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 0001
                                            Volume VI    
                                            Pages 6-1 to 6-152
                                            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, December 2, 2002
                                    9:34 a.m.
              
                 (Jane M. Williamson, Registered Merit Reporter)
              
                                        
 0002
          1                         I N D E X
              
          2   WITNESS        DIRECT  CROSS  REDIRECT  RECROSS
              
          3   Leora Joseph
              (By Mr. Ware)   6-4
          4   
              (By Mr. Egbert)        6-109
          5   
                                    *  *  * 
          6   
                                 E X H I B I T S
          7   
              EX. NO.                         FOR ID    IN EVID.
          8   
              X   Ex parte communication      6-4
          9   
              Y   Ex parte communication      6-4
         10   
              Z   Ex parte communication      6-4
         11   
              9   Videotape of Ramon                    6-22
         12       Suarez' testimony
              
         13   66  Transcript of the                     6-83
                  Calixte matter
         14   
              15  Article in the Boston       6-93      6-97      
         15       Globe 8/5/00
              
         16   19  Article in the Boston       6-93      6-97
                  Herald 8/5/00
         17   
              B-1 Audio tape played from                6-120
         18       the Estrada case
              
         19   B-2 Audio tape from the                   6-120
                  Estrada case (not
         20       played)
              
         21   
         22   
         23   
         24   
 0003
          1                   P R O C E E D I N G S
          2       (At side bar)
          3            HEARING OFFICER DAHER:  I received this 
          4   communication.  It went to another court department.  
          5   I don't know who delivered it.  I don't know whether 
          6   it's been photocopied.
          7            MR. WARE:  I say we ought to mark it for 
          8   identification.
          9            HEARING OFFICER DAHER:  I intend to mark it 
         10   for ID and put it in the file.
         11            MR. WARE:  That should be fine.
         12            MR. EGBERT:  Can we get a copy?
         13            HEARING OFFICER DAHER:  Yes.
         14            MR. EGBERT:  Front and back?
         15            HEARING OFFICER DAHER:  Yes.  I did X,Y, Z. 
         16            MR. EGBERT:  (Inaudible.)
         17            HEARING OFFICER DAHER:  The answer is, No, 
         18   I don't know whether it's fruitful or not.
         19            MR. EGBERT:  The question --
         20            HEARING OFFICER DAHER:  The answer is, No.  
         21   It doesn't affect me one way or the other.
         22            MR. WARE:  Perhaps Mr. Egbert should put 
         23   his question on the record.  We have an answer, but 
         24   we have no question.  You anticipated the question.
 0004
          1            MR. EGBERT:  My question only was, Judge, 
          2   for you to make a determination whether or not this 
          3   particular item would have any impact or effect --
          4            HEARING OFFICER DAHER:  None whatsoever.  
          5   It will be marked X, Y, Z.
          6                 (Documents marked as Exhibits X, Y 
          7                 and Z for identification)
          8       (End of side bar)    
          9            MR. WARE:  The Commission calls Leora 
         10   Joseph.
         11                    LEORA JOSEPH, Sworn
         12                     DIRECT EXAMINATION
         13       BY MR. WARE:
         14       Q.   Good morning. 
         15       A.   Good morning.
         16       Q.   Would you like a cup of water just to keep 
         17   you going here?  You're going to be doing some 
         18   talking this morning. 
         19       A.   I'm okay.  Thank you. 
         20       Q.   Will you state your name, please, for the 
         21   record.
         22       A.   Yes.  My name is Leora Joseph.
         23       Q.   And, Ms. Joseph, you were the assistant 
         24   district attorney assigned to the case of 
 0005
          1   Commonwealth against Horton at some time in the Year 
          2   2000; is that correct?
          3       A.   Yes, I was.
          4       Q.   Before I talk to you about the case itself, 
          5   I wonder if you could tell us a little bit about 
          6   your background.  First of all, what are you doing 
          7   now, at least generically speaking?  Are you 
          8   practicing law?
          9       A.   I'm not practicing law.  I'm currently 
         10   employed at my son's school.  The official title is 
         11   executive vice president.  I oversee the budget, 
         12   fund-raising development, safety and security 
         13   personnel, benefits, that kind of thing.
         14       Q.   And for what period of time have you had 
         15   that position as vice president of the school?
         16       A.   I've been there for a little over a year 
         17   now.
         18       Q.   Is this a private school?
         19       A.   It is.
         20       Q.   In the Boston area?
         21       A.   It is.
         22       Q.   Now, could you tell us a little bit about 
         23   your education, beginning with college and law 
         24   school, and I'd like to ask you a little bit about 
 0006
          1   your background. 
          2       A.   Sure.  I graduated from Barnard College of 
          3   Columbia University in Manhattan in 1990, and 
          4   following that, I went straight to law school at 
          5   McGill Law School in Montreal, and I graduated 
          6   there, from McGill, in 1993.
          7       Q.   Where were you born?
          8       A.   I was born in New York, but I grew up in 
          9   Montreal.
         10       Q.   And during your time at Barnard College, 
         11   did you work during college in New York City?
         12       A.   I did.  I had a number of different 
         13   internships and jobs.  I worked with emotionally 
         14   disturbed children and abused children as a 
         15   teacher's aide.  I did an internship in my junior 
         16   and senior year under Mayor Koch's office for 
         17   teenage pregnancy and programming where I worked 
         18   with teenage mothers in the inner cities, doing a 
         19   combination of helping them in some of the 
         20   residential homes that they lived in and also doing 
         21   career counseling, helping them get their resumes in 
         22   order and things like that.  So those are some of 
         23   the activities I did in college.
         24       Q.   And at some time did you do some teaching 
 0007
          1   or assisting at Fordham University in New York City?
          2       A.   Yes, I did.  That was through the mayor's 
          3   office as well.  That was with the teenage mothers, 
          4   either ones who were expecting or who had recently 
          5   had young children and were looking to have jobs at 
          6   The Gap or whatever it would be.  And they wanted 
          7   some interviewing techniques and help filling out 
          8   applications and things like that.  So I did that.
          9       Q.   Now, while you were at Barnard at an 
         10   undergraduate level, could you tell us what your 
         11   major was, what your field of interest was. 
         12       A.   I majored in cultural anthropology.  I did 
         13   my thesis, in fact, on teenage motherhood, growing 
         14   up in the inner cities, and my focus was really on 
         15   that area of social studies dealing with urban 
         16   environments.
         17       Q.   And at the time, I take it, you lived in 
         18   New York City?
         19       A.   I did. 
         20       Q.   And did you also live in the City of 
         21   Montreal during your childhood?
         22       A.   I did.
         23       Q.   During your law school -- where did you go 
         24   to law school?
 0008
          1       A.   I went to McGill Law School in Montreal.
          2       Q.   And following law school did you hold some 
          3   positions locally here in the Boston area before you 
          4   went to the district attorney?
          5       A.   Yes.  We moved here right after I graduated 
          6   from law school, and I took the bar.  While I was 
          7   waiting for my bar results I worked for Alan 
          8   Dershowitz at Harvard doing paralegal-type stuff for 
          9   him for a few months until I was offered a position 
         10   by District Attorney Martin.
         11       Q.   During what period of time did you work for 
         12   Professor Dershowitz at Harvard Law School, roughly?
         13       A.   It was very part time.  I began in August 
         14   and I worked there until I began in the DA's office, 
         15   so probably about January of '94.  From August of 
         16   '93 until January of '94.
         17       Q.   Did you begin at the district attorney's 
         18   office for Suffolk County in January of 1994?
         19       A.   I believe it was February of '94 that I 
         20   started there.
         21       Q.   And when did you resign from the district 
         22   attorney's office?
         23       A.   In June of 2001.
         24       Q.   So you were there roughly for seven-plus 
 0009
          1   years; is that correct?
          2       A.   That's correct.
          3       Q.   Can you give us a rundown of the positions 
          4   you held in the district attorney's office as a 
          5   prosecutor?
          6       A.   Yes.  I began as a line ADA at the Boston 
          7   Municipal Court, and I then was promoted to 
          8   supervisor of the DAs in the Boston Municipal Court.  
          9   I think there were about 10 assistant or 12 
         10   assistant DAs that I supervised.  I did that for a 
         11   year.  And then I was able to go to the child abuse 
         12   unit, the felony unit in the Superior Court towards 
         13   the end of '97.
         14       Q.   And what were your duties with the child 
         15   abuse unit, beginning in 1997?
         16       A.   When I began there, I had a mixed case load 
         17   of those cases, some of whom which were district 
         18   court cases that seemed a little bit more serious.  
         19   And then I began indicting cases as well. 
         20            Our jobs as assistant DAs in that unit is 
         21   to do -- most of our cases are investigations.  We 
         22   work with DSS and the police, and we bring forward a 
         23   certain percentage of those cases through the grand 
         24   jury process, indictment, and Superior Court trial 
 0010
          1   or whatever it would be.
          2       Q.   On an annual basis, on average, can you 
          3   estimate the number of child abuse cases for which 
          4   you had responsibility either in a supervisory 
          5   capacity or as a line trial lawyer for the district 
          6   attorney's office during the period 1997 to 2001?
          7       A.   Annually, including cases that don't get 
          8   indicted, but just get investigated, I would say my 
          9   case load was about 80 or so a year.
         10       Q.   And of those, approximately what number of 
         11   cases are indicted felonies, order of magnitude?
         12       A.   Fifteen cases a year would be indicted, 
         13   something like that, out of the 80.
         14       Q.   When did you first take over responsibility 
         15   for Commonwealth against Horton on behalf of the 
         16   district attorney's office?
         17       A.   Shortly after the defendant was arrested in 
         18   November of '99, my supervisor, David Deakin, 
         19   assigned the case to me for Superior Court 
         20   investigation and grand jury presentment.
         21       Q.   Did you handle the initial arraignment in 
         22   the BMC prior to indictment?
         23       A.   The defendant I don't believe was arraigned 
         24   in the BMC, but I did not handle his arraignment at 
 0011
          1   the District Court level.  I think he was arraigned 
          2   in Dorchester District Court.
          3       Q.   Now, when you initially took over 
          4   responsibility for the case, was Mr. Horton in 
          5   custody?
          6       A.   He was. 
          7       Q.   And for what period of time was he in 
          8   custody, roughly?
          9       A.   I don't remember exactly.  I believe that 
         10   he posted bail either right before or right after 
         11   his Superior Court arraignment. 
         12       Q.   Which occurred in January of 2000?
         13       A.   That's correct.
         14       Q.   So during the period from roughly November 
         15   20th to January 2000, he was in custody?
         16       A.   Correct.
         17       Q.   There has been reference in this court 
         18   proceeding to a dangerousness hearing.  Did you give 
         19   consideration to a dangerousness petition in this 
         20   case?
         21       A.   Dangerous petitions would be something that 
         22   would only be available to us at arraignment, 
         23   according to the statute.  And the preference of the 
         24   child abuse unit is not to -- when there are 
 0012
          1   traditional reasons that can hold a defendant on 
          2   regular bail, the preference of the district 
          3   attorney's office is to allow those conditions to 
          4   hold the defendant, as opposed to move for 
          5   dangerousness, which would require a full-blown 
          6   hearing and necessitate the child to testify.  And 
          7   the preference of the child abuse unit is for 
          8   children victims to only have to testify once at 
          9   trial.  And they don't even go before the grand 
         10   jury.
         11       Q.   At some time later in the Year 2000, 
         12   specifically in August of that year, did you attend 
         13   a plea conference representing the district 
         14   attorney's office?
         15       A.   I did.
         16       Q.   And will you tell us when that occurred?
         17       A.   I believe that date was August 1st of the 
         18   Year 2000.
         19       Q.   And where did that conference occur and 
         20   before whom?
         21       A.   That was a lobby conference before Judge 
         22   Lopez in the First Session of the Superior Court.
         23       Q.   And at that time was the Superior Court 
         24   sitting in the old Federal Post Office here in Post 
 0013
          1   Office Square?
          2       A.   Yes, it was.
          3       Q.   When you say the First Session, can you 
          4   give us a general description of the First Session 
          5   and what its function is?
          6       A.   The First Session is one of the busiest 
          7   sessions that there is in Superior Court.  Typically 
          8   there's over 20 cases a day, and it's a session both 
          9   where lawyers -- some dates that are given there are 
         10   simply status dates.  Lawyers will report on certain 
         11   discovery issues and ask for another date before a 
         12   judge.  Some discovery motions that are easy are 
         13   argued in front of a judge, nothing that's very 
         14   substantive.  Much of the session is spent with both 
         15   lobby conference in advance of a plea, as well as a 
         16   plea colloquy that would occur in the First Session 
         17   as well.
         18       Q.   When you use the term "lobby conference," 
         19   you're including side-bar conferences, which are 
         20   also termed lobby conferences; is that correct?
         21       A.   Yes.  Yes.
         22       Q.   And in the Horton case, the lobby 
         23   conference was in fact at a side bar, not in the 
         24   lobby?
 0014
          1       A.   That's correct.
          2       Q.   Approximately how long did this lobby 
          3   conference in the Horton case last at the side bar?
          4       A.   Five or six minutes, something like that.
          5       Q.   Prior to that lobby conference, had you had 
          6   discussions with counsel for the defendant with 
          7   respect to a possible plea and sentence?
          8       A.   Yes.
          9       Q.   And as a result of those discussions, were 
         10   you able to come to any kind of agreed-upon 
         11   disposition?
         12       A.   No.  Ms. Goldbach and I had spoken a few 
         13   times.  She had approached me and asked if I would 
         14   consider probation on a case.  And I said that it 
         15   was not within the range of possibilities, given the 
         16   serious nature of the charges.
         17       Q.   Prior to attending the lobby conference on 
         18   August 1st, had the district attorney's office made 
         19   a decision with respect to recommendation?
         20       A.   We did.  The process by which a 
         21   recommendation is made is that the assistant 
         22   district attorney handling the case has to seek 
         23   approval from his or her supervisor.  In this case 
         24   it was Mr. Deakin.  And we would have to explain to 
 0015
          1   the supervisor what our reasons for recommending a 
          2   particular sentence would be, and then the two of us 
          3   would discuss together what an appropriate sentence 
          4   would be, taking into consideration all the relevant 
          5   factors, the serious nature of the charge, the 
          6   strength of the Commonwealth's case, the defendant's 
          7   prior record.  
          8            In this case David Deakin and I had met and 
          9   decided that, from the Commonwealth's perspective, 
         10   an 8 to 10 sentence would be an appropriate 
         11   recommendation for the DA's office to make.
         12       Q.   And what were the considerations of the 
         13   district attorney in making that recommendation?
         14       A.   We had a number of different factors that 
         15   we weighed.  This was a very serious case from our 
         16   perspective, where the defendant was a stranger to 
         17   the child and where a weapon was used in order to 
         18   force the child to simulate a sex act.  The child 
         19   was kidnapped.  And that's a very serious felony as 
         20   well. 
         21            The case was extremely strong.  The family 
         22   of the boy had been very cooperative with the 
         23   district attorney's office and were prepared to 
         24   follow through to trial.  The defendant had made a 
 0016
          1   confession, essentially.  We recovered from the car 
          2   that the boy was kidnapped in the weapon that was 
          3   used to force him to simulate this sex act. 
          4            We felt that this case was extremely 
          5   serious, and had the police basically not come onto 
          6   the scene by happenstance, we were concerned about 
          7   what would have happened had the child not been 
          8   rescued.
          9       Q.   At some time is it part of the procedure of 
         10   the district attorney's office to videotape an 
         11   interview with the victim?
         12       A.   Absolutely.
         13       Q.   And the victim was how old in this case?
         14       A.   When the incident -- when the crime 
         15   occurred, the victim was 11-1/2.  He was in sixth 
         16   grade.  By the time we indicted the case, I believe 
         17   he had turned 12 already.  And these videotapes are 
         18   for -- we use only in the child abuse unit and 
         19   they're for all child victims.  As soon as an arrest 
         20   is made, that's how we try and interview them, 
         21   rather than have them -- that we preserve their 
         22   testimony, instead of having them speak to numbers 
         23   of different people as the process goes through.
