "ADA" --
         14            MR. WARE:  Your Honor, I'm going to object.  
         15   The question isn't what she thinks today, how she 
         16   interprets it today.  It's what she meant at the 
         17   time, and I don't believe that was my colleague's 
         18   question.
         19            HEARING OFFICER DAHER:  It wasn't.  
         20   Sustained.
         21            MR. EGBERT:  I asked, what did she mean by 
         22   that statement.
         23            HEARING OFFICER DAHER:  Mr. Ware.
         24            MR. WARE:  I don't object to that.
 0041
          1            HEARING OFFICER DAHER:  You got it.
          2       A.   What I meant by that statement was that, 
          3   based on my experience in two prior cases with Ms. 
          4   Joseph, after having reviewed the DA's press 
          5   release, because these findings were made after I 
          6   had seen that press release, I came to the 
          7   conclusion that it was Ms. Joseph, as the line ADA, 
          8   that had provided information about this case to the 
          9   press office, particularly because there were some 
         10   unique facts in that press release that only the 
         11   line DA would know about. 
         12       Q.   And when you say "called the press in," did 
         13   you mean that she picked up the phone and called the 
         14   press? 
         15       A.   No.  I meant she started the ball rolling.  
         16   She generated it.  She, you know, went to somebody 
         17   and said, "Let's do it," something like that.
         18       Q.   And was there any doubt in your mind at 
         19   that time that that was the case? 
         20       A.   No doubt in my mind whatsoever. 
         21       Q.   And then you said, "The defendant suffers 
         22   from an identity disorder.  She looks female in all 
         23   respects."
         24       A.   "Sexual."
 0042
          1       Q.   "Sexual identity" -- why don't you read it 
          2   for me.
          3       A.   "The defendant suffers from a sexual 
          4   identity disorder.  She looks female in all 
          5   respects." 
          6       Q.   And was that true? 
          7       A.   Absolutely. 
          8       Q.   And why did you think it was necessary to 
          9   put that in? 
         10       A.   Well, for a number of reasons.  First, it 
         11   was referenced in the DA's press release, but I 
         12   thought it was a necessary finding for my subsequent 
         13   finding concerning ridiculing and embarrassing 
         14   someone with a psychological disorder. 
         15       Q.   Okay.  So then you indicated, "When the 
         16   defendant" -- why don't you read it. 
         17       A.    "When the defendant and her mother were 
         18   getting off the elevator on the 15th floor, there 
         19   was a television camera waiting for her in the 
         20   hallway." 
         21       Q.   Now, had that been reported to you by 
         22   someone who was an officer of the court?
         23       A.   Correct, and it was undisputed that that is 
         24   what happened.
 0043
          1       Q.   When you say it is undisputed, what do you 
          2   mean by that?
          3       A.   Well, I mean no one -- that was represented 
          4   to me by Anne Goldbach, I think even -- maybe even a 
          5   court officer.  But, I mean, that is what everybody 
          6   understood had happened.
          7       Q.   Did Ms. Joseph ever indicate to you that 
          8   that didn't happen? 
          9       A.   No.
         10       Q.   Did she ever ask you to have a hearing on 
         11   that? 
         12       A.   No, she didn't. 
         13       Q.   What's your next finding? 
         14       A.   "The defendant and her mother refused to 
         15   get off the elevator.  There was an eruption in the 
         16   hallway, with the defendant's mother yelling at the 
         17   press." 
         18       Q.   On what did you base that --
         19       A.   Again, representations made to me by Anne 
         20   Goldbach and by my court officer, I believe.
         21       Q.   And were those representations made in 
         22   front of Leora Joseph?
         23       A.   Yes.
         24       Q.   Did she ever indicate to you that she 
 0044
          1   disagreed with those facts? 
          2       A.   No.
          3       Q.   That she disputed those facts? 
          4       A.   No.
          5       Q.   Did she ever ask to have a hearing on those 
          6   facts? 
          7       A.   No, she never did.
          8       Q.   Read on, please.
          9       A.   "The Court finds that ADA Joseph attempted 
         10   to embarrass and ridicule a defendant suffering from 
         11   a psychological disorder." 
         12       Q.   On what did you base that fact?
         13       A.   I based that fact --
         14       Q.   That finding.
         15       A.   I based that finding on the information 
         16   that was contained in the district attorney's press 
         17   release, specifically the reference to a 
         18   transgendered -- that the defendant was 
         19   transgendered, a man who -- I believe that's what it 
         20   says -- who dressed and looked like a woman; and I 
         21   believe that that information was put in there 
         22   merely to appeal to the prurient interests of the 
         23   press and the public, to be provocative, to inflame 
         24   passions concerning this person, and generally to 
 0045
          1   depict this defendant as some sort of a freak.
          2       Q.   In fact, was that statement, "transgendered 
          3   and dresses like a woman," that wasn't contained in 
          4   the Commonwealth's statement of the case that they 
          5   gave at the beginning of the case, right? 
          6       A.   No, no.  I knew that --
          7       Q.   Listen to my question.
          8       A.   No, it was not. 
          9       Q.   And did it strike you that the Commonwealth 
         10   was adding that to the press release -- by comparing 
         11   the press release --
         12            HEARING OFFICER DAHER:  Are you objecting 
         13   to that? 
         14            MR. WARE:  Yes. 
         15            HEARING OFFICER DAHER:  Sustained.
         16       Q.   By comparing the press release and the 
         17   statement of the case, did you draw any conclusions? 
         18       A.   That they had not even mentioned the 
         19   transgendered status in the statement of the case 
         20   presented to the court.  However, it was highlighted 
         21   in this press release. 
         22       Q.   And then you indicate, "The Court finds" -- 
         23   why don't you read on.
         24       A.   "The Court finds that the Commonwealth 
 0046
          1   caused this continuance because it sought to turn 
          2   the court proceedings into a circus." 
          3       Q.   Were the court proceedings disrupted that 
          4   day?
          5       A.   Absolutely. 
          6       Q.   And when you say "a circus," you don't mean 
          7   literally lions, tigers and elephants, do you? 
          8       A.   No.
          9       Q.   What do you mean by that?
         10       A.   I mean that there was a disruption --
         11            MR. WARE:  Again, object to this 
         12   retrospective question.  What did she mean at the 
         13   time?
         14            HEARING OFFICER DAHER:  I do -- I think I 
         15   detect a bit of levity into the proceedings, but I'm 
         16   going to sustain the objection. 
         17       BY MR. EGBERT: 
         18       Q.   What did you mean by that?
         19       A.   I'm sorry.  I lost your question.
         20       Q.   What did you mean by that statement?
         21       A.   Circus? 
         22       Q.   Yes.
         23       A.   What I meant by that was that the court 
         24   proceedings had been turned into a situation where a 
 0047
          1   defendant was being ridiculed and embarrassed, and 
          2   that caused a complete disruption of the 
          3   proceedings. 
          4       Q.   And then your next finding, read that, 
          5   please. 
          6       A.   "There is little if no impact on the 
          7   alleged victim as this is a plea." 
          8       Q.   Now, let's talk about that one:  "There is 
          9   little if no impact on the alleged victim as this is 
         10   a plea."  You were talking about the continuance, 
         11   right?
         12       A.   Correct. 
         13       Q.   That wasn't about anything else in this 
         14   case, right?
         15       A.   No, no.  I was addressing the statutory 
         16   requirements. 
         17       Q.   Of what impact the continuance will have on 
         18   the victim?
         19       A.   Correct.
         20       Q.   Why didn't you think there would be much 
         21   impact on the alleged victim? 
         22       A.   Because the case was supposed to plead, 
         23   which meant, then, that the victim would not be put 
         24   through the trauma of preparing for a trial process, 
 0048
          1   you know, going through a trial, being cross- 
          2   examined, and the victim would be spared that.  And 
          3   I believe that's what the intent of the statute is. 
          4       Q.   Well, what would the -- what impact did the 
          5   district attorney's office tell you the continuance 
          6   would have on the victim?
          7       A.   There was nothing in their motion 
          8   concerning the impact on the victim, only the 
          9   grandmother --
         10       Q.   So I'm asking you a question.  What 
         11   information did the Commonwealth provide to you that 
         12   the continuance would have an adverse impact on the 
         13   victim?
         14       A.   None. 
         15       Q.   And then you put, "The matter has been 
         16   rescheduled to September 6th"; is that correct? 
         17       A.   Correct.
         18       Q.   Now, when you made those findings with 
         19   regard to the Commonwealth's submission, were they 
         20   made in good faith?
         21       A.   Absolutely. 
         22       Q.   And did you believe them when you made 
         23   them?
         24       A.   I do.  I did, and I do. 
 0049
          1       Q.   And did you base them on the information 
          2   and facts that were before you?
          3       A.   Correct.  Yes.
          4       Q.   And at that time, is it fair to say that 
          5   you were displeased with Ms. Joseph's conduct? 
          6       A.   Very. 
          7       Q.   And the conduct of the DA's office? 
          8       A.   Yes. 
          9       Q.   Did that form in you a bias against them? 
         10       A.   No. 
         11       Q.   Were you unable to perform your judicial 
         12   functions in any way?
         13       A.   No.  Judges regularly get annoyed and mad 
         14   at lawyers. 
         15            MR. WARE:  I object what other judges do in 
         16   other circumstances.
         17            HEARING OFFICER DAHER:  That's a 
         18   generalization.  Sustained. 
         19       Q.   You have been -- you have been to judges' 
         20   conferences in the past? 
         21       A.   Many.
         22       Q.   Meetings of judges in the past? 
         23       A.   Many.
         24       Q.   Dinners with judges in the past? 
 0050
          1       A.   Many.
          2       Q.   Have any of your colleagues ever indicated 
          3   to you that they have on occasion been displeased 
          4   with one lawyer or another? 
          5       A.   Many.
          6            MR. WARE:  Objection, Your Honor. 
          7            HEARING OFFICER DAHER:  I'm going to 
          8   sustain that objection. 
          9            MR. WARE:  I'm sure it has never happened 
         10   to Mr. Egbert or me.
         11            HEARING OFFICER DAHER:  Never happened to 
         12   me.  I'm only joking.
         13            MR. EGBERT:  As long as the Court will take 
         14   judicial notice of it, I don't have to go much 
         15   further.  
         16            (Laughter)
         17       Q.   After you made these findings, you provided 
         18   copies to the district attorney's office, did you 
         19   not?
         20       A.   My clerk did.  I gave the findings to my 
         21   clerk and instructed them or him to notify --
         22       Q.   And you have seen that these findings were 
         23   faxed to Joan Kenney at some point in time after the 
         24   hearing, correct?
 0051
          1       A.   Correct. 
          2       Q.   And do you know why that was done? 
          3       A.   I don't have a recollection.  I probably 
          4   had a conversation with her about this that day.  I 
          5   don't know if she was getting calls.  I really don't 
          6   remember why it was that these were faxed to her. 
          7       Q.   And -- but do you recall whether or not the 
          8   press was looking for your findings? 
          9       A.   I believe they were, because they knew -- 
         10   they left after I had continued the case, and they 
         11   knew that there were findings coming. 
         12       Q.   Did you -- you were asked whether or not, 
         13   during the time from August 4th to September 6th, on 
         14   your scheduled plea and sentencing date, whether or 
         15   not you prepared a sentencing memorandum of your 
         16   findings with regard to disposition, correct?  Do 
         17   you recall those questions? 
         18       A.   Yes, I do. 
         19       Q.   Have you ever done that before, before a 
         20   plea?
         21       A.   No.  Never. 
         22       Q.   Can you think of an occasion why a judge 
         23   would make sentencing findings on the record in the 
         24   file before a defendant actually pled guilty?
 0052
          1       A.   No, I can't.  I mean -- I can't imagine 
          2   doing that myself.  I've never done that. 
          3       Q.   Weren't you informed by Ms. Joseph at the 
          4   time of these events that -- well, strike that.  
          5   Were you informed, between August 4th and September 
          6   6th, that the grandmother had made a statement with 
          7   regard to the appropriateness of a probationary 
          8   sentence? 
          9       A.   Oh, I had read an article by John Ellement 
         10   concerning that, yes. 
         11       Q.   And when was that article, do you recall? 
         12       A.   It was the day after I granted the 
         13   continuance. 
         14       Q.   And do you recall basically the substance 
         15   of what you read in that article? 
         16       A.   I believe she was quoted as saying that she 
         17   didn't really have a problem with a probationary 
         18   sentence.
         19       Q.   And did you have any discussion with the 
         20   district attorney's office or any members of the 
         21   district attorney's office about what you had read? 
         22       A.   No. 
         23       Q.   And, in fact, by the time you had read it, 
         24   you had already made your decision as to what the 
 0053
          1   sentence was going to be; is that correct?
          2       A.   I made that decision August 1. 
          3       Q.   You were asked a number of questions by Mr. 
          4   Ware as to whether or not your decision or your mind 
          5   could be changed with regard to your ruling on the 
          6   sentence.  Do you recall all those questions? 
          7       A.   Yes. 
          8       Q.   When a judge makes a decision, what are the 
          9   factors that cause that decision to change? 
         10       A.   A decision -- a sentencing decision could 
         11   change if new information is brought to the judge's 
         12   attention.
         13       Q.   And how would that be done? 
         14       A.   It would be done through a motion or 
         15   request for a hearing to present additional 
         16   argument, but it would be done through the orderly 
         17   court process.
         18       Q.   Was there ever any attempt, between August 
         19   1st of the year 2000 and September 6th of the year 
         20   2000, by the district attorney's office to get you 
         21   to reconsider your position on sentencing? 
         22       A.   No.
         23       Q.   Were you ever asked to conduct a hearing 
         24   where other facts or other evidence could be 
 0054
          1   presented to you? 
          2       A.   No. 
          3       Q.   Were you ever asked to have a conference 
          4   with the parties where the district attorney's 
          5   office could seek to dissuade you or to change your 
          6   mind?
          7       A.   No.
          8       Q.   Did you at any time -- were you at any time 
          9   presented with any information by the district 
         10   attorney's office which would indicate to you that 
         11   they had facts or evidence which they wanted you to 
         12   consider -- reconsider for purposes of your 
         13   sentence?
         14       A.   No.
         15       Q.   When you went -- when you went on September 
         16   6th to court that day to conduct the Horton 
         17   sentencing hearing, did you expect -- strike that.  
         18   Did you have any notice by anyone that they were 
         19   seeking to have you reconsider your sentence?
         20       A.   No.
         21       Q.   Now, as September 6th approached, you were 
         22   over in the Middlesex Courthouse?
         23       A.   Yes.  I went to Middlesex the following 
         24   Monday, on August -- it would have been the 7th, I 
 0055
          1   think it was. 
          2       Q.   Whatever day it was --
          3       A.   Yes.
          4       Q.   -- by September 6th, were you sitting in 
          5   Middlesex?
          6       A.   Yes, I was. 
          7       Q.   And while you were sitting over there, did 
          8   you have discussions with any of your personnel 
          9   concerning the Horton case? 
         10       A.   Absolutely. 
         11       Q.   And do you recall who you spoke with? 
         12       A.   I spoke initially to my clerk when I got 
         13   there so that he would know, in terms of scheduling 
         14   matters, that this was -- you know, that this case 
         15   was on for a particular date and time.  I also had 
         16   to let him know, because when you move a case from 
         17   one county to another, the clerk and probation 
         18   officer from the county where the case comes from 
         19   has to travel with the case.  So he had to be 
         20   prepared for that.
         21       Q.   Did you have other obligations by way of 
         22   informing them with regard to security and the like? 
