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 0001
                                            Volume V     
                                            Pages 5-1 to 5-165
                                            Exhibits See Index
              
                         COMMISSION ON JUDICIAL CONDUCT
                          Complaint No. 2000-110 et seq
              - - - - - - - - - - - - - - - - - - - x   
                                                    :
              In the Matter of Investigation of:    :
              The Honorable Maria I. Lopez,         :
              Associate Justice, Superior Court     :
              Department                            :
              - - - - - - - - - - - - - - - - - - - x 
              
              BEFORE:  Hearing Officer E. George Daher,
                         Chief Justice (Ret.)
              
                       Harvey Chopp, Clerk
              
              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
                            Monday, November 25, 2002
                                    9:42 a.m.
              
                 (Jane M. Williamson, Registered Merit Reporter)
               
              
                                        
 0002
          1                         I N D E X
              
          2   WITNESS        DIRECT  CROSS  REDIRECT  RECROSS
              
          3   Maria Lopez
              (By Mr. Egbert)        5-5              5-126
          4                                           5-163
              
          5   (By Mr. Ware)                 5-49
                                            5-162
          6   
                                    *  *  * 
          7   
                                 E X H I B I T S
          8   
              EX. NO.                         FOR ID   IN EVID
          9   
              18  Criminal record of Charles           5-60
         10       Ebony Horton
              
         11   10  Cosmo Macero, Jr., Karen             5-107
                  E. Crummy and Marie
         12       Szaniszlo, "Objection!
                  Judge's Sex-Offender
         13       Sentence Sparks Cry for
                  Ouster," Boston Herald,
         14       9/18/00
              
         15   11  Frank Phillips, "Judge Saw           5-107 
                  Charges as Too Severe in
         16       Molest Case, Sources Say,"
                  Boston Globe, 9/9/00
         17   
              12  Staff and Wire Reports,              5-107
         18       "Judge's Critics Urged to
                  Chill Transsexual
         19       Sentence Called 
                  Courageous," Worcester 
         20       Telegram & Gazette, 9/9/00
              
         21   13  Margery Eagan, "Lopez                 5-107 
                  Judged the Victim, Not the 
         22       Criminal," Boston Herald, 
                  9/10/00
         23   
              (Continued on the next page)
         24   
 0003
          1                E X H I B I T S, Continued
              
          2   EX. NO.                         FOR ID   IN EVID
              
          3   14  Wayne Woodlief, "Judge               5-107 
                  Lopez Needs to Escape 
          4       Denial," Boston Herald, 
                  9/12/00
          5   
              20  David Weber, "Man Guilty             5-107 
          6       of Sexual Attack on Boy 
                  Won't Go To Jail," Boston 
          7       Herald, 9/7/00
              
          8   21  Raphael Lewis and Mac                 5-107 
                  Daniel, "Residents Fear 
          9       Neighbor Who Abducted Boy," 
                  Boston Globe, 9/10/00
         10   
              30  Jose Martinez, "Grandma               5-107 
         11       Denies Kid Knew Molester," 
                  Boston Herald, 9/10/00
         12   
              33  Eileen McNamara, "Judge               5-107 
         13       Needs Watching," Boston
                  Globe, 9/17/00
         14   
              34  Ralph Ranalli, "Judge                 5-107 
         15       Lopez's Actions Draw
                  Outrage, Others Allege
         16       Trivialization of Crime,
                  Seek Probe," Boston Globe,
         17       9/8/00
              
         18   35  Tom Mashberg, "One Version            5-107
                  of Events Casts Horton's
         19       Actions Differently," 
                  Boston Herald, 9/10/00
         20   
              36  Rachelle Cohen, "Lopez                5-107
         21       Proves to be Her Own Worst
                  Enemy," Boston Herald,
         22       9/14/00
              
         23   (Continued on next page)
         24   
 0004
          1                E X H I B I T S, Continued
              
          2   EX. NO.                         FOR ID   IN EVID    
              
          3   37  Eileen McNamara, "Public             5-107
                  Owed Explanation from 
          4       Judge," Boston Globe, 
                  9/13/00
          5   
              38  Edward Achorn, "Justice              5-107
          6       'On a Very Low Scale',"
                  The Providence Journal,
          7       9/12/00
              
          8   39  Peter Gelzinis, "Lopez's             5-107
                  Defense Falls Flat,"
          9       Boston Herald, 9/12/00
              
         10   40  Cosmo Macero, Jr.,                   5-107
                  "Cellucci Blasts Judge's
         11       Backers," Boston Herald,
                  9/12/00
         12   
              43  Eileen McNamara, "Two-Tier           5-107
         13       Justice Hurts Children,"
                  Boston Globe, 2/14/99
         14   
              46  Robert O'Neill, "Breaking            5-107
         15       Silence, Judge Lopez 
                  Defends Her Rulings and
         16       slams Critics," Associated
                  Press Newswires, 5/22/01
         17   
              66  Excerpt from the             5-107 
         18       "Diagnostics and 
                  Statistical Manual of 
         19       Mental Disorders"
              
         20   8   Document previously marked            5-107
                  as Exhibit 66 for 
         21       identification       
              