         24       Q.   And is part of the consideration there the 
 0017
          1   fact that you're dealing with a victim and a child?
          2       A.   Absolutely.  That is the consideration.
          3            MR. WARE:  Your Honor, at this time I would 
          4   like to play part of the videotape of the victim for 
          5   which purpose I would like to ask that the session 
          6   be conducted confidentially.
          7            HEARING OFFICER DAHER:  I agree.  Mr. 
          8   Egbert? 
          9            MR. EGBERT:  I object on the grounds of 
         10   relevance, Judge.  The victim's statement on a 
         11   videotape has never been seen by Judge Lopez, 
         12   apparently, according to all the people who were 
         13   involved in this case, and does not go to any fact 
         14   being charged in this case with regard to Judge 
         15   Lopez.
         16            HEARING OFFICER DAHER:  Mr. Ware? 
         17            MR. WARE:  I think it's relevant because 
         18   much has been made of the decision making in this 
         19   case by the Judge.  And part of the basis for the 
         20   recommendation made by the district attorney's 
         21   office was indeed the victim.  The pleas of guilty 
         22   to kidnapping, assault with intent to rape, assault 
         23   and battery with a dangerous weapon are all premised 
         24   upon the victim, and I think we ought to have the 
 0018
          1   victim's statement in the record of this proceeding 
          2   for whatever weight the Court believes is 
          3   appropriate to give it.
          4            MR. EGBERT:  Judge, quite frankly, I'm 
          5   thinking that we ought to have it in the 
          6   proceedings.  There's not a standard of relevance 
          7   that I know about.  There is not an issue that Mr. 
          8   Ware has pointed to that is before you that the 
          9   victim's statement on videotape has any relevance 
         10   to.  I can guess it's attractive to the Judicial 
         11   Conduct Commission in terms of trying to influence 
         12   this Court, but it must be relevant to some issue in 
         13   this case.  The Judge's sentence is not an issue in 
         14   this case.  The JCC has admitted that --
         15            HEARING OFFICER DAHER:  Didn't you question  
         16   the fact whether there was any DNA testing of the 
         17   screwdriver during your examination of Judge Lopez?  
         18   And I think you made -- and whether she had 
         19   conducted -- and the reason why she didn't have a 
         20   hearing on it was because she felt that she didn't 
         21   want the boy to come back where the child could be 
         22   subjected to examination during the Court.  
         23   Overruled.  You may have it in camera.
         24            MR. EGBERT:  Your Honor --
 0019
          1            HEARING OFFICER DAHER:  Your objection is 
          2   noted. 
          3            MR. EGBERT:  In that case, I object to it 
          4   being done confidentially.  And here are my reasons: 
          5            The Commonwealth of Massachusetts has 
          6   already in a public proceeding put before the public 
          7   and the press this young man's name and address.  
          8   The Commonwealth, through the district attorney's 
          9   office, has released that information to the press 
         10   already, and, therefore, there is no longer a reason 
         11   for confidentiality.
         12            HEARING OFFICER DAHER:  Mr. Ware? 
         13            MR. WARE:  Your Honor --
         14            HEARING OFFICER DAHER:  The name was 
         15   mentioned during --
         16            MR. WARE:  Yes, that's true.  The victim's 
         17   name was mentioned.  I think it's fair to say that 
         18   that shouldn't have happened, but it did happen.  
         19   And so obviously since the date of the sentencing, 
         20   September 6th, 2000, the name has been out there. 
         21            This is something different; namely, a 
         22   visual representation of the child.  Among other 
         23   things, he identifies the school he goes to.  And I 
         24   think it's inappropriate to exacerbate the situation 
 0020
          1   by having his visual image available to the press 
          2   and the public.  I think we ought to do whatever we 
          3   can remaining to provide some confidentiality for 
          4   this child.
          5            MR. EGBERT:  The problem with that, Judge, 
          6   is that this is a court of law, and it is not a 
          7   court of Mr. Ware's sensitivities.  The 
          8   Commonwealth, through the district attorney's 
          9   office, released the name and the address.  They had 
         10   the right, pursuant to statute, to go back to the 
         11   court and seek to expunge the court records under 
         12   the statute so that any mention of the name or 
         13   address or likeness of the alleged victim be 
         14   stricken and not made public.  They opted not to do 
         15   that.  
         16            This is now the Year 2002.  A great deal of 
         17   time has gone by.  All these matters have become a 
         18   matter of public knowledge.  And that matter has now 
         19   been waived.  It is not for the Judicial Conduct 
         20   Commission to take up the obligations and duties of 
         21   the district attorney's office.
         22            HEARING OFFICER DAHER:  Your point -- 
         23   finish it off.  Last comment.
         24            MR. WARE:  My point is the same one I made.  
 0021
          1   That is to say, one thing that was never exposed was 
          2   the child's image.  And that's what we're dealing 
          3   with here.  It's true that his name is out there.  I 
          4   can't do anything about that.  But we can protect 
          5   his public image, picture of this child at this 
          6   point, and I'd like to do that if we can.
          7            HEARING OFFICER DAHER:  Overruled.  Go 
          8   ahead.  In camera proceedings.
          9            MR. WARE:  Your Honor, I think we need to 
         10   clear the courtroom at this point. 
         11            MR. EGBERT:  I thought that your ruling was 
         12   that the cameras would be taken out of the 
         13   courtroom.  Are you excluding the public?
         14            HEARING OFFICER DAHER:  I am.  Objection 
         15   and exception noted.
         16            MR. EGBERT:  My objection.  And you should 
         17   know, we are entitled to a public trial under the 
         18   statute and under the Constitution.  And every time 
         19   a child testifies in a criminal proceeding, the 
         20   press is excluded, but the public is not.
         21            HEARING OFFICER DAHER:  He has a good point 
         22   there.
         23            MR. WARE:  Your Honor, this is not a 
         24   criminal proceeding, No. 1.  No. 2, I will not ask 
 0022
          1   any questions while the tape is being played.  I'll 
          2   reserve my questioning until such time as the public 
          3   and the cameras are readmitted.
          4            MR. EGBERT:  No.  
          5            HEARING OFFICER DAHER:  Mr. Egbert has a 
          6   fine point there.  The camera is solely excluded.  
          7   The public can come back in. 
          8            MR. WARE:  Your Honor, at this time I offer 
          9   the videotape as Exhibit 9.
         10            MR. EGBERT:  I've already made my objection 
         11   to it. 
         12                 (Document marked as Exhibit 9
         13                 moved into evidence)
         14            MR. WARE:  At this time, Your Honor, I'd 
         15   like to go ahead and play selections from the 
         16   videotape.  I have excised delays in it.
         17            MR. EGBERT:  I object.
         18            MR. WARE:  I've put the whole tape in 
         19   evidence.  I don't intend to play it all.
         20            MR. EGBERT:  Hold it for a moment.  I 
         21   object to this kind of a creation of a document or 
         22   photograph or tape --
         23            HEARING OFFICER DAHER:  Mr. Egbert, that's 
         24   his way of presenting his case.  You can play it 
 0023
          1   when --
          2            MR. EGBERT:  -- without me being provided 
          3   in advance what it is he's done.  It is never 
          4   permitted in that fashion.  If someone wishes to 
          5   create an exhibit, by excerpt or otherwise, for 
          6   showing in a courtroom, at all times it is provided 
          7   to counsel ahead of time so I can make an objection 
          8   of how I think it is unfair, incomplete, if it 
          9   leaves things out or the like.  I'm simply not being 
         10   given the advanced knowledge of the use of these 
         11   types of exhibits in order for me to make 
         12   appropriate objections.
         13            MR. WARE:  Your Honor, it's simply too time 
         14   consuming to play all of the tape.  Mr. Egbert can 
         15   rack up the tape and play it to his heart's content 
         16   on cross examination.
         17            HEARING OFFICER DAHER:  Overruled.  You can 
         18   play it back again.  This is Mr. Ware's way of 
         19   putting in his prima facie case.  Mr. Egbert, if you 
         20   want to rack up the type and put it in, put it in.
         21            MR. EGBERT:  I object to the lack of 
         22   notice, and you can be assured it will all be 
         23   played.
         24            HEARING OFFICER DAHER:  No problem.  We'll 
 0024
          1   look forward to it.
          2            (Videotape playing.)
          3       Q.   How did you all get here?
          4       A.   A ride.  We took the train.
          5       Q.   It's cold out today, isn't it?
          6       A.   Yes.
          7       Q.   It feels like it's winter, maybe some snow?
          8       A.   Yeah.
          9       Q.   Do you like the snow?
         10       A.   A little bit.
         11       Q.   What do you like to do when it snows?
         12       A.   I like to take the sled and go down hills 
         13   and stuff.
         14       Q.   Yeah. What hills do you sled?
         15       A.   Like the basketball court.  When it gets 
         16   snow, like, it covers the stairs and it's slippery.  
         17   We can easily go down fast.
         18       Q.   Really.  You don't even have to go far from 
         19   where you live?
         20       A.   No.  It's only up the street.
         21       Q.   So remind me of your whole name.
         22       A.   (Edited)
         23       Q.   And how old are you?
         24       A.   Eleven.
 0025
          1       Q.   And when is your birthday?
          2       A.   January 4.
          3       Q.   So you'll be 12?
          4       A.   Right.
          5       Q.   And what grade is that for you?
          6       A.   Sixth.
          7       Q.   And what school do you go to?
          8       A.   Joseph W. McCormack.
          9       Q.   Is that a middle school?
         10       A.   Yes.
         11       Q.   And is this your first year in middle 
         12   school?
         13       A.   Yes.
         14       Q.   And how do you like it?
         15       A.   Hmm, it's okay.
         16       Q.   Yeah?
         17       A.   Yeah.  Basically every day there's a fight, 
         18   but...
         19       Q.   So that's not okay?
         20       A.   (Shakes head.)
         21       Q.   How about your teachers?
         22       A.   The one teacher I don't like is Mr. 
         23   Guilderson.  He gives too much homework, almost like 
         24   every day.
 0026
          1       Q.   What subject?
          2       A.   Science, sixth period.
          3       Q.   Uh-hum.  What's a day like?  Can you tell 
          4   me from the beginning to the end?  
          5            (Tape stopped.)
          6            MR. EGBERT:  Your Honor, as we're coming to 
          7   where the alleged victim is going to give evidence 
          8   concerning what happened on these events, I would 
          9   object on the grounds of hearsay.  I take it that 
         10   it's being offered for the truth of what happened.
         11            MR. WARE:  It's not being offered for the 
         12   truth of what happened, Your Honor.
         13            HEARING OFFICER DAHER:  What's it being 
         14   offered for? 
         15            MR. WARE:  It's being offered as evidence 
         16   that the district attorney had on the basis of which 
         17   they made a recommendation.  It's being offered as 
         18   the videotape which Judge Lopez had available to her 
         19   if she wanted to look at it, and it's being offered 
         20   for purposes of confirming the child's age and the 
         21   circumstances on the basis of which the district 
         22   attorney's office proceeded.
         23            MR. EGBERT:  Your Honor, the basis of the 
         24   district attorney's office proceeding is not at 
 0027
          1   issue here.  It is not something that's on trial 
          2   here or is relevant to anything you have to decide.  
          3   The defendant's age is his age.  I don't know what 
          4   this tape does about it.  They've already produced a 
          5   birth certificate, which has been uncontested by 
          6   anyone in this case.  And obviously what he says on 
          7   here can only, as far as the incident, can only be 
          8   of interest to the Court, if at all, if it is in 
          9   fact being used for the truth of the statements 
         10   being recorded.  Classic hearsay.
         11            MR. WARE:  Your Honor, it is every bit as 
         12   relevant as Mr. Egbert's cross examination of Judge 
         13   Lopez with respect to what she was told by Detective 
         14   Greene or what she was told by Anne Goldbach.  And 
         15   this is simply the same kind of testimony, only it's 
         16   direct from the victim.  The entire cross 
         17   examination --
         18            HEARING OFFICER DAHER:  How do you 
         19   distinguish that? 
         20            MR. EGBERT:  The difference is that Judge 
         21   Lopez never saw this tape, and so it could not have 
         22   been something which affected her state of mind, 
         23   which is at issue here.
         24            MR. WARE:  The point is she had it 
 0028
          1   available.
          2            MR. EGBERT:  Mr. Ware's understanding of 
          3   criminal practice is so far deficient and so naive.  
          4   Just because it's in the DA's file doesn't make it 
          5   available to the Court.  It was never introduced to 
          6   the Court, provided to the Court or offered to the 
          7   Court, and there's never been a hint by anyone in 
          8   this case that that was so, not that that would 
          9   change its character from hearsay, quite frankly.
         10            HEARING OFFICER DAHER:  Anything else? 
         11            MR. WARE:  No, Your Honor.
         12            HEARING OFFICER DAHER:  Overruled.  Let's 
         13   go.  Your objection is noted.
         14            MR. EGBERT:  Your Honor, would the Court 
         15   then issue a subpoena for Mr. Suarez at the end of 
         16   the day?
         17            HEARING OFFICER DAHER:  For Mr. who?
         18            MR. EGBERT:  For the alleged victim.
         19            HEARING OFFICER DAHER:  I don't see any 
         20   reason why not.  Mr. Ware, any objections? 
         21            MR. WARE:  Yes, of course I object.
         22            HEARING OFFICER DAHER:  What's the 
         23   objection? 
         24            MR. WARE:  Your Honor, this is typified by 
 0029
          1   counsel's remark that this is an alleged victim.  
          2   It's not an alleged victim.  The defendant pled 
          3   guilty to five felonies in this case.  That's 
          4   established.  The Court accepted representations of 
          5   the district attorney.  This is yet another effort 
          6   by Judge Lopez to retry the victim and to victimize 
          7   the victim.  The child is not going to add anything 
          8   on cross examination.
          9            HEARING OFFICER DAHER:  That we don't know, 
         10   and that's the reason that he wants the subpoena.  
         11   You can't have it both ways, Mr. Ware.
         12            MR. WARE:  Fine, Your Honor.
         13            HEARING OFFICER DAHER:  Sustained.  You'll 
         14   have that subpoena.  Let's go.  
         15            (Videotape playing.)
         16       Q.   Do you know why you're here today?
         17       A.   Yes.
         18       Q.   Why is that?
         19       A.   Because of something that happened.
         20       Q.   Do you think you could tell me in your own 
         21   words from the beginning to the end about what it is 
         22   that happened?
         23       A.   Yeah.  I was walking to my friend's house, 
         24   because I just got dropped off from UMass.  And I 
 0030
          1   was like at the corner of the second street from my 
          2   house, and this lady said, "Oh, I know you from 
          3   somewhere.  Will you help me look for my son?"  I 
          4   was like, What?  I ignored her.  I kept walking.  
          5   The second time she was like, "Oh, I know you.  Can 
          6   you help me find my son?"  I was like, "I don't even 
          7   know you."
          8       Q.   Where was the lady?
          9       A.   Well, she was at the corner of the same 
         10   street that I was at.
         11       Q.   Was she standing on the street?
         12       A.   Hm-um, a car.
         13       Q.   She was in a car.  And then what happened?
         14       A.   Then after that she said, I'll offer 
         15   somebody $100, whoever helps me find my son.  So I 
         16   was like umm, I know where he was.  She's like, Can 
         17   you show me?  At first I started walking, and then 
         18   she was like come in.  And then she grabbed my hand 
         19   and sort of pulled me in.
         20       Q.   Into where?
         21       A.   The car.  Then after she pulled me in the 
         22   car, she drove around and stopped.  She locked the 
         23   doors and windows.
         24       Q.   How did she do that?
 0031
          1       A.   Like on her side of the car there's like a 
          2   lock thing that locks the doors and the windows.
          3       Q.   How do you know that she did that?
          4       A.   Because I tried to unlock the window and 
          5   run out, but it was locked.  And then she took me to 
          6   some specific place I don't even know.  Then she 
          7   said, "You can suck on my private part."  I was 
          8   like, "No.  I want to go home."  She said, "You're 
          9   going to go home."  I'm like, "I want to go home 
         10   now."  And I started crying.  Then after that she 
         11   was like -- oh, she grabbed my head, pulled me down 
         12   like this and said, Suck on my finger.  And then 
         13   after that, she told me to suck on a screwdriver.  