         23       A.   Yes. 
         24       Q.   What were those obligations? 
 0056
          1       A.   Well, my obligations were to make sure that 
          2   the court process could be conducted in an orderly, 
          3   efficient manner, and I was obviously concerned, 
          4   because of what had happened on August 4th, that we 
          5   might have another situation that could abort a 
          6   possible plea. 
          7       Q.   So -- you had in mind, I take it, the fact 
          8   that the last time the press and Mr. Horton and his 
          9   family came in contact, there was some hysteria and 
         10   it interrupted the proceedings? 
         11       A.   Correct.
         12       Q.   Did you let your court officers or clerks 
         13   know about that?
         14       A.   Oh, yes, I did. 
         15       Q.   And what did you instruct them to do? 
         16       A.   I instructed them to make arrangements so 
         17   that the defendant and whomever accompanied her 
         18   could be met outside of the courthouse to avoid the 
         19   public spaces, and that I wanted her put somewhere 
         20   so that we could get her into the courtroom, take 
         21   the plea, and get her out of there. 
         22       Q.   And was your purpose to provide special 
         23   treatment to Charles Ebony Horton?
         24       A.   No.
 0057
          1       Q.   What was your purpose?
          2       A.   My purpose is to assure that there would be 
          3   an orderly, efficient, civilized administration of 
          4   justice, and that this plea could be accomplished 
          5   that day. 
          6       Q.   And is it fair to say that you had in mind 
          7   the same reason you indicated previously as to why a 
          8   plea would be good for this case? 
          9       A.   Yes. 
         10       Q.   Now, when you -- when you made these 
         11   arrangements or had your personnel make the 
         12   arrangements, did you notify the DA's office? 
         13       A.   No. 
         14       Q.   Why not?
         15       A.   I don't have to notify the DA's office 
         16   about these arrangements.
         17       Q.   Has this got anything to do with the case 
         18   before you? 
         19       A.   No.  It all relates to security issues and 
         20   court administration issues. 
         21       Q.   And have you had situations like this in 
         22   the past? 
         23       A.   Many times. 
         24       Q.   And do you bring counsel in to describe to 
 0058
          1   them the security measures that your court personnel 
          2   will undertake?
          3       A.   No, I don't.  And sometimes the 
          4   arrangements are made directly by counsel with the 
          5   court officers. 
          6       Q.   Did anyone in your courthouse object to the 
          7   arrangements that were being made?
          8       A.   No. 
          9       Q.   And did you have any conversation with 
         10   anyone where they indicated that this was improper 
         11   in any way? 
         12            MR. WARE:  Well, I don't know how they 
         13   could do that if they didn't know about them, but --
         14            MR. EGBERT:  If they didn't know about 
         15   them?
         16       Q.   Did the clerks know about them?
         17       A.   My clerks and my court officers assigned to 
         18   me in that session certainly knew about it.
         19       Q.   And did any of those parties make any 
         20   objections in any way to the arrangements that you 
         21   were making?
         22       A.   No. 
         23       Q.   And you also took some measures with regard 
         24   to the press that day; is that right? 
 0059
          1       A.   That's right.
          2       Q.   And, first of all, when you came in that 
          3   day, had the press previously notified the Court 
          4   that they wished to have permission to be in the 
          5   courtroom?
          6       A.   No, they never notified the Court or asked 
          7   for permission.
          8       Q.   And is that provided for under the rule?
          9       A.   Yes.  There is a specific SJC rule dealing 
         10   with press matters and cameras in the courtroom. 
         11       Q.   And when you arrived on September 6th, did 
         12   you understand that there would be cameras there? 
         13       A.   When I got there, I learned that the 
         14   cameras were there. 
         15       Q.   And did you have any conversation with 
         16   anybody at the SJC in that regard? 
         17       A.   Yes.  I called Joan Kenney concerning an 
         18   order that I had drafted that would limit the 
         19   cameras in the courtroom, that would order them not 
         20   to take the defendant's face. 
         21       Q.   I want to show you what I believe has been 
         22   marked Defendant's A, on order limiting the use of 
         23   cameras.
         24       A.   Yes. 
 0060
          1       Q.   Is that an order that you ultimately 
          2   executed? 
          3       A.   Yes, that is.
          4            MR. EGBERT:  Your Honor, I would offer 
          5   that.
          6            HEARING OFFICER DAHER:  Any objections? 
          7            MR. WARE:  No, Your Honor.
          8            HEARING OFFICER DAHER:  Mark it. 
          9                 (Document marked as Exhibit A 
         10                  moved in evidence)
         11       Q.   What did you order within that? 
         12       A.   Basically I ordered that the cameras would 
         13   be allowed in the courtroom, and -- but that I 
         14   wanted limitations on that, and that limitation was 
         15   that they were not to take pictures, by way of still 
         16   or moving cameras, of the defendant's face. 
         17       Q.   Why did you do that? 
         18       A.   For a number of reasons.  First, I -- as I 
         19   found -- I mean, I didn't see that there was any 
         20   reason to take the defendant's face in this 
         21   particular situation. 
         22            I was concerned that the cameras could be 
         23   provocative to this defendant, as they had 
         24   previously been.  And obviously there is always some 
 0061
          1   concern that there might be public safety issues -- 
          2   safety issues and risks involved to a defendant that 
          3   pleads to these kinds of charges. 
          4       Q.   What did you care if Ebony Horton was 
          5   provoked? 
          6       A.   If we had -- we would then have a 
          7   repetition of what had occurred on August 4th.  And 
          8   if she was provoked, we would have an emotional 
          9   situation in the courtroom, and the plea would not 
         10   be able to be accomplished. 
         11       Q.   And you thought that, drawing on what 
         12   occurred on August 4th, that was a likelihood?
         13       A.   Yes. 
         14       Q.   Now, also you were asked questions 
         15   concerning the putting of the lawyers behind Ebony 
         16   Horton, the setup of the room in that regard, and 
         17   we'll get to it in a few minutes.  But do you 
         18   remember that? 
         19       A.   Yes, I do.
         20       Q.   And you were asked whether or not you did 
         21   that because you didn't trust the press, right? 
         22       A.   Yes.
         23       Q.   Did that order have anything to do with the 
         24   press? 
 0062
          1       A.   It had nothing to do with the press.
          2       Q.   What did it have to do it with?
          3       A.   It had to do with assuring that the 
          4   defendant would not be provoked, would not get 
          5   upset, would not be affected or intimidated by the 
          6   mere presence of the camera. 
          7       Q.   And, once again, why did you care about 
          8   that? 
          9       A.   Again, because if we went into one of those 
         10   emotional downswings, we would have another aborted 
         11   plea situation. 
         12       Q.   As a judge, when you take a plea, is it 
         13   required of you that you make a determination that 
         14   the defendant is of sufficient mental ability and 
         15   capacity to knowingly, voluntarily and intelligently 
         16   enter the plea? 
         17       A.   Those are required findings, yes.
         18       Q.   And is that -- how would you describe that 
         19   in terms of difficulty when you're dealing with 
         20   someone who has an acknowledged mental disorder? 
         21       A.   Well, I have to establish that that 
         22   disorder does not interfere with the defendant's 
         23   ability to understand.
         24       Q.   And did that defendant's mental disorder 
 0063
          1   affect the manner in which you provided the security 
          2   on that day? 
          3       A.   Yeah, it was related to the psychological 
          4   information I had about this particular defendant, 
          5   that there were potentials for, you know, outbursts 
          6   and -- a situation where she would not be responsive 
          7   to my questions, to the situation, yes. 
          8       Q.   So now it's September 6th, and this plea is 
          9   about to occur.  The press was there.  You could 
         10   have had them excluded, couldn't you? 
         11       A.   I certainly could have ordered them right 
         12   out of the courtroom.
         13       Q.   And why did you choose to reach the mix 
         14   that you reached in your orders? 
         15       A.   I concluded that this was an appropriate 
         16   balance.  It would allow the press to cover this 
         17   particular case that they had shown an interest in 
         18   from before, but that it would protect the court 
         19   process and allow it to proceed in an orderly and 
         20   efficient fashion. 
         21       Q.   Is there a process under the SJC rules for 
         22   the press to object or seek review of your orders 
         23   with regard to them? 
         24       A.   Absolutely. 
 0064
          1       Q.   Was any review taken in this case? 
          2       A.   No. 
          3       Q.   Did anyone seek review?
          4       A.   No.
          5       Q.   Did anyone seek a review from you?
          6       A.   No. 
          7       Q.   I'm going to play -- and I know it's a 
          8   little lengthy -- but I'm going to play a tape of 
          9   the September 6th proceeding, and I may stop it on 
         10   occasion to ask you questions; is that right? 
         11       A.   Yes. 
         12            MR. EGBERT:  May I have the tape? 
         13            (Tape handed to Mr. Egbert by Ms. Brunetti)  
         14            (Videotape playing)
         15            THE CLERK:  As to Indictment No. 2000- 
         16   10029-001, this indictment alleges kidnapping.  002, 
         17   assault to rape a child, 003, indecent assault and 
         18   battery on a child under fourteen, 004, assault and 
         19   battery, and 005, assault and battery by means of a 
         20   dangerous weapon, at this time do you wish to change 
         21   your plea to each of these indictments?
         22            DEFENDANT:  Yes. 
         23            THE CLERK:  What say you to these 
         24   indictments?  Are you guilty or not guilty?
 0065
          1            DEFENDANT:  Guilty.
          2            THE CLERK:  Would you raise your right 
          3   hand, please.  (Defendant sworn) You may be seated. 
          4            THE COURT:  Would the lawyers identify 
          5   themselves for the record.
          6            MR. DEAKIN:  Good morning, Your Honor.  
          7   Assistant District Attorney David Deakin for the 
          8   Commonwealth.  With me Assistant District Attorney 
          9   Leora Joseph.
         10            (Videotape stopped)
         11       BY MR. EGBERT: 
         12       Q.   Let me stop there, for a moment.  Mr. 
         13   Deakin stood up and identified himself for you, 
         14   correct?
         15       A.   Yes. 
         16       Q.   And said that Ms. Joseph was with him at 
         17   the time, correct?
         18       A.   Yes. 
         19       Q.   Who did you understand to be counsel who 
         20   would be addressing the Court on behalf of the 
         21   Commonwealth?
         22       A.   Mr. Deakin was the only one that stood up.  
         23   So I was under the opinion that he would be council 
         24   representing the Commonwealth in that case.
 0066
          1       Q.   Now, did anybody ever indicate to you that 
          2   Ms. Joseph was going to participate in the 
          3   proceedings in any active way? 
          4       A.   No.  No one ever indicated that. 
          5       Q.   And in your experience as a Superior Court 
          6   judge, when there are -- is there a word for 
          7   somebody sitting in that chair? 
          8       A.   Yes.  It is somebody who is second seating, 
          9   second chairing. 
         10       Q.   And typically, if someone second chairs a 
         11   case, are they allowed to speak objections or speak 
         12   to matters that are being addressed by other 
         13   counsel? 
         14       A.   No, they are not -- they generally do not 
         15   speak in court. 
         16       Q.   Except with what? 
         17       A.   With the Court's permission. 
         18            (Videotape playing)
         19            MS. GOLDBACH: Good morning, Your Honor.  
         20   Anne Goldbach from the Committee for Public Counsel 
         21   Services.
         22            MS. KELLEHER:  Good morning, Your Honor.  
         23   Victoria Kelleher, also from the Committee for 
         24   Public Counsel Services.
 0067
          1            THE COURT:  Okay.  I need to ask the 
          2   defendant some questions.  Listen carefully to the 
          3   questions I ask you.  If there is something you do 
          4   not understand, please let me know, okay?
          5            DEFENDANT:  Yes. 
          6            THE COURT:  Okay.  Start by telling me your 
          7   name.
          8            (Videotape stopped)
          9       BY MR. EGBERT: 
         10       Q.   Let me stop you there.  Were you yelling at 
         11   the defendant there? 
         12       A.   No.
         13       Q.   Is that your normal tone of voice? 
         14       A.   Yes.  I wanted to make sure the defendant 
         15   heard me, yes.
         16            (Videotape playing)
         17            DEFENDANT:  Charles Horton.
         18            THE COURT:  You've got to speak up.
         19            DEFENDANT:  Charles Horton.
         20            THE COURT:  How hold are you?
         21            DEFENDANT:  Twenty-two.
         22            THE COURT:  How far have you gone in 
         23   school?
         24            DEFENDANT:  I got my GED.
 0068
          1            THE COURT:  Have you worked? 
          2            DEFENDANT:  Before, yes.
          3            THE COURT:  What kind of work did you do 
          4   when you worked?
          5            DEFENDANT:  I worked at a bookstore, and I  
          6   worked in telemarketing.
          7            THE COURT:  Okay.  What did you say first?   
          8   You said telemarketing, and what was the first 
          9   thing?
         10            DEFENDANT:  A bookstore. 
         11            THE COURT:  A bookstore.  Okay.  Have you 
         12   used drugs or alcohol in the last 24 hours?
         13            You've got to speak up.  You can't just 
         14   shake your head, okay?
         15            DEFENDANT:  No, I haven't.
         16            THE COURT:  All right.  Are you on any kind 
         17   of prescription medication? 
         18            DEFENDANT:  No. 
         19            THE COURT:  Okay.  Is there anything at all 
         20   I should know about you that might affect your 
         21   ability to understand what you were doing at this 
         22   time? 
         23            DEFENDANT:  No, Your Honor. 
         24            THE COURT:  Have you had an opportunity to 
 0069
          1   discuss with your attorney the evidence that the 
          2   Commonwealth has against you? 
          3            DEFENDANT:  Yes, Your Honor.
          4            THE COURT:  Have you discussed with your 
          5   attorney the elements of these indictments?
          6            DEFENDANT:  Yes. 
          7            THE COURT:  And have you discussed with 
          8   your attorney any possible defenses you might have?
          9            DEFENDANT:  Yes. 
         10            THE COURT:  Are you satisfied with her 
         11   advice? 
         12            DEFENDANT:  Yes.
         13            THE COURT:  Okay.  Now, the sentence -- and 
         14   I think I indicated that I was going to place the 
         15   defendant on probation for a period of five years.  
         16   I had initially indicated that I would be placing 
         17   him into the Community Corrections Program. 
         18            It appears that he will not be accepted at 
         19   the Community Corrections Program.  Therefore, I am 
         20   going to place him on probation for a period of five 
         21   years, on electric monitoring for a period of one 
         22   year, and that you will be required to attend 
         23   counseling, and you are to stay away from children 
         24   under the age of 16.  Okay.
 0070
          1            Do you understand that that is the sentence 
          2   that you're going to get? 
          3            DEFENDANT:  Yes.
          4            (Videotape stopped)
          5       BY MR. EGBERT: 
          6       Q.   You say at that point to the defendant, 
          7   "Do you understand that that is the sentence that 
          8   you are going to get?"
          9       A.   Yes. 
         10       Q.   So as far as the defendant and you and 
         11   everybody in that courtroom were concerned, the 
         12   defendant's sentence had been fully decided? 
         13       A.   Correct.
         14       Q.   At the time that you told the defendant the 
         15   sentence he was -- you were going to deliver, did 
         16   the Commonwealth object and say they hadn't yet been 
         17   heard? 
         18       A.   No.
         19       Q.   Did they ask to give you information to 
         20   have you reconsider that sentence?
         21       A.   No.
         22       Q.   Is it fair to say, in your experience, that 
         23   your delivery to the defendant of that information, 
         24   Here is your sentence, at least as far as the 
 0071
          1   dispositional aspects of the case, were final? 
          2       A.   Correct.  Yes. 
          3       Q.   So what was the purpose of the rest of the 
          4   proceeding, from then on?