         22   
              
         23   
         24   
 0005
          1                   P R O C E E D I N G S
          2              THE WITNESS:  I'm still under oath.
          3               MARIA LOPEZ, Previously Sworn
          4                CROSS EXAMINATION, Resumed
          5       BY MR. EGBERT:
          6       Q.   Just last Friday when we were looking over 
          7   the transcript and I was pointing to parts, I 
          8   recognize from the transcript that you were talking 
          9   faster than I was writing.  So I'm going to ask you 
         10   to take a look at this transcript again at Page 149.  
         11   And do you see the area where you were discussing 
         12   what you had in this particular area?
         13       A.   Right, "except in some circumstances."  
         14       Q.   Then I'm going to ask you to look at the 
         15   transcript at Page 153.  And in this section here 
         16   you said something should come out after "solely," 
         17   correct?
         18       A.   Right.
         19       Q.   And what did you have?
         20       A.   "Factors that would be considered by judges 
         21   in determining the appropriate level of sentencing 
         22   guidelines." 
         23       Q.   "Factors that would be considered by judges 
         24   in determining the appropriate level of the 
 0006
          1   sentencing guidelines"?
          2       A.   Right.
          3       Q.   And when you agreed or issued this press 
          4   release, did Chief Justice DelVecchio know that it 
          5   was being issued?
          6       A.   Yes.
          7            MR. WARE:  Objection. 
          8            HEARING OFFICER DAHER:  Sustained.
          9       Q.   Did you discuss with Chief Justice 
         10   DelVecchio the substance of this press release?
         11       A.   Yes.
         12       Q.   And did you -- strike that.  Do you have 
         13   that exhibit book in front of you?
         14       A.   Yes, I do.
         15       Q.   Would you turn to Exhibit 50. 
         16       A.   Yes.
         17       Q.   Could you tell us what that is. 
         18       A.   That's a fax memo.
         19       Q.   From?
         20       A.   From Joan Kenney to Chief Justice 
         21   DelVecchio.
         22       Q.   And the date of it?
         23       A.   The date of it is 9/7/00, September 7th, 
         24   2000.
 0007
          1       Q.   And it reads, "Chief, could you please 
          2   review this draft statement I wrote for Judge Lopez.  
          3   There have been many media calls today.  Thank you.  
          4   Joan."  Correct?
          5       A.   Correct.
          6       Q.   And does that comport with your 
          7   understanding that Ms. Kenney and Judge DelVecchio 
          8   had been speaking with regard to the press release?
          9       A.   Yes.
         10       Q.   And does it comport with your understanding 
         11   that Joan Kenney wrote the press release?
         12       A.   That's right, yes.
         13       Q.   Would you now turn to Exhibit 51.  And what 
         14   is that?
         15       A.   And that is the Chief Justice's response to 
         16   Joan Kenney concerning the draft of the press 
         17   release.
         18       Q.   And is that dated September 7th, 2000?
         19       A.   Correct.
         20       Q.   And in it does it say, "Joan, I revised 
         21   your original draft after a telephone consultation 
         22   with Justice Lopez.  Thank you for all of your help 
         23   in this.  S. DelV"?  Right?
         24       A.   Right.
 0008
          1       Q.   Do you understand "S. DelV" to be Suzanne 
          2   DelVecchio?
          3       A.   Yes.
          4       Q.   And "Joan" to be Joan Kenney?
          5       A.   Correct.
          6       Q.   And does that fax statement comport with 
          7   your memory of the events?
          8       A.   Yes.
          9       Q.   Now, on this issue of releasing information 
         10   concerning a pending case, No. 1, did you believe 
         11   this Horton case to be pending as of September 7th 
         12   of 2000?
         13       A.   I did not believe it was pending.  It was a 
         14   disposed of case.
         15       Q.   And did Judge DelVecchio, the Chief Judge 
         16   of the Superior Court, in any way indicate to you at 
         17   any time that a press release would be inappropriate 
         18   under the canons of ethics?
         19       A.   No.
         20       Q.   Did Joan Kenney -- by the way, Joan Kenney 
         21   works for the Supreme Judicial Court, doesn't she?
         22       A.   Right.  She runs the Public Information 
         23   Office of the Supreme Judicial Court.
         24       Q.   And did Joan Kenney at any time indicate to 
 0009
          1   you that issuance of a press release on September 
          2   7th of the Year 2000 would be a violation in any way 
          3   of the canons of ethics?
          4       A.   No.
          5       Q.   Now, during the course of your deposition 
          6   with the Commission, you were asked a number of 
          7   questions concerning the meaning of the press 
          8   release, correct?
          9       A.   That's right.
         10       Q.   And you were asked a number of questions 
         11   concerning whether or not a particular line was 
         12   accurate or not, correct?
         13       A.   That's right.
         14       Q.   Was there some confusion going on at that 
         15   deposition in your mind?
         16       A.   Well --
         17            MR. WARE:  Objection. 
         18            HEARING OFFICER DAHER:  Sustained. 
         19       Q.   Well, is there -- let me start with this 
         20   proposition. 
         21            Is there a difference in your mind as to 
         22   what is appropriate to release in a press release 
         23   versus what is appropriate to release in a 
         24   sentencing memorandum?
 0010
          1       A.   Of course; absolutely there is.
          2       Q.   And there were occasions during your 
          3   testimony before the Commission -- strike that -- 
          4   deposition before Commission counsel where you made 
          5   references to facts and matters you could and could 
          6   not speak about, correct?
          7       A.   That's right.
          8       Q.   And on occasions you said you could talk 
          9   about anything, was one quote you were shown by Mr. 
         10   Ware; is that correct?
         11       A.   That's right.
         12       Q.   And on others you said you were restricted 
         13   to certain matters, correct?
         14       A.   Correct.
         15       Q.   Can you describe what the discrepancy is 
         16   there?  What your understanding of what you were 
         17   able and unable to do under the canons was?
         18       A.   Well, I was making a distinction between 
         19   what could be commented on under the canons by a 
         20   judge in the course of adjudicative responsibilities 
         21   and what could be commented on by a judge in a press 
         22   release.
         23       Q.   And when you say "adjudicative 
         24   responsibilities," give me the parameters of what 
 0011
          1   you're talking about. 
          2       A.   Well, I am talking about the process where 
          3   a judge comes to make -- reach a conclusion, 
          4   basically.  Um...
          5       Q.   Well, is there any restriction on what a 
          6   judge says in open court while discussing the case 
          7   with the parties, for example?
          8       A.   There's absolutely no restriction in what 
          9   you can do in open court concerning discussing 
         10   matters involving a case.
         11       Q.   And is there any restriction on what you 
         12   might include in a decision on a motion with regard 
         13   to matters pending on the case?
         14       A.   No.  With regards to anything that I would 
         15   do as a judge in the course of my judicial 
         16   responsibilities, the canons do not apply to that.
         17       Q.   And so, for example, in a sentencing 
         18   memorandum, had you chosen to write one, you could 
         19   have released or referenced any fact you wished, 
         20   which was a matter that you considered at 
         21   sentencing, correct?
         22       A.   That's right.
         23       Q.   Could you do the same in a press release?
         24       A.   No.
 0012
          1       Q.   Why not?
          2       A.   Well, there was information that had not 
          3   become part of the public record that I knew of and 
          4   some information I probably -- I mean, I even have, 
          5   at least, given the confidential private nature of 
          6   it in a sentencing memorandum.  But there was 
          7   information that I had knowledge of that could not 
          8   be referenced in a press release.
          9       Q.   And would that relate to whether or not the 
         10   case was pending or not?
         11       A.   No.
         12       Q.   Well, would it matter -- the statement that 
         13   you just made, in other words, the dichotomy between 
         14   what you say in court and in a sentencing memorandum 
         15   and what you say in public, would it matter whether 
         16   or not the case were pending or not?
         17       A.   No, it wouldn't matter.
         18       Q.   And so what you're saying is there are 
         19   certain matters that whether the case --
         20            MR. WARE:  Objection to counsel's summary.
         21            HEARING OFFICER DAHER:  Overruled.  I want 
         22   to hear it.
         23       Q.   Whether the case was pending or not, some 
         24   matters don't go into press releases as far as you 
 0013
          1   understand?
          2       A.   That's right; that would not be appropriate 
          3   or should not go in or can't go in.
          4       Q.   And tell me -- in this case tell me some of 
          5   the things that you felt were inappropriate to put 
          6   in a press release, but could well have gone into a 
          7   sentencing memorandum.
          8       A.   All of the information that I had 
          9   concerning Ebony Horton in the psychosocial 
         10   assessment --
         11       Q.   Let me stop you there for a minute.  The 
         12   fact that Ebony Horton was suffering from a gender 
         13   identity disorder had already been made public; is 
         14   that correct?
         15       A.   That's correct.
         16       Q.   So what else in that memorandum was it that 
         17   you felt an inability to disclose to the public 
         18   outside of a sentencing memorandum?
         19       A.   Outside of a sentencing memorandum, all of 
         20   the details about her history, her emotional and 
         21   psychological history, that she was considered 
         22   almost preopt -- preoperative in the sense that she 
         23   was on hormones; there was private stuff in there 
         24   that I could not release in this press release that 
 0014
          1   I could have made factual findings about in a 
          2   memorandum.
          3       Q.   Well, for example, could you have released 
          4   in a press release that she was suicidal?
          5       A.   No.
          6       Q.   Could you have released in a press release 
          7   the various information you received concerning her 
          8   abuse as a child?
          9       A.   No.
         10       Q.   Could you have released in a press release 
         11   the opinion and findings of the author of the report 
         12   that she was not a recidivist?
         13       A.   No, and I couldn't do it in a press release 
         14   given the status of this case.  If I had put that in 
         15   the public record in the course of my judicial 
         16   responsibilities, it could have then been given out 
         17   as a press release.  But given the state that this 
         18   case was on, where findings had not been made, I 
         19   could not release that in a press release.
         20       Q.   When you say given the state of this case, 
         21   again, I want to make sure your words are clear.
         22       A.   Yes.
         23       Q.   When you say the state of the case, are you 
         24   talking about pending or not pending?
 0015
          1       A.   No, no.
          2       Q.   What are you talking about?
          3       A.   What I'm talking about is that no 
          4   sentencing memorandum had been issued; nothing had 
          5   been put on the record concerning some of this 
          6   confidential private information.  The criminal 
          7   record information is also confidential.  Since it 
          8   had not been made part of the public domain in the 
          9   course of my adjudicative responsibilities, it could 
         10   not be commented on in a press release.  However, if 
         11   I had issued a sentencing memorandum --
         12       Q.   That's where you make the mix. 
         13       A.   Okay.
         14       Q.   And we're going to get to that. 
         15            Now, were there matters put before you 
         16   during the plea conferences which were not a matter 
         17   of record in the case?
         18       A.   Yes.
         19       Q.   And again, would you give me the types of 
         20   things that were put before you in the plea 
         21   conference that were not a matter of record in the 
         22   case?
         23       A.   Again, the psychosocial evaluation, the 
         24   defendant's criminal record, the police reports, the 
 0016
          1   defendant's statement to the police at the time of 
          2   arrest.  There were disputed facts that were 
          3   represented to me by the attorneys during this lobby 
          4   conference that were not part of the public record.
          5       Q.   And would you have felt it appropriate to 
          6   release those facts in a press release?
          7       A.   It would have been inappropriate for me to 
          8   do that.
          9       Q.   Would it have been appropriate for you to 
         10   do it in a sentencing memorandum?
         11       A.   It would have been absolutely appropriate 
         12   for me to include all of that in a sentencing 
         13   memorandum, especially.
         14       Q.   And you said a number of times in a number 
         15   of different ways when asked at the deposition about 
         16   the use of the term "sentencing guidelines," and you 
         17   said, words to the effect of, I wasn't thinking of a 
         18   sentencing guideline in my head when I said the word 
         19   "low level," correct?
         20       A.   That's right; the generic sentencing 
         21   guidelines that are out there.
         22       Q.   When you said "low level," what were you 
         23   thinking of?
         24       A.   I was thinking in terms of sentencing.  We 
 0017
          1   were at the sentencing phase of this case.  And I 
          2   had asked Mr. Deakin to rate the case for purposes 
          3   of sentencing on a scale of 1 to 10.  Now, clearly, 
          4   1 to 10 does not refer to any one of those generic 
          5   sentencing guidelines, proposed guidelines, that are 
          6   out there.  So I wasn't thinking, you know, a 
          7   sentencing guideline that goes 1 to 10.  I was 
          8   thinking about the same factors that would be 
          9   considered by judges, by lawyers in a criminal case 
         10   in trying to put forth an appropriate sentence in a 
         11   case. 
         12       Q.   Are those the same factors that are 
         13   considered in something called sentencing 
         14   guidelines?
         15       A.   Absolutely.  And Mr. Deakin began to 
         16   respond to my question using those kinds of factors. 
         17       Q.   And although there's no statutorily-imposed 
         18   sentencing -- let's just make it clear. 
         19            There was something called a Sentencing 
         20   Commission that was established by the legislature; 
         21   is that correct?
         22       A.   Yes.
         23       Q.   And they were charged with creating 
         24   sentencing guidelines, correct?
 0018
          1       A.   Yes.  They had proposed guidelines.
          2       Q.   And they did make proposed guidelines, 
          3   correct?
          4       A.   They did.
          5       Q.   And have they been adopted by the 
          6   legislature?
          7       A.   They have never been adopted. 
          8       Q.   So they are not a part of the Superior 
          9   Court -- of a mandated Superior Court sentencing 
         10   scheme.
         11       A.   That's right; they are not.
         12       Q.   Do you use the guidelines that are proposed 
         13   before the legislature in your sentencing?
         14       A.   Not consistently, but I use -- I mean, I 
         15   would use the same considerations, severity of the 
         16   crime, injury to the victim, prior record, those 
         17   kinds of things, which is what they use in the 
         18   sentencing guidelines out there.  There's at least 
         19   two that I'm familiar with.
         20       Q.   You've mentioned one that's a proposal 
         21   before the legislature.  Is there another?
         22       A.   There's another one that was done by Judge 
         23   Ronan sometime ago, and they're called the Superior 
         24   Court sentencing guidelines.
 0019
          1       Q.   And are those something which you consider 
          2   also during sentencing?
          3       A.   Yes, but it's all the same thing.
          4       Q.   What do you mean by that?
          5       A.   Because they all address the same factors.
          6       Q.   And those are the factors you just 
          7   discussed?
          8       A.   That's right.
          9       Q.   Do all the sentencing guidelines as a mix, 
         10   do they also consider or permit the Court to 
         11   consider exceptional circumstances as they relate 
         12   either to the victim or the defendant?
         13       A.   Yes, that's always in the mix.
         14       Q.   And are those the considerations you were 
         15   thinking about when you said the words "low level"?
         16       A.   That's correct; low level for purposes of 
         17   sentencing:  What is the appropriate sentence in 
         18   this kind of a case.
         19       Q.   And that was based on all the factors in 
         20   the case; is that correct?
         21       A.   Correct.
         22       Q.   You clarify the statement here by saying, 
         23   "I do think it is necessary to clarify media reports 
         24   that suggest I was insensitive to the victim and his 
 0020
          1   family."  Is what you meant by that by using the 
          2   word "low level"?
          3       A.   Yes.
          4       Q.   And had there been some, for lack of a 
          5   better word, media hype of your use of the word "low 
          6   level"?
          7       A.   Yes.  It had been taken out of context.  It 
          8   was being depicted in the media as though I was 
          9   referring to the crime as low scale, low level, 
         10   when, in fact, I was referring to what an 
         11   appropriate sentence would be in this case.
         12       Q.   The level of sentencing?
         13       A.   The level of sentencing.
         14       Q.   Having in mind all of the factors?
         15       A.   That's right.
         16       Q.   Is that what you were trying to impart by 
         17   that press release?
         18       A.   That's right.
         19       Q.   As you look at that press release, would 
         20   you say that it is, in hindsight, artfully drawn?
         21       A.   No.
         22       Q.   Is it accurate, in your opinion, for 
         23   purposes of a press release?
         24       A.   For purposes of a press release it's 
 0021
          1   accurate and it conveys what was intended by it.
          2       Q.   Now, on this issue of pending case and a 
          3   judge's ability to speak or not speak publicly or 
          4   otherwise, do you know whether or not the law in 
          5   that area is subject to many interpretations?
          6       A.   Well, there are different views on it.  
          7   There's a minority view and an overwhelming majority 
          8   view.
          9       Q.   And when you say there's a minority view 
         10   and a majority view, how have you come to learn 
         11   that?
         12       A.   During the recent Superior Court conference 
         13   this was a major topic for us.
         14       Q.   And what would you say is the majority 
         15   view?
         16       A.   The majority view is that the case is 
         17   disposed of upon the taking of a plea.
         18       Q.   And what's the minority view?
         19       A.   The minority view is that the case is never 
         20   disposed of.  You literally have to wait for the 
         21   defendant to die before you can talk about the case, 
         22   because there's always the possibility of a motion 
         23   for a new trial.
         24       Q.   And was that view -- the view that you've 
 0022
          1   just described, was that espoused by anyone related 
          2   to the Judicial Conduct Commission?
          3            MR. WARE:  Objection.
          4       A.   Which view? 
          5            HEARING OFFICER DAHER:  Sustained.
          6       Q.   I want you to take a look at Exhibit 2, I 
          7   believe it is.  Is that the docket in the Horton 
          8   case?
          9       A.   Yes.
         10       Q.   Would you look to the right-hand side of 
         11   the upper section of that docket and tell me what 
         12   the docket reflects as to the nature of that case?
         13       A.   The docket reflects that it is a disposed 
         14   case. 
         15       Q.   And does that mean to you that it's over?
         16       A.   It's over for purposes of adjudicative 
         17   proceedings.  It's out of the clerk's office.
         18       Q.   To your understanding, did the Defendant 
         19   Horton have a right of appeal from your sentence?
         20       A.   No, he did not.
         21       Q.   Did the Commonwealth have a right of appeal 
         22   from your sentence?
         23       A.   No, they did not.  It was a legal sentence 
         24   and there's no right to appeal a legal sentence by 
 0023
          1   the Commonwealth.
          2       Q.   And did Ebony Horton in fact get the 
          3   sentence in essence that his attorney had advocated 
          4   for?
          5       A.   In essence, yes. 
          6       Q.   Did you believe that there was any 
          7   adjudicatory matter left in the Horton case?
          8       A.   No.  The case was over.  The defendant had 
          9   pled.  There would never be a trial in this case.  
         10   There would never be any witnesses.  There would be 
         11   no testing of what the facts, the real facts were in 
         12   the case.
         13       Q.   Now, by the way, you understand that the 
         14   canon relating to pending cases doesn't simply mean 
         15   comments on pending cases of your own; isn't that 
         16   right?
         17       A.   That's right.
         18       Q.   The rule relates to pending or impending 
         19   cases that may ever come in your court system, 
         20   correct?
         21       A.   Anywhere in the country, some people would 
         22   argue.
         23       Q.   So some theorists say that you can't 
         24   discuss any case, no matter where it is, right?
 0024
          1       A.   That's right.
          2       Q.   And others at least say that you can't 
          3   discuss a pending case that may be pending in your 
          4   own court system.
          5       A.   That's right.
          6       Q.   Whether it be district, superior, appellate 
          7   or the like, right?
          8       A.   That's right.
          9       Q.   And do you consider your Chief Justice 
         10   DelVecchio to be a well respected and astute member 
         11   of the judiciary?
         12       A.   Yes.  I have the highest regard for her.
         13       Q.   And did she participate in drafting and, 
         14   therefore, issuing this press release?
         15       A.   That's right.
         16            MR. WARE:  Objection.
         17            HEARING OFFICER DAHER:  What's the 
         18   objection? 
         19            MR. WARE:  Justice DelVecchio can speak for 
         20   herself in terms of her role.  And the Court has 
         21   whatever evidence before it to draw --
         22            HEARING OFFICER DAHER:  Sustained.
         23       Q.   Did you rely, in part, in Justice 
         24   DelVecchio's conduct as to whether or not issuance 
 0025
          1   of a press release would be appropriate?
          2       A.   Of course I did.
          3       Q.   Did you rely, at least in part, on the 
          4   participation of Joan Kenney from the Supreme 
          5   Judicial Court as to your understanding as to 
          6   whether or not the issuance of a press release would 
          7   be appropriate?
          8       A.   I did.  I relied on Joan Kenney and the 
          9   Chief Justice with regards to the content and the 
         10   issuance of the press release, yes.
         11       Q.   After the sentence and what you've 
         12   described as the enormous media attention and what 
         13   you've described as the personal attention and some 
         14   attacks on you and your family, which you've already 
         15   discussed in some detail, at or about that time 
         16   you've indicated that you had a conversation with 
         17   first Anne Goldbach and later William Leahy, 
         18   correct?
         19       A.   Yes, I believe that's the order.  That 
         20   appears to be my recollection, but I...
         21       Q.   And do you know whether or not those 
         22   conversations took place before or after the 
         23   issuance of this press release?
         24       A.   After the issuance of the press release.
 0026
          1       Q.   And after the issuance of this press 
          2   release, can you describe -- you've already done so 
          3   a bit on your direct examination, but give us a 
          4   general discussion of your conversations with Ms. 
          5   Goldbach and then Mr. Leahy. 
          6       A.   With Ms. Goldbach, we talked about -- I 
          7   emoted about, you know, the media frenzy and the way 
          8   my family was under siege and what was going on in 
          9   my life with regards to the unprecedented press 
         10   attention of this case.  Did you ask me about both 
         11   or just Ms. Goldbach?
         12       Q.   Yes, both. 
         13       A.   And with Mr. Leahy, I specifically wanted 
         14   to talk to him about whether or not it would not be 
         15   in the institutional interest of CPCS to take a 
         16   position on this particular -- the way it was being 
         17   handled in the press on the case. 
         18       Q.   Now, at the time that you spoke with Mr. 
         19   Leahy, do you know whether or not the district 
         20   attorney's office was giving regular inflammatory 
         21   statements to the press?
         22            MR. WARE:  Objection.
         23       A.   Yes, they were.
         24            HEARING OFFICER DAHER:  Sustained.
 0027
          1       Q.   Did you consider them to be inflammatory?
          2       A.   From the very beginning I believed they 
          3   were inflammatory, yes.
          4       Q.   And to your knowledge, was the district 
          5   attorney's office regularly participating in 
          6   providing statements and quotes and press 
          7   conferences to the media --
          8            HEARING OFFICER DAHER:  Are you objecting, 
          9   Mr. Ware? 
         10            MR. WARE:  Yes, your Honor.
         11            HEARING OFFICER DAHER:  Sustained.
         12       Q.   Did you observe in the media statements of 
         13   the district attorney's office relating to these 
         14   matters?
         15       A.   Many.
         16       Q.   And were they confined to the facts of the 
         17   case?
         18            MR. WARE:  Objection.  The statements are 
         19   out here.  They've been offered in evidence.