         14            I was about to yell, and then she had that 
         15   same exact screwdriver up to my neck like this.  And 
         16   then she was like, Oh, you're going to be quiet or 
         17   else I'll tell my husband to come out and kill you.  
         18   I was like, I want to go home.  And then she 
         19   unbuttoned her pants.  
         20            Then after that the police came.  Then they 
         21   seen what she was doing, and then after that they 
         22   seen my head pop up like and they took me out of the 
         23   car and asked me what happened.  And I told them 
         24   what happened.  And then after that they took me in 
 0032
          1   a car -- they arrested her.  Then from there, I went 
          2   to a hospital and they did some like tests on me to 
          3   make sure I was all right. 
          4       Q.   And did you talk to anybody there?
          5       A.   Yes, some detectives came.  
          6            (Pause in tape.)
          7       Q.   You just told me what happened, and I'm 
          8   going to back up and ask you a couple of more 
          9   questions about it.  Okay?
         10       A.   Uh-hum.
         11       Q.   First of all, do you know when this was?
         12       A.   It was on a Saturday, about 8:00.
         13       Q.   In the evening?
         14       A.   Yes.
         15       Q.   You said you had just come from UMass?
         16       A.   Yeah.
         17       Q.   From a friend's house?
         18       A.   Yes, because I was coming from swimming.  I 
         19   came from there.  Then my coach dropped me off at 
         20   his house.
         21       Q.   I see. 
         22       A.   Then --
         23       Q.   What's his name?
         24       A.   Domingos.  Then from there, I kept walking 
 0033
          1   from his house because I was going to call my house 
          2   and then tell my mom I was on my way.  So then after 
          3   that -- then I seen her.
          4       Q.   So what street were you actually on?  Do 
          5   you know?
          6       A.   First I was on Holiday.  I kept walking.  
          7   Then I got on Corona.
          8       Q.   Corona?
          9       A.   Yes.
         10       Q.   And is that when you saw her?
         11       A.   Yes.
         12       Q.   You said she asked you two different times 
         13   to help her find her son?
         14       A.   Yes.
         15       Q.   And could you see what kind of car she was 
         16   in?
         17       A.   It was a Toyota.  It was like a gold -- I 
         18   don't really know what color it was, but it was sort 
         19   of like a goldish color.
         20       Q.   And how did you know it was a Toyota?
         21       A.   Because I seen the thing that said Toyota.
         22       Q.   Do you like to look at cars?  Do you know 
         23   anything about cars?
         24       A.   Yes.
 0034
          1       Q.   So the first time -- was she on your side 
          2   of the street or the other side of the street in the 
          3   car?
          4       A.   She was on this side of the street.
          5       Q.   So when she asked you, were you next to the 
          6   driver window, or --
          7       A.   The passenger side.  She was on the 
          8   driver's side, but she like leaned over.
          9       Q.   So she was speaking through the passenger 
         10   window?
         11       A.   Yes.
         12       Q.   So the first time what did you do?
         13       A.   I ignored her and kept walking.
         14       Q.   Okay.  And then how far did you walk before 
         15   she asked you again?
         16       A.   Not that far.  Like at least two -- seven 
         17   steps away.
         18       Q.   So not very much.  And she asked you again?
         19       A.   Yes.
         20       Q.   And she said what?
         21       A.   She was looking for her son.  And then she 
         22   said she had an award for $100.
         23       Q.   Did this person look familiar to you, this 
         24   lady?  Had you ever seen her before?
 0035
          1       A.   No.
          2       Q.   So you didn't know if she had a son or who 
          3   her son was?
          4       A.   No.  She lied and said she was a dentist.
          5       Q.   So she said she would give you $100, and 
          6   then what did you do after she said that?
          7       A.   Then I was like, I can help you look for 
          8   him, but at the time I didn't want to get in the 
          9   car.  So she grabbed my hand and pulled me in the 
         10   car.
         11       Q.   Do you want some water?
         12       A.   Yes.  Thank you. 
         13       Q.   Does that help a little bit?
         14       A.   Yes.
         15       Q.   So you said you didn't want to get in the 
         16   car?
         17       A.   No.  And then she like grabbed my hand and 
         18   started pulling me in the car.  I tried to scream, 
         19   but nobody was around at the time.
         20       Q.   And she said she was --
         21       A.   Yes.
         22       Q.   So you got in the car?
         23       A.   Yes.  And I tried to get out.  She like 
         24   locked the windows.
 0036
          1       Q.   Did you say anything to her when she locked 
          2   the windows or when you were trying to get out?
          3       A.   No.
          4       Q.   And then what happened?  How far did she 
          5   drive?  For how long do you think?
          6       A.   At least down the street.
          7       Q.   And then what happened?
          8       A.   And then after that, she stopped the car.  
          9   I still tried to get out, but she locked the doors.  
         10   And then after, she took me to some place that I 
         11   don't even know, which was past the bowling alley.
         12       Q.   Do you know the name of the bowling alley?
         13       A.   It's called Two Strike.
         14       Q.   Had you been there before?
         15       A.   Yes.
         16       Q.   And she took you to a place --
         17       A.   Past it. 
         18       Q.   And was the car still moving or did she 
         19   stop it?
         20       A.   She stopped -- well, after she took me, she 
         21   took me around like the place and then she stopped 
         22   the car.
         23       Q.   And when she stopped the car, where were 
         24   you?
 0037
          1       A.   I looked around, and I didn't even know 
          2   where I was.
          3       Q.   What did you say to her?
          4       A.   Like in front was these boxes and there was 
          5   a trailer-tractor.
          6       Q.   Then what happened?
          7       A.   Then she said, "While we're waiting, you 
          8   can suck on my private part."  I was like "No.  I 
          9   want to go home."  She said, "Oh, you're going to go 
         10   home."  I said, "No.  I want to go home."  She said, 
         11   "Oh, you're going to go home."  Then I cried, and 
         12   then she put my head down and was, like, Oh, suck on 
         13   my finger.
         14       Q.   When she said suck on her finger, how do 
         15   you know it was her finger?
         16       A.   Because it was like rough.
         17       Q.   What else did you notice about it?
         18       A.   It had like a long nail.  And I'm not 
         19   really sure if it was a girl or boy.
         20       Q.   Why do you say that?
         21       A.   Because she had like this deep voice.
         22       Q.   And you said that she said she wanted you 
         23   to suck on her finger?
         24       A.   Uh-hum.
 0038
          1       Q.   Did you suck on her finger?
          2       A.   Like she put her finger in my mouth.  She 
          3   moved my head up and down like that.
          4       Q.   And was she saying anything to you when she 
          5   did that?
          6       A.   No.
          7       Q.   Do you know where her other hand was?
          8       A.   No.
          9       Q.   Was she making any noises or sounds at all?
         10       A.   Hm-um.
         11       Q.   How long do you think that was going on 
         12   for?
         13       A.   At least a minute.  And then she told me to 
         14   suck on the screwdriver.
         15       Q.   What part of the screwdriver?
         16       A.   The part that you hold, the end.
         17       Q.   And what did you do with that screwdriver?
         18       A.   I was about to scream, but she put the 
         19   screwdriver up to my neck like that.
         20       Q.   But when she told you to suck on it, what 
         21   did she do with it?
         22       A.   She put my head back down and then she put 
         23   it in my mouth.
         24       Q.   And then what did she do?
 0039
          1       A.   Then after that, she --
          2       Q.   Did she move your head like she did with 
          3   her finger?
          4       A.   Yeah, she did the same thing.
          5       Q.   And did you hear her make any noises or 
          6   sounds or say anything while that was happening?
          7       A.   No.
          8       Q.   And then what happened?
          9       A.   Then she unbuttoned her pants.  And then 
         10   like three minutes after that, the police came.  And 
         11   then after that, she gave me $50 and told me to be 
         12   quiet.
         13       Q.   When she pulled down her pants --
         14       A.   She unbuttoned her pants.
         15       Q.   She unbuttoned her pants.  Okay.  Did she 
         16   pull them down or just unbutton them?
         17       A.   Unbutton them.
         18       Q.   And could you see her pants unbuttoned?
         19       A.   Yes, because I --
         20       Q.   And what did you see when her pants were 
         21   unbuttoned?
         22       A.   Just the unbuttoned part.  That's it.
         23       Q.   Did you see any part of her body?
         24       A.   No.
 0040
          1       Q.   When she put your head down like that, 
          2   where on her body were you?
          3       A.   Like right here (indicating).
          4       Q.   And where on her body?  So where was her 
          5   finger?
          6       A.   Her finger was right here (indicating).
          7       Q.   And what part of her body?  Was it closer 
          8   to the knees or the thigh or closer to the middle 
          9   part?
         10       A.   The thighs.
         11       Q.   The thighs.  Can you point on your body how 
         12   close she was to her own, this part or --
         13       A.   Like right here (indicating).
         14       Q.   So her finger was right there, in that 
         15   part?
         16       A.   Yes.
         17       Q.   And when she unbuttoned them, her pants, 
         18   did she say why she was doing that?
         19       A.   No.
         20       Q.   Or what she wanted you to do?
         21       A.   Basically she wanted me to suck on her 
         22   private part.
         23       Q.   How did you know that?
         24       A.   Because she said, While we're waiting, she 
 0041
          1   can suck -- I can suck on her private part.  And I 
          2   said, "No."
          3       Q.   That's what you said at the very beginning?
          4       A.   Yeah, when we stopped.
          5       Q.   Did she say anything about that again after 
          6   she had you suck on her finger and screwdriver?
          7       A.   Hm-um.
          8       Q.   What word did she use for private part?
          9       A.   The "p" word.
         10       Q.   You know what?  I know sometimes it's hard 
         11   to say things, certain words, but it would be 
         12   helpful for me to know exactly the word she used.  
         13   It won't be hard for me to hear because I talk to 
         14   lots and lots of kids about lots of different 
         15   things.  You can even write it down if you want to, 
         16   but I need to know the word she said. 
         17       A.   (Writing.)
         18       Q.   Pussy.  So that's the word she used?
         19       A.   Yeah.
         20       Q.   And she said, "I want you to suck on my 
         21   pussy"?
         22       A.   Uh-hum.
         23       Q.   Did she say that just that one time or did 
         24   she say it again during the time she had you there 
 0042
          1   in the car?
          2       A.   She said it one time.
          3       Q.   And when she unbuttoned her pants, did she 
          4   say anything to you about why she was unbuttoning 
          5   them?
          6       A.   No.
          7       Q.   And what happened before the police came?
          8       A.   Well, she got on top of me and told me to 
          9   be quiet.
         10       Q.   Why do you think she got on top of you?
         11       A.   Because she put the seat leaning back.
         12       Q.   The passenger seat?
         13       A.   Uh-hum.
         14       Q.   And when it was leaned back, what happened?
         15       A.   I sort of fell back, and then she got on 
         16   top of me right then.
         17       Q.   And what was she doing when she was on top 
         18   of you?
         19       A.   She told me to be quiet before I get my 
         20   husband to come out here and kill you.
         21       Q.   What was she doing?  Where was her body?
         22       A.   On top of mine.
         23       Q.   And what was she doing with her hands and 
         24   the rest of her body when she was on top of you?
 0043
          1       A.   Her hands were like on the other side of 
          2   her.  She told me to be quiet.
          3       Q.   Were her pants still unbuttoned?
          4       A.   Yes.
          5       Q.   And could you see her pussy or any part of 
          6   her?
          7       A.   Hum.
          8       Q.   And was her body -- what was her body doing 
          9   when she was on top of you?
         10       A.   Nothing.  Just like --
         11       Q.   Staying still, moving or what?
         12       A.   Staying still.
         13       Q.   Why did she get on top of you?
         14       A.   Because she didn't want me to scream or 
         15   nothing like that.
         16       Q.   How do you know that?
         17       A.   She was like -- I was moving up and I was 
         18   trying to scream.
         19       Q.   And did she say anything about not 
         20   screaming?
         21       A.   Yeah.  She said, "Be quiet." 
         22       Q.   And had she seen the police yet?
         23       A.   She seen the car pull by  -- behind her.  
         24   And then she noticed it was the police.
 0044
          1       Q.   Was she on top of you when she saw the 
          2   police?
          3       A.   Hm-um.  Like three minutes before that, she 
          4   got on top -- she got off of me.
          5       Q.   So did anything else happen when she got on 
          6   top of you?
          7       A.   No.
          8       Q.   And then what happened?
          9       A.   Then the police came.  And then they asked 
         10   me what happened.
         11       Q.   What door did they come to?
         12       A.   There were two police officers, so one came 
         13   on my side and one came on her side.
         14       Q.   And how did they speak to you?  Because you 
         15   said everything was locked and the windows were up.
         16       A.   She unlocked the windows and the door, and 
         17   she rolled it down and asked the police, "What's 
         18   going on here?"
         19       Q.   And what did she say?
         20       A.   She said, "Oh, I'm looking for my son."  
         21   And they asked, "Who's that?"  And she's like, "Oh, 
         22   that's my son's friend."  And then the other police 
         23   officer told me to get out of the car.  And then he 
         24   took me like where his car was -- where the car was.  
 0045
          1   And she told me to be quiet.
          2       Q.   Who told you --
          3       A.   Well, he asked me what happened, and I told 
          4   him.
          5       Q.   You told me earlier you had been crying.  
          6   Were you crying when the police came or had you 
          7   stopped by then?
          8       A.   I stopped.  
          9            (End of tape.)
         10            HEARING OFFICER DAHER:  Is that it? 
         11            MR. WARE:  Yes, Your Honor.
         12       BY MR. WARE: 
         13       Q.   Ms. Joseph, when you were at the side bar 
         14   on August 1st, had you been -- let me rephrase that. 
         15            Prior to the side bar, you mentioned you 
         16   had some discussions about a possible plea by the 
         17   defendant; is that correct?
         18       A.   Yes.
         19       Q.   In advance of August 1st, had you been 
         20   given any kind of report or document which would 
         21   mitigate your view of the seriousness of the case?
         22       A.   No, I hadn't.
         23       Q.   Had you had any indication that there would 
         24   be any kind of report of a social worker of CPCS 
 0046
          1   prior to going to court on August 1st?
          2       A.   No.
          3       Q.   At some time during the course of the lobby 
          4   conference a report was produced; is that correct?
          5       A.   That's correct.
          6       Q.   And can you tell us what that report was?
          7       A.   Yes. 
          8       Q.   And I put a cover sheet on the monitor.
          9            MR. EGBERT:  Before we put a cover sheet on 
         10   the monitor, I think we have to establish that she 
         11   had seen the report. 
         12       BY MR. WARE: 
         13       Q.   Why don't you tell us what occurred with 
         14   respect to the report on August 1st. 
         15       A.   On August 1st we went to the side bar to 
         16   discuss with the Judge the case.  And I gave a 
         17   recitation of the facts.  Ms. Goldbach then 
         18   indicated that the defendant was transgendered and 
         19   was dealing with issues surrounding that. 
         20            And the Judge then said to me, "Do you know 
         21   anything about transgendered people," words to that 
         22   effect, and I said, "Not that much."  And then she 
         23   said -- the Judge said, "Well, I do.  I have a house 
         24   in P-town.  They're not violent."  And at that point 
 0047
          1   around then Ms. Goldbach said, "I have a report here 
          2   to show the judge about the defendant."  And she 
          3   said it was a social report or a psychosocial 
          4   report.  And she had one copy of the report and she 
          5   handed it up to the Judge.
          6       Q.   Were you given a copy by defense counsel on 
          7   that occasion?
          8       A.   I wasn't given my own copy, no.
          9       Q.   At any time either before or since August 
         10   1st, have you had occasion to read the report?
         11       A.   I did not have an opportunity prior to 
         12   August 1st to read that report, but subsequent to 
         13   then I have had an opportunity.
         14       Q.   And let me direct your attention to Exhibit 
         15   3 --
         16            MR. EGBERT:  I object.  What is of interest 
         17   is her knowledge at the time of these events, not 
         18   sometime later.