          5       A.   It was to establish on the record the 
          6   requirements of a plea, that it was an intelligent, 
          7   voluntary -- basically just to get it on the record.
          8       Q.   Was it to satisfy the rule, basically?
          9       A.   Yes. 
         10       Q.   And did you envision at that time, in your 
         11   experience, that anything the prosecutors were going 
         12   to do thereafter was designed to influence the 
         13   sentence? 
         14       A.   Anything a prosecutor -- I'm sorry, I 
         15   missed that.
         16       Q.   Did anything the prosecutors were going to 
         17   do after the fact of you delivering your sentence 
         18   there was designed to actually influence you or 
         19   change your mind? 
         20       A.   Well, I don't know what the prosecutors 
         21   had, but -- I don't understand the question. 
         22       Q.   After you deliver a sentence in court, has 
         23   it been your experience that the arguments of 
         24   counsel thereafter are for form or substance? 
 0072
          1       A.   Okay.  They are for form.  They have had 
          2   their full and fair opportunity to be heard 
          3   previously. 
          4       Q.   Did anybody indicate to you that they 
          5   wanted to present to you new facts or new 
          6   information or the like?
          7       A.   No.
          8       Q.   And did anybody object to you telling the 
          9   defendant at that time what their sentence was?
         10       A.   No. 
         11       Q.   And once you told the defendant what the 
         12   sentence was, you couldn't go back on that, could 
         13   you? 
         14       A.   I could not, no.
         15       Q.   And the defendant is then waiving all of 
         16   his rights, based upon what you've told him, 
         17   correct? 
         18       A.   That's right.
         19            HEARING OFFICER DAHER:  Could you move 
         20   that.  I don't think Mr. Ware can see it.
         21            MR. EGBERT:  Judge, I couldn't see it when 
         22   he had it either, and that's why I got up and walked 
         23   over there.
         24            HEARING OFFICER DAHER:  Bob, if you could 
 0073
          1   just move it slightly.  I think that's fine.
          2            MR. EGBERT:  Can you see it?
          3            HEARING OFFICER DAHER:  I think I can.  I 
          4   can. 
          5            (Videotape playing)
          6            THE COURT:  Have any promises been made to 
          7   get you to plead guilty? 
          8            DEFENDANT:  No.
          9            THE COURT:  Have any threats been made to 
         10   get you to plead guilty?
         11            DEFENDANT:  No.
         12            THE COURT:  I'm required by law to inform 
         13   you that if you are not a citizen of the Unites 
         14   States, a conviction on these charges could have 
         15   immigration consequences for you, such as 
         16   deportation, exclusion from the country or denial of 
         17   U.S. citizenship.  Do understand that? 
         18            DEFENDANT:  Uh-huh.
         19            THE COURT:  Speak up.
         20            DEFENDANT:  Yes.
         21            HEARING OFFICER DAHER:  Okay.  I'm also 
         22   required to inform you that you will be required, as 
         23   a result of pleading guilty to these indictments, to 
         24   register as a sex offender and that your failure to 
 0074
          1   register as a sex offender could subject you to 
          2   criminal penalties.  Do you understand that? 
          3            DEFENDANT:  Yes. 
          4            THE COURT:  You also will be required to 
          5   provide a DNA sample to the State Crime Lab, and you 
          6   should know that your failure to provide that DNA 
          7   sample could also subject you to criminal penalties.  
          8   Do you understand that? 
          9            DEFENDANT:  Yes. 
         10            THE COURT:  Okay.  When you plead guilty, 
         11   you give up a number of Constitutional rights.  
         12   First of all, you give up your right to be tried by 
         13   a jury, and in a jury trial there would be twelve 
         14   people who would be selected at random from the 
         15   community.  You and your attorney would participate 
         16   in the selection of those twelve people.  The twelve 
         17   people would be charged with listening to the 
         18   evidence and ultimately deciding whether or not the 
         19   Commonwealth has proven you guilty of these 
         20   indictments beyond a reasonable doubt. 
         21            It is the Commonwealth's burden to prove 
         22   you guilty beyond a reasonable doubt, and in a 
         23   criminal case, the jury verdict has to be unanimous.  
         24   That means that the twelve deliberating jurors must 
 0075
          1   all agree that the Commonwealth has met its burden 
          2   of proving you guilty with respect to each 
          3   indictment. 
          4            Now, do understand that that's what a jury 
          5   trial involves? 
          6            DEFENDANT:  Yes.
          7            THE COURT:  And do you understand that when 
          8   you plead guilty, you give up your right to that 
          9   jury trial?
         10            DEFENDANT:  (Inaudible)
         11            THE COURT:  You've got to --
         12            DEFENDANT:  Yes.
         13            THE COURT:  And do you wish to give up your 
         14   right to that jury trial? 
         15            DEFENDANT:  Yes. 
         16            THE COURT:  Okay.  You also have the right 
         17   to confront and cross-examine the witnesses that the 
         18   Commonwealth would have to bring in here in order to 
         19   try and prove you guilty beyond a reasonable doubt.  
         20   These are known as your rights of confrontation and 
         21   cross-examination.  And when you plead guilty, you 
         22   give up those rights.  Do understand that?
         23            DEFENDANT:  Yes. 
         24            THE COURT:  Do you wish to give up those 
 0076
          1   rights? 
          2            DEFENDANT:  Yes.
          3            THE COURT:  You also have the right to 
          4   remain silent and a privilege against self 
          5   incrimination.  Those are rights that essentially 
          6   guarantee you that the Commonwealth must prove you 
          7   guilty without any help from you.  Do you understand 
          8   that when you plead guilty, you give up those 
          9   rights?
         10            DEFENDANT:  Yes.
         11            THE COURT:  And do you wish to give up 
         12   those rights? 
         13            DEFENDANT:  Yes.
         14            THE COURT:  Okay.  Now, I will hear from 
         15   the DA's office, and I want to hear only the facts 
         16   that pertain to these indictments, okay?
         17            (Videotape stopped)
         18       BY MR. EGBERT: 
         19       Q.   You said at that point, "I want to hear 
         20   only the facts that pertain to these indictments," 
         21   right?
         22       A.   Correct.
         23       Q.   Why did you say that?
         24       A.   I had had some experience with some 
 0077
          1   injection of hyperbole in the presentation of facts 
          2   by ADA Joseph, and I wanted to make sure that Mr. 
          3   Deakin limited himself solely to those facts that 
          4   were necessary to take this plea of guilty, and 
          5   those would be the facts that would set out the 
          6   elements of each of the charges.
          7       Q.   So what the purpose of this statement of 
          8   facts at this point in time is is not an argument on 
          9   the sentencing, is it?
         10       A.   No, no.  It is merely to establish 
         11   sufficient facts that the defendant agrees to, so 
         12   that I could find that he's agreeing to facts 
         13   sufficient for each indictment. 
         14       Q.   And what is the problem of having a 
         15   prosecutor put on more facts or hyperbole, as you 
         16   call it, in this particular process? 
         17       A.   It could provoke a defendant.  It could 
         18   cause a defendant to take issue with certain 
         19   irrelevant facts that could -- could affect the plea 
         20   process. 
         21       Q.   When you say affect the plea process, do 
         22   you mean -- what do you mean by that?
         23       A.   Well, a defendant could start taking issue 
         24   with certain facts, and then we could go off in some 
 0078
          1   tangent and the plea could be affected. 
          2       Q.   When you say the plea can be affected, what 
          3   are you talking about?
          4       A.   Okay.  The plea may not be able to be 
          5   completed. 
          6       Q.   Now, I want to show you --
          7            MR. EGBERT:  May approach, Judge? 
          8            HEARING OFFICER DAHER:  (Nods head)
          9            MR. EGBERT:  Your Honor, I'm going to have 
         10   the witness identify the document and ask to 
         11   introduce it.
         12       A.   This is the transcript of the plea 
         13   proceedings.
         14       Q.   That's a transcript of what?
         15       A.   The plea proceedings on September 6th  -- 
         16   no, I'm sorry.  This is the Commonwealth versus 
         17   Estrada case.  I'm sorry.  I thought it was the plea 
         18   on -- no, this is February 10th, 1999.
         19       Q.   And what is that the case of?
         20       A.   That's the Commonwealth versus Estrada 
         21   case.
         22       Q.   And is that a case in which Ms. Joseph was 
         23   the assistant district attorney?
         24       A.   Yes. 
 0079
          1       Q.   And were you required at that time to 
          2   caution her concerning the use of hyperbole during 
          3   the course of a recitation of plea facts?
          4       A.   I did.  At the conclusion of the plea, yes. 
          5       Q.   And would you turn to Page 26. 
          6       A.   Yes. 
          7       Q.   And what did you say to Ms. Joseph at that 
          8   time? 
          9       A.   I said, "Next time that you are going to 
         10   recite facts to me on a plea, dispense with 
         11   hyperbole and subjective characterizations." 
         12       Q.   And so that had been a problem in the past? 
         13       A.   Yes. 
         14       Q.   When you said that to Ms. Joseph, how did 
         15   you say it? 
         16       A.   I said it in a normal tone of voice. 
         17            MR. EGBERT:  Judge, I offer this transcript 
         18   as the --
         19            HEARING OFFICER DAHER:  Any objections?
         20            MR. WARE:  Your Honor, it is already 
         21   Exhibit 65.
         22            MR. EGBERT:  I didn't think they offered 
         23   it. 
         24            HEARING OFFICER DAHER:  Yes, it is.  Harvey 
 0080
          1   marked it.  It was written in. 
          2            MR. EGBERT:  Well, Judge, it was written 
          3   in, but it wasn't given to me. 
          4            HEARING OFFICER DAHER:  Well, I have it.  
          5   Harvey wrote it in. 
          6            MR. EGBERT:  I am getting more and more 
          7   confused here.
          8            It is not in your book, is it?
          9            THE WITNESS:  No.
         10            HEARING OFFICER DAHER:  It was subsequent 
         11   to.
         12            MR. EGBERT:  Well, without notice to me. 
         13            THE CLERK:  It was during the hearing? 
         14            MR. EGBERT:  I mean, if you say...
         15            HEARING OFFICER DAHER:  It was subsequent 
         16   to the list -- the typed list that was submitted in 
         17   addition -- as a supplement thereto.
         18            THE CLERK:  It was offered to the Judge -- 
         19   it was offered into evidence and the Judge admitted 
         20   it.
         21            MR. EGBERT:  During these proceedings? 
         22            THE CLERK:  Yes.
         23            MR. EGBERT:  We missed it.
         24            HEARING OFFICER DAHER:  It's already in.  
 0081
          1   Thank you very much. 
          2            MR. EGBERT:  Leave it as 65, then, and 
          3   we'll use that.
          4            HEARING OFFICER DAHER:  That is 65.
          5            (Videotape playing)
          6            MR. DEAKIN:  Yes, Your Honor. 
          7            Your Honor, were this matter to go to 
          8   trial, the Commonwealth would prove the following 
          9   facts:
         10            On Saturday, November 20th of 1999 a 
         11   12-year-old boy, the victim in this case, was 
         12   walking to his home in Dorchester.  It was just 
         13   after 8:00 p.m. --
         14            (Videotape stopped)
         15       BY MR. EGBERT:
         16       Q.   Mr. Deakin just told you that a 12-year-old 
         17   boy was walking through Dorchester; is that right?
         18       A.   Correct.
         19       Q.   And so, once again, the Commonwealth is 
         20   telling you that this was a 12-year-old, not an 11- 
         21   year-old; is that correct?
         22       A.   Correct.
         23       Q.   Is that consistent with what they had told 
         24   you throughout this case?
 0082
          1       A.   Throughout the proceeding, yes.
          2            (Videotape playing)
          3            MR. DEAKIN:  -- and the boy was walking 
          4   home from a friend's house.  As he walked on Corona 
          5   Street, heading towards Geneva Avenue, a car pulled 
          6   up beside him.  In the car was the defendant who 
          7   appeared to the boy to be a woman he did not know. 
          8            The defendant told the boy that the 
          9   defendant was searching for a missing son named 
         10   Michael and that the defendant would pay $100 to 
         11   anyone who found this boy.  The defendant asked the 
         12   victim to get into the car, and the boy agreed. 
         13            After the boy got in the car, the defendant 
         14   drove around for a time, finally bringing the boy to 
         15   a place he did not know.  It was there the victim 
         16   reported that the police later found him with the 
         17   defendant.  The defendant told the victim that this 
         18   was where the fictitious missing boy had been 
         19   playing.  Stopping the car, the defendant then asked 
         20   the victim if he wanted to perform oral sex on the 
         21   defendant.  The defendant used a common vulgarity to 
         22   refer to female genitalia.  The boy said that he did 
         23   not want to do that and said that he wanted to go 
         24   home. 
 0083
          1            The defendant then put a screwdriver to the 
          2   boy's neck and told him to be quiet.  The defendant, 
          3   whose pants were partially down, then pulled the 
          4   boy's head into the defendant's lap.  The boy then 
          5   felt what the defendant said was the defendant's 
          6   finger against his mouth.  The defendant told the 
          7   boy to suck the finger, and the defendant took the 
          8   boy's head and moved it up and down. 
          9            The victim reports that he was crying and 
         10   pleading to be allowed to go home.  Using profanity, 
         11   the defendant tol the victim to shut up.  The 
         12   defendant told the boy to stop sucking the finger 
         13   and instead to suck the screwdriver. 
         14            Shortly thereafter, the defendant saw that 
         15   the police had pulled up behind him.  The defendant 
         16   pulled the boy's head up and gave the boy $50 in 
         17   cash.  The defendant told the boy that the defendant 
         18   was a dentist and that the boy should not say 
         19   anything to the police. 
         20            At approximately 8:28 p.m. on Saturday, 
         21   November 20th, Officers Rose and Sweeney of the 
         22   Boston Police Department were on routine patrol in 
         23   their sector of Dorchester.  They saw a 1996 Nissan 
         24   Maxima parked in a dark area of the back lot of 50 
 0084
          1   Park Street near a warehouse.  It was not an area in 
          2   which passenger cars typically had business at that 
          3   time of night.  The officers turned on the cruiser's 
          4   lights and looked at the car.  In it they saw a 
          5   person, later identified as the defendant, moving up 
          6   and down quickly.  About ten seconds later, the 
          7   officers saw the head of the second person, later 
          8   identified as the 12-year-old victim, rise up from 
          9   the front driver's side area of the car.  The 
         10   officers approached the car and saw the defendant in 
         11   the driver's seat with his pants unzipped and down 
         12   around his hips. 
         13            As Officer Sweeney approached the car, he 
         14   heard the defendant say to the victim, "Tell them 
         15   you were helping me look for my two kids."  The 
         16   defendant told the officers that the boy was helping 
         17   search for a missing son, which the defendant later 
         18   acknowledged was not true. 
         19            The officers noted that the victim was 
         20   crying, and when they spoke to him, the boy told the 
         21   officers what had happened.  The officers arrested 
         22   the defendant and found a screwdriver between the 
         23   console and front passenger seat of the car. 
         24            THE COURT:  Thank you.  I think that 
 0085
          1   completes the facts that are relevant for purposes 
          2   of these indictments. 
          3            (Videotape stopped)
          4       BY MR. EGBERT: 
          5       Q.   Now, you at that point broke in and said, 
          6   that completes the facts sufficient to support the 
          7   indictments, correct?
          8       A.   Right.  He had related facts up to the 
          9   moment of arrest, and so the charges all related to 
         10   what happened before the arrest. 