         20            HEARING OFFICER DAHER:  Overruled.  You can 
         21   have that. 
         22       A.   They were not confined to the facts of the 
         23   case.  They were often -- they were personal attacks 
         24   on me.  And some of it was a presentation of a fact 
 0028
          1   that was a mischaracterization of the facts.
          2       Q.   During one of those press releases or press 
          3   statements did the district attorney or their 
          4   surrogate -- strike that -- or their representative 
          5   indicate that you had sentenced Ebony Horton 
          6   leniently and that Ebony Horton was a predatory 
          7   pedophile?
          8       A.   I believe that's what the DA at the time is 
          9   quoted as saying; that I had released a predatory 
         10   pedophile, yes.
         11       Q.   Without regard to people's -- statements of 
         12   counsel for a moment, what was the only information 
         13   in the whole of the Ebony Horton case that related 
         14   to whether or not Ebony Horton was a predatory 
         15   pedophile?
         16       A.   Are you saying, what was available to the 
         17   public? 
         18       Q.   No.  Let me ask it again.  Not available to 
         19   the public. 
         20            Without regard to counsel's statements to 
         21   the press or otherwise, what was the only 
         22   information before you during the whole of the Ebony 
         23   Horton case on the issue of whether or not Ebony 
         24   Horton was a predatory pedophile?
 0029
          1       A.   There was no information before me that 
          2   would even suggest that Ebony Horton was a predatory 
          3   pedophile.
          4       Q.   What was the only information you had that 
          5   discussed that issue?
          6       A.   The only document I had that discussed that 
          7   issue was the psychosocial evaluation.
          8       Q.   And the psychosocial evaluation indicated 
          9   to you that Ebony Horton was not a predatory 
         10   pedophile, correct?
         11       A.   Correct.
         12       Q.   And what's meant by that is not a person 
         13   who has an impulse for children, correct?
         14       A.   Uncontrollable impulse, has a fixation --
         15       Q.   For children?
         16       A.   Yeah, for children.
         17       Q.   And who is likely to reoffend?
         18       A.   Yes, very likely.
         19       Q.   And the psychosocial report specifically 
         20   made findings that that was not the case; isn't that 
         21   correct?
         22       A.   That's correct.
         23       Q.   And was that the only information before 
         24   you on that issue --
 0030
          1       A.   Yeah --
          2       Q.   -- when you sentenced Ebony Horton?
          3       A.   Yeah, and the criminal record, which 
          4   showed, again, no indicia of this kind of behavior.
          5       Q.   Did any prosecutor ever put any -- in the 
          6   Horton case, during the pendency of that case, ever 
          7   put any information before you from any source that 
          8   Ebony Horton was a predatory pedophile?
          9       A.   No, they didn't.  And the fact that they 
         10   didn't even seek a dangerousness petition spoke to 
         11   that very issue; that they couldn't have possibly 
         12   have considered this defendant predatory in any way, 
         13   because otherwise, they would have attempted, at 
         14   least, to have this defendant held without bail.
         15       Q.   So as September 6th and 7th and 8th rolled 
         16   around and the prosecutors were in the press saying 
         17   the kinds of things they were saying, at that very 
         18   time were you able in your mind to go to the press 
         19   and say, "Look, the prosecutors here are wrong.  The 
         20   only information in this file is that Ebony Horton 
         21   is not a predatory pedophile"?
         22       A.   I could not go and deal with that issue 
         23   with the press.
         24       Q.   And why is that?
 0031
          1       A.   Because I hadn't made findings concerning 
          2   that issue.  I hadn't done this in the course of my 
          3   judicial responsibilities.  The only thing that was 
          4   out there was a finding that the defendant suffered 
          5   from a sexual identity disorder.
          6       Q.   And the information in that psychosocial 
          7   report which you relied on concerning this lack of 
          8   predatory pedophile was not public information; is 
          9   that right?
         10       A.   It was not public information.
         11       Q.   At any time that you spoke with Ms. 
         12   Goldbach or Mr. Leahy, did you speak to them about 
         13   future cases?
         14       A.   No.
         15       Q.   Did you speak to them about any cases that 
         16   were pending before you?
         17       A.   No, I did not.
         18       Q.   Did you speak to them about any matters to 
         19   be adjudicated by you?
         20       A.   There was nothing for me to adjudicate.
         21       Q.   Did you speak to them about any matters 
         22   that were to be adjudicated by you on any case?
         23       A.   No.
         24       Q.   Did you speak to them about any matters 
 0032
          1   which they would be coming before you upon?
          2       A.   No.
          3       Q.   And, by the way, in the event that a judge 
          4   and a lawyer have a conversation which sometime 
          5   later may be seen as in any way affecting that 
          6   judge's ability to sit, what does a judge do?
          7       A.   Well, there's various things that I could 
          8   have done.  One was I could have fully disclosed 
          9   that I had had these conversations unrelated to 
         10   whatever matter was before me, and if either party 
         11   had indicated that they were not comfortable with 
         12   that, I would have recused myself.  Or I could have 
         13   on my own just recused myself because of an 
         14   appearance issue after all of this press stuff 
         15   happened.
         16       Q.   None of that has come to be; is that right?
         17       A.   Nothing has come to be, no.
         18       Q.   Now, do you speak to probation ex parte all 
         19   the time concerning cases?
         20       A.   Yes.
         21       Q.   And is that something you do with 
         22   regularity?
         23       A.   Regularly when we supervise a probationer, 
         24   yes.
 0033
          1       Q.   And at those conversations do you invite 
          2   defense counsel and/or the prosecutor?
          3       A.   No.
          4       Q.   Are they excluded?
          5       A.   They are excluded.
          6       Q.   And, finally, on what will be a very 
          7   telling matter, you were asked all kinds of 
          8   questions about how Anne Goldbach could get to call 
          9   you, correct?
         10       A.   Right.
         11       Q.   And whether or not you gave her your phone 
         12   number, you did this and you did all these things, 
         13   right?
         14       A.   Right.
         15       Q.   If someone calls the Suffolk Superior Court 
         16   and asks for you, what happens?
         17       A.   They would probably connect them to my 
         18   lobby or my clerk.
         19       Q.   And in your lobby, if you don't answer the 
         20   phone, what happens?
         21       A.   The voicemail picks up.
         22       Q.   And do you check your voicemails?
         23       A.   Of course.
         24       Q.   And you've indicated that when you checked 
 0034
          1   your voicemail on one occasion, Ms. Goldbach was 
          2   there providing some information concerning Jay 
          3   Greene, correct?
          4       A.   That's right, yes.
          5            MR. EGBERT:  Can I have a minute, Your 
          6   Honor? 
          7            HEARING OFFICER DAHER:  Sure.  
          8            (Pause)
          9       Q.   Now, after you received this call from Anne 
         10   Goldbach leaving Jay Greene's beeper number, was it?
         11       A.   That's correct.
         12       Q.   Did you actually beep him or --
         13       A.   I did.  I called the number, the beeper 
         14   number.
         15       Q.   And left a call-back message?
         16       A.   Number.
         17       Q.   Call-back number?
         18       A.   Yes.
         19       Q.   Did you know Jay Greene before that date?
         20       A.   I had known Jay Greene from my days as a 
         21   district court judge, yes.
         22       Q.   And did you have respect for Jay Greene?
         23       A.   I did.
         24       Q.   And, by the way, did you also -- strike 
 0035
          1   that. 
          2            Did you have a conversation with Jay 
          3   Greene?
          4       A.   I did.
          5       Q.   And what was the conversation?
          6            MR. WARE:  Objection, Your Honor.
          7            HEARING OFFICER DAHER:  What's your 
          8   objection? 
          9            MR. WARE:  Earlier, Your Honor, the Court 
         10   excluded --
         11            HEARING OFFICER DAHER:  I understand.  I 
         12   recall that at the side bar.
         13            MR. WARE:  If they want to call Detective 
         14   Greene, I have no objection --
         15            MR. EGBERT:  Judge, respectfully, he asked 
         16   her about her conversations with Jay Greene and she 
         17   testified to them.  What wasn't permitted was what 
         18   did you read in his deposition. 
         19            HEARING OFFICER DAHER:  Overruled.  Go 
         20   ahead.  I want to hear it. 
         21       A.   His initial conversation with me was he 
         22   felt badly about the way this was being handled and 
         23   how I was being attacked and maligned in the press 
         24   and that he thought it was unfair for me to be being 
 0036
          1   treated this way.  He then also told me that he was 
          2   a regular cop in that area.
          3       Q.   What area?
          4       A.   In the area where Ebony Horton and the 
          5   victim were that day, the day of the incident; that 
          6   he was familiar with Ebony Horton; she was well 
          7   known in that neighborhood; she was flamboyant; she 
          8   attracted attention, and he said that he didn't 
          9   believe she would be a pedophile.
         10       Q.   And what did you then do with that 
         11   information?
         12       A.   Well, what I said is, would you be willing 
         13   to talk to the Public Information Office that's 
         14   handling press issues for me.
         15       Q.   What did he say?
         16       A.   He said "Yes."
         17       Q.   Did you ask him to go to the press and say 
         18   anything himself?
         19       A.   No.
         20       Q.   Did you ask him to give a press release 
         21   himself?
         22       A.   No.
         23       Q.   Did you ask him to speak on your behalf?
         24       A.   No.
 0037
          1       Q.   You simply asked him to go and talk with 
          2   Joan Kenney and see if there was information that 
          3   she wanted or you could use.
          4       A.   Right; if there was anything that Joan 
          5   Kenney believed she would be able to use from him, 
          6   yes.
          7       Q.   And did you have any further conversations 
          8   with him in that regard?
          9       A.   No.
         10       Q.   And did you have any further conversations 
         11   with him after that?
         12       A.   No.
         13       Q.   Did you have conversations with Joan Kenney 
         14   about that?
         15       A.   Yes, I did.
         16       Q.   And do you remember what those 
         17   conversations were?
         18       A.   Initially I called the Public Information 
         19   Office and I -- I can't recall if I spoke to her 
         20   directly or not or I left a message for her that I 
         21   had spoken to the detective that had been 
         22   represented during the lobby conference as having 
         23   conflicting information, and that he had called me 
         24   and, you know, here's his number.  He would talk to 
 0038
          1   her if -- if she was interested, he would talk to 
          2   her.
          3       Q.   And did you have any further contact on 
          4   that subject with Joan Kenney?
          5       A.   No, not that I recall.
          6       Q.   Judge, I'd like you to tell us a bit about 
          7   yourself, if you would.  The age-old question that 
          8   I'm going to get in trouble for:  Could you tell us 
          9   how old you are, to start with?
         10       A.   How old I am.  Forty-nine.
         11       Q.   And where were you born?
         12       A.   I was born in Havana, Cuba.
         13       Q.   And how much of your life did you spend in 
         14   Havana?
         15       A.   I spent the first eight years of my life in 
         16   Havana.
         17       Q.   Under what circumstances?
         18       A.   Under the circumstances that my father was 
         19   a cardiologist.  My whole family was there.  
         20   Generations of my family are from Cuba.
         21       Q.   And you left when you were eight years old?
         22       A.   I left in 1961 when at the age of eight the 
         23   family left because of the Cuban revolution.
         24       Q.   Tell me about that.  When you say because 
 0039
          1   of the Cuban revolution, what caused your family to 
          2   have to leave?
          3       A.   My parents did not want to live in a 
          4   communist country, and they didn't want to live 
          5   under that kind of a regime.
          6       Q.   When you say your family left, what members 
          7   of your family left and came to the United States?
          8       A.   My immediate family; my parents and my two 
          9   brothers and myself.
         10       Q.   How old --
         11       A.   Eventually they all came, but that's who 
         12   left that day.
         13       Q.   How old were your brothers at the time?
         14       A.   I had a brother that was seven and a 
         15   brother that was nine.  There's three of us.
         16       Q.   Then you came to the United States?
         17       A.   Yes.
         18       Q.   And where did you immigrate to?
         19       A.   Well, like all Cubans, we stopped in Miami 
         20   for a few months, and then we moved to New Britain, 
         21   Connecticut, where my dad had a friend who was chief 
         22   of medicine at the hospital there at New Britain 
         23   General Hospital.
         24       Q.   And then did you grow up in New Britain?
 0040
          1       A.   I did.
          2       Q.   Spend --
          3       A.   From third grade through high school.
          4       Q.   And when did you graduate high school?
          5       A.   You know, I'm not good at math.  I 
          6   graduated high school on the regular schedule, never 
          7   staying back a year.  I think it was probably -- 
          8   let's say 1971, because that's when I entered 
          9   college.
         10       Q.   And where did you go to college?
         11       A.   I went to Smith College.
         12       Q.   Where is that?
         13       A.   Northampton, Massachusetts.
         14       Q.   And how long were you there?
         15       A.   Four years.
         16       Q.   And what major did you graduate?
         17       A.   I majored in government.
         18       Q.   And after Smith College what did you do?
         19       A.   I went to BU Law School.
         20       Q.   Directly from Smith?
         21       A.   Yes.
         22       Q.   Did you graduate from Boston University?
         23       A.   I did, in 1978.
         24       Q.   What did you do after you left Boston 
 0041
          1   University?
          2       A.   My first job was as an attorney with 
          3   Greater Boston Legal Services.
          4       Q.   What did that entail?
          5       A.   That entailed representing indigent 
          6   defendants in civil matters, a lot of 
          7   landlord-tenant issues and consumer issues, 
          8   immigration issues.  I did a variety of different, 
          9   you know, legal issues on the civil side.
         10       Q.   And how long did you spend at Greater 
         11   Boston Legal Services?
         12       A.   About two years.
         13       Q.   Where did you go from there?
         14       A.   I went to the Attorney General's Office.  I 
         15   became an assistant attorney general in the Civil 
         16   Rights Division of then Attorney General Frank 
         17   Bellotti's office.
         18       Q.   How long did you remain in that position?
         19       A.   Eight years and two children. 
         20       Q.   And what types of matters did you handle in 
         21   the Civil Rights Division?
         22       A.   I did a variety of things.  The state civil 
         23   rights law had just been enacted in 1980, and so I 
         24   was amongst the group of civil rights lawyers 
 0042
          1   involved in its initial enforcement activity in 
          2   defining in what kind of circumstances it would be 
          3   enforced. 
          4            I also represented state agencies in 
          5   certain civil rights-related matters, the Department 
          6   of Education in a number of matters relating to 
          7   special education and enforcement of certain 
          8   educational laws. 
          9            I was also on a number of occasions loaned 
         10   to district attorneys' offices.  I think there was a 
         11   budget problem back then and Essex County and 
         12   Norfolk County needed assistance and Frank Bellotti 
         13   arranged to have some of his assistant attorneys 
         14   general be prosecutors for different DAs' offices; 
         15   so I did some of that.
         16       Q.   And did you actually prosecute criminal 
         17   cases?
         18       A.   I did in Essex County and Norfolk County.
         19       Q.   For how long a period did you do that?
         20       A.   There would be maybe six months at a time 
         21   and certain days during that six months that you 
         22   would go and schedule the matters for days that you 
         23   were assigned to go.  It wasn't a full-time thing.
         24       Q.   Would those be in District or Superior or 
 0043
          1   both?
          2       A.   They were mostly in District, just a little 
          3   bit in the Superior Court.
          4       Q.   And after you left -- strike that.  You 
          5   stayed in the Civil Rights Division for eight years 
          6   you said?
          7       A.   Eight years.
          8       Q.   And then what did you do?
          9       A.   Then I went to become general counsel to a 
         10   newly-created office, the Office for Refugees and 
         11   Immigrants.
         12       Q.   And what was that?
         13       A.   That was -- this is when we were having the 
         14   influx of Vietnamese and Southeast Asia immigrants 
         15   and there was an office which was federally and 
         16   state funded that provided assistance to refugees 
         17   and immigrants.  It was a newly-created office.  I 
         18   was the first legal counsel to it.
         19       Q.   And who appointed you to that position?
         20       A.   Michael Dukakis.
         21       Q.   And was that a state agency?
         22       A.   It was a state agency, yes.
         23       Q.   And what were your responsibilities as 
         24   general counsel?
 0044
          1       A.   Basically we were developing regulations 
          2   for the agency.  Again, it was sort of defining what 
          3   the mission would be and defining how the agency 
          4   would operate.  It was brand-new.
          5       Q.   And how long did you stay in that position?
          6       A.   Actually, not even a year, I think.
          7       Q.   And what happened then?
          8       A.   I was appointed to the district court, to 
          9   the Chelsea District Court in 1988 by Governor 
         10   Dukakis.
         11       Q.   And that was the Chelsea District Court?
         12       A.   That was the court I was appointed to, but 
         13   I sat all over what they call Region 2, which 
         14   involves district courts from as far south as Quincy 
         15   and to as far north as Peabody and Salem.
         16       Q.   During the time that you were in the 
         17   district court, did you handle both bench and jury 
         18   trials?
         19       A.   Yes.
         20       Q.   Would it be possible to estimate the amount 
         21   of trials that you handled in the district court?
         22       A.   In five years?  I don't know.  I am 
         23   terrible about that.  I could say many hundreds.  I 
         24   could say well over a thousand.
 0045
          1       Q.   Quite a few?
          2       A.   Quite a few.  I mean, when they were jury- 
          3   waived -- I remember we had a de novo system at one 
          4   point during that period of time that has since been 
          5   eliminated.  But you could try in the first instance 
          6   jury-waived two cases a day.
          7       Q.   And also you presided over jury trials at 
          8   that time, too?
          9       A.   I did.
         10       Q.   When were you appointed to the Superior 
         11   Court Bench?
         12       A.   In February of 1993.
         13       Q.   Who appointed you to the Superior Court 
         14   Bench?
         15       A.   Governor William Weld.
         16       Q.   And when Governor Weld appointed you to the 
         17   Superior Court Bench, was that to a particular 
         18   position or just as an associate judge?
         19       A.   No.  Superior Court are circuit judges, so 
         20   you just get appointed to that court.
         21       Q.   By the time you were in the Superior Court, 
         22   can you tell us from, say, 1993 until the present 
         23   approximately how many trials you have presided 
         24   over?
 0046
          1       A.   Again, I spent a year on Demoulas, so 
          2   that's one.  But I've done others.  I mean, hundreds 
          3   of them.  Jury trials, jury-waived trials.  It's 
          4   hard for me to come up with -- it's a total 
          5   guesstimate.
          6       Q.   And is it fair to say that you have 
          7   conducted plea conferences in a number of criminal 
          8   cases in both the District and the Superior Court?
          9       A.   In hundreds of criminal cases.
         10       Q.   Now, during the course of all of those 
         11   proceedings that you've described to us in the 
         12   District and the Superior Courts, has there ever 
         13   been a complaint made against you to the Judicial 
         14   Conduct Commission with regard to your conduct on 
         15   the bench that has been in any way sustained?
         16       A.   None.
         17       Q.   And other than the so-called Demoulas/Trios 
         18   complaint which you've previously described, have 
         19   there been complaints made?
         20       A.   They have with return addresses of 
         21   Bridgewater State Hospital and things like that, 
         22   yes.  But they have never been substantiated.  They 
         23   were dismissed immediately.
         24       Q.   There's never been any that have been 
 0047
          1   docketed; is that correct?
          2       A.   No, none docketed. 
          3       Q.   Judge, can you tell us whether or not you 
          4   have received over the years any awards or honors in 
          5   your community?
          6       A.   I have received a number of awards and 
          7   honors.
          8       Q.   Can you give me a smattering of them. 
          9       A.   Okay.  I've received a Woman of Achievement 
         10   Award by the YWCA.  I've gotten awards from Girls, 
         11   Inc., Boys and Girls Club, from the College Club, 
         12   from a number of agencies or institutions that have 
         13   honored me as a role model for women, for girls, for 
         14   Latinas, yes.
         15       Q.   And have you participated in any charitable 
         16   endeavors in the course of the past number of years?
         17       A.   Many.
         18       Q.   Can you give me a smattering of those. 
         19       A.   Well, most recently I've become very 
         20   involved in charitable work in Cuba, and I have 
         21   done, both in the legal education and cultural 
         22   areas, invested a lot of time and energy and money 
         23   on that.  I have also been involved with hospital 
         24   boards with -- let me see -- trustees of different 
 0048
          1   institutions, like the Boston Ballet.  Over the 
          2   years there's been a number of different -- WGBH; a 
          3   number of different institutions I've participated 
          4   with.
          5       Q.   Judge, you were asked by Mr. Ware a number 
          6   of times earlier whether you thought this and that 
          7   was appropriate for a Superior Court judge.  Do you 
          8   recall those questions?
          9       A.   I do.
         10       Q.   Other than the fact that you yelled at Mr. 
         11   Deakin and used a poor choice of words with Ms. 
         12   Joseph in that "suburbs" statement, do you believe 
         13   that you acted appropriately as a Superior Court 
         14   judge in the matters pending before this case?
         15       A.   Absolutely.  I believe I acted 
         16   appropriately.
         17       Q.   And, Judge, I take it you realize that it 
         18   would have been easy for you after the hearing, 
         19   after the press arrived on August 4th and the bit of 
         20   a stir that it started to cause with regard to the 
         21   Horton case -- would you agree with the proposition 
         22   that it would have been easier for you from a public 
         23   relations standpoint to sentence Mr. Horton to jail 
         24   and get it all over with? 
 0049
          1            MR. WARE:  Objection. 
          2            HEARING OFFICER DAHER:  I'm going to allow 
          3   it.  Go ahead. 
          4       A.   It certainly would have played better in 
          5   Peoria, yeah.
          6       Q.   Why didn't you do it?
          7       A.   Because I didn't think it was a fair 
          8   sentence.  I imposed what I considered a fair 
          9   sentence for the particular situation I had in front 
         10   of me.
         11       Q.   And do you believe that now as much as you 
         12   believed it then?
         13       A.   Absolutely. 
         14            MR. EGBERT:  No further questions.
         15            HEARING OFFICER DAHER:  Do you want to take 
         16   a short recess here, Mr. Ware? 
         17            MR. WARE:  It's up to you, Your Honor.
         18            HEARING OFFICER DAHER:  We'll take a five- 
         19   minute break.  
         20            (Recess)
         21                     REDIRECT EXAMINATION
         22       BY MR. WARE: 
         23       Q.   Good morning, Judge Lopez. 
         24       A.   Good morning, Mr. Ware. 
 0050
          1       Q.   Judge, I don't want to retrace everything 
          2   you and I talked about a week ago, but let me begin, 
          3   if I may, with a few questions about the press 
          4   release, meaning your statement issued on September 
          5   7th, 2000.  You recall that, do you not?
          6       A.   Yes, I do.
          7       Q.   Now, I take it the substance of your 
          8   testimony here today and late last week is that 
          9   indeed there are inaccuracies if we literally read 
         10   your statement; is that correct?
         11       A.   Well, no, no, I don't think there are any 
         12   inaccuracies for the purposes of a press release.
         13       Q.   Yes, Judge, you've adopted the phrase for 
         14   purposes of your direct testimony or cross 
         15   examination by Mr. Egbert with the tag line that 
         16   says "For a press release."  You're saying that it's 
         17   accurate for a press release; is that right?
         18       A.   That is exactly what I'm saying.
         19       Q.   You're not saying it is literally accurate, 