         19            HEARING OFFICER DAHER:  That's a good 
         20   point.  Mr. Ware?
         21            MR. WARE:  Your Honor, I don't think that's 
         22   all that is relevant.  I think the witness can 
         23   testify to the nature of these reports.  She's seen 
         24   them before and I think that's what she's going to 
 0048
          1   testify to.
          2            HEARING OFFICER DAHER:  Sustained.  Let's 
          3   go. 
          4       Q.   Tell us what happened with respect to the 
          5   report on August 1st. 
          6       A.   Anne Goldbach gave the Judge the report, 
          7   and I was standing at the side bar, kind of up the 
          8   stairs.  So I was able to -- at an angle near the 
          9   Judge.  And the Judge began to read the report 
         10   quickly.  She read out loud a few statements that 
         11   were contained in the report that I thought 
         12   supported the Commonwealth's position.  And then -- 
         13   you know, she was looking over it.  And then -- it 
         14   wasn't very long.  She handed it back to Anne 
         15   Goldbach.
         16       Q.   And at any time were you given a copy?
         17       A.   I wasn't given a copy, no.
         18       Q.   You understood you could get a copy from 
         19   the defense counsel, I presume; is that right?
         20       A.   Yes.
         21       Q.   At any time did you seek to get a copy 
         22   following the bench conference?
         23       A.   No, I didn't.
         24       Q.   Now, had you seen reports of this kind 
 0049
          1   prior to August 1st?  Not in this case, but in other 
          2   cases?
          3            MR. EGBERT:  How would she know, if she's 
          4   never seen this report?
          5            HEARING OFFICER DAHER:  Sustained.
          6            MR. WARE:  Your Honor, she's testified that 
          7   she read portions of the report on that date over 
          8   the Judge's shoulder.  I think she's entirely 
          9   competent to say that these reports show up in other 
         10   cases.
         11            MR. EGBERT:  I don't think that was her 
         12   testimony at all.
         13            HEARING OFFICER DAHER:  She said she saw 
         14   one or two paragraphs and then Judge Lopez kept on 
         15   reading through it, leafing through it.  But, Mr. 
         16   Ware, would that be sufficient to -- if you read one 
         17   or two paragraphs of a report, would that be -- you 
         18   don't know who prepared it...
         19       BY MR. WARE: 
         20       Q.   Did you see the signature page at some 
         21   point?
         22       A.   At some point when the Judge was flipping 
         23   through, yes, I did.
         24            MR. EGBERT:  What?
 0050
          1            HEARING OFFICER DAHER:  She did see the 
          2   signature at the bottom of the page at some point 
          3   when Judge Lopez was leafing through it.
          4            MR. WARE:  And let me have the signature 
          5   page up, please.
          6            MR. EGBERT:  Judge, I think we probably 
          7   ought to have a voir dire.  This witness has 
          8   testified under oath on previous occasions twice 
          9   that she never saw the contents of the report at any 
         10   time on August 1st.
         11            MR. WARE:  I don't believe that's the case.  
         12   And that can be part of the cross examination, but 
         13   I'd like to proceed here.  
         14            HEARING OFFICER DAHER:  At this particular 
         15   time I'm going to take it de bene.  Show her the 
         16   last page and then subject to a motion to strike.  
         17   Go ahead.  Show her the last page.
         18       BY MR. WARE: 
         19       Q.   Directing your attention to the signature 
         20   line, you indicated that you saw that on August 1st?
         21       A.   I saw it.  I don't know that I was focused 
         22   or memorizing it or any of those things.  I did see 
         23   that there was a signature page attached to the 
         24   report, yes.
 0051
          1       Q.   And how was this report represented to the 
          2   Court by Ms. Goldbach?
          3       A.   She said it was either a social report or a 
          4   psychosocial report that she was presenting as kind 
          5   of an aid in sentencing. 
          6       Q.   Had you seen similar reports from CPCS in 
          7   the past?
          8       A.   Yes, many.
          9       Q.   And what did you understand on the basis of 
         10   that knowledge this report to be?
         11       A.   My understanding of these types of reports 
         12   is that they were sentencing recommendations that 
         13   supported CPCS's arguments in their advocacy that 
         14   would contain information which would support why a 
         15   particular defense attorney would request a specific 
         16   sentence.
         17       Q.   To your knowledge was there -- or to your 
         18   recollection was there any discussion about the 
         19   report dealing in any way with criminal 
         20   responsibility?
         21       A.   No, I don't believe criminal responsibility 
         22   came up at all.
         23       Q.   Was that a defense in this case, to your 
         24   knowledge?
 0052
          1       A.   It was not a defense in this case.
          2       Q.   Did you at any time seek to hire your own 
          3   social worker or psychologist or psychiatrist to 
          4   rebut the report?
          5       A.   No, we didn't.
          6       Q.   And will you tell us why not. 
          7       A.   Realistically, that wasn't an option that 
          8   was available to the district attorney's office.  
          9   And on August 1st the case was still a defendant 
         10   that was charged with some crimes.  He wasn't 
         11   raising a defense of criminal responsibility or 
         12   competence.  The DA's office doesn't have a right to 
         13   speak with criminal defendants.  They don't have to 
         14   speak to us or our agents.  They don't have to speak 
         15   to the police, and they definitely wouldn't have to 
         16   speak to a social worker of our choosing or a 
         17   psychiatrist -- even an independent one -- at our 
         18   request.
         19       Q.   Let me direct you to Exhibit 16.
         20            MR. WARE:  Your Honor, may I approach the 
         21   witness?
         22            HEARING OFFICER DAHER:  Please. 
         23       Q.   I'm going to place an exhibit book in front 
         24   of you and point out to you Exhibit 16 about which 
 0053
          1   there has been some testimony that it was a motion 
          2   for supplemental expenses allowed in May of 2000 for 
          3   funds for a psychiatrist or a psychologist.
          4       A.   Yes.
          5       Q.   Was the district attorney's office on 
          6   notice as a result of that motion that there would 
          7   be some kind of psychiatric defense?
          8       A.   At this point in May we were aware that 
          9   that was a possibility, but that just never went 
         10   anywhere.  After Ms. Goldbach was provided with the 
         11   funds, there was no discussion of having the 
         12   defendant evaluated for competency.  In fact, Ms. 
         13   Goldbach indicated that the defendant wanted to 
         14   plead guilty to the charges and that, therefore, a 
         15   psychiatric defense wouldn't be applicable. 
         16       Q.   At any time did defense counsel indicate 
         17   that they were pursuing the psychiatric defense or 
         18   criminal responsibility defense?
         19       A.   Other than this motion? 
         20       Q.   Yes. 
         21       A.   No, that was never brought forward.
         22       Q.   During the course of the lobby conference 
         23   at the side bar, can you recall whether or not there 
         24   were any facts that were disputed by defense counsel 
 0054
          1   with respect to your characterization of the events 
          2   that occurred in November 1999?
          3       A.   There was no dispute to any of the material 
          4   facts.  Ms. Goldbach mentioned, I believe at the 
          5   side bar, that Detective Greene had arrived at some 
          6   point on the scene, and that when he got there, the 
          7   boy wasn't as upset as I had said that he was when 
          8   the police found him.  She also, I believe, said at 
          9   some point -- at some point during the facts, during 
         10   my recitation I said something like, "This was a 
         11   good boy and he was cooperative and credible."  And 
         12   I think at some point Ms. Goldbach said, "I don't 
         13   think he's everything you're making him out to be"; 
         14   something like that.
         15       Q.   What was the conversation with Judge Lopez?  
         16   That is to say, what did she say and what was the 
         17   result of the lobby conference?
         18       A.   On August 1st? 
         19       Q.   Yes. 
         20       A.   Well, I went over the facts of the 
         21   Commonwealth's case.  I went over the reasons that 
         22   we felt it was a serious case and the strengths of 
         23   our case, including the defendant's partial 
         24   confession, the police happening on the crime scene, 
 0055
          1   so to speak, the recovery of the screwdriver, as 
          2   well as a condom; the strength of the detectives' 
          3   testimony in the case as well. 
          4            As I was going through my recitation, Judge 
          5   Lopez seemed to be looking at Anne Goldbach, saying, 
          6   "This sounds like a serious" --
          7            MR. EGBERT:  I object.
          8            HEARING OFFICER DAHER:  Sustained.  
          9   Stricken.
         10       Q.   What was said?
         11       A.   At that point when Ms. Goldbach began her 
         12   recitation of her reasons for requesting probation, 
         13   she brought up the fact that the defendant was 
         14   transgendered.  And at that point is when Judge 
         15   Lopez said to me, "You don't know anything about 
         16   transgendered people, do you?"  And I said, "Not 
         17   much."  And she said, "Well, I do.  I have a house 
         18   in P-town.  They're not violent."  And she then read 
         19   sections of that report -- Ms. Goldbach gave the 
         20   report and Judge Lopez read certain sections out 
         21   loud about the defendant's maturity issues, that she 
         22   was struggling with maturity issues and that she 
         23   should hang out with people her own age, something 
         24   like this. 
 0056
          1            And then the Judge indicated that she was 
          2   likely to -- she would give the defendant a 
          3   probationary sentence, along with conditions 
          4   there -- I forget exactly what it was called.  It 
          5   was a community probation program.  It was a new 
          6   program through the probation office where the 
          7   defendant would have to go to a community center and 
          8   check in for part of the time that the defendant was 
          9   on probation.
         10       Q.   Was there any further conversation at the 
         11   lobby conference that day?
         12       A.   Yes.  At some point I said, "Judge, the 
         13   DA's office isn't going to agree to this on any 
         14   level.  This is, in our perspective, a very serious 
         15   crime.  There's been a lot of attention given to the 
         16   case.  The victim's family feels strongly about the 
         17   case as well."  And she said to me, "You can argue 
         18   and say whatever you want, but that's what I'm going 
         19   to do."  I said, "Okay." 
         20       Q.   Was that the conclusion of the lobby 
         21   conference?
         22       A.   Basically, yes.
         23       Q.   Following that conference did you speak 
         24   with anyone at the district attorney's office as 
 0057
          1   part of your official duties?
          2       A.   Yes.  At some point I left the courthouse 
          3   and went back to my office, and I met with my 
          4   supervisor, David Deakin, to tell him what was going 
          5   on with my case -- my cases, and this case in 
          6   particular.
          7       Q.   What was the conversation with Mr. Deakin?
          8       A.   I went through just a brief refreshing for 
          9   him of the facts of the case and reminded him some 
         10   of the things that he and I had discussed.  I told 
         11   him, "I can't believe this, but Judge Lopez is going 
         12   to be giving probation on this case."  We talked 
         13   about notifying the victim's family.  And as we 
         14   finished -- notifying the victim's family about what 
         15   was going to happen.  And then when we were wrapping 
         16   up discussing the case, I said to him, "I don't know 
         17   if you want to inform Elizabeth Keeley," who was the 
         18   first assistant at the time, "or Jim Borghesani," 
         19   who was the office -- I don't remember his exact 
         20   title.  He was head of the press office -- "about 
         21   this."  I said, "I leave that to you."  And I went 
         22   back to my office.
         23       Q.   Prior to August 1st, 2000, had the press 
         24   office been involved in this case, to your 
 0058
          1   knowledge?
          2       A.   Yes.  Shortly after the defendant's 
          3   arraignment in the Superior Court -- it may have 
          4   been right before his arraignment in Superior Court 
          5   -- I had received a call -- either a call or I had 
          6   seen them in the hallway -- and they asked me to 
          7   send to them -- that was back in January -- my 
          8   direct indictment packet and the relevant police 
          9   reports that go along with the case for their files.  
         10   And I would briefly update them on that case and 
         11   other cases as they went through the pipeline.
         12       Q.   Accordingly, in January of 2000 you sent 
         13   some basic information to the press office of the 
         14   district attorney's office?
         15       A.   Correct.
         16       Q.   Between the point in January at which you 
         17   sent that package of information and August 1st, had 
         18   you had any contact whatsoever with your own press 
         19   office regarding it?
         20       A.   Prior to August 1st? 
         21       Q.   Yes. 
         22       A.   I don't really remember.  I'm sure that 
         23   there may have been.  I don't have any specific 
         24   memory, other than giving them the direct indictment 
 0059
          1   packet that they had requested.
          2            MR. EGBERT:  Judge, I move to strike "I 
          3   don't have a recollection" --
          4            HEARING OFFICER DAHER:  Sustained.  Go 
          5   ahead.
          6       Q.   Given the fact that you had sent an initial 
          7   packet of information to Mr. Borghesani's office, 
          8   did you typically follow a practice of keeping their 
          9   office updated?
         10       A.   I did.  On cases that they had indicated to 
         11   me that they were following, either through my 
         12   supervisor, I would let them know if there was a 
         13   significant event, through Mr. Deakin in this case, 
         14   or sometimes I would send an email saying such and 
         15   such a case is set for trial.  Or sometimes I would 
         16   just see them in the hallway or the elevator and I 
         17   would say, Oh, by the way, I don't know if you 
         18   remember such and such a case.  That's coming up for 
         19   a trial date or something like that.
         20       Q.   Other than your conversation with Mr. 
         21   Deakin on August 1st -- incidentally, is that kind 
         22   of conversation with respect to the possibility of 
         23   press involvement part of your official obligation 
         24   in discussions with your superior?
 0060
          1       A.   Well, my official obligation is simply to 
          2   keep my superior updated.  And in that situation, I 
          3   wanted him to remember that Elizabeth Keeley, who's 
          4   the first assistant, and Jim Borghesani had both 
          5   expressed an interest in this case at different 
          6   times.  And my obligation is simply to report to Mr. 
          7   Deakin about these things.
          8       Q.   Other than reporting to Mr. Deakin on 
          9   August 1st, as you've described, did you have any 
         10   involvement whatsoever in press coverage that 
         11   occurred in this case?
         12       A.   No, I didn't.
         13       Q.   Did you, yourself, ever contact the press, 
         14   formally or informally?
         15       A.   No, I didn't.
         16       Q.   Did you ever have any conversation with any 
         17   member of the press or your press office on a sort 
         18   of background basis?
         19       A.   Before --
         20       Q.   On or after August 1st. 
         21       A.   No, I didn't.
         22       Q.   Let me direct your attention to Exhibit 7 
         23   in the book before you, and I'd like to put it on 
         24   the monitor. 
 0061
          1            Do you recognize Exhibit 7, about which 
          2   there's been testimony that it was your office's 
          3   press release issued on August 3rd, 2000?
          4       A.   I recognize this, that this is the press 
          5   release, yes.
          6       Q.   And let me first direct your attention to 
          7   the upper left corner.  And can we put that on 
          8   there?  In the upper left-hand block it indicates 
          9   "Contact Information"; is that correct?
         10       A.   That's correct.
         11       Q.   And what was Mr. Borghesani's position at 
         12   that time?
         13       A.   I believe his official title was press 
         14   secretary to the district attorney.
         15       Q.   Who was David -- what was Mr. Falcone's 
         16   position at that time?
         17       A.   Mr. Falcone also worked in the press office 
         18   and he was an assistant to Mr. Borghesani.
         19       Q.   When did you first see Exhibit 7, the 
         20   Suffolk District Attorney's press release?
         21       A.   At some point I believe after the defendant 
         22   pleaded in September, though it may have been prior, 
         23   but it was definitely after August 4th that I saw 
         24   this.
 0062
          1       Q.   At the time it was issued on August 3rd, 
          2   you did not in the ordinary course get a copy of the 
          3   release even though it was your case?
          4       A.   No, we didn't. 
          5       Q.   Did you participate in any way other than 
          6   what you've described in the decision to issue a 
          7   press release by the Suffolk County District 
          8   Attorney?
          9       A.   No, I didn't participate in any decisions 
         10   about press notification.
         11       Q.   Were you consulted by Elizabeth Keeley or 
         12   by Mr. Borghesani with respect to whether to issue a 
         13   press release?
         14       A.   No, they didn't consult with me.
         15       Q.   Directing your attention now to August 4th, 
         16   you went to court on that date, did you not?
         17       A.   I did.
         18       Q.   And will you tell us what you anticipated 
         19   was going to occur on August 4th. 