         11       Q.   So once the arrest -- once the arrest was 
         12   made, at least as to the facts relevant to what you 
         13   were considering, it was basically over; is that 
         14   correct?
         15       A.   It was over, yes. 
         16       Q.   Certainly as to sufficient facts? 
         17       A.   Correct.
         18       Q.   And is that why you told him you had heard 
         19   enough? 
         20       A.   Yes.
         21       Q.   Or words to that effect?
         22       A.   "Thank you," I said. 
         23       Q.   "Thank you." 
         24       A.   Yes. 
 0086
          1       Q.   And then Mr. Deakin thereafter asked to be 
          2   heard further; is that right? 
          3       A.   Yes.  He wanted to include something 
          4   contained in the defendant's statement to the 
          5   police.
          6            MR. EGBERT:  Your Honor, would this be a 
          7   good time to take a break? 
          8            HEARING OFFICER DAHER:  Mr. Ware, is that 
          9   okay? 
         10            MR. WARE:  Fine.
         11            HEARING OFFICER DAHER:  Sure.  We'll take a 
         12   recess. 
         13            (Recess)
         14            HEARING OFFICER DAHER:  Okay. 
         15            (Videotape playing) 
         16            MR. DEAKIN:  Your Honor --
         17            THE STENOGRAPHER:  One moment. One moment.
         18            Okay.
         19            MR. DEAKIN:  If I may, there are additional  
         20   facts that relate to the defendant's statements --
         21            (Videotape stopped)
         22            BY MR. EGBERT: 
         23       Q.   That person going "One moment.  One 
         24   moment," Judge --
 0087
          1       A.   That's the court reporter changing her 
          2   tape. 
          3            (Videotape playing)
          4            MR. DEAKIN:  The victim also handed over to 
          5   the police the $50 the defendant had given him.  The 
          6   officers advised the defendant of his warnings under 
          7   Miranda, and he denied any wrongdoing.
          8            At the police station detectives again 
          9   Mirandized the defendant and questioned him again.  
         10   The defendant told the police that the victim was 
         11   named Sean, had a 19-year-old brother and lives on 
         12   Westville Street, all of which were false.  
         13            The defendant said that the victim" --
         14            MR. EGBERT:  Let me stop you there.  
         15            (Videotape stopped)
         16       BY MR. EGBERT: 
         17       Q.   Mr. Deakin made the statement there that 
         18   the defendant had indicated a number of things, 
         19   including that he was familiar with the victim's 
         20   address.  Do you recall that statement? 
         21       A.   Yes.
         22       Q.   And he indicated to you, in open court, 
         23   that each one of the defendant's statements made to 
         24   the police were false, correct?
 0088
          1       A.   Correct.
          2       Q.   When he said that to you, did you know he 
          3   was not speaking the truth?
          4       A.   I certainly did.
          5       Q.   How did you know that? 
          6       A.   Because I had read the statement, the 
          7   police report, the statement that the defendant had 
          8   given the police. 
          9       Q.   And you also knew, from the discovery in 
         10   the case, that he was correct concerning the address 
         11   of the victim; is that right?
         12       A.   Correct.
         13       Q.   And so when Mr. Deakin told you that all of 
         14   the defendant's statements were untrue, including 
         15   one which would indicate he knew where the defendant 
         16   lived, at the time he made that statement you knew 
         17   it was not a true statement, correct? 
         18       A.   Correct. 
         19       Q.   Did you stop him at that time? 
         20       A.   No.
         21       Q.   Did you chastise him at that time?
         22       A.   No. 
         23       Q.   Were you concerned?
         24       A.   Yes. 
 0089
          1       Q.   And in fact -- I want to show you this 
          2   document.  Do you know what that is? 
          3       A.   Yes.  This was filed about a month after 
          4   the plea by the Commonwealth. 
          5       Q.   And what is it entitled?
          6       A.   It is called "Commonwealth's Notice of 
          7   Disclosure." 
          8       Q.   In your history in the Superior Court, have 
          9   you ever seen the Commonwealth file a notice of 
         10   disclosure like this after a plea is consummated?
         11       A.   I have never in my 14 years seen the 
         12   Commonwealth do something like that. 
         13       Q.   And does this document indicate, some one 
         14   month after the plea, that in fact the Commonwealth 
         15   had misrepresented the evidence in the case? 
         16            MR. WARE:  Object to that.
         17       A.   Correct.
         18            MR. WARE:  Nothing says the Commonwealth 
         19   misrepresented anything.
         20            HEARING OFFICER DAHER:  Sustained. 
         21       Q.   Did it indicate in this disclosure that the 
         22   Commonwealth's statement of the facts in the case 
         23   were erroneous? 
         24       A.   Yes. 
 0090
          1       Q.   And did it indicate it particularly with 
          2   the statement --
          3            HEARING OFFICER DAHER:  Wait a minute.  Are 
          4   you objecting? 
          5            MR. WARE:  Yes, I'm objecting.  The 
          6   document speaks for itself.  It says there was an 
          7   inadvertent misstatement by the prosecutor.
          8            HEARING OFFICER DAHER:  Overruled.  You can 
          9   have it.  Go ahead.
         10       A.   Yes.  The document indicates that Mr. 
         11   Deakin inadvertently included this fact among those 
         12   described as false, the fact being that the 
         13   defendant knew where this victim lived.
         14            MR. EGBERT:  And, Your Honor, I would offer 
         15   this "Commonwealth's Notice of Disclosure."
         16            HEARING OFFICER DAHER:  Any objections?
         17            MR. WARE:  No, Your Honor. 
         18            THE CLERK:  This will be Exhibit Q. 
         19                 (Document marked as Exhibit Q
         20                 moved into evidence)
         21       BY MR. EGBERT: 
         22       Q.   Based on your knowledge of the case at the 
         23   time, when you heard those statements being made, 
         24   did you believe -- did you have an opinion as to 
 0091
          1   whether or not Mr. Deakin was being candid with you?
          2       A.   I did not believe he was being candid, no.  
          3            (Videotape playing)
          4            MR. DEAKIN:  The defendant said that the 
          5   victim had volunteered to help find Mike and James, 
          6   two other boys.  The defendant said the two drove 
          7   around looking for the teenagers without success.  
          8   The defendant told police that he had driven to 50 
          9   Park Street and parked the car there which is where 
         10   the police found him.  
         11            There, according to the defendant, the pair 
         12   sat and discussed sexual things that the defendant 
         13   had done.  According to the defendant, the victim 
         14   asked the defendant for oral sex.  The defendant 
         15   then asked the victim to show the defendant his 
         16   penis.  It was then that the police arrived, 
         17   according to the defendant. 
         18            The defendant conceded in the interview 
         19   that the defendant's pants were unbuttoned in his 
         20   words "a little bit".  When asked if the two had had 
         21   physical contact, the defendant replied that they 
         22   had only kissed.  When asked about oral sex, the 
         23   defendant answered that the 12-year-old victim had 
         24   asked about the defendant's genitalia, and it was 
 0092
          1   then that the defendant jokingly asked whether the 
          2   victim wanted to perform oral sex on the defendant  
          3   who applied a common vulgarity to refer to female 
          4   genitalia.  
          5            When asked by detectives to tell them what 
          6   had really happened, the defendant replied that he 
          7   thought the victim was 14 years old and that he was 
          8   probably going to perform oral sex on the victim.  
          9            That in summary would be the facts the 
         10   Commonwealth would prove if the matter went to 
         11   trial. 
         12            THE COURT:  Okay.  Does the defendant agree 
         13   with all of those facts? 
         14            DEFENDANT:  I mean, I really -- to be 
         15   honest, I don't.
         16            (Videotape stopped)
         17       BY MR. EGBERT: 
         18       Q.   Now, you have been a Superior Court judge 
         19   for how many years? 
         20       A.   Well, since 1993, so, what?  It's 11 years, 
         21   12 years -- no; wait.  No.  I'm sorry.  19 --
         22       Q.   You're a judge; not a mathematician.
         23       A.   I'm sorry.  I'm thinking of the entire 
         24   time.  Eight, nine years.
 0093
          1       Q.   And during plea colloquies, does it 
          2   sometimes occur that the defendants take issue with 
          3   certain facts? 
          4       A.   Yes. 
          5       Q.   And can that be a problem?
          6       A.   It can be a problem if it goes to an 
          7   essential element of the crime.
          8       Q.   And at this point in time you hear the 
          9   defendant talking to his counsel kind of in a stage 
         10   whisper; is that correct? 
         11       A.   Correct.  
         12            (Videotape playing)
         13            (Discussion off the record)
         14            MS. GOLDBACH:  Your Honor, my client does 
         15   not agree that her --
         16            THE COURT:  Excuse me.  You've got to speak 
         17   up.  I can't hear you when you talk.
         18            MS. GOLDBACH:  My client does not agree 
         19   that her pants were down at the time nor does she 
         20   agree with that part of the Commonwealth's statement 
         21   that indicated that she said that she drove around 
         22   as described by Mr. Deakin. 
         23            DEFENDANT:  (Inaudible)
         24            THE COURT:  And what else?
 0094
          1            MS. GOLDBACH:  And the $50, that she gave 
          2   her $50 to be quiet. 
          3            THE COURT:  Okay.  Other than that, do you 
          4   agree with all the other facts? 
          5            DEFENDANT:   Yes. 
          6            THE COURT:  Okay.
          7            (Videotape stopped)
          8       BY MR. EGBERT: 
          9       Q.   Now, you hear the defense lawyer in a stage 
         10   whisper going to the defendant, "Yes, yes."
         11            MR. WARE:  Objection. 
         12       Q.   Was the defendant in this case reluctant in 
         13   your opinion?
         14            MR. WARE:  Objection.
         15            HEARING OFFICER DAHER:  What is the 
         16   objection?  
         17            MR. WARE:  Your Honor, we're now getting 
         18   into the minds of the victim and the defense 
         19   counsel.  Counsel is characterizing it as a stage 
         20   whisper.
         21            HEARING OFFICER DAHER:  Sustained. 
         22            MR. EGBERT:  Judge, what I would like to 
         23   get at is all of her observations and what she 
         24   concluded from them to show her state of mind as 
 0095
          1   she's on the bench and what she's dealing with.
          2            HEARING OFFICER DAHER:  The objection 
          3   remains sustained.  
          4            (Videotape playing)
          5            THE COURT:  For the record, I find that 
          6   there is a factual basis for the defendant's pleas 
          7   of guilty.  I also find that the defendant is 
          8   pleading knowingly, voluntarily, intelligently, and 
          9   with full knowledge of its consequences.  The Court 
         10   accepts the defendant's plea of guilty.  
         11            I'll hear you on sentencing. 
         12            MR. DEAKIN:  Your Honor, I wonder if 
         13   defense counsel and the Commonwealth might approach 
         14   briefly as to one specific issue on sentencing for 
         15   the Court to review some matters before I put them 
         16   on the record?
         17            THE COURT:  Okay.
         18            COURT REPORTER:  Do you want this off the 
         19   record, Your Honor?
         20            THE COURT:  No.
         21            (Videotape stopped)
         22       BY MR. EGBERT: 
         23       Q.   I want to stop you there, and that's not on 
         24   film.  There was a bench conference. 
 0096
          1       A.   Correct.
          2       Q.   And it related to the question of victim 
          3   impact statements? 
          4       A.   Right.  I believe they wanted to delete a 
          5   sentence in the victim impact statement. 
          6       Q.   Could you turn to Exhibit 22 in the book. 
          7       A.   Yes. 
          8       Q.   And can you find the section dealing with 
          9   this bench conference?
         10       A.   Yes.  It is on Page 19. 
         11       Q.   Now -- so this occurred outside the cameras 
         12   and outside the presence of the public, so to speak; 
         13   is that right? 
         14       A.   Correct. 
         15       Q.   And in that Mr. Deakin tells you that or 
         16   discusses with you the victim impact statement, 
         17   correct?
         18       A.   Correct. 
         19       Q.   And during that conversation does he ever 
         20   indicate to you at the bench that he wants some 
         21   different lawyer to now participate orally in the 
         22   sentencing proceeding? 
         23       A.   No, there is no mention of anybody else 
         24   dealing with that victim impact statement at that 
 0097
          1   side-bar conference.
          2       Q.   And in fact does he indicate in there, 
          3   "As to the mother's statement, I would propose to 
          4   read it in its entirety" on Page 20? 
          5       A.   Correct.  I'm not -- I'm not referring to 
          6   that.  Where is that?  I was looking at the actual 
          7   transcript of it. 
          8       Q.   So am I. 
          9       A.   What pages?  
         10       Q.   Let me just make sure you've got the same 
         11   exhibit. 
         12       A.   It's this, the transcript of the change of 
         13   plea.  I put them on the record. 
         14       Q.   Page 20. 
         15       A.   Okay.  Yes.
         16       Q.   Does he indicate to you as to the mother's 
         17   statement, "I propose to read it in its entirety"?
         18       A.   Correct.
         19       Q.   And then he tells about what he's going to 
         20   do with the grandmother's statement, right?
         21       A.   Correct.
         22       Q.   At any point in time during that conference 
         23   does he say to you that he would propose that Ms. 
         24   Joseph read the statement?
 0098
          1       A.   No.
          2       Q.   Or ask permission for Ms. Joseph to read 
          3   the statement? 
          4       A.   No.  That was never mentioned to me.
          5       Q.   Did he at this time seek to have the 
          6   Court's permission to have another lawyer -- for him 
          7   to step down and have another lawyer handle a 
          8   portion of that sentencing proceeding? 
          9       A.   No. 
         10       Q.   In your experience as a Superior Court 
         11   judge, if a lawyer wanted a second-chair lawyer to 
         12   take part in a proceeding at a particular time, what 
         13   should they do? 
         14       A.   They should ask leave of the Court to have 
         15   another lawyer speak.
         16       Q.   And give you some notice of their intent?
         17       A.   Correct.
         18       Q.   Was anything like that done in this case? 
         19       A.   No. 
         20       Q.   And so, then, if you look at the transcript 
         21   -- and it really doesn't show it -- but at some 
         22   point in time did Ms. Joseph rise? 
         23       A.   I believe when they were about to read the 
         24   victim impact statement, Ms. Joseph began to get up. 
 0099
          1       Q.   And what did you do? 
          2       A.   I just looked at Mr. Deakin, and I said, 
          3   "You'll proceed with it."  Something to that effect. 
          4       Q.   Go to Page 25.  And you see towards the 
          5   bottom it says, "And I would just ask that the Court 
          6   hear the victim impact statement"? 
          7       A.   Yes.
          8       Q.   Who made that statement? 
          9       A.   Mr. Deakin.
         10       Q.   And then did Ms. Joseph rise? 
         11       A.   I believe that's when she began to rise, 
         12   yes.
         13       Q.   And you looked in their direction -- Mr. 
         14   Deakin's direction and said, "Sure.  And would you 
         15   read them, please."
         16       A.   Correct.
         17       Q.   And why did you do that? 
         18       A.   Because I didn't believe -- I didn't 
         19   understand that Ms. Joseph had any role in this case 
         20   any more.  And she -- I had not been asked to allow 
         21   her to make any presentation at all in this matter. 
         22       Q.   And Mr. Deakin then went on with the 
         23   presentation?
         24       A.   He did.
 0100
          1       Q.   Did you hinder that presentation in any 
          2   way? 
          3       A.   Not at all.
          4       Q.   By the way, with regard to a victim impact 
          5   statement, that's simply a matter of reading, 
          6   correct? 
          7       A.   That's correct.
          8       Q.   And the lawyer doesn't do advocating in 
          9   that regard, correct?
         10       A.   No.
         11       Q.   And it doesn't take any special skill, does 
         12   it?