         20   correct?
         21       A.   Not in terms of full explication of what 
         22   the law is; not in terms of a full explication of 
         23   certain things in there, yes.
         24       Q.   You agree that for that statement of yours 
 0051
          1   to mean what you now say it means, additional words 
          2   would have to be added, correct?
          3       A.   No.
          4       Q.   Well, in fact you added a number of phrases 
          5   and words and explanations to the press release here 
          6   in court, did you not?
          7       A.   To characterize it, to put it into context, 
          8   yes.
          9       Q.   That's context and characterization which 
         10   was not provided to the press on September 7th, 
         11   2000; isn't that correct?
         12       A.   It was mostly so that you would understand, 
         13   Mr. Ware, what I meant in my deposition.
         14       Q.   Judge, on September 7th, 2000, I was not a 
         15   consideration, I hope; is that correct?
         16       A.   You certainly were -- no, not in September 
         17   of 2000, no.
         18       Q.   And what you're telling us is if you had it 
         19   to do over again, you'd add the language that you've 
         20   indicated in order to make that statement by you 
         21   clear to the press.
         22       A.   That's not what I'm saying.
         23       Q.   You did in fact add words and phrases to 
         24   the release as we've seen here in court, correct?
 0052
          1       A.   In order to explain my testimony.
          2       Q.   Judge, did you add words?
          3            MR. EGBERT:  She's answering the --
          4            HEARING OFFICER DAHER:  She's not being 
          5   responsive, Mr. Egbert.  You may have that question.  
          6   Go ahead.
          7       Q.   Did you in fact add words here in court 
          8   which you say would better explain what you meant on 
          9   September 7th?  Yes or no?
         10       A.   No.
         11       Q.   You didn't do that?
         12       A.   I meant to explain what I said during my 
         13   deposition to you.
         14       Q.   Now, Judge, you'd agree, would you not, 
         15   that, if anything, the statement to the press is 
         16   important in terms of clearly explicating what you 
         17   intended because you knew that that was going to go 
         18   out to the media; isn't that correct?
         19       A.   This is my first press release, Mr. Ware.  
         20   I really don't know how to convey it all in the 
         21   press release.
         22       Q.   Are you saying that on September 7th, 2000, 
         23   you were naive about the importance of precision in 
         24   a statement by you being issued to the media 
 0053
          1   regarding a criminal case?
          2       A.   I was deferring to my Chief Justice and the 
          3   head of the Public Information Bureau, yes.
          4       Q.   That deferral notwithstanding, you were 
          5   certainly aware, were you not, that the statement 
          6   was going to go out to the media, correct?
          7       A.   Yes, I was.
          8       Q.   That was the whole idea, wasn't it?
          9       A.   Absolutely.
         10       Q.   And the idea was further that the statement 
         11   would in some way deflect public criticism from you 
         12   and the sentence; isn't that so?
         13       A.   And the judiciary as an institution.
         14       Q.   Very well.  But at least you hoped it would 
         15   deflect some criticism from you and the sentencing; 
         16   isn't that so?
         17       A.   I hoped to explain what was meant by "low 
         18   level," yes.
         19       Q.   Well, you certainly weren't sending the 
         20   statement out in order to increase the temperature 
         21   around the sentencing; isn't that so?
         22       A.   Absolutely, we did not want that increased.  
         23   We wanted it to subside.
         24       Q.   You wanted it to subside, and the goal of 
 0054
          1   your statement, you hoped, was to help put this into 
          2   context and to reduce the inflammation around the 
          3   sentence; isn't that so?
          4       A.   Yes.
          5       Q.   You would agree with me, would you not, 
          6   that at no time when you testified under oath before 
          7   a Commission counsel 13 months ago did you adopt the 
          8   phrase "for purposes of a press release" as 
          9   modifying "accuracy"; isn't that correct?
         10       A.   I don't know.  I'd have to go through my 
         11   entire deposition.  I'm sure I made reference to a 
         12   distinction between press release and sentencing 
         13   memorandum.
         14       Q.   But the descriptive phrase "good enough for 
         15   government work"; that is, accurate enough for a 
         16   press release, is something which you've adopted for 
         17   purposes of this proceeding; is that correct? 
         18            MR. EGBERT:  Objection.  Move to strike. 
         19            HEARING OFFICER DAHER:  That portion "good 
         20   enough for government work" I will allow to be 
         21   stricken.  Go ahead.
         22       Q.   The phrase "accurate enough for purposes of 
         23   a press release" is something you've adopted for 
         24   this proceeding; isn't that correct?
 0055
          1       A.   I don't know.  I'd have to read my 
          2   deposition as to whether -- I believe I made a 
          3   distinction concerning press releases and sentencing 
          4   memorandum during my deposition.
          5       Q.   I'm asking you specifically and 
          6   unambiguously --
          7            MR. EGBERT:  Again, I object to the 
          8   qualifications.  He's asking specifically --
          9            HEARING OFFICER DAHER:  I think, Mr. 
         10   Egbert, he's been forced to so phrase his question.  
         11   Overruled.  You may have it. 
         12            MR. WARE:  Thank you, Your Honor.
         13       Q.   You have adopted the phrase "for purposes 
         14   of a press release" specifically for this 
         15   proceeding, right?  That phrase.
         16       A.   I don't think that's true, no.
         17       Q.   You believe that somewhere in your sworn 
         18   testimony we will find that phrase; is that what 
         19   you're saying?
         20       A.   I don't know if you'll find exactly those 
         21   words, but that idea is certainly contained in the 
         22   distinctions that were made during my deposition.
         23       Q.   And if we don't find your description "for 
         24   purposes of a press release," would you agree with 
 0056
          1   me then that that's been adopted by you for purposes 
          2   of your testimony here in court? 
          3       A.   I wouldn't say adopted.  Used to clarify.
          4       Q.   Now, Judge, let me take up with you a 
          5   couple of odds and ends here before I talk to you a 
          6   little bit further about your decision-making. 
          7            You have made the point a couple of times 
          8   that you view it as indicative of a lack of 
          9   seriousness of the case that there was no 
         10   dangerousness hearing sought by the district 
         11   attorney back in 2000 in the Horton case; isn't that 
         12   so?
         13       A.   The lack of seriousness with regards to the 
         14   defendant.  The defendant does not pose a danger to 
         15   anyone in particular or to the public at large, yes.
         16       Q.   Isn't it a fact -- excuse me.  Did you 
         17   finish?
         18       A.   Yes.  I don't think that was your question.  
         19   You said the case, but it relates to the defendant 
         20   in this case only.
         21       Q.   Isn't it a fact, Judge, that Mr. Horton was 
         22   indeed held in custody for about a month and a half 
         23   just on the basis of the bail that was set on him?
         24       A.   On bail, yes.
 0057
          1       Q.   And so you would agree, would you not, that 
          2   the Commonwealth sought and received a high enough 
          3   bail to keep the Defendant Horton in custody; isn't 
          4   that correct?
          5       A.   Mr. Ware, that's not the purposes of bail.
          6       Q.   Judge, please.  I'm asking you --
          7       A.   Bail is to --
          8       Q.   I understand the purposes of bail.  I think 
          9   we all do.  My question to you is, isn't it a fact, 
         10   dangerous hearings or not, that the defendant was in 
         11   custody?  Yes or no?
         12       A.   The defendant was in custody.
         13       Q.   All right.  And if the defendant was in 
         14   custody by virtue of the conditions or terms of 
         15   bail, it would have been redundant and worthless for 
         16   a dangerousness hearing to occur, would it not?
         17       A.   No; that's wrong.
         18       Q.   Do you agree, Judge, that a dangerousness 
         19   hearing would have required the testimony of the 
         20   11-year-old?
         21       A.   I think it could have come in -- maybe it 
         22   could have, or it could have come through the sexual 
         23   assault unit -- no, not necessarily, Mr. Ware, would 
         24   I agree with that.
 0058
          1       Q.   Well, without regard to exceptions that may 
          2   occur in one thousandth of one percent of cases --
          3            MR. EGBERT:  Objection.
          4            HEARING OFFICER DAHER:  Sustained.
          5            MR. EGBERT:  Objection.  Move to strike.
          6            HEARING OFFICER DAHER:  The question is 
          7   stricken.  Rephrase.
          8       Q.   In the usual dangerousness hearing the 
          9   victim testifies; isn't that so?
         10       A.   I think in the usual one, yes.
         11       Q.   So certainly a consideration for the 
         12   district attorney was whether or not it was 
         13   appropriate to have an 11-year-old testifying; isn't 
         14   that correct?
         15       A.   That should not have been a consideration 
         16   if Mr. Horton was a true danger to anybody.
         17       Q.   You mentioned, Judge, that you reviewed Mr. 
         18   Horton's criminal record, among other things; is 
         19   that so?
         20       A.   That's right.
         21       Q.   And I'd like to show you, if I may, what's 
         22   been marked as Exhibit 18 for identification.  
         23            MR. WARE:  And in fact, I'd like to offer 
         24   this as Exhibit 18.  It's not in the book. 
 0059
          1            HEARING OFFICER DAHER:  Show it to Mr. 
          2   Egbert, please. 
          3       Q.   That is Mr. Horton's criminal record, is it 
          4   not?
          5       A.   Yes.  It includes his juvenile record.
          6            MR. WARE:  I offer that, Your Honor.
          7            HEARING OFFICER DAHER:  Any objections? 
          8            MR. EGBERT:  My objection, Judge, is that I 
          9   don't believe that certainly a juvenile record is 
         10   admissible in any court.  I don't have any problem 
         11   with this witness being examined, but I think there 
         12   is an issue as to whether or not a CORI record of 
         13   Mr. Horton can be put into a public domain without 
         14   him having counsel or being permitted to argue the 
         15   position to the Court.  That's CORI.
         16            HEARING OFFICER DAHER:  Do you want to 
         17   address that issue, Mr. Ware?
         18            MR. WARE:  This is not a criminal 
         19   proceeding against Mr. Horton, and, accordingly, 
         20   this document is being offered for a different set 
         21   of purposes.
         22            HEARING OFFICER DAHER:  Let's go.
         23            MR. EGBERT:  It doesn't matter, Judge.  The 
         24   CORI record, the CORI criminal recordkeeping statute 
 0060
          1   is a confidential statute.  Mr. Horton has certain 
          2   rights.  I am not prepared, nor do I wish, to 
          3   exercise his rights.  I raise it to you only so that 
          4   this proceeding doesn't violate any other statute 
          5   without giving the appropriate parties a reason or 
          6   right to respond.
          7            HEARING OFFICER DAHER:  Overruled.  Mark 
          8   it.  Let's go.
          9                 (Document marked as Exhibit
         10                 18 moved into evidence)
         11       BY MR. WARE:
         12       Q.   Several times in your testimony last week 
         13   you made a point of the child's age and the fact 
         14   that, as you understood it, the child's age at the 
         15   time of this crime was 12; is that correct?
         16       A.   That's what I understood the age to be, 
         17   yes.
         18       Q.   You now know, but did not know then, that 
         19   the child was 11 at the time of the crime?
         20       A.   Just learned that about two weeks ago.
         21       Q.   But you now agree that that's the case 
         22   and we have the birth certificate?
         23       A.   Today I do agree with that.
         24       Q.   Now, Judge, in your testimony you used the 
 0061
          1   phrase "six weeks short of his 13th birthday," as 
          2   opposed to saying he was 12 years old; isn't that 
          3   correct?
          4            MR. EGBERT:  I believe I used it.
          5            MR. WARE:  I believe you both used it. 
          6       Q.   But do you recall having used it?
          7       A.   Yes, something to that effect, yes.
          8       Q.   And in fact at the time of sentencing in 
          9   the Horton case, the victim would have been 12 years 
         10   old; isn't that so?
         11       A.   On August --
         12       Q.   In September of 2000, having been 11 in 
         13   1999 when the offense took place.
         14       A.   I don't know what the date of birth is.  
         15   What is the date of birth?  Twelve, 13.  I don't 
         16   know.
         17       Q.   Let's not get bogged down.  You thought he 
         18   was 12 years old and that's what was represented to 
         19   you by the district attorney.
         20       A.   Right. 
         21       Q.   It makes no difference from a legal 
         22   standpoint whether the child was 11 or 12 or 13; 
         23   isn't that correct?
         24       A.   That's true.
 0062
          1       Q.   And so that the crimes of which he now 
          2   stands convicted, as to which there's been an 
          3   adjudication, none of those crimes is affected in 
          4   any way by the child's age, isn't that so --
          5       A.   No.
          6       Q.    -- unless he were at least 14?
          7       A.   Yeah, I think they have the "under 14" and 
          8   "under 16" in there.  But no; the age is irrelevant 
          9   for purposes of the pleas in this case. 
         10       Q.   And you're not suggesting, are you, that 
         11   the seriousness of the crime would have been 
         12   different if the child was 11 as opposed to 12 as 
         13   you thought he was; isn't that correct?
         14       A.   Not the seriousness of the crime, no.
         15       Q.   You agree that whether he was 11 or he was 
         16   12, the seriousness of the crime is the same.
         17       A.   Yeah.  And even if he was 13.
         18       Q.   And you're not saying that the effect on 
         19   the child would have been materially different if he 
         20   was 12 as opposed to 11; isn't that correct?
         21       A.   It could be materially different.
         22       Q.   But you certainly didn't consider it to be 
         23   different simply because you thought the child was 
         24   12, correct?
 0063
          1       A.   No, I did not. 
          2       Q.   Mr. Horton at this time was 21 or 22 years 
          3   old; isn't that right?
          4       A.   Right; something like that.
          5       Q.   About twice the child's age.
          6       A.   Yes.
          7       Q.   You have mentioned a number of times in 
          8   your testimony with Mr. Egbert the social worker's 
          9   report.  And let me direct you, if I may, to Exhibit 
         10   3.  And I'm going to put the cover of the report on 
         11   the monitors as well.  So I'd like to talk with you 
         12   for a few minutes, Judge, about what this is and 
         13   what it isn't and what you believed it to be at the 
         14   time that you used it. 
         15            First of all, the heading on this document 
         16   has the heading "After Pleading," doesn't it?
         17       A.   Yes.
         18       Q.   And it is prepared by the Committee for 
         19   Public Counsel Services, correct?
         20       A.   I don't know that to be the case, no.
         21       Q.   Let's look at the last page.
         22       A.   Yes.
         23       Q.   As you can see on the monitor or on the 
         24   last page in hard copy, it's signed by a social 
 0064
          1   worker who apparently, at least at the time, had the 
          2   title "Director of Social Services, Committee for 
          3   Public Counsel Services," correct?
          4       A.   That's right.
          5       Q.   And you knew then, did you not, that this 
          6   was a document prepared by a social worker who in 
          7   effect worked for the defense lawyer's firm or 
          8   organization; isn't that correct?
          9       A.   There clearly was some relationship there.  
         10   I don't know what the relationship would be.  I 
         11   mean, she could be a consultant, she could be -- I 
         12   have no idea.
         13       Q.   Well, when you say you have no idea, Judge, 
         14   she represented herself in the document you saw at 
         15   the lobby conference as the Director of Social 
         16   Services for the Committee for Public Counsel 
         17   Services; isn't that right?
         18       A.   That's what this says.
         19       Q.   And did you not draw the inference when you 
         20   saw this on August 1, 2000, that this social worker 
         21   was employed by CPCS?
         22       A.   I didn't draw that conclusion, no.
         23       Q.   You thought maybe she was an independent, 
         24   freestanding social worker hired by CPCS and paid on 
 0065
          1   a consulting basis?
          2       A.   Anything could have been -- I didn't think 
          3   about that, Mr. Ware.
          4       Q.   Well, in making a judgment whether this was 
          5   a credible document for your purposes or not in 
          6   sentencing, you naturally wanted to evaluate whether 
          7   the social worker's views were or were not 
          8   independent; isn't that right?
          9       A.   The social worker was not on trial here.
         10       Q.   The data, the information provided by the 
         11   social worker you took into account and you valued 
         12   that information, did you not?
         13       A.   Yes.
         14       Q.   All right.  You knew at the time that this 
         15   social worker appeared to work for CPCS, right?
         16       A.   Yes, that it was prepared at the request of 
         17   the Committee for Public Counsel Services, an 
         18   evaluation, and that they obtained funds from the 
         19   state to have this evaluation conducted, yes.
         20       Q.   Are you telling us that you thought that 
         21   this social worker was not employed by CPCS, but was 
         22   somehow hired by the defense lawyer?
         23       A.   I have no idea how this person gets paid.
         24       Q.   Are you saying it was not important to you 
 0066
          1   whether or not this was an independent opinion or 
          2   the opinion of a social worker who worked for the 
          3   defense lawyer?
          4       A.   I believed that an officer of the court 
          5   would not give me a document that they did not think 
          6   was something legitimate for me to consider.
          7       Q.   You did not yourself evaluate whether or 
          8   not this was an independent opinion; is that 
          9   correct?
         10       A.   I did not ask for a CV or -- no, I didn't.
         11       Q.   The title of the document says, 
         12   "PSYCHOSOCIAL ASSESSMENT AND DISPOSITIONAL PLAN."  
         13   Do you see that?
         14       A.   Yes, I do.
         15       Q.   It does not say that it is a psychological 
         16   report.  It does not say that it's a psychiatric 
         17   evaluation; isn't that so?
         18       A.   Well, it says "PSYCHOSOCIAL."  So it's 
         19   psychological social evaluation.
         20       Q.   You knew this was not a psychologist's 
         21   report, didn't you?
         22       A.   It's a licensed social worker BCD.
         23       Q.   You knew this was not a report from a 
         24   psychologist; isn't that so?
 0067
          1       A.   A licensed social worker, yes; not a 
          2   psychologist with a Ph.D. in psychology, if that's 
          3   what you're asking, but someone versed in 
          4   psychology, someone with that background, yes.
          5       Q.   You knew that this was not a report from a 
          6   Ph.D. psychologist; is that correct?
          7       A.   That's right.
          8       Q.   And you knew it was not a report from a 
          9   psychologist.  It was from a social worker, correct?
         10       A.   That's right.
         11       Q.   And you knew that it was not a report from 
         12   a psychiatrist; isn't that correct?
         13       A.   I knew that.
         14       Q.   And so whatever information it had, that 
         15   information you understood to be coming from a 
         16   social worker, correct?
         17       A.   Yes.
         18       Q.   And if I could direct you to I think it's 
         19   the third page that says "Clinical Impression," you 
         20   understood that to be in effect the diagnosis, if 
         21   you will, of this social worker, although not using 
         22   the word "diagnosis"; isn't that right?
         23       A.   Yes.
         24       Q.   So that the section entitled "Clinical 
 0068
          1   Impression," as you understood it, was the social 
          2   worker's conclusion about the condition of Mr. 
          3   Horton; isn't that so?
          4       A.   The conclusion, yes.
          5       Q.   And what the social worker concludes by way 
          6   of any kind of evaluation of this defendant is that, 
          7   first, he is transgendered, isn't that correct, as 
          8   it says in Line 1?
          9       A.   Yes.
         10       Q.   And the only other thing he concludes or 
         11   she concludes begins in Line 3 where it says that 
         12   Mr. Horton is socially and emotionally immature; 
         13   isn't that correct?
         14       A.   Yes.
         15       Q.   The report goes on, does it not, in -- let 
         16   me ask you to go back to the first page of the 
         17   report. 
         18            You made a finding on August 4th, in a 
         19   document that responded to the motion for 
         20   continuance by the district attorney, that Mr. 
         21   Horton had a sexual identity disorder; isn't that 
         22   right?
         23       A.   I don't know what's on this screen.
         24       Q.   I'm coming to that in a moment.  I'm just 
 0069
          1   asking independent of the screen for a moment --
          2       A.   Okay.
          3       Q.   -- do you recall that in your order of 
          4   August 4th you made a finding that the Defendant 
          5   Horton had a sexual identity disorder?
          6       A.   Yes, I did.
          7       Q.   And you also made a finding that he had a 
          8   psychological disorder.
          9       A.   Yes.
         10       Q.   Now, in this document -- going back to the 
         11   screen, to the slide you just saw -- this document 
         12   never describes in any way the defendant's conduct 
         13   that's the subject of the plea conference that 
         14   you've conducted on August 1; isn't that right?
         15       A.   I don't think there's any reference to the 
         16   incident, no.
         17       Q.   So the social worker's report never deals 
         18   with and never describes as a basis for her clinical 
         19   judgment what the facts are that were at issue; 
         20   isn't that so?
         21       A.   In the case, in the criminal case.
         22       Q.   Yes. 
         23       A.   No, she does not.
         24       Q.   And never describes in any way what the 
 0070
          1   alleged crimes are; isn't that correct?
          2       A.   That's correct.
          3       Q.   Never describes any of the events that gave 
          4   rise to these five indictments and ultimately the 
          5   convictions; isn't that so?
          6       A.   Not the specific events, no.
          7       Q.   It doesn't describe any events, does it?
          8       A.   It could explain -- there's information 
          9   here that could explain the events, but it doesn't 
         10   directly address the events.
         11       Q.   In an independent psychiatric or 
         12   psychological evaluation -- that is, a report from 
         13   an independent professional -- the very first thing 
         14   that professional does is describe the problem at 
         15   issue and the facts; isn't that right?
         16       A.   It depends on what the purpose of the 
         17   consult is.
         18       Q.   In any expert report you've ever seen from 
         19   a Ph.D. psychologist or a psychiatrist in a criminal 
         20   case, there is always a detailed explanation of 
         21   what's alleged and the circumstances of the alleged 
         22   crime, isn't that so, in order to set a backdrop for 
         23   the evaluation?
         24       A.   It depends on what question is posed to the 
 0071
          1   clinician to evaluate.
          2       Q.   In any event, this clinician -- one can't 
          3   even tell whether this clinician knew what Mr. 
          4   Horton was accused of; isn't that right?
          5       A.   That's right.  Well --
          6       Q.   There's no evidence in this report in which 
          7   she identifies in any way that she knows what the 
          8   crimes are that have been charged or what the facts 
          9   are as the defense lawyer or the prosecution have 
         10   argued them; isn't that so?
         11       A.   That's right.  There's no specific 
         12   reference to the facts of the...
         13       Q.   The closest this report comes to describing 
         14   the events which result in five felony convictions 
         15   here is in Line 3, where the social worker describes 
         16   those events as "showing poor judgment being 
         17   involved with a minor child"; isn't that it?
         18       A.   The reference -- excuse me.  Ask the 
         19   beginning of the question again.  I missed it. 
         20       Q.   Yes.  The closest the social worker ever 
         21   comes to describing the conduct which is the subject 
         22   of the plea conference and the five indictments is 
         23   this phrase "showing poor judgment being involved 
         24   with a minor child"; isn't that it?
 0072
          1       A.   I disagree.
          2            HEARING OFFICER DAHER:  What's your 
          3   objection?
          4            MR. EGBERT:  I'm going to ask that she be 
          5   permitted to read the document before opining that 
          6   that's the only place in this in which something 
          7   like that is written.
          8            MR. WARE:  Fine.  I'm amenable to that.
          9       Q.   You read this document in excruciating 
         10   detail, did you not?
         11            MR. EGBERT:  It's on Page 4 on the clinical 
         12   impression, second paragraph.
         13       Q.   Why don't you take all the time you want 
         14   and point me to any language in this report other 
         15   than the highlighted language on the screen now 
         16   which you say describes the conduct of Mr. Horton.
         17       A.   Well, I think it's right there.  "I find it 
         18   highly unlikely that Ebony will repeat the behavior 
         19   that brought her to court in this case.  Jail has 
         20   been a chilling experience for her.  Further 