         20       A.   That was the day that we had scheduled as a 
         21   plea date, where the defendant was scheduled to 
         22   plead guilty to the charges -- to all the charges.
         23       Q.   And tell us what occurred on August 4th 
         24   after you arrived. 
 0063
          1       A.   I got there in the morning, and it was a 
          2   relatively slow day.  It was a Friday.  And I got 
          3   off the elevator --
          4       Q.   This is in the summer, obviously, August?
          5       A.   That's correct. 
          6       Q.   And you're saying it was on a Friday?
          7       A.   Correct.  I believe it was.
          8       Q.   Tell us what you heard and what you saw. 
          9       A.   And when I got off the elevator, Ms. 
         10   Goldbach approached me and she was very upset.  "How 
         11   could you do this?"  Something like that.  I didn't 
         12   know what she was talking about at all.  And she 
         13   said, "The press is here."  I may have said to her, 
         14   "They're not here for this."  I didn't see any press 
         15   at that point.  There was nobody in the lobby.  But 
         16   I opened the courtroom, the session door, and I saw 
         17   a camera.  And then I went to find out why they 
         18   were -- what the camera was there for.  I didn't 
         19   believe it was for this case. 
         20       Q.   What happened after that?
         21       A.   Well, I asked somebody in the courtroom, 
         22   "What are they here for?  What case is this here 
         23   for?"  And I don't remember who it was.  It may have 
         24   been the clerk or a court officer who said to me, 
 0064
          1   "They're here for the Horton case."  And I was 
          2   surprised.  And then I said, "Oh."  And Anne 
          3   Goldbach said, "I want to see the Judge.  I want to 
          4   go see her before this morning.  My client's very 
          5   upset."  I said, "Okay.  We can go see her this 
          6   morning before court starts." 
          7       Q.   And did the two of you have a lobby 
          8   conference following that discussion with Judge 
          9   Lopez?
         10       A.   At some point the clerk or court officer 
         11   said to us -- I don't remember which one -- "The 
         12   Judge will see you now" or "You can come see the 
         13   Judge now."
         14       Q.   Tell us what occurred during the lobby 
         15   conference. 
         16       A.   This time the lobby conference was in the 
         17   Judge's lobby.  And we went into the Judge's lobby, 
         18   and I sat down and Ms. Goldbach sat down.
         19       Q.   I'm going to ask you to speak a little 
         20   louder and perhaps somewhat closer to the 
         21   microphone. 
         22       A.   Sorry. 
         23       Q.   And after you were in the lobby, what was 
         24   the conversation?
 0065
          1       A.   We went into the lobby.  And Ms. Goldbach 
          2   was very upset.  And Judge Lopez started to scream 
          3   at me.  She said to me, "You're mean.  You're very 
          4   mean.  You belong in the suburbs."  She repeated 
          5   that a few times.  "You belong in the suburbs.  You 
          6   don't get it.  You have no credibility with me.  I 
          7   don't want you appearing before me.  You called the 
          8   press.  You're mean.  You're very young.  You belong 
          9   in the suburbs."  She kept repeating that.  And Anne 
         10   Goldbach then said -- was very upset.  She said that 
         11   her client had arrived that morning and got upset 
         12   when her client and the defendant's mother saw the 
         13   press, and that they then went to another part of 
         14   the building, they were so upset.  
         15            And the Judge just kept screaming at me.  
         16   And no decision was really reached about what the 
         17   next step was going to be.  But it became clear that 
         18   it was time to leave the lobby conference.  And I 
         19   began to walk out first with -- I thought Anne 
         20   Goldbach was right behind me.
         21       Q.   Before you walked out, did the Judge 
         22   inquire of you whether or not you had some role in 
         23   bringing the press to the proceeding?
         24       A.   She didn't inquire of me.  She accused me 
 0066
          1   of calling the press.  She said, "You called the 
          2   press, didn't you?"  She was very angry.  She was 
          3   very angry.
          4       Q.   Did she ask any questions to find out 
          5   whether in fact that was true?
          6       A.   She didn't ask any questions, no.  She 
          7   simply accused me of doing it.
          8       Q.   And then you said you started to leave the 
          9   lobby.  Did you hear the Judge say something else?
         10       A.   Yes.  As we began to leave the lobby, the 
         11   Judge said, "Well, maybe we'll just continue the 
         12   case to when Ms. Joseph" -- I was leaving at that 
         13   point -- "to when Ms. Joseph is on vacation."  She 
         14   said that to Anne Goldbach.
         15       Q.   And what did you then do?
         16       A.   I was really -- I was very upset.  I had 
         17   never been spoken to like that in my life.  I called 
         18   Elizabeth Keeley actually.  I had never done that 
         19   either.  I just picked up the phone in the courtroom 
         20   and said, "I need to talk to Elizabeth Keeley right 
         21   away," and I called her.
         22       Q.   What was Elizabeth Keeley's position at 
         23   that time?
         24       A.   She was the first assistant.
 0067
          1       Q.   Did you understand that this exchange or 
          2   these comments by Judge Lopez was simply a 
          3   professional discussion or disagreement between 
          4   counsel and the Court?
          5       A.   I didn't feel that that was a professional 
          6   disagreement at all.  She was attacking me 
          7   personally.  She told me I was mean and I belonged 
          8   in the suburbs.  It was very personal.  I was very 
          9   upset.
         10       Q.   During the course of the lobby conference 
         11   on August 4th, did the Judge inquire about how the 
         12   parties might solve what she perceived to be a 
         13   problem?
         14       A.   No, we didn't discuss that.
         15       Q.   What happened after you called Elizabeth 
         16   Keeley?  What did you do?
         17       A.   I waited there for my supervisor, David 
         18   Deakin, to come to court.
         19       Q.   And tell us what happened. 
         20       A.   He came shortly after my phone call to 
         21   Elizabeth Keeley, 15 minutes or so.  And he and I 
         22   went outside the court -- I think the court still 
         23   hadn't started officially yet.  And I filled him in 
         24   on everything that had been going on that morning.  
 0068
          1   And we then spoke to Anne Goldbach outside the 
          2   courtroom.
          3       Q.   And what was the nature of that 
          4   conversation?
          5       A.   Anne Goldbach said to David Deakin that she 
          6   was very upset, that my sentencing recommendation 
          7   was out of whack, that my charges were too serious 
          8   for what had happened.  And David Deakin at that 
          9   point said -- I mean, he's the one who had 
         10   authorized both the sentencing recommendation and 
         11   the charges -- and said, you know, "You're barking 
         12   up the wrong tree with that.  You're out of line." 
         13            And I got very upset at that point and 
         14   walked away.  The Court still hadn't started.  At 
         15   some point then we went back into the courtroom and 
         16   I went to Anne Goldbach.  This was still in the 
         17   morning part of the day, before the lunch recess.  
         18   And I said, "Should we choose a date now?  If the 
         19   case is going to get continued, let's get a date."  
         20   And she said, "Oh, I don't know if the case is 
         21   getting continued.  Let's just see what happens."  I 
         22   said, "Okay, we won't choose a date."  And we waited 
         23   until the lunch recess and the case wasn't called at 
         24   that point.
 0069
          1       Q.   Following that, at some time on August 4th 
          2   was the case in fact called?
          3       A.   Towards the end of the afternoon, Mr. 
          4   Deakin -- the case was not officially called.  Mr. 
          5   Deakin asked that the case be called.  He got up in 
          6   court and said, "Can you call the Horton case, 
          7   please," to the clerk.
          8       Q.   Let me direct your attention to what's been 
          9   marked as Exhibit 42, which is a transcript of the 
         10   proceedings. 
         11            When the proceedings began -- feel free to 
         12   use that to whatever extent you want -- did the 
         13   Judge say that she was going to continue the case?
         14       A.   She said she would continue the case after 
         15   Mr. Deakin asked that the case be called.
         16       Q.   Yes. 
         17       A.   Yes.
         18       Q.   And what did the Judge say as a reason for 
         19   that?
         20       A.   She said she had a number of bails to do 
         21   that afternoon.
         22       Q.   Specifically she said, I take it, according 
         23   to the transcript, "I have 16 bails and a lot of 
         24   other things to take care of"; is that correct?
 0070
          1       A.   That's correct.
          2       Q.   And what was the result of that?  Was the 
          3   case in fact continued?
          4       A.   The case was continued.
          5       Q.   After the case was continued, was there 
          6   some colloquy between the Judge and your office, 
          7   specifically Mr. Deakin, with respect to that 
          8   continuance?
          9       A.   Yes.
         10       Q.   Tell us what occurred.
         11       A.   The Commonwealth at that point filed a 
         12   motion objecting to the continuance because it was a 
         13   child abuse case, and the victim's grandmother had 
         14   been in court all day, and she had been told by our 
         15   office that there would be a plea on that day.  And 
         16   so we objected to the continuance.  And then we 
         17   filed that motion with the Court.  And Mr. Deakin 
         18   said, "We'd like written findings if you're going to 
         19   continue the case."  And the Judge said, "Oh, you'll 
         20   get your written findings.  You'll get them," 
         21   something like that.
         22       Q.   What was the tone that the Judge used on 
         23   that occasion?  How would you describe the Judge's 
         24   demeanor and tone?
 0071
          1       A.   She was very angry and her tone was 
          2   somewhat menacing.  She said, "You'll get your 
          3   findings.  You'll get them," something like that.
          4       Q.   When you objected to the continuance that 
          5   day, what was the reason for that objection from the 
          6   district attorney's standpoint?
          7       A.   In child abuse cases we work very closely 
          8   with the victim and their family.  And the case was 
          9   on for -- set for a plea.  One of the things we were 
         10   hoping is that even though the plea wasn't the 
         11   result that neither the DA's office or the victim's 
         12   family wanted, it would have resolved prior to the 
         13   boy starting school in the fall by putting it on in 
         14   August.  And we had kind of told the family that was 
         15   what was going to happen.  And that helps the family 
         16   give closure and be part of the process, allowing 
         17   them to participate in the process, if you will.
         18       Q.   In a child abuse case such as this one, who 
         19   are the victims?
         20            MR. EGBERT:  Are we talking about 
         21   statutorily?
         22            HEARING OFFICER DAHER:  Sustained.
         23       Q.   Whom did you view in this case as a victim? 
         24            MR. EGBERT:  That's irrelevant.
 0072
          1            MR. WARE:  I don't think it is, Your Honor.
          2            HEARING OFFICER DAHER:  I'm going to 
          3   sustain it.  The facts speak for themselves.  Let's 
          4   go.
          5       Q.   What's the importance of the victim's 
          6   family, as you understood it, in making the 
          7   objection to the continuance?
          8            MR. EGBERT:  Is he talking statutorily or 
          9   in general, Your Honor --
         10            HEARING OFFICER DAHER:  Sustained.
         11       Q.   Other than your concern for the child 
         12   himself, did you have concern for the victim's 
         13   family in objecting to the continuance? 
         14            MR. EGBERT:  Objection.  Relevance. 
         15       A.   I did --
         16            MR. EGBERT:  Objection.
         17            HEARING OFFICER DAHER:  That's again -- I 
         18   think the testimony is already in about her concern.  
         19   I'm going to overrule that.  You can have it.  Go 
         20   ahead.
         21       A.   I did.  The child's grandmother, who was 
         22   the primary guardian of the boy, had been in court 
         23   the whole day.  She had been told that this was 
         24   going to happen by our office.  Our communication 
 0073
          1   with them, with the families of the children, is 
          2   something that helps give them some feelings of 
          3   control over the system and an ability to 
          4   participate in the system --
          5            HEARING OFFICER DAHER:  I think we've 
          6   already been over this.  She wanted to bring 
          7   closure, have the kid start school.  Go ahead. 
          8       Q.   Based on your observations on August 4th 
          9   and the colloquy with the Court, what did you 
         10   understand the reason for this continuance to be?
         11       A.   My feelings --
         12            MR. EGBERT:  Objection.  I'm not sure --
         13            HEARING OFFICER DAHER:  The word 
         14   "understanding" is somewhat of a generic term.  If 
         15   you would, Mr. Ware, make it more specific.  
         16   Sustained, Mr. Egbert.
         17       Q.   What was your understanding of why the case 
         18   was being continued on August 4th?
         19            MR. EGBERT:  It's not what her 
         20   understanding of the matter is.  It's what was done.
         21            MR. WARE:  I think her understanding is 
         22   highly relevant.  It's part of the basis on which 
         23   the motion was filed in the first instance.
         24            HEARING OFFICER DAHER:  You mean the motion 
 0074
          1   in opposition to the continuance? 
          2            MR. WARE:  Yes, Your Honor.
          3            HEARING OFFICER DAHER:  Overruled.  Go 
          4   ahead.
          5            MR. EGBERT:  She hasn't testified to that.
          6            HEARING OFFICER DAHER:  He's going to get 
          7   to it.  That was the motion that was filed late in 
          8   the afternoon, I take it, by the district attorney's 
          9   office, objecting to the continuance; is that 
         10   correct? 
         11            THE WITNESS:  That's correct.
         12            HEARING OFFICER DAHER:  When -- for my 
         13   edification, when was that filed?  Any idea what 
         14   time that was filed?
         15            THE WITNESS:  That was filed August 4th, 
         16   probably at about 2:30 or so, 3:00.
         17            HEARING OFFICER DAHER:  Go ahead.
         18       BY MR. WARE:
         19       Q.   What did you understand the reason for the 
         20   continuance to be?
         21       A.   My understanding is that the case was being 
         22   continued because the Judge was upset that the press 
         23   was there.  That was my basic understanding.
         24       Q.   Did the Judge at any time express any 
 0075
          1   concern that the defendant might be provoked by the 
          2   press attention or that the press attention would 
          3   somehow jeopardize her ability to get a guilty plea?
          4       A.   No, she didn't.
          5       Q.   Was there any conversation of that nature?
          6       A.   No, there wasn't. 
          7       Q.   Directing your attention to Exhibit 17, 
          8   there's been testimony that this --
          9            MR. EGBERT:  Objection as to what there's 
         10   been testimony about.  It's her testimony we're 
         11   looking for.
         12            MR. WARE:  The testimony is in evidence.
         13            MR. EGBERT:  Her testimony is in evidence, 
         14   but educating the witness is not. 
         15            HEARING OFFICER DAHER:  Sustained.
         16       Q.   Do you recognize Exhibit 17?
         17       A.   I do.
         18       Q.   What is it?
         19       A.   That's the motion that I filed that 
         20   afternoon in court objecting to the continuance of 
         21   the Horton case.
         22       Q.   And in addition, Judge Lopez's order is 
         23   handwritten over the motion; is that correct?
         24       A.   That's correct.
 0076
          1       Q.   When did you first see Exhibit 17, the 
          2   order of the court?
          3       A.   It was faxed to the district attorney's 
          4   office on that afternoon at probably about 4:00 or 
          5   so.
          6            MR. WARE:  Your Honor, would this be a 
          7   convenient time to break for the morning?
          8            HEARING OFFICER DAHER:  Good idea.  We'll 
          9   take a short recess.  
         10            (Recess)  
         11       (At side bar)
         12            HEARING OFFICER DAHER:  What's on the 
         13   agenda? 
         14            MR. WARE:  Mr. Braceras had an exchange 
         15   with Mr. Mindich that I think we should probably put 
         16   on the record.
         17            MR. EGBERT:  Judge, I object to putting on 
         18   the record anything that relates to some exchange 
         19   between Mr. Braceras and Mr. Mindich.
         20            HEARING OFFICER DAHER:  I totally 
         21   understand your position, but I advised you -- I 
         22   told you, I counseled you last week.  You said she 
         23   would try to have control over Mr. Mindich.
         24            MR. EGBERT:  What is relevant to these 
 0077
          1   proceedings?  I don't know what this kind of 
          2   exchange supposedly is.
          3            HEARING OFFICER DAHER:  Let's hear it.  
          4   What happened? 
          5            MR. EGBERT:  First of all, I want Mr. 
          6   Braceras put under oath.
          7            HEARING OFFICER DAHER:  No problem.  
          8   Harvey, swear him in.  
          9            MR. EGBERT:  And I want the opportunity to 
         10   cross-examine at the appropriate time.  This running 
         11   to the Court with every little remark from people in 
         12   their office and the hallways and the like, this is 
         13   like third grade.