         13       A.   None.
         14       Q.   It is just a matter of reading it in open 
         15   court?
         16       A.   Right.  Anybody could do that. 
         17            (Videotape playing)
         18            MR. DEAKIN:  Thank you, Your Honor.  As to 
         19   sentencing, the Commonwealth's recommendation is as 
         20   follows.  As to count 002, which charges assault 
         21   with intent to rape a child, the Commonwealth would 
         22   recommend a sentence that is not less than eight nor 
         23   more than ten years in state prison.  As to count 
         24   001, which alleges kidnapping, the Commonwealth 
 0101
          1   would recommend a period of probation of ten years 
          2   from and after the committed portion of the 
          3   recommended sentence.  As to counts 003, 004 and 
          4   005, alleging indecent assault and battery on a 
          5   child, assault and battery, and assault and battery 
          6   by means of a dangerous weapon, the Commonwealth 
          7   would recommend that guilty findings be entered and 
          8   that these matters be placed on file.  
          9            Your Honor, I should note, as we've 
         10   discussed very briefly at the side bar, that the 
         11   victim's mother and grandmother are present in court 
         12   and have asked the Commonwealth to read impact 
         13   statements that they've prepared to the Court for 
         14   its consideration in sentencing.  I would ask the 
         15   Court to consider those, obviously, as part of the 
         16   Commonwealth's sentencing presentation. 
         17            The reason for the Commonwealth's sentence, 
         18   to be brief, Your Honor, is the quite serious nature 
         19   of the facts to which the defendant has now 
         20   admitted.  The Commonwealth believes that those 
         21   facts speak for themselves in terms of the 
         22   seriousness.  
         23            The Commonwealth in formulating the 
         24   sentencing recommendation has consulted the 
 0102
          1   sentencing guidelines grid and found that the 
          2   assault with intent to rape a child being a category 
          3   7 offense carries a recommended sentence of 
          4   incarceration of not less than five nor more than 
          5   seven and a half years in state prison.  And 
          6   kidnapping, which I frankly, Your Honor, had some 
          7   difficulty determining whether it was a 6 or a 
          8   category 7, but either category is recommending a 
          9   sentence of 3-1/2 to 5 or 5 to 7-1/2, depending on 
         10   which category it's properly in.  
         11            And the Commonwealth would note that in 
         12   both cases, although the defendant is a category A 
         13   in terms of record, that is no or a quite minor 
         14   record, it recommends incarceration and not 
         15   alternative sentencing.  
         16            The Commonwealth recommends that as to the 
         17   001 charge and kidnapping and any probationary 
         18   sentence that the Court deemed fit to impose that 
         19   the following conditions of probation be imposed.  
         20   First, an order to have no contact whatsoever, 
         21   directly or indirectly, with the victim in this case 
         22   or any members of his immediate family.  Second, 
         23   that the defendant submit himself to a sex offender 
         24   evaluation by an evaluator determined by the Suffolk 
 0103
          1   County Probation Department and enter and 
          2   successfully complete whatever treatment it deemed 
          3   necessary as a result of that evaluation.
          4            THE COURT:  Do you know that he has already 
          5   been evaluated? 
          6            MR. DEAKIN:  I'm aware that there is a 
          7   psychological profile for he Court that has been 
          8   prepared.  
          9            (Videotape stopped)
         10       BY MR. EGBERT: 
         11       Q.   What are you both talking about there? 
         12            MR. WARE:  Objection to what is he talking 
         13   about.
         14       Q.   What are you talking about when you say, 
         15   "Do you know that he has already been evaluated"? 
         16       A.   Yes, I'm referring to the only document in 
         17   the case that constitutes an evaluation of the 
         18   defendant. 
         19       Q.   What was that?
         20       A.   That was the Katz report that was presented 
         21   to me in the August 1st lobby conference.
         22       Q.   And when he said, "I'm aware that there is 
         23   a psychological profile for the Court that has been 
         24   prepared," do you know of any other psychological 
 0104
          1   profile that had been prepared for the Court in this 
          2   case other than the Katz report? 
          3       A.   That's the only one that had been prepared. 
          4            (Videotape playing)
          5            MR. DEAKIN:  If that report satisfied the 
          6   Probation Department as a sex offender evaluation, 
          7   the Commonwealth would be satisfied with that 
          8   report.  I would ask the Court to defer to Probation 
          9   on whether that's a sufficient sex offender 
         10   evaluation. 
         11            That the defendant be ordered to have no 
         12   contact whatsoever with minor children, that the 
         13   defendant accept no employment or volunteer work 
         14   involving contact with children, that the defendant 
         15   be ordered to have no residence with minor children, 
         16   excepting his own siblings, if he has any.  I don't 
         17   know, frankly, whether he has any.  That his 
         18   compliance with the sex offender registry provision 
         19   be made a condition of his probation as well as an 
         20   independent legal requirement.  And that his 
         21   requirement, whatever requirement is legally in 
         22   place at the time of his probation, to provide a DNA 
         23   sample also be made a condition of probation.  And 
         24   with the exception of the victim impact statements, 
 0105
          1   that's the Commonwealth's recommendation.
          2            THE COURT:  And would the Commonwealth 
          3   request that this defendant be sent to a male prison 
          4   or female prison?
          5            (Videotape stopped)
          6       BY MR. EGBERT: 
          7       Q.   With regard to that -- "would the 
          8   Commonwealth request that this defendant be 
          9   sentenced to a male prison or female prison" -- had 
         10   that been an issue that had been discussed between 
         11   you and counsel at prior proceedings?
         12       A.   Yes.  We had discussed that during the 
         13   lobby conference.  It had been brought to my 
         14   attention that while the defendant had been held 
         15   awaiting trial for the period of time until the bail 
         16   was reduced, in the Suffolk County jail, this 
         17   defendant had to be placed into protective custody, 
         18   because someone with the defendant's characteristics 
         19   would present a risk in the general population. 
         20       Q.   And so that discussion occurred between you 
         21   and counsel on when? 
         22       A.   On August 1st. 
         23       Q.   Now, when you asked that question of Mr. 
         24   Deakin, I want you to listen to his response, and my 
 0106
          1   question to you is going to be whether or not it is 
          2   clear to you that Mr. Deakin was -- had prepared for 
          3   that question during the course of these 
          4   proceedings.
          5            MR. WARE:  I object to that question. 
          6            HEARING OFFICER DAHER:  One second.  What 
          7   is that?  What is the objection predicated on?
          8            MR. WARE:  I don't -- if another question 
          9   is not going to be put, the question that has been 
         10   put to the witness as I understand it is what Mr. 
         11   Deakin did.  The Judge wouldn't have any idea about 
         12   that. 
         13            HEARING OFFICER DAHER:  Mr. Egbert.
         14            MR. EGBERT:  Well, let's let her listen to 
         15   the answer and I'll ask the question. 
         16            HEARING OFFICER DAHER:  Go ahead.  
         17            (Videotape playing)
         18            MR. DEAKIN:  The Commonwealth is obviously 
         19   sensitive to and aware of the concerns for a 
         20   defendant who is trans-gender.  The Commonwealth, in 
         21   making informal inquiry to the Commissioner of 
         22   Corrections, has determined that there are 
         23   protective custody arrangements available in all 
         24   different levels of security to accommodate someone 
 0107
          1   who cannot be safely placed with the general 
          2   population. 
          3            THE COURT:  And protective custody means 
          4   they're locked up all day? 
          5            MR. DEAKIN:  As I understand it, Your 
          6   Honor, that's what protective custody means in a 
          7   maximum security facility.  
          8            THE COURT:  Right.
          9            MR. DEAKIN:  I also understand that the 
         10   likelihood of this defendant spending any time, 
         11   other than a night for classification, in a maximum 
         12   security facility is close to zero.  
         13            I understand, Your Honor, that protective 
         14   custody in a medium security prison, which is the 
         15   likely destination for this defendant, does not mean 
         16   essentially 23-hour lock down.  It means residence 
         17   in a segment of the prison population that is deemed 
         18   non-violent, non-predatory.  So that I think the 
         19   likelihood that this defendant would spend more than 
         20   one night in 23-hour protective custody lock down is 
         21   quite slim.  But the Commonwealth is aware, 
         22   obviously, that that's within the discretion of the 
         23   Commissioner of Corrections, and while we are 
         24   sensitive to the problems that this presents for 
 0108
          1   everyone concerned, we also feel that the needs of 
          2   public safety and law enforcement justify a 
          3   significant incarcerative sentence.  
          4            (Videotape stopped)
          5       BY MR. EGBERT: 
          6       Q.   Let me stop there.  From the nature of Mr. 
          7   Deakin's remarks to you, did it appear to you that 
          8   he had prepared in advance, as a lawyer, for this 
          9   question to come up at the hearing?  
         10       A.   It was clear that he had made inquiry, and 
         11   it is something that the DA's office would have to 
         12   bring to the attention of the Department of 
         13   Corrections if they're seeking to place someone with 
         14   either some disability, some issues such as, you 
         15   know, the defendant in this case.  They have to 
         16   bring that to the attention of the Department of 
         17   Corrections to make appropriate arrangements. 
         18       Q.   So is it fair to say that this issue was 
         19   not a surprise to you? 
         20       A.   No.  I don't think it was a surprise to 
         21   anybody.  
         22            (Videotape playing)
         23            MR. DEAKIN:  Your Honor, at first reading 
         24   the victim impact statement the Ms. Diora Jones, the 
 0109
          1   grandmother of the victim, dated August 4th, 2000.  
          2            "To the Honorable Judge Lopez, As a mother 
          3   of seven children that I raised in Harbor Point 
          4   Complex, and a grandmother of 18 grandchildren, I 
          5   have never come across anything like this incident 
          6   that took place concerning my grandson, Ramon 
          7   Suarez.  I don't know how this person was caught so 
          8   fast, but I said only by the grace of God and quick 
          9   detective work."  Maybe this is -- excuse me.  "It 
         10   has really kept the family closer as for all the 
         11   grands to make sure that this type of incident 
         12   doesn't happen again.  
         13            "This man has done a job as far as 
         14   emotionally and physically and mentally.  Ramon's 
         15   marks at school have dropped dramatically after 
         16   this, but, thank God, he was able to maintain and 
         17   get promoted.  I am hoping that all concerned 
         18   parties will make sure this person is prosecuted to 
         19   the full extent of the law.  
         20            "Sincerely, Mrs. Diora Jones, grandmother." 
         21            Reading from the statement of Ms. Diora J. 
         22   Jones, mother of the victim, also dated August 4th, 
         23   2000.
         24            "Judge Lopez, As a single parent trying to 
 0110
          1   raise my children that I am decidedly proud of, I 
          2   try to keep them involved in both extra-school 
          3   programs and also after-school programs.
          4            "When I was called on the phone and told to 
          5   come to the hospital, that something had happened to 
          6   my son, Ramon Suarez, it just tore me apart.  As a 
          7   mother, I just didn't know which way to turn.  I 
          8   just prayed and called my mother who is 57 years old 
          9   and has blood pressure problems.  It has taken a 
         10   terrific impact on my life as well as Ramon.  It was 
         11   a while before he would socialize and talk a little 
         12   bit about what happened.  At the time he was 
         13   involved in a swimming competition.  It is one of 
         14   his after-school programs.  
         15            "Ramon has been in counseling and therapy 
         16   since this terrible incident took place and will be 
         17   continuing for how long we don't know.  Depends on 
         18   the child.  As the mother of Ramon my medication has 
         19   been increased due to depression and stress to help 
         20   me overcome.  Every time he goes out, I am a pack of 
         21   nerves until he returns.  I got Ramon involved in 
         22   the Boston Indian Council Day Camp and also three 
         23   overnight camps for the summer.  
         24            "When he returns home, it will almost be 
 0111
          1   time for school.  Having him away most of the summer 
          2   I thought it would take a lot off his mind in 
          3   regards to what happened to him.  I hope this person 
          4   involved can be punished and understand this type of 
          5   behavior is not accepted.  
          6            "I know as a Judge you understand my 
          7   feelings, although there might be other things that 
          8   I am concerned about.  But to each his own in life.  
          9   I want to say thank you for your concern and 
         10   interest in this case.
         11            "Sincerely, Ms. Diora J. Jones, mother."
         12            THE COURT:  Okay.  Let me just ask you 
         13   something.  How long have you been in charge of the 
         14   sexual assault unit? 
         15            MR. DEAKIN:  Twenty-one months, Your Honor.
         16            THE COURT:  Okay.  How many of these sex 
         17   cases have you seen? 
         18            MR. DEAKIN:  I'm not sure that I can answer 
         19   with an exact figure.  
         20            THE COURT:  A ballpark figure.
         21            MR. DEAKIN:  We see approximately 500 such 
         22   investigations.  
         23            THE COURT:  No, the ones that get indicted.
         24            MR. DEAKIN:  I think, Your Honor, and I'm 
 0112
          1   not prepared with the figures, but I expect that we 
          2   indict close to a hundred cases a year. 
          3            THE COURT:  Okay.  And of those hundred 
          4   cases, in terms of the facts of this case, on a 
          5   scale of 1 to 10, where would you put this case?
          6            (Videotape stopped)
          7       BY MR. EGBERT:
          8       Q.   When you asked that question of the 
          9   prosecutor, your sentence had already been decided, 
         10   correct? 
         11       A.   Correct. 
         12       Q.   He had just read the impact statements and 
         13   you reached these points in the proceedings, 
         14   correct? 
         15       A.   Correct.
         16       Q.   What was your purpose in asking that 
         17   question? 
         18       A.   To give some perspective to the 
         19   proceedings, to the DA, to the public that was going 
         20   to hear about this, that in the spectrum -- to put 
         21   this case in a rating amongst the kinds of child 
         22   abuse cases that we see in the court system on a 
         23   regular basis. 
         24       Q.   And did you expect at that time for him to 
 0113
          1   advocate for the sentence or to address you with 
          2   candor with regard to your question? 
          3       A.   I expected him to address me with candor, 
          4   knowing that, you know, a sentence is determined 
          5   taking many things into consideration. 
          6       Q.   Now, thereafter -- and we'll play it all 
          7   through in a moment -- but thereafter, there's the 
          8   statement that Mr. Ware went over with you where he 
          9   says, "Depends -- I would say to Your Honor that 
         10   depends on -- there are several axes that one can 
         11   evaluate a case on.  
         12            "In terms of the lack of a relationship 
         13   between the perpetrator and the victim, I would say 
         14   this is a 10," and he goes on to discuss that and 
         15   the like.
         16       A.   Correct.
         17       Q.   And we'll get to the rest of it in a 
         18   moment. 
         19       A.   Yes. 
         20       Q.   If you can -- did you look at this case -- 
         21   from 1 to 10 would make it the most serious of cases 
         22   that come before your court at any time, correct? 
         23       A.   A 10 would. 
         24       Q.   And --
 0114
          1       A.   Yes.
          2       Q.   And in child abuse cases or child sexual 
          3   assault cases, is it fair to say that many of those 
          4   cases come before you where a child has suffered 
          5   severe physical injury? 
          6       A.   Yes.  Where we have had aggravated child 
          7   rape situations where there is serious physical, 
          8   psychological injury, sometimes with the use of a 
          9   gun.
         10       Q.   Well -- and in this case -- in this case, 
         11   were you made aware through anyone or any fact that 
         12   there was any physical injury to the victim in this 
         13   case? 
         14       A.   No. 
         15       Q.   So is that one factor that goes into an 
         16   evaluation of the seriousness of the case in its 
         17   spectrum, so to speak?