         21   incarceration will be a disaster for Ebony and place 
         22   her at considerable risk." 
         23            HEARING OFFICER DAHER:  Judge, do you want 
         24   time to read the entire document so that you 
 0073
          1   could deal with the --
          2            THE WITNESS:  Yes.
          3            HEARING OFFICER DAHER:  Did you get us a 
          4   copy on CD-ROM? 
          5            MR. EGBERT:  No.
          6            HEARING OFFICER DAHER:  Weren't you going 
          7   to give Mr. Egbert the CD, a copy of the CD? 
          8            MR. WARE:  Yes, if they want it at some 
          9   point.
         10            MR. EGBERT:  It wasn't at some point.  We 
         11   had asked for it last week.
         12            HEARING OFFICER DAHER:  Sometime today, 
         13   that would be great.
         14            THE WITNESS:  Shall I proceed? 
         15            HEARING OFFICER DAHER:  Are you ready? 
         16            THE WITNESS:  I am.  I can go through it.
         17       BY MR. WARE: 
         18       Q.   Let me be clear with the question here.  I 
         19   want you to point me to any language in there which 
         20   you say describes the facts that lead to these five 
         21   indictments.
         22            MR. EGBERT:  That wasn't the original 
         23   question.
         24            MR. WARE:  I believe it was. 
 0074
          1            MR. EGBERT:  Could the court reporter --
          2       Q.   Let me put another question if there's 
          3   ambiguity.  Show me in the report, other than what's 
          4   on the screen, any description of the facts which 
          5   lead to the indictments which were before you on 
          6   August 1. 
          7       A.   There is mention -- there's language here 
          8   that implicitly refers to the facts of the 
          9   indictments.
         10       Q.   Let's eliminate things that are implicit.  
         11   I would like references to the facts as you saw them 
         12   in this report, Judge. 
         13       A.   As I saw them, I will tell you.  Second 
         14   sentence, "There is a marked difference in her 
         15   outlook that describes accepting responsibility for 
         16   showing poor judgment being involved with a minor 
         17   child." 
         18       Q.   Do you see any language there which 
         19   describes the facts which underlie these 
         20   indictments?
         21       A.   "Being involved with a minor child." 
         22       Q.   Now point us to any further language in the 
         23   report. 
         24       A.   "This is behavior that will not occur 
 0075
          1   again."  Clearly the clinician had focused on the 
          2   behavior at issue.
          3       Q.   What behavior?  Does the social worker ever 
          4   describe the behavior? 
          5       A.   I imagine the social worker would have 
          6   known the behavior, because how would she refer to a 
          7   behavior that she had no clue what she was 
          8   evaluating?
          9       Q.   But the point is when you read this report, 
         10   you had no way of knowing what the social worker 
         11   knew or didn't know; isn't that correct?
         12       A.   I knew it from the report only. 
         13       Q.   Because the social worker never describes 
         14   in the report the facts that underlie these 
         15   indictments; isn't that correct?
         16       A.   Well, since the --
         17       Q.   Please, Judge.  Does the social worker ever 
         18   describe the fact?
         19       A.   Not specifically in this assessment, no.
         20       Q.   And in point of fact, the social worker saw 
         21   Mr. Horton only on two occasions; isn't that right?
         22       A.   December '99 and July 31, 2000, yes.
         23       Q.   And there's no indication in the report how 
         24   long those sessions were, whether they were an hour 
 0076
          1   or they were 20 minutes each; isn't that right?
          2       A.   That's right.
          3       Q.   There is in this report no diagnosis of 
          4   sexual identity disorder; isn't that correct?
          5       A.   Transgendered means that. 
          6       Q.   You're equating transgendered with gender 
          7   identity disorder?
          8       A.   It's the same thing.
          9       Q.   That was your view when you saw this 
         10   report; is that correct?
         11       A.   It's my view today.
         12       Q.   Do you think that the social worker was 
         13   competent to give a psychiatric diagnosis of gender 
         14   identity disorder?
         15       A.   Absolutely.
         16       Q.   You would agree with me, will you not, that 
         17   the social worker never in fact does that in the 
         18   report; isn't that correct?
         19       A.   She says she's transgendered.
         20       Q.   Right.  The social worker never alludes in 
         21   any way to the DSM-IV or to the criteria for sexual 
         22   or I should say gender identity disorder; isn't that 
         23   correct?
         24       A.   There are facts in her family history that 
 0077
          1   address specifically the characteristics of someone 
          2   with a sexual identity -- gender identity disorder, 
          3   yes.
          4       Q.   The social worker never says this person 
          5   suffers from gender identity disorder; is that 
          6   correct?
          7       A.   Does not use that terminology, no.
          8       Q.   And in fact gives no diagnosis of sexual 
          9   identity disorder or gender identity disorder, isn't 
         10   that true?
         11       A.   Being transgendered means that, so that is 
         12   the diagnosis.
         13       Q.   The closest the social worker comes to 
         14   saying "gender identity disorder" is the language 
         15   that's highlighted and which appears on the first 
         16   page of the report which says, if you look midway 
         17   down the second paragraph, "Still struggling with a 
         18   variety of psychological and social issues around 
         19   her sexual identity."  Do you see that?
         20       A.   I see that, but there's a lot more in this 
         21   report that goes to the gender identity disorder, 
         22   Mr. Ware.
         23       Q.   There is no other language, Judge, in which 
         24   the social worker purports to be diagnosing the 
 0078
          1   defendant; isn't that true?
          2            MR. EGBERT:  Objection.
          3       A.   "She's on hormones, considered castration."
          4            MR. EGBERT:  That's unfair, Judge, and he 
          5   knows it.  There's statements in this report like 
          6   "Ebony is a transgendered individual." 
          7            HEARING OFFICER DAHER:  Mr. Egbert, the 
          8   question was -- she can answer no and point out the 
          9   extras in the document.  Take your time, Judge.
         10       A.   The answer is that there's a lot of 
         11   information that goes specifically to that 
         12   diagnosis:  That she was on female hormones, that 
         13   she had considered castration, but rejected it as a 
         14   result of certain fears concerning the operation, 
         15   that she has been dressing as a female since a -- 
         16   from a young age.  These are all issues associated 
         17   with a gender identity disorder.
         18       Q.   And those are all issues which may be 
         19   associated with other disorders or social problems; 
         20   isn't that correct?
         21       A.   I don't know of any.  I couldn't say yes.  
         22   I wouldn't know of any that had those specific 
         23   issues involved, wanting to change your sex.
         24       Q.   Nonetheless, isn't it true that other than 
 0079
          1   the phrase "struggling with a variety of 
          2   psychological and social issues around her sexual 
          3   identity," there is no diagnosis here of gender 
          4   identity disorder; isn't that correct?
          5       A.   There is.  I've already testified that 
          6   there is nothing in this document that refers to 
          7   gender identity or sexual identity disorder, 
          8   correct.
          9       Q.   And in fact in the clinical impressions 
         10   section of the report, the only finding, if you 
         11   will, or opinion that's proffered by the social 
         12   worker is that Mr. Horton is transgendered, correct?
         13       A.   The only opinion? 
         14       Q.   Yes. 
         15       A.   No.  There's several other opinions in the 
         16   report --
         17       Q.   The only clinical opinion in which he 
         18   purports to describe the problem is his 
         19   characterization of Mr. Horton as transgendered; 
         20   isn't that right?
         21       A.   No. 
         22       Q.   Now, the social worker in fact herself 
         23   recommends a psychiatric consultation, does she not? 
         24       A.   Ongoing counseling, yes.
 0080
          1       Q.   Well, one of the things that the social 
          2   worker suggests at the top of the third page is a 
          3   psychiatric consult; isn't that so?
          4       A.    "She needs to return for counseling to 
          5   help deal" is that where you're referring to? 
          6       Q.   If you go down to about the fifth line, it 
          7   suggests that she return for counseling and "a 
          8   psychiatric consult." 
          9       A.   Yes, yes.
         10       Q.   You understood that to mean that the social 
         11   worker was recommending that she get qualified 
         12   psychiatric help; isn't that correct?
         13       A.   No.  I understood it to mean that she 
         14   probably needed to get some prescription medication 
         15   to deal with her depression.
         16       Q.   Your reading of this report is that the 
         17   recommendation from the social worker that she see a 
         18   psychiatrist was just to get a prescription?
         19       A.   They're the only ones that can administer 
         20   drugs, antidepressants and things like that, I 
         21   thought.
         22       Q.   My question to you, Judge, is whether, when 
         23   you read the report, the inference you drew was that 
         24   psychiatric consult was only for purposes of writing 
 0081
          1   a prescription.  Is that what you're telling us?
          2       A.   It goes on to say --
          3       Q.   Judge, please.  Would you stick with my 
          4   question.  My question is, I hope, straightforward. 
          5   Did you draw the inference, when the social worker 
          6   recommended psychiatric consultation, that was just 
          7   for purposes of getting a prescription?  Yes or no? 
          8       A.   Pretty much, yeah.  Pretty much. 
          9       Q.   As you point out, the social worker also 
         10   recommends that Mr. Horton return for counseling; 
         11   isn't that correct?
         12       A.   Yes.
         13       Q.   And if you look at the top of Page 3, the 
         14   social worker's findings here or observations are, 
         15   first, that Mr. Horton needs to return to 
         16   counseling; isn't that so?  In the first line?
         17       A.   Yes.
         18       Q.   And in the third line she observes that 
         19   he's off his medication, correct?
         20       A.   It doesn't say that this person was ever on 
         21   medication.  She was frightened off medication by 
         22   some horror stories from friends and acquaintances.  
         23   This does not say that she was off medication.  It 
         24   implies to me that this person has never been on 
 0082
          1   antidepressants.
          2       Q.   You read the report where it says, "She was 
          3   frightened off about medication" --
          4       A.   "By some horror stories."
          5       Q.   And you read that as meaning that she was 
          6   never on medication?
          7       A.   That's right.
          8       Q.   But read it as well as saying she needed 
          9   medication; is that correct?
         10       A.   Also -- that's not the only area that clued 
         11   me into the need for medication; chronic depression, 
         12   suicidal thoughts.
         13       Q.   In the next paragraph the report makes a 
         14   number of observations about Mr. Horton's 
         15   associations.  Do you see that in the first line 
         16   where it indicates that Mr. Horton or "Ebony should 
         17   be spending time with individuals closer to her age 
         18   group"?
         19       A.   Yes. 
         20       Q.   Do you see that? 
         21       A.   Yes.
         22       Q.   And it goes down on the fourth line and 
         23   says that, "She's been volunteering in educating 
         24   teens"; isn't that correct?
 0083
          1       A.   Yes.
          2       Q.   In the next line, "She's been working with 
          3   young people about transgender concerns"?
          4       A.   Yes.
          5       Q.   And then if you jump down into "Education 
          6   and Employment" to the fourth line, it says, "She 
          7   would like to be a counselor for troubled gay 
          8   teenagers," correct?
          9       A.   Yes.
         10       Q.   Now, each of those statements in this 
         11   report were of concern to you because you did not 
         12   think this defendant should be around teenage 
         13   children; isn't that right?
         14       A.   No, I did not think that at all.
         15       Q.   You did not think that?
         16       A.   No.
         17       Q.   You thought it appropriate for Mr. Horton 
         18   to be around teenagers?
         19       A.   What do you mean by a teenager? 
         20       Q.   I mean someone under 17, let's say. 
         21       A.   Given her maturational level, I think she 
         22   was probably at that age of a teenager.  So was it 
         23   appropriate -- I mean, are you talking about what I 
         24   imposed as a probationary condition? 
 0084
          1       Q.   Well, didn't you in fact impose as a 
          2   condition that Mr. Horton not associate with anyone 
          3   under the age of 17?
          4       A.   Sixteen.
          5       Q.   And you did that because you had concern 
          6   that it was inappropriate for him to be associating 
          7   with younger teenagers; is that correct? 
          8       A.   Given the particular crime at issue, I 
          9   thought it was appropriate to have that kind of a 
         10   restriction, yes.
         11       Q.   The reason you imposed the restriction was 
         12   to prevent Mr. Horton from dealing with teenagers 
         13   below the age of 16 or 17; isn't that right?
         14       A.   16, yes.
         15       Q.   And you did that because you had a concern 
         16   that, given his past and given indications in this 
         17   report and elsewhere, that wasn't a good idea, 
         18   correct?
         19       A.   Given his past and given the indications in 
         20   this report, yes, I would agree with you there.
         21       Q.   The report also observes at the bottom of 
         22   that same page that Mr. Horton is not likely to gain 
         23   employment "in the mainstream" or "in a mainstream 
         24   job"; isn't that correct?
 0085
          1       A.   Right.
          2       Q.   And what you understood that to mean was 
          3   because of his characteristics or his situation, he 
          4   was not going to be able to get a job, in all 
          5   likelihood?
          6       A.   In fact, she was on SSI, supplemental 
          7   security income, so she was receiving income as a 
          8   result of some disability.  So the employment issue 
          9   is probably a nonissue for an individual getting 
         10   those benefits.
         11       Q.   At the time Mr. Horton was sentenced he was 
         12   not employed, correct?
         13       A.   Not employed, nor could be, I think, if he 
         14   was getting SSI.
         15       Q.   So you believed he was unemployable, 
         16   correct?
         17       A.   Yes.
         18       Q.   Let me go back to some language on the 
         19   fourth page which you alluded to earlier with Mr. 
         20   Egbert.  The social worker says at the bottom of the 
         21   clinical impression, "I find it highly unlikely that 
         22   Ebony will repeat the behavior that brought her to 
         23   court in this case." 
         24            I think we've now agreed that that behavior 
 0086
          1   is not described in this report; is that correct?
          2       A.   Not explicitly, no.
          3       Q.   And it goes on to say, "Jail has been a 
          4   chilling experience for her.  Further incarceration 
          5   will be a 'disaster'."  Do you see that?
          6       A.   Yes, I do.
          7       Q.   You would agree that that's not typical 
          8   professional language for a psychiatrist or a 
          9   psychologist, saying that incarceration will be a 
         10   disaster; isn't that so?
         11       A.   The specific word "disaster"? 
         12       Q.   Yes. 
         13       A.   Yeah, they've couched it in many other 
         14   different ways when they think that it would be very 
         15   harmful to someone to be incarcerated.  But 
         16   "disaster," I don't recall ever hearing that before.
         17       Q.   More typically, a psychiatrist or a 
         18   psychologist would give the pros and cons of an 
         19   incarceration, would describe the downside, would 
         20   describe the benefits, and would let you, as the 
         21   Court, make a decision; isn't that so?
         22       A.   Typically.
         23       Q.   But here this social worker says it will be 
         24   a disaster and then gives her opinion about the 
 0087
          1   future.  "I do not believe that Ebony would survive 
          2   the prison system.  She is who she is, not by 
          3   choice, but by birth."  Do you see that language?
          4       A.   Yes.
          5       Q.   You understood, when you read that, that 
          6   that is an emotional description by the social 
          7   worker; isn't that right?
          8       A.   Yes.
          9       Q.   Not exactly a dispassionate clinical 
         10   diagnosis, correct?
         11       A.   I mean, the last sentence I think is the 
         12   one that "she is who she is, not by choice, but by 
         13   birth" is the sort of personalization, but not the 
         14   sentence before that.
         15       Q.   Earlier I asked you about the term "gender 
         16   identity disorder."  In fact, the term "gender 
         17   identity disorder" was never used anywhere in this 
         18   case until we all came into the courtroom; isn't 
         19   that correct?
         20       A.   Well, we've used "sexual identity."  It's 
         21   synonymous.
         22       Q.   Let me just be precise here. 
         23            Until this court proceeding, you've never 
         24   used the term "gender identity disorder"; isn't that 
 0088
          1   so?
          2       A.   I don't know that to be the case.  I've 
          3   used it many times in my life.  Now, whether I used 
          4   it in these proceedings before, I don't know.  I 
          5   would have to review everything.  I'm sure I've 
          6   discussed it with my lawyers.  You know...
          7       Q.   What you did use as a term beginning on 
          8   August 4th was "sexual identity disorder," correct?
          9       A.   That I did.
         10       Q.   And you also used "psychological 
         11   disorder" --
         12       A.   Yes.
         13       Q.   -- in your August 4th findings; isn't that 
         14   correct?
         15       A.   That's correct.
         16       Q.   But the term "gender identity disorder" 
         17   literally is something that we've used here in the 
         18   testimony; is that correct?
         19       A.   Well, I know we have used it here in the 
         20   testimony.  I agree with that, yes.
         21       Q.   Would you agree that no psychological tests 
         22   were taken or done on Mr. Horton?
         23       A.   I would not agree with that.
         24       Q.   Were you ever told of any psychological 
 0089
          1   tests; Rorschach test, anything else?
          2       A.   Not those kinds of tests, no.
          3       Q.   So there were no tests performed by a 
          4   qualified Ph.D. psychologist which were brought to 
          5   your attention by the social worker; isn't that so?
          6       A.   None of those kinds of tests were done.  
          7   Nothing was brought to my attention with regards to 
          8   those kinds, yeah.
          9       Q.   You know that in this case the defense 
         10   counsel received authorization for funds to hire an 
         11   independent psychiatrist; isn't that correct?
         12       A.   And this is who they hired, I believe.
         13       Q.   You think this is the independent 
         14   psychiatrist that was the subject of the motion?
         15       A.   Yeah.
         16       Q.   Are you now saying that this report --
         17       A.   I don't know if it said "psychiatrist."  I 
         18   would have to go back and look at the motion.  Did 
         19   it say "psychologist" or "psychological assessment"?  
         20   I'm not sure what the motion said.
         21       Q.   Let me get it in front of you.  Let's take 
         22   a look at Exhibit 16. 
         23       A.   Psychologist or psychiatrist.
         24       Q.   This was a motion by defense counsel, as 
 0090
          1   you understood it, to be given funds to hire an 
          2   independent expert, correct?
          3       A.   Yes.
          4       Q.   To your knowledge, isn't it the case that 
          5   that expert was never hired?
          6       A.   To my knowledge, the money they got from 
          7   here, the $1,500, could have been used to pay the 
          8   social worker, Katz.
          9       Q.   You really mean to tell us that you 
         10   understood Exhibit 3, the social worker's report 
         11   which indicates that she's employed by CPCS, you 
         12   believe that to be the report of an independent 
         13   psychologist or psychiatrist hired by the defense 
         14   counsel?  Yes or no? 
         15       A.   I can't believe -- I don't have one way or 
         16   the other of establishing that or coming to a 
         17   conclusion about that.
         18       Q.   You told us during your testimony in 
         19   response to Mr. Egbert's questions last week that 
         20   you see these reports all the time.  Do you recall 
         21   that?
         22       A.   Right.
         23       Q.   And you said that they're proffered to the 
         24   court in many, many cases; isn't that so?
 0091
          1       A.   That's so.
          2       Q.   Are you still in the dark, having reflected 
          3   on that testimony, whether this individual was 
          4   employed by CPCS or was hired as an independent 
          5   psychiatrist or social worker? 
          6       A.   Am I still in the dark about it?  I have 
          7   had no new information that would allow me to make a 
          8   conclusion one way or the other as to what the 
          9   relationship -- what the payment relationship is, 
         10   what the understanding between CPCS and this 
         11   director -- I mean, no, I can't answer the question. 
         12       Q.   Accordingly, when you used the report on 
         13   August 1, 2000, you did not know that the social 
         14   worker was employed by CPCS?  You thought it was an 
         15   independently-hired professional?
         16       A.   I didn't know that then and I don't know 
         17   that today. 
         18       Q.   Wouldn't it have been relevant whether or 
         19   not this was a four-page piece of paper from a 
         20   social worker who worked for the defense lawyer on 
         21   the one hand versus an independent psychiatrist's 
         22   evaluation on the other?
         23       A.   Mr. Ware, this is uncontested.  The DA's 
         24   office presented nothing in contradiction to this.
 0092
          1       Q.   Well, you have a gatekeeper function, do 
          2   you not, in considering what you view as expert 
          3   testimony or expert information? 
          4       A.   Yes; Daubert, we do.
          5            MR. EGBERT:  Objection.  I think it goes 
          6   beyond the appropriate of a judge into the workings 
          7   of the court decisions, gatekeepers and alike.
          8            The issue here is, it seems to me what 
          9   facts she had before her, not to try how important 
         10   or unimportant or good or bad the facts are, but 
         11   what in fact she had before her.
         12            HEARING OFFICER DAHER:  Overruled.  You may 
         13   have it, Mr. Ware.  Go ahead. 
         14       A.   We have a gatekeeping function when there 
         15   is some unconventional science being advanced for 
         16   purposes of evidence in a trial, but we don't have a 
         17   Daubert-type hearing, where we are being offered 
         18   psychological assessments or social worker 
         19   assessments.
         20       Q.   So you would say there was no such function 
         21   appropriate to what you were doing on August 1, 
         22   correct?
         23       A.   There was no such function, no.
         24       Q.   No, it's not correct, or no, you do not 
 0093
          1   have that obligation?
          2       A.   We do not have that obligation when it 
          3   comes to routine, well-established science.
          4       Q.   Now, you've characterized this report as 
          5   unrebutted; isn't that so?
          6       A.   Yes.
          7       Q.   You know very well, do you not, that the 
          8   defense lawyer brought this in on August 1 for the 
          9   first time, never having served it in advance on the 
         10   prosecution; isn't that correct?
         11       A.   I don't know that.
         12       Q.   You've heard that, have you not?
         13       A.   I have heard various different things about 
         14   the DA's access to this report.
         15       Q.   Well, Ms. Goldbach has never suggested in 
         16   any way, shape or form at any time that she did 
         17   anything but produce this report on the day of the 
         18   lobby conference?
         19            MR. EGBERT:  Objection.
         20            HEARING OFFICER DAHER:  Sustained.
         21            MR. EGBERT:  That's just a 
         22   misrepresentation of fact and he knows it.
         23            HEARING OFFICER DAHER:  Sustained.  
         24   Stricken. 
 0094
          1            MR. EGBERT:  Ms. Goldbach testified that 
          2   she three times tried to get Ms. Joseph this report 
          3   and she refused to take it.  You know it.
          4            MR. WARE:  An interesting speech, but 
          5   inaccurate.
          6       BY MR. WARE:
          7       Q.   Prior to August 1 -- you knew on August 1 
          8   that that social worker's report was being proffered 
          9   for the first time to the prosecution; isn't that 
         10   so?
         11       A.   At the moment that they were at the 
         12   lobby -- at sidebar with me? 
         13       Q.   Yes. 
         14       A.   I didn't know anything about when that 
         15   report had been made available, but I did know one 
         16   thing.  As of May 11, 2000, the Commonwealth was on 
         17   notice that the defense attorney had been given 
         18   money to have an evaluation of the defendant.  So 
         19   they had the same opportunity to get an evaluation.  
         20   From May 11, 2000, they were on notice.
         21       Q.   Specifically, Judge, the exhibit speaks to 
         22   the hiring of a psychiatrist or a psychologist, does 
         23   it not?
         24       A.   That's correct; to evaluate the 
 0095
          1   defendant --
          2       Q.   And that was never done, was it, so far as 
          3   you know?
          4       A.   I believe that the Katz report is in 
          5   response to this request. 
          6      *Q.   You think the social worker's report was a 
          7   response to this motion allowing a psychiatrist or a 