         14            HEARING OFFICER DAHER:  Mr. Ware, do you 
         15   want me to talk to Mr. Mindich? 
         16            MR. EGBERT:  I don't know what happened, 
         17   but what they should have done, instead of running 
         18   like little children to you, they should have come 
         19   to me and told me whatever the problem was.  
         20            Mr. Braceras in the past, if you want to 
         21   get into it, has baited Mr. Mindich and his counsel 
         22   on a number of occasions.  He was taken to task for 
         23   it up in the SJC by Mr. Silverglate and Mr. Good 
         24   because of his conduct with Mr. Mindich and with 
 0078
          1   them.  I don't want to get into this whole back and 
          2   forth; but if you want to start making records of 
          3   who does and does not have a big mouth around here, 
          4   then we'll do it, but it strikes me that unless it 
          5   has something to do with this case, it doesn't 
          6   belong in this record.
          7            HEARING OFFICER DAHER:  Mr. Ware? 
          8            MR. WARE:  I disagree.  I think that we 
          9   need to bring to the Court's attention any incident 
         10   which might in some way color the fairness of the 
         11   proceeding.  I'm not asking for any ruling.  But the 
         12   Court has repeatedly warned Mr. Mindich --
         13            MR. EGBERT:  Not about his conduct in the 
         14   hallway, which supposedly this is.  This kind of 
         15   stuff seems to me is the same kind of stuff, quite 
         16   frankly, like that note you received where we went 
         17   around and by unknown people -- she put up with this 
         18   for two years with these unknown notes.  Now, if the 
         19   Court wants to hear it, fine; but if we start making 
         20   a record of every comment in every hallway by every 
         21   person related to this --
         22            HEARING OFFICER DAHER:  Mr. Ware, listening 
         23   to Mr. Egbert, this thing could develop into a 
         24   situation where we're continuously --
 0079
          1            MR. WARE:  I don't think so, Your Honor.  
          2   His hysteria is overstated.  What we're talking 
          3   about here is preserving for a record what goes on 
          4   here in the proceedings with the participants.
          5            MR. EGBERT:  Mr. Mindich is not a 
          6   participant.  He is not a participant.  Let's get 
          7   that straight.
          8            HEARING OFFICER DAHER:  I don't find him to 
          9   be a participant.  Again, Mr. Ware, help me if it's 
         10   indicated -- do you want me to talk to Mr. Mindich 
         11   and try to cool this thing down? 
         12            MR. EGBERT:  Why don't you have them come, 
         13   instead of like third graders to the teacher, have 
         14   them come to me and tell me what it is they claim he 
         15   said, and I'll talk to Mr. Mindich.
         16            HEARING OFFICER DAHER:  Four to five days 
         17   ago, Mr. Egbert, the Court advised, and Mr. Ware 
         18   stated many times, when he would go by Mr. Mindich, 
         19   Mr. Mindich would make derogatory remarks.
         20            MR. EGBERT:  Mr. Mindich has told me that 
         21   Mr. Ware has said the same thing.  I was present 
         22   when Mr. Ware called Mr. Mindich a fucking asshole.  
         23   So if you want to go around with this, we'll go 
         24   around.
 0080
          1            MR. WARE:  That's an absolute lie and you 
          2   know it.
          3            MR. EGBERT:  It is not a lie and you know 
          4   it.
          5            MR. WARE:   (Inaudible comment)
          6            MR. EGBERT:  What did you say?
          7            MR. WARE:  I said, That's very 
          8   unprofessional.
          9            MR. EGBERT:  That's not what you said.  The 
         10   record will reflect what you said.
         11            Did you get that?
         12            THE COURT REPORTER:  I didn't hear what he 
         13   said.
         14            MR. EGBERT:  He said, "You're a weenie." 
         15            I want Mr. Braceras under oath.  
         16            (Roberto Braceras sworn)
         17            HEARING OFFICER DAHER:  Do you want to ask 
         18   him --
         19            MR. WARE:  No.
         20            HEARING OFFICER DAHER:  Your name for the 
         21   record, sir.
         22            MR. BRACERAS:  Roberto Braceras.  For the 
         23   record, I would like to object to the statement by 
         24   Mr. Egbert that I was somehow taken to task before 
 0081
          1   the SJC.  I argued before the SJC.  
          2            Second, it wasn't so much of an exchange.  
          3   I entered the restroom as Mr. Mindich was exiting 
          4   the restroom.  He called me a piece of shit.  That's 
          5   the sum and substance of it.
          6            HEARING OFFICER DAHER:  Do you want to put 
          7   him on the stand to cross-examine him?  Do you want 
          8   to put him on?  You're entitled to.
          9            MR. EGBERT:  I want to put him on.  I don't 
         10   want to delay the case.
         11            HEARING OFFICER DAHER:  Do you want to put 
         12   him on right now?
         13            MR. EGBERT:  No.  I want to investigate 
         14   what happened, because I'm sure there were witnesses 
         15   there.  I was there with Mr. Mindich in the 
         16   bathroom.  I left a moment before him.  I want to 
         17   find out what happened.
         18            HEARING OFFICER DAHER:  Hopefully -- we 
         19   have Mr. Braceras' comment as to what transpired 
         20   between him and Mr. Mindich, and you have the right 
         21   to examine him at any time that you deem 
         22   satisfactory.  Is that okay, gentlemen? 
         23            MR. WARE:  Yes.
         24            HEARING OFFICER DAHER:  It's on record.  
 0082
          1   Thank you very much.  
          2            (End of side bar)
          3            HEARING OFFICER DAHER:  Do you want the 
          4   subpoena? 
          5            MR. EGBERT:  I need you to authorize it.
          6            HEARING OFFICER DAHER:  It's authorized.  
          7   It's allowed. 
          8       BY MR. WARE: 
          9       Q.   Ms. Joseph, do you have before you Exhibit 
         10   17, which is the order and the findings of Judge 
         11   Lopez?
         12       A.   Yes, I have it here. 
         13       Q.   And directing your attention to the first 
         14   few lines of the order, it says in part, "ADA 
         15   Joseph, unhappy with the Court's disposition, called 
         16   the press in."  Do you see that language?
         17       A.   I do.
         18       Q.   Other than what you've told us, did you 
         19   have any role whatsoever in, quote, calling in the 
         20   press?
         21       A.   No, I didn't.
         22       Q.   Have you ever, under any circumstance, 
         23   spoken to any member of the press with respect to 
         24   the Horton case?
 0083
          1       A.   With respect to the Horton case, never.
          2       Q.   Do you see the reference as the language 
          3   goes on, "Ms. Joseph has a habit of doing this"?  Do 
          4   you see that?
          5       A.   I do.
          6       Q.   Am I correct that there were two cases 
          7   which preceded the Horton case by the name of 
          8   Calixte and Estrada in which you were the assistant 
          9   district attorney; is that correct?
         10       A.   That's correct.
         11       Q.   Are you familiar with those cases?
         12       A.   I am.
         13            MR. WARE:  Your Honor, I would like to 
         14   offer as Exhibit 66 the transcript of the Calixte 
         15   matter.  The Estrada transcript is already in 
         16   evidence, but I have never offered Calixte, and I 
         17   would like to do that now as Exhibit 66.
         18            MR. EGBERT:  No objection.
         19            HEARING OFFICER DAHER:  If there's no 
         20   objection, we'll mark it now. 
         21                 (Document marked as Exhibit 66
         22                 moved into evidence)
         23       Q.   Now, following the Calixte and Estrada 
         24   cases, there was an interview with you which was 
 0084
          1   written about in the Boston Globe; is that correct?
          2       A.   That's correct.
          3       Q.   Prior to either the Calixte case or the 
          4   Estrada case, did you give any interviews or have 
          5   any discussion with the press whatsoever?
          6       A.   About those cases? 
          7       Q.   Yes. 
          8       A.   Not to my memory, no.
          9       Q.   And had you been involved in any way in the 
         10   issuance of any press releases in those cases?
         11       A.   No.
         12       Q.   Following those two cases and their 
         13   disposition, what occurred with respect to any 
         14   publicity?
         15       A.   This was several years ago.  I had two 
         16   pleas that were unaggrieved disparate 
         17   recommendations before Judge Lopez.  In both of 
         18   those cases she gave probation over the 
         19   Commonwealth's objection.  And after the plea was 
         20   over, I received a call from our press office saying 
         21   that a columnist from the Boston Globe wanted to 
         22   speak with me about the sentences in those cases and 
         23   told me that at a certain time I would get a call 
         24   from Ms. McNamara from the Boston Globe who was 
 0085
          1   doing an article about both of the sentences that 
          2   were given in those child abuse cases.
          3            MR. WARE:  Could we have the article? 
          4       Q.   I've put on the monitor Exhibit 43.  Do you 
          5   recognize that as an article written by Eileen 
          6   McNamara following those cases?
          7       A.   I do.
          8       Q.   And in the article you are quoted -- and 
          9   I'm going to put some language up.  The first 
         10   quotation is as it appears on the monitor and says 
         11   in part, "If you say he's not a threat because he 
         12   just raped a girl in his own household, then can't 
         13   you also look at a car thief and say this guy's not 
         14   a threat to me because he only steals cars in poor 
         15   neighborhoods, or that guy is not a threat to me 
         16   because he only breaks into houses in rich 
         17   neighborhoods?   Is that how we want to mete out 
         18   justice?"  
         19            Did you make any reference in there to 
         20   Judge Lopez or to what she had done?
         21       A.   No.  I was commenting on simply the 
         22   sentence that we were recommending.  In this case 
         23   this was a situation where the defendant was the 
         24   stepfather of the young girl, and he was raping her 
 0086
          1   repeatedly in their home.  And the Commonwealth's 
          2   position was that he's a threat even if it was 
          3   just -- "just" in quotes -- his own stepdaughter; 
          4   that that is still criminal behavior that deserves 
          5   imprisonment.
          6       Q.   Can you tell us how the interview with Ms. 
          7   McNamara came about?
          8       A.   I was approached at some point -- I believe 
          9   it was Mr. Borghesani, but it may have been my 
         10   supervisor -- who said to me that Ms. McNamara 
         11   wanted to speak with me about both that case, the 
         12   Estrada case, as well as the Calixte case, which was 
         13   another case, both of which had pled out the week -- 
         14   or within two weeks prior to her speaking to me.  
         15   And they told me that she would call me at a certain 
         16   time.  
         17            My memory is that I had someone sit with me 
         18   during the interview with Ms. McNamara.  She asked 
         19   me a few questions about the facts of the case and 
         20   the basis for the DA's sentencing recommendation, 
         21   which I told her.  And I did say those things.
         22       Q.   Were you instructed to give this interview? 
         23   That is to say, did you follow some procedure in 
         24   your office?
 0087
          1       A.   We're not allowed to be speaking to the 
          2   press at all, unless we're given prior clearance or 
          3   told to about a particular fact -- about particular 
          4   facts or a case.  That's a very strong rule in the 
          5   district attorney's office. 
          6            And in this situation I was specifically 
          7   told by either my supervisor or Mr. Borghesani that 
          8   to speak to Ms. McNamara -- I mean, it wasn't an 
          9   order in a negative-type sense.  They said, "She 
         10   wants to speak with you, would like to speak with 
         11   you, you have to speak with her," and I spoke with 
         12   her in my office.
         13       Q.   In addition to the quotation on the 
         14   monitor, you gave some additional quotation to Ms. 
         15   McNamara; is that correct?
         16       A.   I did.
         17       Q.   I won't read this, but does that appear to 
         18   be accurate with respect to what you said at that 
         19   time?
         20       A.   Yes.  This was about my commentary on the 
         21   Calixte case.  That was a situation where a mother 
         22   had been charged with beating her three children, 
         23   the most severe of which was the eldest daughter.  
         24   She had burned her and she had whipped her with 
 0088
          1   electrical cords so severely that it not only led to 
          2   permanent disfigurement on the child, but one of our 
          3   key pieces of evidence was the family's leather 
          4   couch had been completely destroyed by the chain 
          5   marks. 
          6            And in this situation the Commonwealth was 
          7   recommending a 5 to 7.  And I commented on the 
          8   question of whether or not jail is the perfect 
          9   solution.  And it isn't the perfect solution.  But 
         10   the DA's office believes that it sends an important 
         11   message, and certain crimes need to be punished that 
         12   way.
         13       Q.   At no time during the course of this 
         14   interview did you mention Judge Lopez's name; is 
         15   that correct?
         16       A.   No, I didn't mention her name.
         17       Q.   You mentioned earlier that prior to the 
         18   Judge's continuance in the case and her issuance of 
         19   the findings on August 4th, there is no inquiry of 
         20   you about your role in any press with respect to the 
         21   Horton case, is that correct, on August 4th?
         22       A.   On August 4th in the lobby, when she was 
         23   screaming at me, she's screaming at me and she said, 
         24   "You called the press."  And if I said anything at 
 0089
          1   all, I said, "I didn't call them."  I didn't.  And 
          2   she was screaming at me.  That was our only -- I 
          3   didn't say anything in the lobby.  It was our only 
          4   real exchange.
          5       Q.   Let me next direct you in the August 4th 
          6   order to language which says that you attempted to 
          7   embarrass and ridicule Mr. Horton.  And I've put 
          8   that language on the monitor. 
          9            Did you at any time try to embarrass or 
         10   ridicule Mr. Horton?
         11       A.   God forbid, no, I wouldn't do that.
         12       Q.   Did you take any steps to bring attention 
         13   to his transgendered status as a way of embarrassing 
         14   him or creating leverage over the Judge?
         15       A.   No, no. 
         16       Q.   Let me next direct you to Paragraph 8 of 
         17   the order, which says in part, "There is little or 
         18   no impact on the alleged victim."  Do you see that?
         19       A.   I do.
         20       Q.   And did you agree with that finding?
         21       A.   No, I don't agree with that finding at all.  
         22   We had told the victim that this would be over and 
         23   that it would be over August 4th and that it would 
         24   be over before he started school.
 0090
          1       Q.   Who was present in court on August 4th on 
          2   behalf of the victim?
          3       A.   The victim chose not to come that day, but 
          4   his grandmother came that day.
          5       Q.   Was any inquiry made of the grandmother by 
          6   the Court, to your knowledge?
          7       A.   No.  On August 4th? 
          8       Q.   Yes. 
          9       A.   No.
         10       Q.   And then let me next direct you to language 
         11   regarding the proceedings having been turned into a 
         12   circus. 
         13            Can you describe what you observed by way 
         14   of press or media present in the courthouse on 
         15   August 4th when you arrived. 
         16       A.   Well, when I first got to court, as I 
         17   testified earlier, I didn't see anybody in the lobby 
         18   getting off the elevator, but in the courtroom there 
         19   was one camera, I believe, in the back of the 
         20   courtroom on the left.  And there may have been a 
         21   few reporters as well. 
         22       Q.   Did you see anything that looked 
         23   circus-like to you?
         24       A.   Not at all.
 0091
          1       Q.   Was there any chaos that you observed 
          2   regarding the press pushing and shoving cameras in 
          3   people's faces?
          4       A.   No.  There was nothing like that.
          5       Q.   There was subsequently a representation 
          6   that the victim and his mother were photographed 
          7   coming off the elevator.
          8            MR. EGBERT:  Objection.
          9            HEARING OFFICER DAHER:  What's the 
         10   objection? 
         11            MR. EGBERT:  Leading.
         12            HEARING OFFICER DAHER:  Sustained. 
         13       Q.   Did you hear some representation in the 
         14   lobby with respect to cameras?
         15       A.   I did.  At some point Anne Goldbach had 
         16   said that when the defendant and his mother had 
         17   arrived at court that morning, that the press was -- 
         18   there was some -- I don't know if it was a verbal 
         19   altercation or -- the defendant got upset when he 
         20   saw the cameras.  I wasn't there.