         18       A.   That's correct.  Every time we evaluate a 
         19   case for purposes of sentencing, we consider injury, 
         20   the nature of the injury to the victim. 
         21       Q.   And with regard to this particular case -- 
         22   strike that.  With regard to sexual acts, did this 
         23   involve a completed sexual act of penetration?
         24       A.   No.  The indictment concerned an attempted 
 0115
          1   rape. 
          2       Q.   And had there been any act of penetration 
          3   or completed act of rape? 
          4       A.   No. 
          5       Q.   And would you consider it more serious, 
          6   generally, when a case involved completed sexual 
          7   acts? 
          8       A.   Right.  We're called upon all the time as 
          9   judges to draw those distinctions amongst cases, and 
         10   the highest and the most serious cases would be 
         11   those where, in fact, some sort of aggravated rape 
         12   has occurred. 
         13       Q.   And when Mr. Deakin responded to you that 
         14   it was a 10 in that regard --
         15            MR. WARE:  Objection.  That's not what Mr. 
         16   Deakin says.
         17            MR. EGBERT:  Well, it's right in front of 
         18   her. 
         19       Q.   When he responded to you -- and I'll use 
         20   the exact words -- "In terms of the lack of a 
         21   relationship between the perpetrator and the victim, 
         22   I would say this is a 10, because what is relatively 
         23   rare," and he goes on to speak; is that right? 
         24       A.   Yes. 
 0116
          1       Q.   Did he give you any other numerical rating 
          2   during that discussion? 
          3       A.   That's the only numerical rating that he 
          4   put forth during his entire presentation. 
          5       Q.   Did you -- did you consider this case to be 
          6   a 10?
          7       A.   I did not consider this case to be a 10.
          8       Q.   Did you consider it to be serious?
          9       A.   It's a serious case, definitely. 
         10       Q.   Did you feel at the time that Mr. Deakin 
         11   was being candid with you? 
         12            MR. WARE:  Objection as to how she felt.
         13            HEARING OFFICER DAHER:  What is that again? 
         14            MR. WARE:  Objection to how the Judge felt. 
         15            HEARING OFFICER DAHER:  I'll hear you, Mr. 
         16   Egbert.
         17            MR. EGBERT:  Well, Your Honor, she's going 
         18   to have to explain the words she uses, and the words 
         19   she uses are based upon --
         20            HEARING OFFICER DAHER:  I think he's right.  
         21   Sustained. 
         22       Q.   Did you shortly thereafter tell Mr. Deakin 
         23   you thought he was disingenuous on the record?
         24       A.   I did, unfortunately, and regrettably.  
 0117
          1   That's what led to the infamous clip in this case. 
          2       Q.   What did "disingenuous" mean to you? 
          3       A.   That he wasn't being candid with me. 
          4       Q.   That he wasn't --
          5       A.   Genuine.  Being honest with me. 
          6       Q.   In response to your question? 
          7       A.   Correct. 
          8       Q.   By the way -- we're going to play it in a 
          9   minute -- do you remember the sequence of events 
         10   that then occurred?
         11       A.   I don't understand your question.
         12       Q.   After you and he had a colloquy, you said 
         13   to him words to the effect that I think you're being 
         14   disingenuous; is that right?
         15       A.   I did.
         16       Q.   Do you remember what he then said? 
         17       A.   I don't remember -- I think I said "I'll 
         18   hear from the defense now." 
         19       Q.   I want you to turn to Page 31 of the 
         20   transcript. 
         21       A.   Yes. 
         22       Q.   Do you have it before you? 
         23       A.   Yes. 
         24       Q.   And --
 0118
          1       A.   Oh, I see.
          2       Q.   You said, "Okay?  And so I really think 
          3   it's disingenuous for you to tell me that this is a 
          4   10," right? 
          5       A.   Yes. 
          6       Q.   So you were telling him that you thought -- 
          7   you thought -- your opinion was that it was less 
          8   than candid to treat this case as a 10, based on all 
          9   the factors that you, as a Superior Court judge, had 
         10   seen over the many years.
         11       A.   Correct. 
         12       Q.   And then you said, "I'll hear from the 
         13   defense attorney." 
         14       A.   That's right. 
         15       Q.   Now, when you say, "I'll hear from the 
         16   defense attorney," what does that mean? 
         17       A.   That the Commonwealth has completed not 
         18   only its factual presentation, but its sentencing 
         19   recommendation.  I had -- in fact Mr. Deakin had 
         20   fully answered that unfortunate and regrettable 
         21   question, and so now it was the defense's turn to 
         22   speak. 
         23       Q.   And did Mr. -- what -- customarily what 
         24   happens when you as a judge say, "I'll hear from the 
 0119
          1   defense"?  What happens in the courtroom? 
          2       A.   The lawyer that had been previously 
          3   addressing the Court sits down, and the other side 
          4   begins addressing the Court. 
          5       Q.   And did Mr. Deakin sit down? 
          6       A.   He did not.
          7       Q.   And did you then tell him to sit down?
          8       A.   I did.
          9       Q.   And did he sit down? 
         10       A.   He did not. 
         11       Q.   And do you consider that -- strike that. 
         12   What do you consider that to be?
         13       A.   He was in clear violation of a court order.  
         14   Contumacious conduct. 
         15       Q.   Now, having all this in mind -- and we're 
         16   going to see it momentarily -- how would you 
         17   describe your conduct at that moment?
         18       A.   When I told him that I thought -- when I 
         19   told him to sit down? 
         20       Q.   In the manner in which you said it.
         21       A.   Well, I was probably -- allowed my emotions 
         22   to get the better of me in that situation. 
         23       Q.   Did you raise your voice?
         24       A.   I did. 
 0120
          1       Q.   Did you act appropriately at that moment? 
          2       A.   No.  I should have been able to exercise 
          3   more control in the circumstances. 
          4       Q.   Have you -- at any time in the past in your 
          5   judicial career has there been a complaint filed 
          6   against you for yelling at any lawyer? 
          7       A.   No.  I have never had such a complaint 
          8   filed.
          9       Q.   Anywhere?
         10       A.   Never. 
         11       Q.   Let's watch the tape.  
         12            (Videotape playing)
         13             MR. DEAKIN:  Depends -- I would say to 
         14   Your Honor that depends on -- there are several axes 
         15   that one can evaluate a case on.  
         16            In terms of the lack of a relationship 
         17   between the perpetrator and the victim, I would say 
         18   this is a 10, because what is relatively rare in 
         19   fact but perhaps most frightening to the general 
         20   population is the case of a person without a 
         21   relationship to a child who abducts the child off 
         22   the street, takes it to a secret location, and 
         23   sexually assaults the child.  In terms of the age of 
         24   the child, I would say it's in the quite serious 
 0121
          1   range as well.  The child was twelve years old at 
          2   the time.
          3            In terms of the completed sexual assault 
          4   that the child has disclosed, I would say the that 
          5   the facts are in the moderately serious range.  I 
          6   would also note, however, Your Honor, that the 
          7   assault was interrupted by police who came to a -- 
          8   just happened upon this on routine patrol.  And as a 
          9   prosecutor who has prosecuted a number of these 
         10   cases, I would remain concerned that this assault  
         11   might have been quite a bit worse had they not 
         12   quite -- had they not quite fortuitously come upon 
         13   what they came upon. 
         14            THE COURT:  Well, let me just say that I've 
         15   been a Judge now since 1988, and I've seen many of 
         16   these cases.  And in the scale of cases that charge 
         17   sexual assault of children, this is on a very level.  
         18   Okay?  And so I really think it's disingenuous for 
         19   you to tell me that this is a 10.  
         20            I'll hear from the defense attorney.
         21            MR. DEAKIN:  Your Honor, if I may -- 
         22            THE COURT:  No, you may not.  You may sit 
         23   down now.  
         24            MR. DEAKIN:  I --
 0122
          1            THE COURT:  You may sit down now or I'll 
          2   get a court officer to make you sit down.  And I'll 
          3   hear from the defense attorney.
          4            MR. DEAKIN:  I object to being charged with 
          5   being disingenuous.  
          6            THE COURT:  I find it was disingenuous, and 
          7   I know better than that.  Go ahead. 
          8            MS. GOLDBACH:  Your Honor, on behalf of my 
          9   client, you know my client's background, you know 
         10   what kind of work and things that my client has done 
         11   since she was charged in this case.  And for reasons 
         12   of my client's privacy, I'm not going to go int 
         13   those details at this time.  But I'd ask Your Honor 
         14   to sentence my client as you indicated earlier this 
         15   morning. 
         16            THE COURT:  Okay.  Let's sentence her as I 
         17   indicated.  Five years probation, one year of that 
         18   on electronic monitoring, counselling, stay away 
         19   from children under the age of 16. 
         20            THE CLERK:  DNA sample?
         21            THE COURT:  Yes.
         22            THE CLERK:  As to all indictments, 
         23   concurrent, Your Honor.
         24            MR. DEAKIN:  Your Honor, if I may --
 0123
          1            THE COURT:  I don't want to hear from you 
          2   anymore.  Do you understand? 
          3            MR. DEAKIN:  Your Honor, if I may be heard.
          4            THE COURT:  No.  You will not be heard.  I 
          5   said I've heard enough. 
          6            MR. DEAKIN:  I'm only inquiring as to one 
          7   of the conditions of the electronic monitoring.  
          8   It's not clear to me that the Probation Department 
          9   will know the conditions of the electronic 
         10   monitoring, that is, what is being monitored.  
         11            I think -- and I don't want to speak for 
         12   Probation --  they can certainly do it themselves -- 
         13   I think there are requirements that the Court must 
         14   impose to say what is being monitored.  There's a 
         15   range of possible options.
         16            THE COURT:  At this point I don't believe 
         17   the defendant is working? 
         18            MS. GOLDBACH:  No, Your Honor, but was 
         19   about to start college this fall. 
         20            THE COURT:  Okay.
         21            MS. GOLDBACH:  Here in Boston. 
         22            THE COURT:  Okay.  So the conditions will 
         23   be that she is to be at home except to attend her 
         24   counseling sessions, and she will be allowed to go 
 0124
          1   to college. 
          2            MS. GOLDBACH:  Your Honor, additionally -- 
          3   and this was part of her bail condition -- she 
          4   attends church three to four evenings a week, and 
          5   she had a curfew as part of her bail conditions, but 
          6   that curfew had been extended for those evenings 
          7   that she attended the church.  Many members of her 
          8   family are involved in that church.  Her mother 
          9   attends that church.
         10            THE COURT:  Okay. So you will make 
         11   arrangements so that for activities that are of an 
         12   educational or medical or religious basis, that 
         13   those will be allowed within the electronic 
         14   monitoring.  Okay?
         15            MR. DEAKIN:  Your Honor, will the curfew 
         16   still be imposed?
         17            THE COURT:  What's the curfew now?
         18            MS. GOLDBACH:  10:30 on the nights that my 
         19   client attended church and 9:30 on other nights.
         20            THE COURT:  Okay.  Those same curfews will 
         21   apply.
         22            MS. GOLDBACH:  Your Honor, I'd ask you to 
         23   retain jurisdiction of this case.
         24            THE COURT:  And I will.
 0125
          1            MS. GOLDBACH:  Thank you.
          2            THE COURT:  It's been assigned to me.
          3            MS. GOLDBACH:  Thank you:  
          4            THE CLERK:  May the sentence be imposed, 
          5   Your Honor?
          6            THE COURT:  Yes.
          7            THE CLERK:  Charles Horton, would you 
          8   please rise.
          9            (Defendant rises)
         10            THE CLERK:  As to Suffolk Superior Court 
         11   Criminal Indictments 2000-10029-001 through and 
         12   inclusive of 005, it is ordered by the Court this 
         13   day that you be placed on probation for a period of 
         14   five years with the following conditions.  The first 
         15   one year of your probation is to be served on the 
         16   bracelet program with the following restrictions:  
         17   Except for educational, medical, or religious 
         18   services, you are to be in your house by 9:30 each 
         19   evening.  It is ordered by the Court that you obtain 
         20   counseling, that you have no contact with children 
         21   under the age of 16, that you provide the 
         22   Commonwealth with a DNA sample, and that you 
         23   register as a sex offender.  
         24            Do you understand and so recognize those 
 0126
          1   conditions?
          2            DEFENDANT:  (No verbal response)
          3            MS. GOLDBACH:  Your Honor, it's 10:30 on 
          4   the night that she attends church.  Wednesday, 
          5   Friday and Saturday are her nights.
          6            THE CLERK:  Counsel, that can be worked out 
          7   with the Probation Department.
          8            MS. GOLDBACH:  Thank you.
          9            THE COURT:  Right. 
         10            MR. DEAKIN:  I apologize to the Court.  I 
         11   may have been writing.  I didn't hear if there was a 
         12   no contact order with the victim that was read into 
         13   the record.  Did the Clerk read it?  I may have 
         14   missed, and I apologize if that's the case.  
         15            THE COURT:  Did you read a no contact order 
         16   with the victim?
         17            THE CLERK:  No children under 16, Your 
         18   Honor. 
         19            THE COURT:  Children under 16.  Doesn't 
         20   that apply to the victim?
         21            MR. DEAKIN:  Until he turns 16, but I would 
         22   ask that the entire period of the probation that he 
         23   be ordered -- that the defendant be ordered to have 
         24   no contact with the victim --
 0127
          1            THE COURT:  Fine.  
          2            MR. DEAKIN:  -- or members of his immediate 
          3   family.
          4            THE CLERK:  Charles Horton, you're also 
          5   ordered to have no contact with any alleged victim 
          6   in this case.  Do you understand and so recognize? 
          7            DEFENDANT:  Yes.  
          8            (Videotape stopped)
          9       BY MR. EGBERT: 
         10       Q.   Judge Lopez, would you agree with me that 
         11   you lost your temper?
         12       A.   I did.
         13       Q.   Do you regret that?
         14       A.   I do, very much so. 
         15       Q.   And after that exchange, Mr. Deakin -- and 
         16   after your sentence was imposed, Mr. Deakin sought 
         17   to rise and speak to you again; is that right? 
         18       A.   Correct. 
         19       Q.   And did you think he was going to reargue 
         20   the disingenuous remark? 
         21       A.   Well, I -- really, I thought he was going 
         22   to try to address me again.  We had left it on a bad 
         23   note, so my initial instinct was that he sought to 
         24   address the Court again on the disingenuous comment.
 0128
          1       Q.   And once he made clear that he wished to 
          2   address you on another matter, what did you do?
          3       A.   I allowed him to present -- make his 
          4   presentation.  I in fact implemented some of his 
          5   requests. 
          6       Q.   And in fact after -- with regard to his 
          7   requests after that, did you grant a majority of 
          8   them or a good deal of them?
          9       A.   I think so, yes. 
         10       Q.   And were you biased against him when you 
         11   granted those requests? 
         12       A.   No. 
         13       Q.   Were you biased against the Commonwealth in 
         14   any way?
         15       A.   No, I wasn't. 
         16       Q.   You have said a number of times that you 
         17   thought this was -- your words were "regrettable."
         18       A.   Yes.
         19       Q.   And yet -- I'd like to get into your 
         20   thoughts for a moment.  What were the reasons that 
         21   you thought it was disingenuous, based upon this 
         22   record, to consider this case a 10? 
         23       A.   Well, there were a number of things that 
         24   occurred --
 0129
          1            MR. WARE:  Objection, Your Honor. 
          2            HEARING OFFICER DAHER:  I'm going to allow 
          3   it.  Overruled.  Go ahead. 