          8   psychologist?  Is that what you're telling me? 
          9      *A.   I believe they sought funds to have the 
         10   defendant evaluated.  They had the defendant 
         11   evaluated, and I'm sure they used the funds that 
         12   were authorized for that purpose for the evaluation.
         13            MR. WARE:  May I have just a moment, Your 
         14   Honor?
         15            HEARING OFFICER DAHER:  Yes. 
         16            (Pause)
         17            MR. EGBERT:  I'd like a five-minute recess.
         18            HEARING OFFICER DAHER:  Is that okay with 
         19   you? 
         20            MR. WARE:  Yes.  Since the witness is on my 
         21   examination, I want it clear that the witness should 
         22   not be conferring with counsel during my 
         23   examination.
         24            MR. EGBERT:  I have no problem with that.  
 0096
          1   She can, of course, but I have no problem with that.
          2            HEARING OFFICER DAHER:  Okay.  Thank you 
          3   very much.  
          4            (Recess)
          5            MR. WARE:  Your Honor, could I have the 
          6   last question?
          7            *(Record read)
          8       BY MR. WARE:
          9       Q.   Judge, on the face of the motion, Exhibit 
         10   16, that you were looking at a moment ago, it 
         11   indicates that the motion was allowed on May 11, 
         12   2000; isn't that correct?
         13       A.   Correct.
         14       Q.   The social worker's report indicates that 
         15   the first meeting she had with Mr. Horton was in 
         16   December of 1999, correct?
         17       A.   Correct.
         18       Q.   Does that refresh you at all that a social 
         19   worker's report or work in this case was not in 
         20   response to the motion?
         21       A.   No.
         22       Q.   Now, is it your view in this case that Mr. 
         23   Horton is and was mentally ill?
         24       A.   He suffers from a psychological disorder, 
 0097
          1   known as a sexual identity disorder, gender identity 
          2   disorder.  It's a form of mental illness, yes, of 
          3   sorts.
          4       Q.   So is it your testimony that on September 
          5   6th, 2000, when you took the guilty plea, you 
          6   understood him to be mentally ill?
          7       A.   Well, not schizophrenic or hallucinating.  
          8   Let's define what we mean by "mental illness."
          9       Q.   In your testimony in response to questions 
         10   from Mr. Egbert, am I correct that both you and he 
         11   characterized this as mental illness?
         12       A.   It is characterized as a mental illness in 
         13   the DSM-III, yes.
         14       Q.   And in fact, in your response to the formal 
         15   charges in this case, you repeatedly refer to Mr. 
         16   Horton as "mentally ill"; isn't that correct?
         17       A.   I can't remember whether mental illness -- 
         18   I can't remember what it says, to tell you the 
         19   truth, but...
         20       Q.   Passing that for a moment, was it your view 
         21   that Mr. Horton, because he's transgendered, and for 
         22   that reason, was mentally ill, as you were using the 
         23   term?
         24       A.   Yeah, but I don't think I give the mental 
 0098
          1   illness the kind of connotation that your 
          2   characterization seems to be giving it.
          3       Q.   I'm not characterizing it.  I'm using what 
          4   I believe to be your words and Mr. Egbert's words 
          5   and what you said in response to the formal charges.  
          6   But I want to understand what that does mean. 
          7       A.   There is a diagnosis.  This individual 
          8   suffers from a diagnosis in the DSM-III, which 
          9   relates to a psychiatric condition.
         10       Q.   As a practical matter, no one has ever used 
         11   the words "sexual identity disorder" or "gender 
         12   identity disorder" except Judge Lopez; isn't that 
         13   correct?
         14       A.   I don't know.  I don't remember if Anne 
         15   Goldbach referred to her client as that.  I don't 
         16   recall. 
         17       Q.   Isn't it the case, Judge, that the first 
         18   time, and the only time, that the term "sexual 
         19   identity disorder" has been used was by you in your 
         20   findings of August 4th, marked Exhibit 17?
         21       A.   I don't know if that's true.  I can't 
         22   answer that "yes" or "no." 
         23       Q.   In any event, you're not aware of any 
         24   other -- does anything come to mind, any other 
 0099
          1   individual who's labeled Mr. Horton as having a 
          2   gender identity disorder?
          3       A.   Since when?  At what point?  There have 
          4   been individuals, but...
          5       Q.   Well, "gender identity disorder" is a 
          6   specific term defined by the "Diagnostic and 
          7   Statistical Manual," is it not?
          8       A.   Yes.
          9       Q.   And it relates to specific criteria and a 
         10   diagnosis of a form of disorder?
         11       A.   Yes.
         12       Q.   No one has said that Mr. Horton meets those 
         13   criteria, except you; isn't that correct?
         14       A.   And the Katz report supports that.
         15       Q.   Supports it.  Ms. Katz never says this man 
         16   has "sexual identity disorder" or "gender identity 
         17   disorder," in those words; isn't that correct?
         18       A.   Not in those words, no.
         19       Q.   And no one in this case has referred to Mr. 
         20   Horton as mentally ill, except you; isn't that 
         21   correct?
         22       A.   When did I say he was mentally ill?  I 
         23   think I said he suffers from a psychological 
         24   disorder.  I don't remember the mental illness, but 
 0100
          1   I could have.  I'm not denying it.  I just don't 
          2   have a recollection of it. 
          3            MR. WARE:  May I approach the witness, Your 
          4   Honor? 
          5            HEARING OFFICER DAHER:  Of course. 
          6       Q.   I'm directing you, am I not, to a response 
          7   to the formal charges filed by you, correct?
          8       A.   Yes.
          9       Q.   And do you see at Page 5 in the second 
         10   paragraph there's reference to "a mentally-ill 
         11   person"?
         12       A.   Yes, I see it now.
         13       Q.   And on Page 6 at the bottom there's a 
         14   reference to an "ill defendant"?
         15       A.   Yes.
         16       Q.   And on Page 7, a reference to Mr. Horton as 
         17   "mentally ill"?
         18       A.   Yes.
         19       Q.   And on Page 8, a reference in Subparagraph 
         20   E to his having a "mental illness"?
         21       A.   That's right.
         22       Q.   And in Paragraph F to his having "a mental 
         23   illness"?
         24       A.   Yes.
 0101
          1       Q.   And again, on Page 9, to "Mr. Horton's 
          2   illness"?
          3       A.   Yes.
          4       Q.   Does that refresh you that indeed you have 
          5   characterized Mr. Horton as mentally ill?
          6       A.   Yes, now it does. 
          7       Q.   No one else has so characterized Mr. 
          8   Horton; isn't that correct?
          9       A.   I don't know what -- no one else has so --  
         10   I think so.  I think Ms. Katz certainly does.
         11       Q.   You're saying while she doesn't use those 
         12   words, you can draw some inference that she intended 
         13   that he be characterized as mentally ill; is that 
         14   what you're saying?
         15       A.   Yes.  That he has a need for a 
         16   psychiatrist's counseling, yes. 
         17       Q.   Now, when you took the plea on September 
         18   6th, did you make any inquiry to assure yourself 
         19   that this individual whom you've characterized as 
         20   mentally ill was competent to plead guilty?
         21       A.   I certainly did.
         22       Q.   And would you say that the questions 
         23   regarding his having been making a knowing and 
         24   intelligent waiver were sufficient in that regard?
 0102
          1       A.   Absolutely.
          2       Q.   Following the sentencing when I guess what 
          3   we've referred to as a firestorm broke in the 
          4   press --
          5       A.   Yes.
          6       Q.   -- you read a good deal of those press 
          7   accounts, did you not?
          8       A.   I did.
          9       Q.   And in fact, some of the decisions you made 
         10   or actions you took were prompted by that press 
         11   reaction, were they not?
         12       A.   They were prompted by my reaction to the 
         13   press; not the press reaction, but...
         14       Q.   Are you finished?
         15       A.   Yeah, I think so.
         16       Q.   In any event, you informed yourself by 
         17   reading the press and by listening to what was going 
         18   on in the media; isn't that so?
         19       A.   Amongst other things.
         20       Q.   Yes.
         21            MR. WARE:  Your Honor, I offer at this time 
         22   the newspaper articles that have been marked in the 
         23   case.  I previously offered the complaints.  I now 
         24   offer the newspaper articles.
 0103
          1            MR. EGBERT:  That's fine, Judge, if he 
          2   shows them to her and asks if these are the ones she 
          3   read.  If the basis of offering the newspaper 
          4   articles is that she read them and based some 
          5   decisions, then she should look at them and see 
          6   which ones she's talking about.
          7            MR. WARE:  I don't plan to do that.  And 
          8   the reason is several-fold.  First of all, the Judge 
          9   may or may not have read some.  One of the issues 
         10   here is what in fact was the public reaction -- to 
         11   what extent did the public believe that the Judge's 
         12   conduct tended to promote the integrity and 
         13   impartiality of the judiciary. 
         14            And so that public reaction is -- it may be 
         15   wrong, but it is in fact relevant.  So the newspaper 
         16   articles are among the evidence which tends to shed 
         17   some light on that question, and they're relevant 
         18   for that reason.  
         19            I would add that they are not offered for 
         20   the truth of the matter.  So the same hearsay issue 
         21   that we discussed with respect to the complaints is 
         22   at issue here.
         23            MR. EGBERT:  Judge, if we're going to 
         24   engage in, quote, public reaction to a judge's act 
 0104
          1   by a newspaper, which the Commission says to you 
          2   they're not offered for the truth of the statements 
          3   therein, then we are running this judicial system by 
          4   the Herald and the Globe.  It is purely incompetent 
          5   evidence to put before this Court that some 
          6   newspapers were writing articles that they didn't or 
          7   did like the sentence or they were rousing up people 
          8   to like or not like the sentence. 
          9            The conduct is what is at issue, and it's 
         10   an issue from an objective standard as to whether or 
         11   not that conduct is such as to affect the public 
         12   confidence, to use a paraphrasing of the canon.  
         13            It seems to me -- it seemed that the 
         14   original offer -- did you read these and make some 
         15   judgments, acted upon them -- is relevant.  I didn't 
         16   argue against that, if in fact she read certain 
         17   articles and made certain actions based on that. 
         18            But if newspaper articles are being offered 
         19   by the Commission to show that the Judge's conduct 
         20   affected the public's confidence in the judiciary 
         21   and the like, then that gives to the newspapers a 
         22   power that is so far beyond anything anticipated by 
         23   the rules, that I would object to it, particularly 
         24   because it does not apply to the objective standard, 
 0105
          1   which is the law, not the subjective standard of 
          2   what one person thinks.
          3            HEARING OFFICER DAHER:  Last word?  
          4   Anything else you want to add? 
          5            MR. WARE:  Yes, Your Honor.  Obviously in 
          6   this courtroom press attention, press response has 
          7   been relevant.  Indeed, that's the whole purpose of 
          8   the statement that the Judge put out on September 
          9   7th, was to cause a certain type of reaction to 
         10   occur --
         11            HEARING OFFICER DAHER:  Mr. Egbert, I'm 
         12   very much inclined to accept Mr. Ware's 
         13   representations.  What we're dealing with here is 
         14   the words that have been used, "a media circus," 
         15   "firestorm," "media frenzy."  The objection is 
         16   overruled.  They may go in.  Let's go.
         17            MR. EGBERT:  Then, Judge, if we're going to 
         18   do it -- and you've already ruled you're going to -- 
         19   then make him put in all the articles that were in 
         20   all the press in New England at that time concerning 
         21   these matters; good, bad and indifferent. 
         22            HEARING OFFICER DAHER:  Mr. Ware, to make 
         23   that all inclusive, Mr. Egbert's argument is, look, 
         24   everything that's been out there, you want to put it 
 0106
          1   in, put it all in; not selectively put in what you 
          2   want to put in.
          3            MR. WARE:  Your Honor, I've put in certain 
          4   articles.  I don't think they're skewed one way or 
          5   the other.  If defense counsel has other articles he 
          6   wants to offer, I'm not objecting to that.
          7            HEARING OFFICER DAHER:  Get them and I'll 
          8   put them in.
          9            THE CLERK:  What is it you'll be offering? 
         10            MR. WARE:  The exhibits that I'm offering 
         11   at this time are Exhibits 10 through 14, Exhibits 20 
         12   and 21, Exhibit 30, Exhibit 33, Exhibit 34 through 
         13   Exhibit 40, and Exhibits 43, 44 and 46.
         14            THE CLERK:  44 and 46 have already been 
         15   admitted before.
         16            HEARING OFFICER DAHER:  What is 44?
         17            THE CLERK:  44 is the transcript.
         18            HEARING OFFICER DAHER:  That's why I'm a 
         19   little puzzled. 
         20            MR. WARE:  Judge, I would like to hand 
         21   you --
         22            HEARING OFFICER DAHER:  Again, if we could 
         23   just have one moment, Mr. Ware.  Exhibit 44 is a 
         24   transcript.  And now you're indicating that it's 
 0107
          1   a --
          2            MR. BRACERAS:  That's already been 
          3   admitted.
          4            MR. WARE:  If I said 44, I was mistaken.  
          5   That is in evidence.
          6            HEARING OFFICER DAHER:  So you're going to 
          7   put in 43.  44 is out --
          8            MR. BRACERAS:  It's already in.
          9            HEARING OFFICER DAHER:  I understand, but 
         10   the offer you just made with regards to a newspaper 
         11   article, it's already in.  I agree with you.
         12            MR. WARE:  I should have said 43 and 46.
         13            HEARING OFFICER DAHER:  Okay.  That's fine. 
         14                 (Documents marked as Exhibits 10-14, 
         15                 20, 21, 30, 33, 34-40, 43 and 46 moved 
         16                 into evidence)
         17            MR. WARE:  Could I have this document 
         18   marked Exhibit 8 for identification. 
         19                 (Document marked as Exhibit 66
         20                 for identification)
         21       BY MR. WARE: 
         22       Q.   Judge, I place before you another excerpt 
         23   from the "Diagnostic and Statistical Manual of 
         24   Mental Disorders," a different excerpt which was 
 0108
          1   admitted during the course of your testimony 
          2   earlier.  Do you recognize that?
          3       A.   I don't have one in front of me.
          4       Q.   Pardon me? 
          5       A.   Did you place it in front of me already? 
          6       Q.   Perhaps not.  It's not in the book. 
          7            MR. EGBERT:  Judge, may we approach?  
          8            HEARING OFFICER DAHER:  Sure.
          9            (At sidebar)
         10            MR. EGBERT:  I object to placing before the 
         11   Judge the evidence on pedophilia.  This is not a 
         12   case of deciding whether or not there was right and 
         13   various matters that she decided.  It is about 
         14   looking at information that was before her at the 
         15   time.  Now we're going to put before her the matter 
         16   out of the DSM on pedophilia, which everybody 
         17   recognizes was never put before her, was never 
         18   argued to do her, was never given to her, and have 
         19   some kind of discussion as to whether or not --
         20            HEARING OFFICER DAHER:  Go ahead.
         21            MR. WARE:  The defense put this in issue.
         22            HEARING OFFICER DAHER:  I'm afraid you did, 
         23   Mr. Egbert.
         24            MR. EGBERT:  I put in issue what's in the 
 0109
          1   report.  This is not someone who will be a 
          2   recidivist and not someone who was impulsed in that 
          3   regard.  That was information that was before her on 
          4   which she drew inferences.
          5            MR. WARE:  I disagree.
          6            HEARING OFFICER DAHER:  Let him finish.
          7            MR. EGBERT:  This is for the press.  This 
          8   isn't anything about this case.  It's once again for 
          9   the press.  The Judicial Conduct Commission has 
         10   tried this case.  If you want to put it in, Judge, 
         11   if you want to have a go-around in this regard, I'll 
         12   tell you what my next request is.  My next request 
         13   is I wish to call -- to subpoena psychiatrists and 
         14   psychologists and leave out the long-standing 
         15   discussion of pedophilia.  This information was 
         16   never put before her. 
         17            HEARING OFFICER DAHER:  I understand what 
         18   you're trying to tell me.  You've benefited from the 
         19   examination of your client and now you want to bar 
         20   it --
         21            MR. EGBERT:  We limited ourselves.
         22            HEARING OFFICER DAHER:   You may have your 
         23   psychiatrists and psychologists.  Let's go.
         24            (End of sidebar)
 0110
          1       BY MR. WARE:
          2       Q.   Have you had an opportunity to look over 
          3   that section of the "Diagnostic and Statistical 
          4   Manual" that I've placed before you?
          5       A.   Correct.
          6       Q.   You have said repeatedly in response to Mr. 
          7   Egbert's questions that Mr. Horton was not a 
          8   predatory pedophile, have you not?
          9       A.   Yes.
         10       Q.   And you've also said, in effect, that 
         11   there's not a shred of evidence or indication in the 
         12   case or in the report of a social worker consistent 
         13   with pedophilia; isn't that right?
         14       A.   Correct.
         15       Q.   Now, looking at Section 302.2 which 
         16   purports to discuss pedophilia with the "Diagnostic 
         17   and Statistical Manual," it says in the first 
         18   paragraph that the focus of pedophilia involves 
         19   "sexual activity with a prepubescent child 
         20   (generally age 13 years or younger).  The individual 
         21   with pedophilia must be 16 years or older and at 
         22   least five years older than the child."  Do you see 
         23   that?
         24       A.   Yes, I do.
 0111
          1       Q.   Now, Mr. Horton -- or the facts in the 
          2   Horton case meet those criteria, do they not?
          3       A.   No, they do not.
          4       Q.   Let me ask you.  You would agree that Mr. 
          5   Horton was over 16 years of age, correct?
          6       A.   Yes.
          7       Q.   And you would agree that he was more than 
          8   five years older than the 11-year-old?
          9       A.   Yes.
         10       Q.   So far he meets those criteria, correct?
         11       A.   Yes.
         12       Q.   You would agree that the victim in this 
         13   case was 13 years or younger, correct?
         14       A.   Not according to Mr. Horton's perceptions.  
         15   And that's the key here. 
         16       Q.   So you're saying that you have some basis 
         17   for concluding that Mr. Horton thought this child 
         18   was older?
         19       A.   In his statement to the police I believe 
         20   the defendant stated that she believed the child was 
         21   14 or older.  I've never seen the child, but I think 
         22   that is critical to whether or not this defendant 
         23   was focused on prepubescent children.
         24       Q.   You knew from the representations made to 
 0112
          1   you by the district attorney's office that at most, 
          2   the child was 12; isn't that so?
          3       A.   Correct, but I've had children -- I've had 
          4   two boys, Mr. Ware, and I know that that's a tough 
          5   age to gauge sometimes, depending on hormonal 
          6   activity.
          7       Q.   So were you making a personal judgment that 
          8   although this child was represented to you to be 12, 
          9   that he was not prepubescent?
         10       A.   No.  I was making the judgment that the 
         11   defendant in this case believed the child to be 
         12   older.
         13       Q.   And why, may I ask, would you accept the 
         14   word of the defense counsel on that in a contested 
         15   proceeding, as opposed to looking at the tape or 
         16   inquiring of the victim or his family?
         17       A.   It wasn't a representation by counsel.  It 
         18   was in the statement the defendant gave to police 
         19   during the arrest.
         20       Q.   And are you saying that you are not 
         21   familiar with the phenomenon that arrested 
         22   defendants don't always tell the police the truth?
         23       A.   I am very familiar with that phenomenon.
         24       Q.   All right.  Now, in the real world, you 
 0113
          1   know that arrested defendants commonly lie in their 
          2   statements, don't you?
          3       A.   Absolutely.
          4       Q.   And you knew in this case that, in fact, 
          5   Mr. Horton had lied, because he admitted doing so 
          6   when you took the plea; isn't that correct?
          7       A.   He agreed -- I disagree with that.  
          8       Q.   You will recall your testimony last week in 
          9   which you and I went over the three, I think we 
         10   agreed, relatively minor points with which the 
         11   defendant disagreed when he heard the recitation of 
         12   facts by the district attorney; isn't that correct?
         13       A.   That were audible on the tape, yes.
         14       Q.   And among the things represented by the 
         15   district attorney with which the defendant did not 
         16   disagree was that he had made false statements to 
         17   the police; isn't that correct?
         18       A.   He agreed with that? 
         19       Q.   Yes. 
         20       A.   I don't think he was ever asked to agree 
         21   that he made false statements to the police.
         22       Q.   The district attorney characterized him as 
         23   having made false statements to the police.  The 
         24   district attorney read to you what his statements to 
 0114
          1   the police were, and the defendant didn't say, 
          2   "That's incorrect," did he?
          3       A.   But those were not necessary -- he didn't 
          4   need to admit to that in order for me to take that 
          5   plea.  Those were irrelevant.
          6       Q.   We're not talking about what was necessary 
          7   for you to accept the plea.  The point is --
          8            MR. EGBERT:  I object.  The questioning 
          9   today, or the subject matter, is in a vacuum.  It is 
         10   not in the context of a criminal proceeding.  To go 
         11   round and round on this subject matter is really 
         12   misrepresentative of what goes on in a criminal 
         13   plea.
         14            HEARING OFFICER DAHER:  Mr. Ware, do you 
         15   want to argue that point? 
         16            MR. WARE:  No, Your Honor.
         17            HEARING OFFICER DAHER:  Do you want to 
         18   continue this line of questioning? 
         19            MR. WARE:  Yes. 
         20            HEARING OFFICER DAHER:  Overruled.
         21       BY MR. WARE:
         22       Q.   You agree, do you not, that during the 
         23   course of the plea which you accepted, there were 
         24   representations that the defendant had lied to the 
 0115
          1   police?
          2       A.   Yes, Mr. Deakin made that representation.
          3       Q.   And when you asked the defendant, "Is there 
          4   anything that's been said during the course of the 
          5   factual basis proffered by the assistant district 
          6   attorney," no issue was taken with what Mr. Deakin 
          7   said as regards to false statements; isn't that 
          8   true?
          9       A.   There was no need to take issue with those.
         10       Q.   Was any issue taken by the defendant?  Yes 
         11   or no?
         12       A.   No, there weren't.
         13       Q.   Let's go back to Section 302.2.  The 
         14   "Diagnostic and Statistical Manual" goes on to 
         15   describe -- and I've put a section of it on the 
         16   screen -- certain characteristics of individuals 
         17   with pedophilia.  And those characteristics include 
         18   precisely the fact pattern of the Horton case, do 
         19   they not?
         20       A.   Absolutely not.
         21       Q.   Let me direct you to the language halfway 
         22   through --
         23            MR. EGBERT:  Direct her to the first line.  
         24   You said those criteria is exactly what this case 
 0116
          1   is.  So why don't you direct her to the first line 
          2   and let her read it.
          3            MR. WARE:  May I continue? 
          4            HEARING OFFICER DAHER:  Overruled.  Go 
          5   ahead.
          6       BY MR. WARE:
          7       Q.   Do you see the sentence, Judge, that begins 
          8   towards the bottom of what's highlighted here, 
          9   "Others, however," and it goes on to say that 
         10   "consistent with pedophilia is acts which penetrate 
         11   the child's mouth with their fingers or foreign 
         12   objects."  Do you see that?
         13       A.   Yes.
         14       Q.   Those are among the examples given by the 
         15   DSM-IV, correct?
         16       A.   Of the sexual activity with children, yes.
         17       Q.   And you understood that that's exactly what 
         18   happened here; that the victim's mouth was 
         19   penetrated allegedly by a screwdriver and by the 
         20   fingers of the defendant; isn't that correct?
         21       A.   Mr. Ware, this says "performed fellatio or 
         22   cunnilingus."  The screwdriver is outside of that.
         23       Q.   It refers, does it not, Judge, to 
         24   penetration of the child's mouth with fingers or 
 0117
          1   foreign objects?  Do you see that?
          2       A.   Yes, it says "foreign objects."
          3       Q.   And it goes on to say, the next sentence 
          4   "these activities are commonly explained with 
          5   excuses or rationalizations," and then it goes on, 
          6   correct?
          7       A.   Yes.
          8       Q.   And the facts as you understood them in 
          9   this case were that the Defendant Horton in fact 
         10   represented that he was looking for his son; and in 
         11   so doing, he was able to get the child into the car, 
         12   correct?