         21       Q.   You didn't observe any of that?
         22       A.   No, I didn't.
         23       Q.   Did anything occur in the courtroom itself 
         24   which was disruptive, as you understood the 
 0092
          1   proceedings, or to your observation --
          2       A.   No.
          3       Q.   --  at any time that day on August 4th?
          4       A.   Nothing that was disruptive, no.
          5       Q.   Did you make any observation of the press 
          6   acting in an unruly way?
          7       A.   No.  They were there, but there was no 
          8   activity.
          9       Q.   Now, at some time this order was sent to 
         10   the media and published; isn't that correct?
         11       A.   Yes.
         12       Q.   And let me show you for a minute a document 
         13   attached to which, according to the testimony, there 
         14   was the order. 
         15            MR. EGBERT:  I object to him telling the 
         16   witness what was according to testimony.
         17            HEARING OFFICER DAHER:  Sustained.
         18       Q.   You didn't see the order -- excuse me -- 
         19   the fax in this case, is that correct, the fax 
         20   to Joan Kenney; is that right? 
         21       A.   I didn't see what's on the monitor, no.
         22       Q.   Following that, was there indeed press 
         23   attention in which the order was quoted?
         24       A.   There was.
 0093
          1       Q.   Let me direct your attention to two 
          2   documents not yet marked, but which I would like to 
          3   mark for the moment for identification as Exhibit 
          4   15 -- that being a Boston Globe article on August 
          5   5th, 2000 -- and Exhibit 19, which is a Herald 
          6   article of August 5th, 2000. 
          7            MR. EGBERT:  Do you have copies of those 
          8   for me, Mr. Ware? 
          9            MR. WARE:  I do, yes.  
         10                 (Documents marked as Exhibits 15 and 
         11                 19 for identification)
         12       Q.   What are the articles -- let's start with 
         13   Exhibit 15 for identification.  When did that 
         14   appear?
         15       A.   Those appeared the day after, on that 
         16   Saturday morning.
         17       Q.   Following the Judge's order of August 4th?
         18       A.   Correct.
         19       Q.   And Exhibit 19 also appeared that following 
         20   day; is that correct?
         21       A.   That's correct.
         22       Q.   You are identified in the Herald article 
         23   which quotes literally the findings about you; is 
         24   that correct?
 0094
          1       A.   That's correct.
          2            MR. WARE:  I offer those as Exhibits 15 and 
          3   19, Your Honor.
          4            HEARING OFFICER DAHER:  Mr. Egbert? 
          5            MR. EGBERT:  My concern with all the 
          6   newspaper articles is what it's being offered for.  
          7   If it's being offered for the truth of the matter as 
          8   asserted in the articles, I object.  If it's not, 
          9   I'd like to know what its relevance is.
         10            MR. WARE:  It's not being offered for the 
         11   truth, but it's certainly being offered to show 
         12   that, in fact, the Judge having issued this order as 
         13   a press release on August 4th, it had its intended 
         14   effect when it was published on August 5th quoting 
         15   the findings against Ms. Joseph.
         16            MR. EGBERT:  There's been no testimony in 
         17   this case that Judge Lopez issued this as a press 
         18   release.
         19            MR. WARE:  I don't agree with that.
         20            HEARING OFFICER DAHER:  Tell me. 
         21            MR. WARE:  Well, the testimony was that the 
         22   Judge gave this to a clerk, at best, and that the 
         23   clerk was directed to fax it to Channels 4, 5, 7 and 
         24   56.
 0095
          1            MR. EGBERT:  There's been no testimony at 
          2   all like that.
          3            HEARING OFFICER DAHER:  Where did you get 
          4   this testimony from again?  I have a pretty good 
          5   memory, and I don't recall that.
          6            MR. WARE:  Judge Lopez testified that she 
          7   gave the order to the clerk.
          8            HEARING OFFICER DAHER:  And instructed him 
          9   to have it faxed to 4, 5, 7 --
         10            MR. WARE:  I don't remember whether she 
         11   said she instructed him.  She agreed that the clerk 
         12   didn't do it on his own.
         13            MR. EGBERT:  The clerk didn't do it at all.  
         14   We know from the fax that he sent it to Joan Kenney.
         15            HEARING OFFICER DAHER:  That's my memory of 
         16   it, Mr. Ware.  You have the transcript here.
         17            MR. WARE:  Your Honor, a reasonable 
         18   inference from the testimony and the documents is 
         19   the Judge wrote the order, gave it to the clerk for 
         20   faxing to Joan Kenney, with instructions that it be 
         21   sent to the television stations, and that's what 
         22   happened.  That's the purpose for which it's 
         23   offered.
         24            HEARING OFFICER DAHER:  That's an inference 
 0096
          1   that you want us to draw? 
          2            MR. WARE:  Yes.
          3            HEARING OFFICER DAHER:  Mr. Egbert, it 
          4   would seem that that part is in.  It's already been 
          5   testified to that Joan Kenney and -- I suspect the 
          6   inference could be that that's what Judge Lopez 
          7   expected Joan Kenney to do, to make the document 
          8   public.
          9            MR. EGBERT:  Judge, again, my objection is 
         10   to the hearsay nature of the article.  The Court is 
         11   not -- if the Court is not accepting them for the 
         12   truth of any of the matters asserted in the 
         13   articles, then one has to direct one to say what 
         14   issue is it relevant to that these articles were 
         15   published. 
         16            If the Court is accepting it to say that 
         17   it's relevant to the issue that when someone starts 
         18   the ball rolling, basically, that it's going to get 
         19   to the press, I agree wholeheartedly, and, 
         20   therefore, on that assumption, I would offer them.  
         21            In other words, that's the reason.  That 
         22   when someone starts the ball rolling with the press, 
         23   the press is going to get it and it's going to be 
         24   published.
 0097
          1            HEARING OFFICER DAHER:  Okay.  But go 
          2   ahead.  In that regard, these documents -- again, do 
          3   you have any other objections to it? 
          4            MR. EGBERT:  Again, for that purpose, 
          5   because that's not for the truth of the documents.
          6            HEARING OFFICER DAHER:  Mark them.  Let's 
          7   go.  
          8                 (Documents marked as Exhibits 15 and 
          9                 19 moved into evidence)
         10       Q.   At some time did you in fact attend a plea 
         11   and sentencing in the Horton case?
         12       A.   I did.
         13       Q.   When did that occur?
         14       A.   On September 6th.
         15       Q.   And tell us what happened on September 6th.
         16       A.   On September 6th David Deakin and I, along 
         17   with Kelly Noonan, who was the victim witness 
         18   advocate --
         19       Q.   I'm going to have to ask you to speak up.  
         20   Perhaps move a little closer to the microphone. 
         21       A.   Okay.  On September 6th David Deakin and 
         22   myself and Kelly Noonan, who was the victim witness 
         23   advocate on the case, went to the Middlesex Superior 
         24   Courthouse for plea.
 0098
          1            And when we arrived at the courthouse, 
          2   there was a ton of cameras and press in the lobby 
          3   area.  And we had to wait a while before the Judge 
          4   came on the bench.  I didn't see the Judge, nor did 
          5   I see Ms. Goldbach that morning, nor did I see the 
          6   defendant at all, until we got into court, 
          7   eventually.  The boy's grandmother was there that 
          8   day as well.  I just don't remember how she got to 
          9   court that day.  I don't remember if she came with 
         10   us or if she met us at the courthouse.
         11       Q.   At some time did you see the defendant and 
         12   Ms. Goldbach?
         13       A.   At some point, once court started, they 
         14   appeared.
         15       Q.   When you say "they appeared," where did 
         16   they enter or come from?
         17       A.   They came from a door that I didn't know -- 
         18   I'm not familiar with the Middlesex Courthouse.  A 
         19   back door.  I don't know what door it was.  They 
         20   came through a different entranceway into the 
         21   courtroom than I did or Mr. Deakin did.
         22       Q.   This was not the entry for the public?
         23       A.   Correct.
         24       Q.   And what then happened?
 0099
          1       A.   We then began the proceedings for the plea. 
          2            David Deakin -- we had a side bar, I 
          3   believe, just to begin the process rolling.  And 
          4   then David Deakin read the facts into the record.
          5       Q.   Before Mr. Deakin began the recitation of 
          6   facts, did you and Mr. Deakin have some 
          7   understanding with respect to what each of your 
          8   roles would be on September 6th?
          9       A.   Yes.
         10       Q.   And what was your role to be?
         11       A.   I had asked Mr. Deakin to come and 
         12   participate in these proceedings with me, and he was 
         13   going to be the one who read the facts into the 
         14   record, and my job was going to be to read the 
         15   victim impact statement into the record.
         16       Q.   And tell us what happened in the hearing 
         17   after that, as you began the recitation of facts. 
         18       A.   Mr. Deakin began the recitation of the 
         19   facts.  And when he was done, he motioned to me to 
         20   read the impact statement into the record.  And I 
         21   began to stand up and read the statement, and the 
         22   Judge -- I don't remember if she said "No" or if she 
         23   just looked at Mr. Deakin and said, "You read the 
         24   statement into the record," and I sat down again and 
 0100
          1   he read the statement into the record.
          2       Q.   What did you understand the Judge to be 
          3   telling you?
          4       A.   She didn't want to hear from me.
          5       Q.   And following that, was the victim impact 
          6   statement read by Mr. Deakin?
          7       A.   It was.
          8       Q.   I'm not going to go through the proceedings 
          9   themselves, which have been the subject of 
         10   videotape, but following September 6th -- the plea 
         11   was accepted on September 6th, was it not?
         12       A.   That's correct.
         13       Q.   And a sentence was imposed?
         14       A.   That's correct.
         15       Q.   One of the terms of the sentence had to do 
         16   with a community center; is that correct?
         17       A.   Originally, when we discussed this case on 
         18   August 4th, the terms of probation --
         19       Q.   Do you mean August 4th or August 1st?  The 
         20   lobby conference or the --
         21       A.   August 1st, you're right.  I'm sorry.  On 
         22   August 1st the Judge had suggested that the form of 
         23   probation take place with this new -- I believe then 
         24   it was a newish-type probation program, the 
 0101
          1   community center probation, where the defendant 
          2   would have to check in to a community center on some 
          3   type of a regular basis to serve his probation. 
          4            But on September 6th, when we got to court, 
          5   that was no longer the condition.  When the Judge 
          6   imposed the sentence, she removed that condition and 
          7   simply put him on general probation. 
          8       Q.   What was your understanding of the reason 
          9   for that change?
         10       A.   The statute doesn't allow defendants of 
         11   serious violent crimes to participate in that 
         12   community center type probation.  It wasn't an 
         13   option for him and that they wouldn't accept him.
         14       Q.   Because of the nature of the crimes to 
         15   which he had pled?
         16       A.   Yes.
         17       Q.   Now, following September 6th, the Judge 
         18   issued a statement.  Did you see that at some time?
         19       A.   I don't know which statement that is.
         20       Q.   Let me direct your attention to Exhibit 4, 
         21   which I've put on the monitor. 
         22            Did you have occasion to see or read that 
         23   statement in whole or in part?
         24       A.   I did. 
 0102
          1       Q.   The statement makes reference to "certain 
          2   facts before me, known by both the prosecutor and 
          3   defense attorney, that were part of the plea 
          4   conference and cannot be revealed by me, but which 
          5   would undoubtedly change the characterization of 
          6   this case as currently reported by some media 
          7   outlets."  Do you see that language?
          8       A.   I do.
          9       Q.   Are you aware or were you in September of 
         10   2000 aware of any facts which you believed would 
         11   change the characterization of the case?
         12       A.   I am not aware of any facts which in any 
         13   way diminish the serious nature of what happened 
         14   that day to the boy, nor am I aware of any facts 
         15   that in any way call into question the defendant's 
         16   competency or criminal responsibility or ability to 
         17   make a full plea in this case.
         18            MR. EGBERT:  Judge, move to strike, and it 
         19   wasn't responsive to the question.
         20            HEARING OFFICER DAHER:  Mr. Ware? 
         21            MR. WARE:  I think it was entirely 
         22   responsive, Your Honor.
         23            HEARING OFFICER DAHER:  Overruled.  It 
         24   stays in.  Go ahead. 
 0103
          1       Q.   To your knowledge, were there any facts in 
          2   the Horton case which could not be disclosed?
          3       A.   Well, the child's name is supposed to be 
          4   protected by statute.  And I know that that's 
          5   something that should not be disclosed.  Other than 
          6   that, I don't know of any facts that could not be 
          7   disclosed to the public or to the Court.
          8       Q.   In the August 4th order, the Judge herself 
          9   disclosed what she termed as "psychological 
         10   disorder"; is that correct?
         11       A.   That's correct.  In the findings she wrote 
         12   that the defendant suffers from a psychological 
         13   disorder.
         14       Q.   And she also disclosed what she termed a 
         15   "sexual identity disorder"?
         16       A.   That's correct.
         17       Q.   At some time did you learn of a Boston 
         18   Police detective who had come upon the scene at some 
         19   time after Mr. Horton's arrest?
         20       A.   Yes, I had.
         21            MR. EGBERT:  Objection to the conclusion 
         22   that it was after his arrest.
         23            HEARING OFFICER DAHER:  Sustained.
         24       Q.   Let me direct you to Exhibit 27 and 
 0104
          1   specifically to the police report.  You had some 
          2   police report and other documents prior to 
          3   presentment to the grand jury and after, for that 
          4   matter; is that correct?
          5       A.   That's correct.
          6       Q.   Can you tell us whether the police report 
          7   identifies who was first on the scene?
          8       A.   Well, first on the scene were the two 
          9   police officers that observed the crime to be in 
         10   progress.  And that's Officers Rose and Sweeney. 
         11            MR. WARE:  Can you put up 36, please.
         12       Q.   The language in the report is, in part, 
         13   "Officers Rose and Sweeney observed an individual, 
         14   later identified as suspect Horton, Charles, in the 
         15   front driver's side of the vehicle, moving up and 
         16   down quickly"; is that correct?
         17       A.   Yes.
         18       Q.   And at the bottom of that page -- or at the 
         19   bottom of the next page there is reference to 
         20   Detective Greene having been there at some point; is 
         21   that correct?
         22       A.   I believe there is.  Towards the end of the 
         23   report there's a mention of a Detective Greene 
         24   arriving -- being on the scene.
 0105
          1       Q.   And towards the top of that police report 
          2   is the reference to whether or not the victim was 
          3   crying at the time of this arrest?
          4       A.   There is.  There's a mention that when the 
          5   police --
          6            MR. WARE:  37, please.
          7       A.   There's a mention that when the police 
          8   approached the car and they saw the boy's head 
          9   bobbing up and down over the driver's seat, that 
         10   they then went -- one police officer went to each 
         11   side, and they saw that the boy was crying at that 
         12   point when they took him out of the car.
         13       Q.   And the language, in part, is what I put on 
         14   the monitor, pulled out of the report, which says, 
         15   "Victim was crying," correct?
         16       A.   Correct.
         17       Q.   About a third of the way down on Page 2?
         18       A.   Yes.
         19       Q.   Was there other description by the 
         20   officers -- incidentally, the report was written by 
         21   the investigating officer?
         22       A.   Yes, I believe so.
         23       Q.   And did you work with specific 
         24   representatives of the Boston Police Department both 
 0106
          1   during the investigative stage and presentment to 
          2   the grand jury?
          3       A.   Absolutely.  Officers Rose and Sweeney both 
          4   testified before the grand jury, but it was, I 
          5   believe, Detective Keeley from the sexual assault 
          6   unit that became the detective in charge of the 
          7   case, and he handled the whole investigation of the 
          8   case.  He was present, for example, at the 
          9   videotaping of the child.
         10       Q.   Was Detective Greene involved in the 
         11   investigation?
         12       A.   Not at all.
         13       Q.   At any time to your knowledge did Detective 
         14   Greene contact you about any information or give any 
         15   information to the investigating officers?
         16       A.   Not to my knowledge, no.
         17       Q.   At some point you mentioned earlier you had 
         18   conversations with Ms. Goldbach in which Detective 
         19   Greene was mentioned; is that right?
         20       A.   That's correct.
         21       Q.   Did you take account of this purported 
         22   information in some way?