          4       A.   Keeping in mind that I knew that Mr. Deakin 
          5   had misrepresented to the Court a fairly important 
          6   fact; that is, that contrary to his representation, 
          7   the defendant did indeed know the address of the 
          8   victim.  And so when he began to evaluate the case 
          9   as a 10, he then used the very fact that he had 
         10   misrepresented to put this case -- when he knew that 
         11   was a disputed issue at best, he then proceeded to 
         12   evaluate this case as a 10, using the very 
         13   misrepresented fact. 
         14            The other thing is that I --
         15            MR. WARE:  Your Honor, I'm going to object 
         16   and ask that it be struck.  It mischaracterizes the 
         17   district attorney's statement, which is, it's a 10 
         18   only in the sense that these were strangers.
         19            MR. EGBERT:  It is her understanding at the 
         20   time.
         21            MR. WARE:  Why don't we let the witness 
         22   talk.
         23            HEARING OFFICER DAHER:  Why don't we 
         24   address that issue.
 0130
          1            MR. EGBERT:  It is her understanding at the 
          2   time and her reasoning at the time which is at 
          3   issue, and her perception.
          4            MR. WARE:  No, that's not true.  Her 
          5   reasoning is not at issue.  The conduct is at issue. 
          6            MR. EGBERT:  Well, thank you very much, Mr. 
          7   Ware.  Hopefully yours will be soon. 
          8            The fact of the matter is that what she's 
          9   entitled to do --
         10            HEARING OFFICER DAHER:  I'm going to 
         11   overrule it.  You may have it.  I want to hear it.  
         12   Go ahead. 
         13       A.   Okay.  So -- I don't know if I made myself 
         14   clear that one of the --
         15       Q.   Let me ask you another question.  What I'm 
         16   asking you is for the various factors that went into 
         17   your reasoning that this case -- that the statement 
         18   that this case is a 10 was disingenuous. 
         19       A.   All right.  As I previously indicated, one 
         20   was the factual misrepresentation during the factual 
         21   presentation of the Commonwealth, later relied on by 
         22   him to support, justify placing the case in the most 
         23   serious level category. 
         24            That I knew he knew that a 10 case would 
 0131
          1   be, as I previously testified also, a case involving 
          2   some kind of an aggravated rape situation of a 
          3   child, serious injury, serious psychological, 
          4   physical injury, the use of a gun, or involving a 
          5   pedophile, and there had been no suggestion in this 
          6   case.  Certainly if there was any evidence or any 
          7   suggestion in this case that Ebony Horton was a 
          8   pedophile, I would have agreed with him that the 
          9   case was a 10.  
         10            But in fact what the record showed was that 
         11   the Commonwealth themselves did not think this case 
         12   involved a pedophile.  They never sought a 
         13   dangerousness petition.  Dangerousness petitions are 
         14   routinely sought when the Commonwealth believes that 
         15   a defendant is either a menace or a danger to the 
         16   public at large or a danger to a particular 
         17   individual. 
         18            At no time did the Commonwealth ever seek 
         19   to have Mr. Horton -- Defendant Horton be determined 
         20   as a dangerous person that should be held without 
         21   bail. 
         22            The other aspect of it was that when I 
         23   asked him to evaluate the case on a 1-to-10 scale, I 
         24   wanted him to give me an honest response, and he 
 0132
          1   would know that when we go about determining 
          2   appropriate sentences, we include defendant-specific 
          3   characteristics.  In his presentation he only, 
          4   again, used the facts from the Commonwealth's point 
          5   of view when he knew that we had other information 
          6   that would affect the way a sentence would be 
          7   determined in this kind of a case. 
          8            So for those reasons, and I believe that he 
          9   was being not candid with me. 
         10       Q.   In these kinds of cases, is it important to 
         11   you to know or to have a feeling as to whether or 
         12   not a defendant before you is a pedophile or a 
         13   recurring violator? 
         14       A.   Absolutely. 
         15       Q.   And was there any information in this case 
         16   that the defendant was a pedophile or a recurring 
         17   violator?
         18       A.   There was absolutely no evidence, not even 
         19   a suggestion of it by the Commonwealth through the 
         20   entirety of the proceedings involving this case. 
         21       Q.   And was it -- did you have any affirmative 
         22   evidence that the defendant was neither a pedophile 
         23   in the legal sense, or a recurring or 
         24   likely-to-recur violator?
 0133
          1       A.   Well, I had a number of things.  First, I 
          2   had a diagnosis of the defendant as being -- having 
          3   a sexual gender identity disorder, which I know to 
          4   be unrelated to pedophilia.
          5       Q.   When you say you know to be unrelated, 
          6   where do you get that information from?
          7       A.   I have gotten that information in the 
          8   course of conferences, readings, information that 
          9   has been brought to my attention in the course of 
         10   other cases involving sexual aberrant behavior. 
         11       Q.   And what else did you have? 
         12       A.   I also had a criminal record that showed no 
         13   sex offenses involving children.  In fact a de 
         14   minimus record of misdemeanors, I believe. 
         15            I also had this psychological report in 
         16   which there was no indicia -- there were no 
         17   characteristics of a pedophile, the characteristics 
         18   being some kind of an obsession, a compulsion, an 
         19   uncontrollable impulse regarding sex with children. 
         20       Q.   Was that psychological report ever disputed 
         21   by anyone in front of you? 
         22       A.   It was never disputed. 
         23       Q.   And were there any other things that you 
         24   were considering at the time?
 0134
          1       A.   I think that's what I remember at this 
          2   point in time. 
          3       Q.   Now, everybody keeps saying you made this 
          4   statement "low scale" out of your mouth.  Do you 
          5   recall that?
          6       A.   Yes. 
          7       Q.   It appears what you actually said was "low 
          8   level"; is that right? 
          9       A.   "Low level," correct.
         10       Q.   And not that that's of great significance.  
         11   What did you mean? 
         12       A.   What I meant is -- which is what I meant 
         13   Mr. Deakin to do, and which is what to some extent 
         14   he proceeded to do -- is to use the factors that we 
         15   would commonly use in evaluating a case for the 
         16   purpose of sentencing and give a value to it.  
         17   It's -- those are the kinds of factors that we have 
         18   in the proposed sentencing guidelines and in other 
         19   guidelines such as the Superior Court guidelines 
         20   that Justice Ronan had written some time ago.  But 
         21   it's the same general factors.  
         22            We all know, in the criminal justice 
         23   system, that when you evaluate a case, there are 
         24   certain standard things that you would look at. 
 0135
          1       Q.   And, by the way, in our sentencing scheme 
          2   in the Commonwealth of Massachusetts, is a judge 
          3   required to consider, along with the nature of the 
          4   offense, the characteristics of the defendant? 
          5       A.   Absolutely.  They're critical to a 
          6   determination of whether or not, you know, what kind 
          7   of a sentence this individual should get. 
          8       Q.   Now, you said a number of times you 
          9   regretted the words you used and the display of 
         10   temper; is that right? 
         11       A.   That's correct. 
         12       Q.   Do you nevertheless believe that you acted 
         13   on that occasion and in the Horton case in an 
         14   unbiased and fair fashion and delivered a sentence 
         15   that you believe to be an appropriate one? 
         16       A.   Correct.  I arrived at that sentence on 
         17   August 1st.  I was completely unbiased.  I 
         18   considered only the information that was before me 
         19   concerning the crime and the particular 
         20   characteristics of the defendant.  So I was 
         21   completely fair and unbiased in arriving at that 
         22   sentence. 
         23       Q.   And, by the way, did you appear before the 
         24   Commission on Judicial Conduct and tell them that 
 0136
          1   you felt your conduct in losing your temper and 
          2   choice of words was inappropriate and would set the 
          3   judiciary in a bad light? 
          4       A.   Yes, I absolutely went there -- I can't 
          5   remember the date.  It was last year, I believe.  
          6   Was it April?  I think it was -- I can't remember 
          7   the exact date.  I appeared with my then counsel, 
          8   Mike Mone, before members of the Commission, and I 
          9   apologized.  I told them that I understood the 
         10   impact that that kind of behavior would cause in 
         11   terms of putting the judiciary in a bad light in the 
         12   public arena, and I very much regretted that I had 
         13   had that flaw that moment. 
         14       Q.   Now, after the proceedings concluded on 
         15   September 6th, is it fair to say that there was some 
         16   media activity with regard to you and the sentence? 
         17       A.   That's very fair to say. 
         18       Q.   And how would you describe it? 
         19       A.   Well, it began escalating.  We had some 
         20   media calls immediately the afternoon of the 
         21   sentencing, because -- I believe it had been in the 
         22   noontime news.  The radio talk shows were already 
         23   talking about it.  Then the following day -- and -- 
         24   the afternoon the calls were to the courthouse.  
 0137
          1   They were calling the clerk's office.  I believe 
          2   they called Joan Kenney.  But they were looking for 
          3   comments on this. 
          4       Q.   And during the course of -- strike that. 
          5   During the course of September 6th and 7th, did you 
          6   have occasion to have conversations with Joan Kenney 
          7   at the Supreme Judicial Court press office? 
          8       A.   I had many conversations with her.
          9       Q.   Did you have conversations with Judge 
         10   Suzanne DelVecchio, the Chief Judge of the Superior 
         11   Court? 
         12       A.   I did. 
         13       Q.   And did you have conversations with trusted 
         14   friends and associates? 
         15       A.   I had conversations with friends, 
         16   colleagues, yes.
         17       Q.   And is it fair to say that you were 
         18   concerned of the portrayal that you were releasing a 
         19   predatory pedophile?
         20       A.   That was my foremost concern, because that 
         21   went to the heart of my disregard for public safety.  
         22   Nothing could be further from the truth. 
         23       Q.   And during those conversations that you had 
         24   on the 6th and the 7th, did you propose to Judge 
 0138
          1   DelVecchio and others a way to get your sentencing 
          2   feelings out to the public? 
          3       A.   Right.  When I saw, you know, the way the 
          4   press was portraying this, I wanted to issue a 
          5   sentencing memorandum --
          6       Q.   Let me stop you for a minute.  What's a 
          7   sentencing memorandum?
          8       A.   A sentencing memorandum is a memorandum 
          9   issued by a judge explaining a sentence, you know, 
         10   laying out the factors that led to the sentence 
         11   determination. 
         12       Q.   Now, in a sentencing memorandum, would you 
         13   have been prohibited, from your understanding, in 
         14   any way from including within that memorandum each 
         15   and every fact and factor known to you at the time 
         16   of the delivery of the sentence? 
         17       A.   I would not have been precluded.  In my 
         18   adjudicative responsibilities as a judge, I could 
         19   use any facts that have been brought to me in the 
         20   course of judicial proceedings in order to -- and 
         21   make findings concerning those.
         22       Q.   And would that include disputed facts? 
         23       A.   Correct. 
         24       Q.   Would that include the information provided 
 0139
          1   to you during your lobby conferences with counsel? 
          2       A.   That's right. 
          3       Q.   Would it include the information in the 
          4   psychosocial report? 
          5       A.   Yes, it would.
          6       Q.   Would it include information in police 
          7   reports and other discovery that was included in 
          8   this case? 
          9       A.   That's right. 
         10       Q.   And what would have been your purpose in 
         11   issuing the sentencing memorandum?
         12       A.   My purpose in issuing a sentencing 
         13   memorandum was to get the public to understand that 
         14   I had not released a predatory pedophile, the facts 
         15   upon which I relied to make that determination, to 
         16   explain to the public that my sentence would 
         17   appropriately consider their interests, and to 
         18   hopefully explain myself to the public. 
         19       Q.   Were you counseled against doing that?
         20       A.   Yes. 
         21       Q.   Who counseled you against doing that? 
         22       A.   Chief Justice DelVecchio said that she 
         23   didn't think it was a good idea; that if I issued a 
         24   sentencing memorandum, it would probably promote 
 0140
          1   more press activity.  So she did not think it was a 
          2   good idea.  And actually my lawyer at the time also 
          3   did not think it was a good idea. 
          4       Q.   And Judge DelVecchio you have a great deal 
          5   of respect for, I understand, do you not? 
          6       A.   Yes. 
          7       Q.   Indicated to you, best to just let it die, 
          8   so to speak? 
          9       A.   Correct.
         10       Q.   But it didn't die.
         11       A.   It did not die.
         12       Q.   And the activity became substantial, did it 
         13   not? 
         14       A.   Unbelievably unprecedented as far as I'm 
         15   concerned.
         16       Q.   Now, Judge, tell us what went on the 6th 
         17   and the 7th and the 8th concerning your interaction 
         18   with anonymous members of the public, the press, and 
         19   your family. 
         20       A.   On the 6th we began receiving some calls at 
         21   the courthouse from reporters looking for a comment, 
         22   as well as from angry citizens who were leaving 
         23   unpleasant messages for me. 
         24       Q.   By the way, did you come to an 
 0141
          1   understanding as to whether or not the whole of the 
          2   sentencing hearing had been published or played in 
          3   any of the press? 
          4       A.   I only knew that on the six o'clock news on 
          5   the 6th of September that clip where I tell Mr. 
          6   Deakin to sit down.  Just three or four seconds of 
          7   that entire proceeding was what was played in the 
          8   news. 
          9       Q.   And -- Okay.  So you received some calls.  
         10   What else was going on? 
         11       A.   On the 6th? 
         12       Q.   On the 6th. 
         13       A.   Okay.  On the 7th we were then that day, 
         14   because it was after I had been -- the clip had been 
         15   on the news the night before.  We were besieged with 
         16   calls.  You know, at the courthouse they were 
         17   calling my clerk's office, leaving, you know, 
         18   horrible, horrible messages for me.
         19       Q.   When you say "horrible," what kinds of 
         20   messages? 
         21       A.   Well, you know, calling me all kinds of 
         22   names, telling me -- they called me a spick, go back 
         23   to Cuba; different messages that they would leave to 
         24   the clerk.  And the clerks related some of them, but 
 0142
          1   it got to the point where they just said "just 
          2   another one of those angry calls, nasty calls," and 
          3   they wouldn't really articulate to me what was being 
          4   said.  But clearly that there were numerous, very 
          5   terrible calls about me. 
          6       Q.   And did anything happen at your house? 
          7       A.   Yes.  That night we began getting calls at 
          8   home from certain people.  I mean, the house thing 
          9   began the following day really intensely, when the 
         10   radio talk show people had given my phone number and 
         11   address over the radio and were telling people to 
         12   call me, to come to my house, to do things to my 
         13   kids and to me.  So although we were getting some 
         14   calls on the 7th at home, it became horrendous after 
         15   my phone number was given out over the radio.
         16       Q.   And in fact did some radio personalities 
         17   show up in your driveway or outside your driveway 
         18   and actually conduct some show out there? 
         19       A.   Yes.  I believe it was the morning of the 
         20   8th when they -- I became aware that a radio talk 
         21   show that was -- was broadcasting from the end of my 
         22   driveway. 
         23       Q.   And during that period of time, can you 
         24   tell us -- you told us some calls that went to the 
 0143
          1   court.  Can you give us a sampling of some of the 
          2   calls that came to your home on the 6th and 7th?
          3       A.   We were getting calls saying that I should 
          4   be raped, that I should watch out, I should be 
          5   dragged out by my hair and hung on a tree, that I 
          6   should watch out for my kids, be careful.  Your kids 
          7   are going to be kidnapped and raped.  There were -- 
          8   you know, calling me a spick.  They were saying that 
          9   my husband was a spick-loving kike Jew bastard.  
         10   They were saying all kinds of ethnic, racial things 
         11   about us, and threatening my kids and me. 
         12       Q.   Now, what did that do to your state of mind 
         13   on the 6th and the 7th and the 8th? 