         13       A.   There's a dispute as to how the child got 
         14   into the car, but those were the facts that the DA 
         15   represented during the plea and to which the 
         16   defendant took no issue.
         17       Q.   All right. 
         18            The language here goes on to say -- I'm 
         19   looking two-thirds of the way down the page to a 
         20   sentence beginning, "Others."   Do you see the 
         21   sentence which reads, "Others, particularly those 
         22   who frequently victimize children, develop 
         23   complicated techniques for obtaining access to 
         24   children..."  Do you see that?
 0118
          1       A.   Yes, but -- yes. 
          2       Q.   And one of the things, as you understood 
          3   it, that happened here was Mr. Horton, dressed as a 
          4   woman, said that he was looking for his child and 
          5   offered the victim money; isn't that correct?
          6       A.   Those were the facts that the defendant did 
          7   not dispute, yes.
          8       Q.   The "Diagnostic and Statistical Manual" 
          9   goes on to say, about five lines down further, with 
         10   the sentence that begins, "Except in cases," and it 
         11   goes on to say in part, "The person may be attentive 
         12   to the child's needs in order to gain the child's 
         13   interest and to prevent the child from reporting the 
         14   (sexual) activity."  Those two are things as to 
         15   which the defendant did not disagree when you took 
         16   the plea; isn't that so?
         17       A.   I don't think I understand the question.  I 
         18   don't think those were issues in the factual 
         19   presentation at all.
         20       Q.   One of the representations made by the 
         21   district attorney was that the defendant gave the 
         22   child money and asked him to be quiet; isn't that 
         23   so?
         24       A.   That was disputed at the plea, what the 
 0119
          1   purpose of the money was for.
          2       Q.   Right.  That was disputed?
          3       A.   That was disputed.  So that was not a fact 
          4   that would have been considered for purposes of 
          5   accepting the plea, nor did it need to be for the 
          6   charges involved.
          7       Q.   All right. 
          8            In your testimony or your responses to 
          9   questions by Mr. Egbert, you mentioned two letters 
         10   which you received at some time marked in this case 
         11   Exhibits H and I.  Do you recall that?
         12       A.   Yes, I do.
         13       Q.   And those were letters which I understand 
         14   from your testimony were sent to you at the 
         15   courthouse, correct?
         16       A.   That's right.
         17       Q.   Those letters --
         18            MR. WARE:  Your Honor, actually I should 
         19   interrupt myself here.  I would like to offer the 
         20   DSM-IV as Exhibit 8.  It's marked for identification 
         21   at the moment.
         22            MR. EGBERT:  I object on the same grounds.
         23            HEARING OFFICER DAHER:  Overruled.  Mark it 
         24   as Exhibit 66.  Do you have the two letters now, H 
 0120
          1   and I?
          2            MR. WARE:  Just so the record is not 
          3   confused, I indicated marking it as Exhibit 8.  Do 
          4   you want it marked 66?
          5            THE CLERK:  That was my fault.
          6            HEARING OFFICER DAHER:  It's already in? 
          7            CHECK THE CLERK:  No, it was intentionally 
          8   omitted.
          9            MR. WARE:  I was filling in some of the 
         10   blanks.
         11            HEARING OFFICER DAHER:  What is it now for 
         12   my records? 
         13            THE CLERK:  It's Exhibit 8, but it's not 
         14   admitted.  I didn't hear him say "8."
         15            MR. WARE:  Exhibit 8 was a blank space in 
         16   the exhibit numbers.  I was filling it in with this 
         17   exhibit.
         18            THE CLERK:  So the whole point of Exhibit 
         19   66 is wrong.  It was 8 for ID and will now be 
         20   Exhibit 8. 
         21                 (Document previously marked as Exhibit 
         22                 66 for identification moved into 
         23                 evidence as Exhibit 8)
         24       BY MR. WARE: 
 0121
          1       Q.   The letters to which I'm referring, 
          2   Exhibits H and I, came to you in plain envelopes,  
          3   I guess, with a return address that you 
          4   subsequently -- or your court officer subsequently 
          5   believed was a fictitious address; is that right?
          6       A.   No, the address was not fictitious.  There 
          7   was such a business.  There was no one by the name 
          8   of the people who signed the letters at that 
          9   business.  So the address was -- the return address 
         10   was to a legitimate place.
         11       Q.   But the individual who purported to sign 
         12   the letters didn't appear to exist --
         13       A.   They did not exist, no.
         14       Q.   These letters came in plain envelopes with 
         15   a return address?
         16       A.   Yes, with a stamped kind of return address. 
         17       Q.   They did not come, obviously, in a 
         18   Commission envelope, like the Beaucage complaint, 
         19   for example?
         20       A.   No. 
         21       Q.   When you received the Beaucage complaint in 
         22   October, late October or the first of November 
         23   2001 -- excuse me --`2000, you received that, you 
         24   said, in a Commission envelope; is that correct?
 0122
          1       A.   I did.
          2       Q.   The letters that you received at court you 
          3   gave to a court officer, correct?
          4       A.   Yes.
          5       Q.   And you told the court officer to try to 
          6   verify whether or not the individuals who claim to 
          7   have signed the letters existed at those addresses; 
          8   is that right?
          9       A.   That's correct.
         10       Q.   And so you had the court officer make phone 
         11   calls to do what he could to verify the existence of 
         12   those authors, correct?
         13       A.   Yes.
         14       Q.   You did not make those calls yourself, 
         15   correct?
         16       A.   No, I did not.
         17       Q.   And you did not ask Mr. Hart or anyone else 
         18   to make those calls at night, at 11:00, right?
         19       A.   No.  I wouldn't be in court at that time.
         20       Q.   So at the time you received the Beaucage 
         21   complaint on November 1, you already had an 
         22   established mechanism for dealing with what you 
         23   thought were fictitious complaints, right?
         24       A.   No, those weren't complaints.  Those were 
 0123
          1   letters.
          2       Q.   They were letters in which there were 
          3   complaints about your conduct, correct?
          4       A.   You know, I don't even think they 
          5   complained about my conduct.  They just said nasty 
          6   things about me.  It was nonspecific nastiness.
          7       Q.   Let me ask you to look at Exhibits H and I. 
          8       A.   I don't have them.
          9       Q.   They would not be in that book.  They were 
         10   defense exhibits. 
         11            Why don't we look on together, because I 
         12   don't have another copy. 
         13            Directing your attention to Exhibit H, it 
         14   is specific to what it characterizes as "the child 
         15   attacker Ebony," does it not?
         16       A.   Yes.
         17       Q.   And it goes on to make comments about you 
         18   and your moral values and so forth; is that correct?
         19       A.   And my husband, yes.
         20       Q.   You understood that that was in response to 
         21   the Horton case, since it says so; is that correct?
         22       A.   Oh, I knew that the Horton case was the -- 
         23   yeah. 
         24       Q.   And Exhibit I says that people are 
 0124
          1   "disgusted with your work," and it refers to Mr. 
          2   Horton in the final line, does it not?
          3       A.   Yes.
          4       Q.   Both of these, then, were, you understood 
          5   to be in the nature of, whether crank letters or 
          6   complaints, resulting from the sentence in the 
          7   Horton case, correct?
          8       A.   Yes.
          9       Q.   And the way you handled them was to give 
         10   them to a sworn officer of the court and have him 
         11   check them out, correct?
         12       A.   Yes.
         13       Q.   So that prior to the time that you received 
         14   the Beaucage complaint in an official envelope from 
         15   the Commission on Judicial Conduct, you had already 
         16   put in place a mechanism for dealing with crank 
         17   letters or complaints, correct?
         18       A.   Well, I guess I had a methodology that was 
         19   used by my court officer on that occasion.  So, I 
         20   mean, I don't know what you mean, "put in place."
         21       Q.   Well, your court officer certainly didn't 
         22   check out those complaints without your telling him 
         23   to do it; isn't that so?
         24       A.   That's right.
 0125
          1       Q.   So you're the one who said to the court 
          2   officer, Take these letters and find out if you can 
          3   find these people, correct?
          4       A.   That's right.
          5       Q.   You certainly could have done that with the 
          6   Beaucage complaint, couldn't you?
          7       A.   I mean, yes, in the scheme of things, I 
          8   could have taken it into court and asked my court 
          9   officer to call.  I could have, yes.
         10       Q.   Or, as you said last week, you could have 
         11   given it to your counsel to investigate; isn't that 
         12   so?
         13       A.   I could have had my lawyer call that 
         14   number, yes.
         15       Q.   Or as another alternative, you could have 
         16   mentioned it to the Commission on Judicial Conduct, 
         17   which is supposed to screen complaints; isn't that 
         18   correct?
         19       A.   They're supposed to screen them before they 
         20   even send them to me.
         21       Q.   So when you received the Beaucage 
         22   complaint, you knew that it had, at least 
         23   theoretically, already gone through a screening 
         24   process, correct?
 0126
          1       A.   I didn't know that.  I know that that's 
          2   what they're supposed to do.
          3       Q.   Well, two months into the investigation, 
          4   you certainly had become familiar enough with the 
          5   process to know that the Commission was supposed to 
          6   screen complaints, right?
          7       A.   I know that the rules require them to do an 
          8   initial screening before they send it to the judge, 
          9   yes.
         10            MR. WARE:  If I may have just a moment, 
         11   Your Honor. 
         12            (Pause)
         13            MR. WARE:  I have no further questions at 
         14   the moment.  Thank you, Judge Lopez.
         15            HEARING OFFICER DAHER:  Mr. Egbert, go 
         16   ahead.
         17            Mr. Egbert, if you need a few minutes -- we 
         18   can go as long as you want today. 
         19            MR. EGBERT:  No, that's fine. 
         20                    RECROSS EXAMINATION
         21       BY MR. EGBERT: 
         22       Q.   Judge, you were asked about Mr. Horton 
         23   being held in jail and comparing that to a 
         24   dangerousness hearing and the like.  Do you recall 
 0127
          1   all of those questions?
          2       A.   I remember that.
          3       Q.   Let's talk about bail and dangerousness 
          4   hearings and the like, so we get some understanding 
          5   of what they're about.  Is that okay?
          6       A.   Yes.
          7       Q.   Is a Superior Court judge permitted to hold 
          8   a person on bail because of dangerousness?
          9       A.   Yes.
         10       Q.   And when are they permitted to do that?
         11       A.   When the prosecution establishes that the 
         12   individual presents a danger to the public-at-large, 
         13   such as a pedophile, or to a particular individual.
         14       Q.   And what must a prosecutor do in order to 
         15   have a judge hold a person on bail because of 
         16   dangerousness?
         17       A.   Without bail, you mean? 
         18       Q.   Without bail or on conditions that are -- 
         19   strike that.  Let me go back. 
         20            What must a prosecutor do in order to get a 
         21   judge to hold a defendant on a finding of 
         22   dangerousness?
         23       A.   Must produce evidence from whatever source 
         24   is available --
 0128
          1       Q.   Let me stop you first.  Procedurally what 
          2   do they have to do first?
          3       A.   They have to file a petition requesting a 
          4   hearing --
          5       Q.   A hearing on what?
          6       A.   On the dangerousness request, to determine 
          7   the dangerousness issue.
          8       Q.   Without a motion by the Commonwealth or on 
          9   the Court's own motion?
         10       A.   No.  It's got to be on the Commonwealth's.
         11       Q.   Without that, can a Superior Court judge 
         12   hold a defendant on the grounds of dangerousness?
         13       A.   No.
         14       Q.   Is it constitutionally permissible?
         15       A.   It would be unconstitutional for the Court 
         16   to play that role.
         17       Q.   Is it statutorily permissible?
         18       A.   No, it isn't.
         19       Q.   Is there a statute in the Commonwealth of 
         20   Massachusetts directly on the issue of whether or 
         21   not a court may hold a defendant because they're a 
         22   danger to the community?
         23       A.   There is a statute that allows a court, 
         24   based on a request in the recitation of evidence, to 
 0129
          1   determine whether someone is a danger and should be 
          2   held without bail awaiting trial.
          3       Q.   That is done first at the request and 
          4   motion of the Commonwealth, correct?
          5       A.   Right at the very beginning of the case, 
          6   yes.
          7       Q.   And then the defendant is entitled to a 
          8   full hearing, correct?
          9       A.   Right, an evidentiary hearing.
         10       Q.   And then the Court has to make findings, 
         11   correct?
         12       A.   Correct.
         13       Q.   Was any of that done in the case of Charles 
         14   Horton?
         15       A.   No.
         16       Q.   Did the prosecutors file a petition that a 
         17   court hold Mr. Horton because he is a danger to the 
         18   community?
         19       A.   No.
         20       Q.   What is the purpose of bail when danger is 
         21   not an issue?
         22       A.   The purpose of bail is to assure that a 
         23   defendant will show up for trial, for the 
         24   proceedings.  It is not to hold them or to impose a 
 0130
          1   bail that they can't make in order to protect the 
          2   public.
          3       Q.   Could a court impose a bail with the 
          4   purpose of protecting the public from a dangerous 
          5   person without forwarding that person a hearing 
          6   where they can produce evidence and the Court must 
          7   make findings?
          8       A.   No.  It would be unconstitutional for them 
          9   to do that.
         10       Q.   The fact that Ebony Horton spent a month in 
         11   jail on -- strike that. 
         12            The fact that Ebony Horton spent a month in 
         13   jail without having made bail, is that in any way a 
         14   finding by any court that Ebony Horton was a danger 
         15   to the community?
         16       A.   Absolutely not.
         17       Q.   When Ebony Horton was released from jail 
         18   some month after having accumulated the money to 
         19   make bail --
         20       A.   Yes.
         21       Q.   -- did the Commonwealth seek to have Ebony 
         22   Horton held because he was a danger to the 
         23   community?
         24       A.   No.
 0131
          1       Q.   Now, in your opinion as a judge, is a 
          2   predatory pedophile a danger to the community?
          3       A.   Absolutely.
          4       Q.   And if the Commonwealth had evidence that 
          5   Ebony Horton was a predatory pedophile, would you 
          6   have expected that they would have sought a 
          7   dangerousness hearing? 
          8            MR. WARE:  Objection.
          9            HEARING OFFICER DAHER:  I want to hear it.  
         10   Overruled.  Go ahead, Mr. Egbert.
         11       A.   Absolutely.
         12       Q.   Would you consider it to be their 
         13   obligation?
         14       A.   It would be their obligation and 
         15   responsibility to the public to do that.
         16       Q.   A predatory pedophile is a person who can 
         17   not control their impulses to sexually assault 
         18   children, correct?  In short?
         19            MR. WARE:  Objection.
         20            HEARING OFFICER DAHER:  What's the 
         21   objection?
         22            MR. WARE:  To Mr. Egbert's expert 
         23   testimony.
         24            HEARING OFFICER DAHER:  Sustained. 
 0132
          1       Q.   Well, describe for me, as you understand 
          2   it, without getting into the mumbo jumbo of the DSM 
          3   for a minute, what you understand -- when you talk 
          4   about a predatory pedophile, what you mean?
          5       A.   Predatory pedophiles are individuals who 
          6   have an uncontrollable impulse, a fixation on 
          7   children.  And it varies.  Different pedophiles have 
          8   different focus.  But it is an uncontrollable urge 
          9   and impulse to engage in sexual activity with 
         10   children, and -- which is mentioned in the DSM -- 
         11   that they engage in all types of justifications and 
         12   rationalizations for their behavior.  They don't 
         13   acknowledge it as wrong.  They never show remorse. 
         14            So a pedophile would be someone that 
         15   actually believes it's appropriate -- if not even 
         16   good -- for the child to be engaged in that way. 
         17       Q.   And that is the type of person who -- not 
         18   the type of person -- strike that.  I didn't mean it 
         19   like that. 
         20            A person with such a condition would be, 
         21   based upon that condition, unable to control those 
         22   impulses without intervention; is that correct?
         23       A.   That's correct.
         24       Q.   That's by definition, isn't it?
 0133
          1       A.   That's correct.
          2       Q.   Now, if the Commonwealth of Massachusetts 
          3   through its district attorney's office had 
          4   information that Ebony Horton was a person who had 
          5   an uncontrollable impulse to sexually assault 
          6   children under the age of 14, would you have 
          7   expected that they would have told you that?
          8            MR. WARE:  Objection as to what the 
          9   Commonwealth of this attorney would have done.  
         10   That's for them to say.
         11            HEARING OFFICER DAHER:  Overruled.  I want 
         12   to hear it.  Go ahead. 
         13       A.   I would have expected to, and at a minimum, 
         14   if they even had that thought in mind, they should 
         15   have evaluated the defendant to make that 
         16   determination.
         17       Q.   Well, would you have thought that they 
         18   would have brought it to your attention during a 
         19   sentencing conference or a sentencing hearing?
         20       A.   Absolutely.
         21       Q.   Has any member of the district attorney's 
         22   staff ever at any time during the proceedings in 
         23   these cases -- not in press releases; in the 
         24   proceedings in these cases -- ever informed you that 
 0134
          1   they had evidence that Ebony Horton was a predatory 
          2   pedophile?
          3       A.   No. 
          4       Q.   Did they argue it in open court?
          5       A.   No.
          6       Q.   Did they provide you with any reports of 
          7   such information?
          8       A.   No.
          9       Q.   Do you have Mr. Horton's criminal record in 
         10   front of you?
         11       A.   I do.
         12       Q.   That was submitted in evidence without 
         13   comment.  Let's see if we should comment on it a 
         14   bit. 
         15       A.   Okay.
         16       Q.   The first page of that report indicates 
         17   one, two, three, four five juvenile entries, 
         18   correct?
         19       A.   Yes.
         20       Q.   And as to each of those five juvenile 
         21   entries, can you tell the Judge what the disposition 
         22   was?
         23       A.   All those cases were dismissed.  It appears 
         24   we had two incidents, one on 11/23/94 -- that's the 
 0135
          1   date of arraignment -- those involving four charges 
          2   that were dismissed, and then another incident 
          3   before that that was also dismissed.
          4       Q.   And as regards to those cases, from the 
          5   looks of them -- strike that. 
          6            With regards to those cases, each having 
          7   been dismissed, are you able to draw any conclusions 
          8   from those as a judge?
          9       A.   No.
         10       Q.   Did anyone from the DA's office ever ask 
         11   you to draw any conclusions from the juvenile court 
         12   record?
         13       A.   No.  And I don't think they're included in 
         14   the Superior Court probation records, in fact.
         15       Q.   The information provided to you at the 
         16   time?
         17       A.   Yeah.  They don't provide juvenile records.
         18       Q.   Now, with regard to the adult record -- do 
         19   you see that?
         20       A.   Yes.
         21       Q.   Let's start -- because chronologically you 
         22   start at the second page, because that's where it 
         23   begins; is that right?
         24       A.   Yes.
 0136
          1       Q.   The first entry on the bottom for 
          2   3/21/95 -- do you see that?
          3       A.   Yes.
          4       Q.   What's the finding on that case?
          5       A.   "Not guilty."
          6       Q.   Is that a criminal record?
          7       A.   No.
          8       Q.   And then there's an entry above that.  
          9   What's the result in that case?
         10       A.   "Dismissed."
         11       Q.   Is that a criminal record?
         12       A.   No.
         13       Q.   And then you have a number of cases -- two 
         14   cases that were continued without a finding and 
         15   dismissed, correct?
         16       A.   Correct.
         17       Q.   Is that a criminal record?
         18       A.   No.
         19       Q.   And then you have just above that a matter 
         20   that was filed, correct?
         21       A.   Correct.
         22       Q.   Is that a criminal record?
         23       A.   No, it's not.
         24       Q.   When I say "criminal record," we mean 
 0137
          1   record of conviction; is that correct?
          2       A.   That's right.  There was an adjudication on 
          3   that.  That one was filed clearly by the DA's 
          4   office.
          5       Q.   And on the next one above that, what was 
          6   the disposition?
          7       A.   Dismissed.
          8       Q.   Is that a criminal conviction?
          9       A.   No.
         10       Q.   And then the next one above that, it was a 
         11   shoplifting.  What is the disposition?
         12       A.   Dismissed, CWF'd, Continued Without a 
         13   Finding, and then dismissed.
         14       Q.   And the one above it, the same?
         15       A.   Same thing.
         16       Q.   And is that a criminal conviction?
         17       A.   No.
         18       Q.   Then on the first page we have the -- 
         19   starting from the bottom up --
         20       A.   Yes.
         21       Q.   -- we have one, two, three, four, five, six 
         22   entries, the first six entries.  Do you see those?
         23       A.   Yes.
         24       Q.   Are those all this -- the case that you 
 0138
          1   have before you?
          2       A.   Only five of them is.  The top one --
          3       Q.   Don't go to the top one yet. 
          4       A.   Okay.  Well, no.  The Dorchester District 
          5   Court, that was indicted, so it's dismissed.  It's 
          6   the same case.
          7       Q.   Judge, slow down. 
          8       A.   Okay.
          9       Q.   The Dorchester District Court entry was the 
         10   original arrest on the case that ultimately was 
         11   before you; is that right?
         12       A.   Right.
         13       Q.   And that was dismissed when the indictment 
         14   was returned; is that right?
         15       A.   Correct.
         16       Q.   So the first bottom six entries basically 
         17   all relate to the matter that was before you, don't 
         18   they?
         19       A.   Yes.  Yes.
         20       Q.   And that became, did it not, the first 
         21   adult conviction of Ebony Horton, correct?
         22       A.   Correct.
         23            HEARING OFFICER DAHER:  I have to make a 
         24   phone call to Chief Justice Okara on a matter for 
 0139
          1   five minutes.  I'll be right back.
          2            (Recess)
          3       BY MR. EGBERT:
          4       Q.   So having reviewed the record of Ebony 
          5   Horton, is it true, as a matter of law, that when 
          6   Ebony Horton appeared before you on September 6th of 
          7   the Year 2000, that he had no prior criminal 
          8   convictions at all?
          9       A.   Correct.
         10       Q.   Adult or juvenile?
         11       A.   That's correct.
         12       Q.   Now, you were asked whether or not at a 
         13   dangerousness hearing, under the bail statute the 
         14   victim would be required to testify, correct?
         15       A.   That's right.
         16       Q.   And you said, "Generally that's so," 
         17   correct?
         18       A.   Right.
         19       Q.   If the Commonwealth was so concerned about 
         20   having the victim testify in a proceeding, then 
         21   would it be fair for you to infer that a plea was in 
         22   the juvenile's best interest? 
         23            MR. WARE:  Objection. 
         24            HEARING OFFICER DAHER:  I'm going to allow 
 0140
          1   it.  Overruled.  You may have it.
          2       A.   It would be very fair for me to infer that.
          3       Q.   Now, you were given this social worker's 
          4   report, which is Exhibit 3, I think?
          5       A.   Yeah.
          6       Q.   Now, in the first instance this report was 
          7   given to you by defense counsel, correct?
          8       A.   Correct.
          9       Q.   Who is the party in a criminal case 
         10   responsible -- who are the parties in a criminal 
         11   case responsible for presenting evidence to the 
         12   court?
         13       A.   The lawyers, the DA's office and the 
         14   defense attorney.
         15       Q.   Is it your job, as you understand it, to 
         16   create evidence on your own?
         17       A.   No. 
         18       Q.   We engage in what's called an adversary 
         19   system, correct?
         20       A.   That's right.
         21       Q.   And you understand that that permits both 
         22   parties to put before you, for example, at a plea 
         23   conference, any and all information that they think 
         24   is appropriate?
 0141
          1       A.   That's right.
          2       Q.   If the Commonwealth objected or thought 
          3   that this report was skewed, what would you have 
          4   expected them to do?
          5       A.   Request an opportunity for them to have an 
          6   evaluation done.
          7       Q.   Did they do that?
          8       A.   No.
          9       Q.   Did the Commonwealth at any time argue to 
         10   you that the report that was done by Ms. Katz was 
         11   unreliable?
         12       A.   No.
         13       Q.   Unprofessional?
         14       A.   No.
         15       Q.   Not based on fact?
         16       A.   No.
         17       Q.   Not based on appropriate medical-legal 
         18   opinion?
         19       A.   No, that was never suggested to me by the 
         20   Commonwealth.
         21       Q.   Was there anything suggested to you by the 
         22   Commonwealth at all which indicated you should doubt 
         23   the validity of this report?
         24       A.   Nothing.
 0142
          1       Q.   Did they ever seek to have you order Mr. 
          2   Horton to be examined by their in-house experts?
          3       A.   No.
          4       Q.   Or any experts at all?
          5       A.   No.
          6       Q.   Now, you indicated here that -- you were 
          7   asked questions about whether or not you knew that 
          8   the social worker actually discussed with Mr. Horton 
          9   the events or the behavior -- strike that -- the 
         10   events in this case, correct?  Do you remember those 
         11   questions?
         12       A.   Yes.
         13       Q.   And it's true the report doesn't recite the 
         14   events in the case, does it?
         15       A.   Not explicitly, no.
         16       Q.   And in fact, there hadn't been a plea yet 
         17   in this case when you got this report; isn't that 
         18   right?
         19       A.   That's right.
         20       Q.   Now, would it be appropriate for defense 
         21   counsel, for example, in an case where there's not a 
         22   psychiatric defense, meaning a lack of mental 
         23   responsibility defense -- would it be appropriate 
         24   for defense counsel to submit to the Court and the 
 0143
          1   Commonwealth a confession of the defendant made to 
          2   its expert?
          3       A.   It would not be appropriate.
          4       Q.   And have you ever seen that done in 
          5   circumstances like this?
          6       A.   No.  Only where there's been a waiver of 
          7   the right; not when they present these reports at 
          8   plea stages.
          9       Q.   In other words, when you say "a waiver," in 
         10   cases where the issue is lack of criminal 
         11   responsibility?
         12       A.   Yes.
         13       Q.   So in this case there were certain indicia, 
         14   however, which assured you that the social worker 
         15   had an understanding of the fact that there was a 
         16   criminal case pending and the generalities or the 
         17   specifics of what that criminal case was; isn't that 
         18   correct?
         19       A.   That's right.
         20       Q.   For example, the first part -- or the 
         21   headline, so to speak, says "PSYCHOSOCIAL ASSESSMENT 
         22   AND DISPOSITIONAL PLAN FOR CHARLES EBONY HORTON" 
         23   with a heading that says, "Commonwealth versus 
         24   Charles Ebony Horton," correct?
 0144
          1       A.   Correct.
          2       Q.   Now, you've been around for a number of 
          3   years as a judge.  Beginning with the heading 
          4   "Commonwealth versus Ebony Horton," would you 
          5   believe that that would inform the social worker 
          6   that there was a criminal case pending?
          7       A.   Yes.
          8       Q.   And when that social worker is providing a 
          9   dispositional plan, would that inform you that they 
         10   were talking about some disposition of that criminal 
         11   case?
         12       A.   That's right.
         13       Q.   Now, the first paragraph reads, "I 
         14   interviewed Charles Ebony Horton in December '99 and 
         15   again on July 31, 2000.  There is a marked 
         16   difference in her outlook that includes accepting 
         17   responsibility for showing poor judgment being 
         18   involved with a minor child.  This is behavior that 
         19   will not occur again."  Do you see that?
         20       A.   Yes.
         21       Q.   Does that indicate to you that there was a 
         22   change in Mr. Horton's outlook from December of 1999 
         23   to July of 2000?
         24       A.   Yes.
 0145
          1       Q.   And that that change was to accept 
          2   responsibility for his acts with regard to this 
          3   case?
          4       A.   Yes.
          5       Q.   And on Page 3 -- I'm sorry.  On Page 4 it 
          6   reads, "I find it highly unlikely that Ebony will 
          7   repeat the behavior that brought her to court in 
          8   this case."  Do you see that?
          9       A.   Yes.
         10       Q.   Now, in your experience as a judge in the 
         11   Superior Court, would that indicate to you that this 
         12   social worker had reviewed the allegations in this 
         13   case?
         14       A.   Yes.
         15            MR. WARE:  Objection.  There's no evidence 
         16   what the social worker --
         17            MR. EGBERT:  I'm asking her what her 
         18   impressions are.
         19            HEARING OFFICER DAHER:  You can have it.  
         20   Go ahead. 
         21       A.   Yes.
         22       Q.   And did you have any reason to doubt that?
         23       A.   None. 
         24       Q.   Did the Commonwealth at any time ask you to 
 0146
          1   determine whether or not the social worker had read 
          2   the police reports?
          3       A.   No.
          4       Q.   Or any other reports?
          5       A.   No.
          6       Q.   You were also asked about whether or not 
          7   this report uses the words "gender identity 
          8   disorder," correct?
          9       A.   Correct.
         10       Q.   And it doesn't, does it?
         11       A.   No.  It does refer to gender issues, but it 
         12   doesn't say "gender identity disorder." 
         13       Q.   Let's go through the report and see what it 
         14   does refer to. 
         15            By the way, you have been on the Bench and 
         16   have conducted numerous hearings for what's called 
         17   sexually dangerous persons?
         18       A.   Yes, I have.
         19       Q.   And that's a statute under which a person 
         20   can be committed in the Commonwealth for being 
         21   sexually dangerous in a civil commitment?
         22       A.   That's right, from a day in the life.
         23       Q.   And have you also had proceedings that 
         24   relate to transgendered persons?
 0147
          1       A.   Yes.
          2       Q.   And persons with sexual identity 
          3   disorders -- strike that.  Gender identity 
          4   disorders?
          5       A.   Yes, but not in the context of STP 
          6   hearings.
          7       Q.   But in other proceedings?
          8       A.   Yes.
          9       Q.   Do you know of a sexual identity disorder 
         10   that isn't a gender identity disorder?
         11       A.   No.  You're either a male or female, so 
         12   you're going to want to be one or the other.
         13       Q.   So are they synonymous to you?
         14       A.   Yes.
         15       Q.   So in the first page the report indicates 
         16   that Charles Ebony Horton is "a transgendered 
         17   person," right?
         18       A.   Yes.
         19       Q.   What did that mean to you?
         20       A.   That is a person that wants to be of a 
         21   gender that they are not.  Wants to transfer 
         22   genders, basically.
         23       Q.   And it says, "who looks and feels female," 
         24   correct?
 0148
          1       A.   Correct.
          2       Q.   And then it goes on to say, "She goes by 
          3   the name 'Ebony' and has been treated with female 
          4   hormones for at least a couple of years," right?
          5       A.   Yes.
          6       Q.   Do you know whether or not, when a person 
          7   seeks to reach the level of using female hormones, 
          8   that that is characteristic of a gender identity 
          9   disorder? 
         10            MR. WARE:  Objection.
         11            HEARING OFFICER DAHER:  Sustained.
         12            MR. EGBERT:  Could I have Exhibit M.
         13            THE CLERK:  Exhibit 9.
         14       Q.   Take a look at that and tell me if you see 
         15   anything there that would make the statement that 
         16   she looks and feels female and that she has 
         17   undergone hormone therapy, whether or not anything 
         18   in the DSM would make those statements relevant?
         19            MR. WARE:  I'm going to object.  There's no 
         20   evidence -- in fact, there is evidence that the 
         21   Judge wasn't looking at this at the time that she 
         22   made these decisions.
         23            HEARING OFFICER DAHER:  Overruled.  Go 
         24   ahead.  You may have it. 
 0149
          1       A.   I'm sorry.  Do you want me to compare the 
          2   report --
          3       Q.   I just gave you two statements from the 
          4   report:  That she looks and feels female and she's 
          5   undergone female hormone therapy for a couple of 
          6   years. 
          7       A.   "To have this disorder, there must be 
          8   evidence of a strong and persistent cross-gender 
          9   identification, which is the desire to be or the 
         10   insistence that one is of the other sex." 
         11       Q.   Go to Page 580, please.  Do you see that?
         12       A.   Yes.
         13       Q.   And do you see the differential diagnosis?
         14       A.   Yes.
         15       Q.   And the differential diagnosis is to 
         16   distinguish this particular mental disorder with 
         17   other things; is that correct?
         18       A.   That's right.
         19       Q.   And it starts out by saying, "Gender 
         20   identity disorder can be distinguished from simple 
         21   nonconformity to stereotypical sex role behavior by 
         22   the extent and pervasiveness of the cross-gender 
         23   wishes, interests and activities."  Do you see that?
         24       A.   Yes.
 0150
          1       Q.   Would you say that having female hormone 
          2   therapy is a fairly extensive cross-gender wish?
          3       A.   Absolutely.
          4       Q.   And then if you would read on, it basically 
          5   describes, does it not, those who wish to dress like 
          6   a woman for sexual excitement and the like; is that 
          7   correct?
          8       A.   I'm sorry.  It distinguishes that? 
          9       Q.   I want you to read the part I just gave 
         10   you. 
         11       A.   Okay.  (Witness reviews document)  Yes, 
         12   okay.  It distinguishes, not --
         13       Q.   In other words, the differential diagnosis 
         14   is to differentiate those who really want to be a 
         15   woman and those who want to cross-dress; is that 
         16   right?
         17       A.   Yes.
         18       Q.   And the evidence before you as to use of 
         19   hormone therapy, dressing as a woman since she's 
         20   been a child, acting like a woman, and all the 
         21   various things that are contained in this report, 
         22   are they or are they not indicative to you of the 
         23   gender identity disorder?
         24       A.   Absolutely. 
 0151
          1       Q.   You were asked about -- go to Page 3 of the 
          2   psychological report or psycho-assessment. 
          3       A.   Yes.
          4       Q.   Actually, go to Page 2, if you would.  
          5   Start at the bottom.  "Ebony was in counseling in 
          6   the Sidney Borum Health Center, a project of the 
          7   Justice Resource Institute at 130 Boylston Street," 
          8   correct?
          9       A.   Yes.
         10       Q.   What did that mean to you that she was in 
         11   counseling?
         12       A.   That she was attempting to deal with some 
         13   of the issues concerning her gender identity.
         14       Q.   And when you hear the word "counseling,"  
         15   you didn't think she was going to camp, did you?
         16       A.   No.
         17       Q.   What did you understand that to mean?
         18       A.   Some sort of therapy, therapeutic 
         19   relationship with the counselor.
         20       Q.   With some form of mental health 
         21   professional?
         22       A.   Yes.
         23       Q.   And then it says, "Her counselor left 
         24   sometime ago.  Ebony is in agreement that she needs 
 0152
          1   to return for counseling to help deal with the major 
          2   life issues she confronts."  Do you see that?
          3       A.   Yes.
          4       Q.   What did that mean to you?
          5       A.   It means that she was in need of further 
          6   counseling to come to terms with her life situation. 
          7       Q.   What was her life situation, as you 
          8   understood it?
          9       A.   That she suffered from the sexual identity 
         10   disorder.
         11       Q.   Then it goes on to say that, "Ebony has 
         12   sought out counseling through the Fenway Community 
         13   Health Center."  Do you see that?
         14       A.   Yes.
         15       Q.   What did that mean to you?
         16       A.   That she had gone to the Fenway Community 
         17   Health Center looking for counseling.
         18       Q.   What kind of counseling?
         19       A.   Mental health counseling.
         20       Q.   And are those all statements indicative to 
         21   you of a person with a mental health issue?
         22       A.   Absolutely.
         23       Q.   Then it says, "She was frightened off about 
         24   medication for depression by some horror stories 
 0153
          1   from friends and acquaintances."  Do you see that?
          2       A.   Yes.
          3       Q.   What did that mean to you?
          4       A.   That she had never taken antidepressants 
          5   because she had heard horror stories from friends 
          6   about it.
          7       Q.   And then it says, "I have suggested that 
          8   she return to the agency for both counseling and a 
          9   psychiatric consult.  Ebony has a chronic 
         10   depression, along with suicidal thoughts that 
         11   surface when she is under severe pressure." 
         12            What did you understand that to be about?
         13       A.   That she was chronically depressed with 
         14   suicidal ideation and that she should be in 
         15   counseling and get a consult from a psychiatrist to 
         16   see if they would prescribe some antidepressants.
         17       Q.   And now would you go to the last page -- 
         18   sorry -- next to the last page, and under "Clinical 
         19   Impression," "Ebony is a transgendered individual." 
         20       A.   Yes.
         21       Q.   That doesn't say Ebony is somebody who 
         22   likes to dress up like a girl, right?
         23       A.   No.
         24       Q.   It doesn't say Ebony is someone who likes 
 0154
          1   to play house with dolls?
          2       A.   That's right.
          3       Q.   It says that Ebony is transgendered.  What 
          4   did that mean to you?
          5       A.   That she has a sexual identity disorder 
          6   issue.  She struggles with her sexual identity.
          7       Q.   And in fact, it goes on to say, "She's been 
          8   struggling with gender issues for years," right?
          9       A.   Right.
         10       Q.   Then later it says, "Ebony is also being 
         11   treated with hormone therapy and needs to continue 
         12   with the medication," right?
         13       A.   Correct.
         14       Q.   Who in your understanding or your 
         15   experience are the people who it's appropriate for 
         16   to take female hormone therapy?  What men? 
         17            MR. WARE:  Objection.
         18            HEARING OFFICER DAHER:  Sustained.
         19       Q.   What did that mean to you when it said, 
         20   "She's being treated with hormone therapy and needs 
         21   to continue with the medication"?
         22       A.   That once they embark on this course of 
         23   hormone therapy, it's very important for them to 
         24   continue on it, because she had already acquired the 
 0155
          1   characteristics of the female:  Less hair, voice 
          2   changes, different things that go along with taking 
          3   female hormones by a man.
          4       Q.   Including physical attributes?
          5       A.   Including physical attributes.
          6       Q.   Now, you then have this statement:  "I find 
          7   it highly unlikely that Ebony will repeat the 
          8   behavior that brought her to court in this case."  
          9   Do you see that statement?
         10       A.   Yes.
         11       Q.   Did you have any contrary evidence produced 
         12   by the Commonwealth or the DA's office to the 
         13   statement I just read to you?
         14       A.   None.
         15       Q.   Did anyone seek to produce any information 
         16   to you that Ebony Horton would be a repeat offender?
         17       A.   No.
         18       Q.   Now, you were further asked about the 
         19   words, "Further incarceration will be a disaster for 
         20   Ebony and place her at considerable risk."  And you 
         21   said that that "disaster" is kind of an extreme 
         22   word, right?
         23       A.   Yes.
         24       Q.   What did you understand from that 
 0156
          1   statement, however?
          2       A.   Well, what I understood is that what I knew 
          3   had happened when she was awaiting making bail.  I 
          4   mean, it would have been a disaster because she 
          5   would have to be separated from the general 
          6   population, she would be in 23-hour lock-down, and 
          7   that she would present a risk.  I mean, she would 
          8   have to be treated very differently than a prisoner 
          9   that we would generally send to a male correctional 
         10   institution. 
         11       Q.   Now, are there times in your experience as 
         12   a judge in criminal cases where the Commonwealth 
         13   will seek to provide you information concerning a 
         14   defendant's psychiatric status based upon reports of 
         15   people who were employed by the Commonwealth of 
         16   Massachusetts?
         17       A.   Yes.
         18       Q.   And is that done on a fairly regular basis?
         19       A.   Not as often as the defense attorneys do 
         20   it, but it happens regularly.
         21       Q.   When you say "not as often as the defense 
         22   attorneys do it," let me see if I can direct you to 
         23   my question. 
         24       A.   Okay.
 0157
          1       Q.   And that is, the Commonwealth -- have there 
          2   been occasions when the Commonwealth produces to you 
          3   psychiatric evidence or psychological evidence based 
          4   upon an expert who is employed by the Commonwealth?
          5       A.   Yes.
          6       Q.   And when they do so, do you discount it 
          7   because it was one of the experts employed by the 
          8   same political subdivision that is proffering it to 
          9   you?
         10       A.   No.
         11       Q.   Do you throw it away?
         12       A.   No.
         13       Q.   Do you tell the Commonwealth that you won't 
         14   listen to any evaluations which were performed by 
         15   people who worked for the Commonwealth?
         16       A.   No.
         17       Q.   In the event that the Commonwealth brought 
         18   that type of information to you by an expert who was 
         19   employed by the Commonwealth, what would you expect 
         20   defense counsel to do?
         21       A.   Request an opportunity to provide an 
         22   evaluation from some independent expert.
         23       Q.   From some expert of their own; is that 
         24   right?
 0158
          1       A.   Correct.
          2       Q.   And so that's the normal course of 
          3   give-and-take in a criminal proceeding; is that not 
          4   so?
          5       A.   Yes.
          6       Q.   And once again, as far as the Commonwealth 
          7   in this case, they did none of that?
          8       A.   Right.
          9       Q.   You testified earlier that you think that 
         10   the authorization for funds which was in Exhibit 16, 
         11   I believe, may have been used for the Katz report, 
         12   correct?
         13       A.   Yes.
         14       Q.   Do you know one way or the other?
         15       A.   I don't know one way or the other, no.
         16       Q.   And in fact, when you were delivering the 
         17   sentence in this case or having your plea 
         18   conference, you weren't privy to the whole file in 
         19   the Horton case, were you?
         20       A.   No.
         21       Q.   The whole court file?
         22       A.   I guess I'm missing the question.
         23       Q.   Did you have the motion for funds before 
         24   you on August 1, when you had your plea conference?
 0159
          1       A.   I did not have that.  That was allowed 
          2   months before by the clerk magistrate.
          3       Q.   You had nothing to do with that, did you?
          4       A.   Right, right.
          5       Q.   And in fact, the Commonwealth would have 
          6   been present for that hearing before the clerk 
          7   magistrate, correct?
          8       A.   Yes.
          9       Q.   And if the Commonwealth thought that the 
         10   defendant was required or somehow obligated to go 
         11   and get a psychiatrist report, they certainly would 
         12   have raised that to you, wouldn't they?
         13       A.   Yes.
         14       Q.   Did they do so?
         15       A.   No.
         16       Q.   Now, mental disorder or mental illness is 
         17   something far different from incompetence, isn't it, 
         18   under the law?
         19       A.   Yes.
         20       Q.   You have, I take it, without getting into 
         21   numbers, many people with mental disorders who 
         22   appear before you in the courts of our Commonwealth; 
         23   is that correct?
         24       A.   Right, and who plead guilty.
 0160
          1       Q.   Do you have many that appear before you 
          2   with acknowledged mental disorders?
          3       A.   Yes.
          4       Q.   And do those disorders prohibit the Court 
          5   from taking action with regard to those persons?
          6       A.   No.
          7       Q.   Do all mental disorders rise to the level 
          8   of incompetence?
          9       A.   No.
         10       Q.   What is incompetence in the law?  Not in 
         11   terms of lawyers, but what is incompetence in the 
         12   law?
         13       A.   It would mean an inability due to some kind 
         14   of mental defect or illness to understand the 
         15   proceedings and be able to assist counsel in the 
         16   proceedings.
         17       Q.   Did you have any information before you 
         18   whatsoever that Ebony Horton suffered from such a 
         19   mental disease or defect that she was unable to 
         20   determine or understand what was going on around...
         21       A.   No, I had none of that.
         22       Q.   And did anyone ever seek to have you make 
         23   such a determination?
         24       A.   No.
 0161
          1       Q.   Did you have independently any information 
          2   as to whether or not Ebony Horton was able to 
          3   understand and comprehend the proceedings?
          4       A.   Absolutely.  That's part of the purposes of 
          5   going through that colloquy before a judge accepts a 
          6   plea.
          7       Q.   And what do you look at and for?
          8       A.   You look to see that the defendant, before 
          9   they plead guilty, has a full understanding of the 
         10   constitutional rights that are being waived, what 
         11   options a defendant has before they plead guilty, 
         12   that they understand the charges that are made 
         13   against the defendant.  And that is what a judge 
         14   tries to establish before a guilty plea is accepted.
         15       Q.   And did you during your colloquy with Ebony 
         16   Horton get any information or make any observations 
         17   which would indicate to you that the defendant was 
         18   unable to perform the obligations of a defendant at 
         19   a plea?
         20       A.   No.
         21       Q.   And did you in fact make findings on the 
         22   record that the defendant gave a knowing, 
         23   intelligent and voluntary plea?
         24       A.   Yes, I was satisfied that she understood 
 0162
          1   everything. 
          2            MR. EGBERT:  May I have a moment, please, 
          3   Your Honor? 
          4            HEARING OFFICER DAHER:  Yes.
          5            (Pause)
          6            MR. EGBERT:  I have no further questions. 
          7            HEARING OFFICER DAHER:  Mr. Ware? 
          8            MR. WARE:  Very briefly. 
          9            HEARING OFFICER DAHER:  Take your time. 
         10                 FURTHER REDIRECT EXAMINATION
         11       BY MR. WARE: 
         12       Q.   Judge, the social worker's report, Exhibit 
         13   3, says nothing to challenge criminal 
         14   responsibility, as that term is meant, correct?
         15       A.   Correct.
         16       Q.   It does not create a defense to criminal 
         17   responsibility of any kind; isn't that so?
         18       A.   That's so.
         19       Q.   So that the Commonwealth reading that 
         20   report would understand no defense is being made to 
         21   suggest that Mr. Horton was not criminally 
         22   responsible?
         23       A.   That's right.
         24            MR. WARE:  No further questions. 
 0163
          1            HEARING OFFICER DAHER:  Mr. Egbert? 
          2                 FURTHER RECROSS EXAMINATION
          3       BY MR. EGBERT: 
          4       Q.   The Commonwealth would also be able to read 
          5   in that report that you were being given information 
          6   from a certified professional that Ebony Horton was 
          7   not likely to reoffend; isn't that correct?
          8       A.   That's correct.
          9       Q.   And was not a predatory pedophile, correct?
         10       A.   Correct.
         11       Q.   And how important in the sentencing 
         12   scheme -- in your judgment, how important are those 
         13   two facts as it relates to a Superior Court Judge's 
         14   sentence in a criminal case?
         15       A.   They are of the utmost importance, because 
         16   the protection of the public and public safety is 
         17   the primary concern one has in sentencing a 
         18   defendant for a particular conduct. 
         19            MR. EGBERT:  No further questions. 
         20            HEARING OFFICER DAHER:  Mr. Ware? 
         21            MR. WARE:  No, Your Honor.
         22            HEARING OFFICER DAHER:  At this particular 
         23   time -- because Mr. Egbert, you have a commitment 
         24   tomorrow; is that correct? 
 0164
          1            HEARING OFFICER DAHER:  -- the proceedings 
          2   will be suspended until Monday, and we'll see you 
          3   then.  Have a happy holiday.
          4                 (Whereupon, the hearing was
          5                 suspended at 1:15 p.m.)
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          1                   C E R T I F I C A T E
          2            I, Jane M. Williamson, Registered 
          3   Professional Reporter, do hereby certify that the 
          4   foregoing transcript, Volume V, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on Friday, November 22, 2002.
          7   
          8   
          9                  _____________________________
         10                            Jane M. Williamson
         11                  Registered Merit Reporter
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