         14       A.   I was horrified.  I was horrified for my 
         15   children, for my family.  It had been an incredible 
         16   invasion of my family life to have this radio -- 
         17   these radio people broadcasting from my driveway in 
         18   a morning when my kids were going to school, you 
         19   know, in front of my neighbors, and then they gave 
         20   out my telephone number, and people immediately 
         21   began to call and say things.  It was incredibly 
         22   threatening to everyone, to my children and to me. 
         23       Q.   And did these -- did these people who were 
         24   calling you, did they indicate that it was -- that 
 0144
          1   they were angry about the sentence you had delivered 
          2   in the Horton case?
          3       A.   Yes.  Basically it was all about the 
          4   sentence.  They thought I had released a predatory 
          5   pedophile, that I was -- you know, that -- they were 
          6   just so mistaken.  But that was what they were 
          7   saying things about; the sentence. 
          8       Q.   During the course -- during the course of 
          9   this time period, was it determined that -- by Joan 
         10   Kenney that a press release ought to be issued? 
         11       A.   Right.  There was some conversation where 
         12   Joan suggested that maybe, given the quantity of 
         13   calls coming into her office, I think she thought 
         14   maybe a press release would take care of it. 
         15       Q.   And what was your desire at the time? 
         16       A.   I always wanted to issue a sentencing 
         17   memorandum and fully explain myself on the record. 
         18       Q.   But you didn't do that.
         19       A.   No, I did not.
         20       Q.   Why not? 
         21       A.   Well, I was getting, you know, directives, 
         22   suggestions, advice, you know, from my chief, from 
         23   my lawyer, and, you know, I, like them, was hopeful 
         24   that this would end in the media. 
 0145
          1       Q.   In the meantime were you having 
          2   conversation with Joan Kenney concerning the facts 
          3   and circumstances surrounding this case, Ebony 
          4   Horton, and your thought processes with regard to 
          5   the sentence? 
          6       A.   Correct. 
          7       Q.   And what was the purpose of that? 
          8       A.   Well, she was getting calls.  And so she -- 
          9   she was going to respond, which she does, and she 
         10   did with me on a number of occasions is she gets the 
         11   call from the press, she calls me, tells me what 
         12   they're asking about.  I then tell her what would 
         13   respond to that, and then she decides whether or not 
         14   that's something that we should -- the way we should 
         15   respond to some extent. 
         16       Q.   Now, did -- ultimately -- and we'll come 
         17   back to it -- but ultimately a press release was 
         18   issued, correct?
         19       A.   Yes. 
         20       Q.   And without -- now, did you issue the press 
         21   release? 
         22       A.   I did not draft it.  I knew it was being 
         23   issued on my behalf, but I knew it was being issued 
         24   by the Supreme Judicial Court's Public Information 
 0146
          1   Office.
          2       Q.   So from a technical standpoint you didn't 
          3   issue it by passing it out to the press, correct? 
          4       A.   Correct.  I didn't draft it, and I didn't 
          5   issue it.
          6       Q.   But you were responsible for its issuance; 
          7   is that a fair statement? 
          8       A.   Correct. 
          9       Q.   Kind of like you felt Ms. Joseph called the 
         10   press.
         11       A.   That's right. 
         12       Q.   And not that it was some physical act, but 
         13   it was a participation in.
         14       A.   That's right. 
         15       Q.   And when this press release was drafted, do 
         16   you have a clear recollection today of each and 
         17   every conversation you had with Ms. Kenney and Judge 
         18   DelVecchio concerning its drafting?
         19       A.   No.  It is -- it was a very confusing, 
         20   hectic, traumatic time.  I know I had many 
         21   conversations with many people, multiple 
         22   conversations with Joan Kenney.  So I don't have a 
         23   clear recollection of each conversation and what I 
         24   said in each conversation. 
 0147
          1       Q.   Do you take responsibility for the content 
          2   of the press release? 
          3       A.   Absolutely. 
          4       Q.   It purports to be your statement, correct? 
          5       A.   It is my statement. 
          6       Q.   And you're responsible for it.
          7       A.   That's right. 
          8       Q.   You have -- now, at the time that you -- 
          9   did you review it back then, just before its 
         10   release? 
         11       A.   Yes.  I think it was -- it was read to me 
         12   over the phone, I believe, by Joan Kenney initially, 
         13   and then I understood that the Chief Justice, 
         14   Justice DelVecchio, was reviewing it, and that she 
         15   would make some changes or she did -- I learned that 
         16   she did make some minor changes on it. 
         17       Q.   And when you -- did you review it at the 
         18   time?
         19       A.   Well, I reviewed it to the extent that, you 
         20   know, it was read to me.  You know, I thought it 
         21   contained the -- you know, sufficient information to 
         22   adequately inform the public in a press release. 
         23       Q.   It wasn't a sentencing memorandum, was it?
         24       A.   It was not a sentencing memorandum.
 0148
          1       Q.   It wasn't an attempt at a sentencing 
          2   memorandum, was it?
          3       A.   Not at all. 
          4       Q.   And at the time that it was issued, did it 
          5   appear to you to be substantially accurate?
          6       A.   Yes. 
          7       Q.   Now, at a deposition that was conducted of 
          8   you, it was gone over with you line by line, that 
          9   press release, right? 
         10       A.   Right. 
         11       Q.   And when you went over it line by line, you 
         12   testified on occasion that certain parts of it were 
         13   inaccurate, in your mind, correct?
         14       A.   Inaccurate, incomplete, yes. 
         15       Q.   Was the substance of the release itself an 
         16   accurate reflection of what you wanted to portray? 
         17       A.   It was an accurate reflection, yes, for 
         18   purposes of a press release. 
         19       Q.   This is the press release basically.  Can 
         20   you see that?
         21       A.   Yes, I can. 
         22            MR. EGBERT:  Judge, can you see that? 
         23            HEARING OFFICER DAHER:  (Nods head)
         24       Q.   Now, the first line says, "The Judicial 
 0149
          1   Canons prohibit judges from commenting on pending 
          2   and impending cases."  And you were asked by Mr. 
          3   Ware at deposition, "Is that a true statement," 
          4   correct? 
          5       A.   That's right. 
          6       Q.   And you answered to him you didn't think it 
          7   was true, right?
          8       A.   Correct.
          9       Q.   Is it true or isn't it?
         10       A.   Well, it's not a complete statement of what 
         11   the canons provide, because judges are not 
         12   prohibited from commenting, you know, absolutely.  
         13   There are things that judges can comment on.  There 
         14   are circumstances in which they can't comment.  So 
         15   it's not a full and complete statement of that 
         16   canon. 
         17       Q.   But it's accurate enough for a press 
         18   release, in your view? 
         19       A.   Correct. 
         20       Q.   Would it be more accurate if it said, "The 
         21   judicial canons prohibit judges from commenting on 
         22   pending and impending cases, under some 
         23   circumstances"? 
         24       A.   Yes, or "except in some circumstances." 
 0150
          1       Q.   So, "except," right?
          2       A.   Yes.
          3       Q.   Then those exceptions were not important to 
          4   the content of the meaning that you intended to 
          5   portray; is that correct?
          6       A.   That's correct. 
          7       Q.   Now then it says, "Although I cannot 
          8   comment on matters that were before me regarding the 
          9   defendant, Charles Horton, I do think it is 
         10   necessary to clarify media reports that suggest I 
         11   was insensitive to the victim and his family."  
         12            So here you have a sentence that says, the 
         13   canons prohibit the judges from commenting on 
         14   pending and impending cases.
         15       A.   Yes.
         16       Q.   You cannot comment on matters that were 
         17   before you, right? 
         18       A.   That's right.
         19       Q.   And then you go ahead and comment.
         20       A.   Correct. 
         21       Q.   So was that an accurate statement, 
         22   "Although I cannot comment on matters that were 
         23   before me regarding the defendant, Charles Horton"?
         24       A.   It is an accurate statement for a press 
 0151
          1   release. 
          2       Q.   What would be a more accurate statement in 
          3   the law? 
          4       A.   "Although I cannot comment on matters that 
          5   were before me, in a press release regarding the 
          6   defendant, Charles Horton." 
          7       Q.   Is that right? 
          8       A.   Correct. 
          9       Q.   That is because you can comment on anything 
         10   you wanted in a sentencing memorandum, correct?
         11       A.   That's correct.  And -- yes.
         12       Q.   Go ahead.
         13       A.   And I could have also commented on 
         14   procedural issues and, you know, legal issues.  The 
         15   canons are not an absolute ban from commenting.  
         16   They provide certain conditions. 
         17       Q.   It then goes on to say, "I do think it is 
         18   necessary to clarify media reports that suggest I 
         19   was insensitive to the victim and his family," 
         20   correct?
         21       A.   That's right.
         22       Q.   Were you intending to be insensitive to the 
         23   victim and his family?
         24       A.   Absolutely not.  Just -- no.
 0152
          1       Q.   And had you, during your sentencing 
          2   decision, taken into account fully the victim and 
          3   his family and their plight in these proceedings?
          4       A.   Very much so.  It is always a consideration 
          5   in these kinds of cases. 
          6       Q.   And, Judge, although -- well, let me go 
          7   back.  It says, "My statement in open court that it 
          8   was a 'low scale' matter pertained solely to the 
          9   appropriate level of the sentencing guidelines used 
         10   by judges in sentencing convicted defendants," 
         11   correct?
         12       A.   Correct.
         13       Q.   First of all, are there sentencing 
         14   guidelines in the Commonwealth of Massachusetts?  
         15   When I say sentencing guidelines, I mean statutorily 
         16   imposed sentencing guidelines.
         17       A.   We have no mandated obligatory sentencing 
         18   guidelines in Massachusetts.
         19       Q.   I'm going to take you back even more than 
         20   that.  I want you to listen to my question.  Are 
         21   there any statutorily-imposed sentencing guidelines 
         22   in the Commonwealth of Massachusetts?
         23       A.   Only with regard to mandatory sentencing, 
         24   but nothing else.
 0153
          1       Q.   Are there any statutorily-imposed 
          2   sentencing guidelines in the Commonwealth of 
          3   Massachusetts?
          4       A.   No. 
          5       Q.   Thank you.  You would think we never met. 
          6            So when this press release talks about 
          7   sentencing guidelines, what would be -- what would 
          8   be a fuller explanation of that statement or a more 
          9   well-drafted explanation of what you were trying to 
         10   say? 
         11       A.   Okay.  "My statement in open court... 
         12   pertained solely to the" -- I guess after "solely" 
         13   you would insert the factors that would be 
         14   considered by judges in arriving or in determining 
         15   the appropriate level of sentencing guidelines.  
         16   "Solely to"... Yes. 
         17       Q.   So, in other words, what judges in 
         18   Massachusetts have is factors to consider in 
         19   determining a sentence. 
         20       A.   Correct.
         21       Q.   Right?  And they basically become the 
         22   guidelines used by judges in sentencing in 
         23   Massachusetts, because we don't have sentencing 
         24   guidelines.
 0154
          1       A.   Correct.
          2       Q.   Isn't that right? 
          3       A.   Right.
          4       Q.   And so when you look at that, it is not a 
          5   clearly accurate statement of the law, is it? 
          6       A.   Right.  Because we don't have sentencing 
          7   guidelines, it is not a statement, a clear statement 
          8   of the law. 
          9       Q.   Does it fairly portray what you were trying 
         10   to say? 
         11       A.   Absolutely. 
         12       Q.   And that is that "low scale" to you -- what 
         13   you were talking about is the factors that judges 
         14   consider in determining sentencing guidelines or 
         15   guide you in sentencing of convicted defendants?
         16       A.   And I believe I said "low level," not "low 
         17   scale."
         18       Q.   I think you did.  You did say "low level."  
         19   So you and Ms. Kenney and everybody else used the 
         20   wrong word in any event; is that right? 
         21       A.   Right.
         22       Q.   Now, "In this case, there were certain 
         23   facts before me, known by both the prosecutor and 
         24   the defense attorney, that were part of the plea 
 0155
          1   conference and cannot be revealed by me, but which 
          2   would undoubtedly change the characterization of 
          3   this case as currently reported by some media 
          4   outlets."  Correct? 
          5       A.   Correct. 
          6       Q.   Well, when you say cannot be revealed by 
          7   you, you could have revealed all of those in a 
          8   sentencing memorandum, couldn't you?
          9       A.   That's right.
         10       Q.   So is that an accurate statement? 
         11       A.   It's not an accurate statement of what I -- 
         12   of what I could have done with the facts that I knew 
         13   of. 
         14       Q.   Well, it says here, "cannot be revealed by 
         15   me."  Is that an accurate statement? 
         16       A.   It would be more accurate if it said, "in a 
         17   press release." 
         18       Q.   Which this was. 
         19       A.   Yes. 
         20       Q.   And so you could have, as you said, issued 
         21   a sentencing memorandum with all the facts known to 
         22   you throughout the whole proceeding, correct?
         23       A.   Correct. 
         24       Q.   And what were -- were there facts known to 
 0156
          1   you and the prosecutor and the defense attorney 
          2   which would, in your opinion, have changed the 
          3   characterization of the case?
          4       A.   Absolutely. 
          5       Q.   And what are those facts and circumstances 
          6   that you had in mind? 
          7       A.   Those would be the facts contained in the 
          8   psychological assessment that I had, the disputed 
          9   facts that had been presented to me in the lobby 
         10   conference, the defendant's criminal record 
         11   information, police reports which were not part of 
         12   the public record. 
         13       Q.   For example, in that psychosocial report, 
         14   I'll call it, there was -- there was a finding by a 
         15   competent clinician that the person before you was 
         16   not a predatory pedophile, correct? 
         17       A.   That's correct.
         18       Q.   And was not a likely recidivist, repeater.
         19       A.   Unlikely to repeat an offense of this kind 
         20   or something like that.
         21       Q.   And that would be an important fact to you.
         22       A.   Very important.
         23       Q.   And all of the matters which you have 
         24   previously discussed that went into your sentence 
 0157
          1   that were not a matter of public record are matters 
          2   which you're talking about there.
          3       A.   That's right; that I could not reveal 
          4   there. 
          5       Q.   And you said that, "Based on the facts of 
          6   the case before me, the plea conference attended by 
          7   the prosecutor and the defense attorney, the 
          8   applicable law, and the sentencing guidelines, the 
          9   defendant was given a fair sentence," correct? 
         10       A.   Correct.
         11       Q.   What sentencing guidelines?
         12       A.   That is just a generic reference to the 
         13   factors that we use, and have used for many years, 
         14   to determine what an appropriate sentence is in that 
         15   case. 
         16       Q.   Did you feel, at the time that was issued, 
         17   that it was a generally accurate reflection of your 
         18   position? 
         19       A.   For its purpose, it was accurate of what 
         20   had gone on, what my position was, yes. 
         21       Q.   And do you today consider it generally 
         22   accurate as to your position for a press release? 
         23       A.   Yes, although I guess I would change the 
         24   "low scale" to "low level." 
 0158
          1       Q.   And... 
          2            HEARING OFFICER DAHER:  Mr. Egbert, do you 
          3   want to suspend at this point until Monday morning 
          4   or do you want to continue?
          5            MR. EGBERT:  That would be fine.
          6            HEARING OFFICER DAHER:  Mr. Ware, how does 
          7   that sound to you?
          8            MR. WARE:  That's acceptable. 
          9            HEARING OFFICER DAHER:  Thank you. 
         10                 (Whereupon, at 12:45 p.m. the 
         11                 hearing was adjourned)
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 0159
          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 IV, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on November 22, 2002.
          7   
          8   
          9                  _____________________________
         10                         Carol H. Kusinitz
         11                   Registered Professional Reporter
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