         23       A.   She told me at one of the earlier dates of 
         24   this case, at one of the earlier status dates, that 
 0107
          1   I should speak to Detective Greene.  I said, "Who is 
          2   he?"  And she said, "He's a detective."  And I said, 
          3   "Well, what does he have to offer?"  And she said, 
          4   "Oh, he arrived at the scene at some point, and the 
          5   boy wasn't as upset as you think he was when 
          6   Detective Greene got there." 
          7       Q.   And what did you do as a result?
          8       A.   I discussed that piece of information with 
          9   my supervisor, and we decided that there was nothing 
         10   there that merited investigating further.
         11       Q.   What was the basis of that decision?
         12       A.   The basis of that decision was twofold.  
         13   First of all, even if taken at 100 percent true 
         14   value that, in fact, Detective Greene arrived at the 
         15   scene and the boy wasn't as upset, at some point 
         16   after the initial arrest, even if that were 100 
         17   percent true -- and that's what Ms. Goldbach was 
         18   representing was the facts that Detective Greene 
         19   would testify to -- so that in no way exculpates or 
         20   was relevant to the case at all -- it seemed 
         21   perfectly logical that a detective arriving later on 
         22   at the scene, that the boy stopped crying at some 
         23   point.  I didn't feel that that in any way bore on 
         24   the serious nature of the charges that were before 
 0108
          1   us.
          2            The other reason is that I found it 
          3   somewhat strange that there would be a situation 
          4   where I was working with a number of different 
          5   police officers on this case and detectives, and 
          6   that none of them came to me with any other 
          7   information about a detective, that the detective 
          8   never tried himself to contact someone in the DA's 
          9   office, never came to court with Ms. Goldbach, 
         10   didn't write a memo. 
         11            Ms. Goldbach didn't provide me with any 
         12   statements that the detective had written or 
         13   anything like that.  What she was representing, 
         14   which was probably true, was that at some point the 
         15   boy stopped crying, and that's when Detective Greene 
         16   saw him. 
         17            MR. WARE:  May I have just a moment, Your 
         18   Honor.
         19            (Pause)
         20       BY MR. WARE: 
         21       Q.   Did any of the Boston police officers, the 
         22   detective in charge of the investigation or Officers 
         23   Rose and Sweeney indicate at any time that they had 
         24   been contacted by this colleague with respect to 
 0109
          1   some information?
          2       A.   No.
          3            MR. WARE:  I have no further questions.  
          4   Thank you.
          5            HEARING OFFICER DAHER:  Mr. Egbert?  
          6                    CROSS EXAMINATION
          7       BY MR. EGBERT: 
          8       Q.   Where do you work?
          9       A.   I currently work at my son's school.
         10       Q.   Where?
         11       A.   It's in Brookline.
         12       Q.   What's the name of the school?
         13            MR. WARE:  Objection.  May we have a bench 
         14   conference?
         15            HEARING OFFICER DAHER:  Absolutely.  
         16       (At side bar)
         17            MR. WARE:  Your Honor, what school she 
         18   teaches at is not relevant.  There are issues of her 
         19   own personal privacy here.  It's been in the papers 
         20   for two years.  She's been excoriated in the press 
         21   by the press quoting Judge Lopez's findings, and the 
         22   witness would like to have some protection with 
         23   respect to her identity -- not her identity --
         24            MR. EGBERT:  It goes to her background --
 0110
          1            HEARING OFFICER DAHER:  How about the 
          2   address? 
          3            MR. EGBERT:  I want to know what school 
          4   she's working at.  This is a public proceeding.  She 
          5   gets no special treatment here.  This is a witness.  
          6   There's no special treatment.  There's no threat or 
          7   any protective issues.  She's a witness.  The JCC 
          8   seems to be perfectly happy to hold Judge Lopez up 
          9   to public ridicule and the like.  The public has to 
         10   assess her like anyone else.  She hasn't got any 
         11   special benefits here.
         12            MR. WARE:  This is not a criminal case.  
         13   It's a hearing before you.  You have discretion 
         14   here.  Judge Lopez elected to have this proceeding 
         15   and understood at the time --
         16            MR. EGBERT:  Wait a minute.  Judge Lopez --
         17            HEARING OFFICER DAHER:  Let him finish.
         18            MR. WARE:  So the situation is very 
         19   different than a third-party witness.
         20            MR. EGBERT:  I don't know how Judge Lopez 
         21   elected to have these proceedings.  The Judicial 
         22   Conduct Commission brought this.
         23            HEARING OFFICER DAHER:  It's probably a 
         24   repeat of what happened this morning when I wanted 
 0111
          1   to have the in-camera proceedings -- you wanted it 
          2   open, and I think Judge Lopez in her communication 
          3   to the JCC wanted a public --
          4            MR. EGBERT:  After the formal charges were 
          5   dropped, which by law are public.
          6            MR. WARE:  Nothing is to be gained by 
          7   disclosing the school at which this woman works.
          8            MR. EGBERT:  How do I know she even works 
          9   at a school? 
         10            MR. WARE:  This is just defense counsel 
         11   histrionics to embarrass the witness and make her 
         12   life as difficult as possible.
         13            MR. EGBERT:  Embarrass her?  She works at a 
         14   school.
         15            HEARING OFFICER DAHER:  Put it this way, 
         16   Mr. Ware.  He doesn't need a court order in regards 
         17   to bringing in the victim -- not the victim, but the 
         18   boy is going to be here, I take it, tomorrow.  I've 
         19   issued a subpoena.  And I'm going to allow him to 
         20   get that from this witness.  Everything is open.  
         21            (End of side bar)
         22       BY MR. EGBERT: 
         23       Q.   Where are you employed?
         24       A.   At a school in Brookline, Maimonides, 
 0112
          1   M-a-i-m-o-n-i-d-e-s.
          2       Q.   And what is your function there?
          3       A.   My title is executive vice president.
          4       Q.   When you left the DA's office to go be 
          5   executive vice president at the Maimonides School, 
          6   why was that?  Why did you leave?
          7       A.   I left the DA's office for a number of 
          8   different reasons.  The primary one was that this 
          9   was an opportunity to work at my son's school where 
         10   he is and to be involved in his life that way in a 
         11   professional capacity.  That was the primary 
         12   motivator in terms of leaving the DA's office.
         13       Q.   Am I correct that there's nothing in your 
         14   function at the school which requires that you 
         15   practice law?
         16       A.   That's correct.  I am not practicing law 
         17   there.
         18       Q.   In any way?
         19       A.   No.
         20       Q.   So at this point in your career you're not 
         21   utilizing your license to practice law, correct?
         22       A.   I pay my dues, but I'm not practicing law, 
         23   no.
         24       Q.   Now, you have given a number of statements 
 0113
          1   under oath in this matter; is that correct?
          2       A.   That's correct.
          3       Q.   And, in fact, you know -- have you ever 
          4   seen the formal charges in this case?
          5       A.   At some point, yes, I did.  I saw that 
          6   there were a number of charges.
          7       Q.   And you know that there is reference in the 
          8   formal charges to Judge Lopez being biased against 
          9   you, as exhibited in the Estrada case?  Do you 
         10   recall that?
         11       A.   I don't know if it was specific to the 
         12   Estrada case that the bias was being charged. 
         13       Q.   You know that there was some allegation of 
         14   bias, and part of it included the interactions 
         15   between you and Judge Lopez in the Estrada case; is 
         16   that right?
         17       A.   Yes.
         18       Q.   And you have testified in the past on a 
         19   number of occasions that during the Estrada case 
         20   Judge Lopez screamed at you, correct?
         21       A.   That is correct.
         22       Q.   Terrified you, correct?
         23       A.   Yes.
         24       Q.   And screamed at you much like she screamed 
 0114
          1   at you in the lobby on August 4th, correct?
          2       A.   That's correct.
          3       Q.   Same tone of voice?
          4       A.   Yes, but very angry.
          5       Q.   Screaming, angry, out of control, correct?
          6       A.   She was angrier on August 4th.  And she was 
          7   saying more things that were mean to me on August 
          8   4th than she did on the Estrada case, but the same 
          9   general theme --
         10       Q.   Same tone of voice, correct?
         11       A.   It was louder and angrier on August 4th.
         12       Q.   Didn't you testify under oath that in the 
         13   Estrada case -- by the way, you were prepared for 
         14   your testimony in this occasion most recently, 
         15   weren't you?
         16       A.   For today's hearing? 
         17       Q.   Yes. 
         18       A.   Yes.
         19       Q.   How many times did you meet with Mr. Ware 
         20   or his associates in preparing for this hearing?
         21       A.   I met with Mr. Ware three or four times.
         22       Q.   For what length of time?
         23       A.   I don't remember.  An hour and a half each 
         24   time, something like that.
 0115
          1       Q.   And over what period of time?
          2       A.   I first met Mr. Ware only about a few 
          3   months ago, maybe two months ago.
          4       Q.   So in the past couple of months you spent 
          5   about four occasions with Mr. Ware, about an hour 
          6   and a half each, preparing for this testimony?
          7       A.   At the most, yes.
          8       Q.   And how about other members of his staff?
          9       A.   I began meeting with other members of his 
         10   staff a long time ago after this case --
         11       Q.   Let's deal with the time period after your 
         12   depositions in preparing for this hearing. 
         13       A.   After the depositions at your office? 
         14       Q.   That's correct. 
         15       A.   Well, the depositions at your office were 
         16   in September.  I don't know how many -- I think -- I 
         17   don't remember how many times I met with --
         18       Q.   Approximately. 
         19       A.   Not much more than four or five with Mr. 
         20   Ware -- not much more than four -- I think Mr. Ware 
         21   was present other than one time.  So maybe a fifth 
         22   time where I met with the other attorneys on the 
         23   case.
         24       Q.   And during those discussions, did you talk 
 0116
          1   about the Estrada case and Judge Lopez's having 
          2   screamed at you?
          3       A.   Yes.
          4       Q.   Now, I notice that you didn't talk about 
          5   that at all today in your direct examination, 
          6   correct?
          7       A.   That's correct.
          8       Q.   Have you heard a tape of the Estrada 
          9   hearings?
         10       A.   No, I haven't.
         11       Q.   Has anyone told you that they have a tape 
         12   and have listened to it?
         13       A.   No.
         14       Q.   But you agree with me that your testimony's 
         15   been consistently that Judge Lopez screamed at you 
         16   during the Estrada hearing, correct?
         17       A.   That's correct.
         18       Q.   Screamed at you and told you to sit down, 
         19   correct?
         20       A.   Correct.
         21       Q.   And yelled at you, in your words, in such a 
         22   way that no Judge has ever yelled at you before; 
         23   isn't that right?
         24       A.   She --
 0117
          1       Q.   Please answer my question. 
          2       A.   I don't remember if I said specifically 
          3   that, "in no way that any other judge has ever 
          4   yelled at me before."  But I know that when she 
          5   yelled at me about the Estrada case, it was very 
          6   significant.  She was very upset with me, and I was 
          7   very humiliated by that experience on that day.
          8       Q.   You were terrified by that, weren't you? 
          9       A.   I was scared of appearing before her and I 
         10   was terrified, given both what transpired that day 
         11   on the Estrada case as well as on subsequent issues 
         12   that had come up.
         13       Q.   Weren't your words that she screamed at you 
         14   in the Estrada case, screamed at you in such a way 
         15   that you were so terrified to appear before her 
         16   again; isn't that -- weren't those your words?
         17       A.   I don't believe so.  I was terrified to 
         18   appear before her for a number of reasons, one of 
         19   them being her treatment of me during the Estrada 
         20   case.  And the other was a conversation I had --
         21       Q.   Let's see if you can remember these words.  
         22   Do you recall testifying as follows:  "Judge Lopez 
         23   screamed on the record that I was putting too many 
         24   details in the plea recommendation, in the 
 0118
          1   recitation of fact for the purposes of a colloquy 
          2   before the whole courtroom, and she just screamed.  
          3   I mean, it was awful.  I haven't been reprimanded by 
          4   anyone before and definitely not by a judge in that 
          5   way or anything like that, never, ever, ever, ever."  
          6   Were those --
          7            MR. WARE:  Give us a page, please.
          8       Q.   Was that your testimony in prior --
          9            HEARING OFFICER DAHER:  What's your 
         10   objection? 
         11            MR. WARE:  I would like the page that 
         12   counsel purports to be reading from.
         13            HEARING OFFICER DAHER:  Do you have a page? 
         14            MR. EGBERT:  Page 13.
         15       Q.   Were those your words?
         16       A.   Yes.  I mean, if you have them in a 
         17   transcript, yes, that's what I said.
         18       Q.   Well, you were testifying under oath?
         19       A.   Yes.
         20       Q.   Did you testify in such a fashion?
         21       A.   Yes.
         22       Q.   And that's your memory of it; that she 
         23   screamed at you on the record "in such a way that 
         24   she just screamed.  I mean, it was awful," right?
 0119
          1       A.   It was awful, yes.
          2       Q.   And you haven't been reprimanded by anyone 
          3   before, and definitely not by a judge in that way or 
          4   anything like that, never, ever, ever, right?
          5       A.   That's correct.
          6            MR. EGBERT:  May we take a five-minute 
          7   recess, Judge?
          8            HEARING OFFICER DAHER:  Sure. 
          9            (Recess)
         10            MR. EGBERT:  Your Honor, at this time I 
         11   would offer two tape recordings.  They are certified 
         12   copies from the Court as to the proceedings of 
         13   Commonwealth versus Estrada.  They both contain the 
         14   certificates of authenticity from the Court.  I 
         15   intend to play a portion of the tape.  I have asked 
         16   counsel if he wanted to play the whole thing.  He 
         17   said playing a portion is fine, and I'll provide him 
         18   with these if you'll release them at the break.
         19            HEARING OFFICER DAHER:  Mr. Ware, that's 
         20   your understanding? 
         21            MR. WARE:  Yes, that's acceptable, so long 
         22   as I can remove them from the courtroom and listen 
         23   to them after court today.
         24            HEARING OFFICER DAHER:  Yes, no problem.
 0120
          1            THE CLERK:  Exhibits B and C.
          2            MR. EGBERT:  We should probably make them 
          3   one exhibit. 
          4            THE CLERK:  B-1 and B-2. 
          5                 (Documents marked as Exhibits B-1 and 
          6                 B-2 moved into evidence)
          7       BY MR. EGBERT: 
          8       Q.   Before I get to the tape, I'd like you to 
          9   take a look at Exhibit 65, which is before you.
         10       A.   Yes.
         11       Q.   And that is a transcript of the proceedings 
         12   in Commonwealth versus Estrada, correct?
         13       A.   It is.
         14       Q.   And during those proceedings you at some 
         15   point were giving a statement of facts for which the 
         16   defendant was being asked to accept for purposes of 
         17   a plea; is that correct?
         18       A.   That's correct.
         19       Q.   And you understood at that time that those 
         20   were facts which you would prove at trial, correct?
         21       A.   Yes.
         22       Q.   And at some point in time there was a 
         23   statement by the Court that she would let you 
         24   continue to put the hyperbole on the record.  Do you 
 0121
          1   recall that?
          2       A.   Could you just tell me what page that's on, 
          3   please?
          4       Q.   Do you recall it happening, first of all?
          5       A.   I recall you mentioned that once before --
          6       Q.   Do you recall defense counsel standing, 
          7   about to object, and the Judge responding that she 
          8   would permit you to put hyperbole on the record?
          9       A.   I don't have a memory of defense counsel 
         10   standing and objecting, but at the deposition at 
         11   your office you told me that that had happened.
         12       Q.   In any event -- it's unimportant.  In any 
         13   event, what happened that you claimed was the 
         14   screaming on the record happened at the end of the 
         15   proceedings, correct?
         16       A.   That's correct.
         17       Q.   And what we're about to hear, as I 
         18   understand it, is what you claim is Judge Lopez 
         19   screaming on the record at you before a whole 
         20   courtroom.  Screaming.  It was just awful, correct? 
         21       A.   Can you just tell me what page you're 
         22   reading from?
         23       Q.   That's your prior testimony, isn't it --
         24       A.   Could I see that? 
 0122
          1       Q.   -- about this event?
          2       A.   Could I see that? 
          3       Q.   Could you see your testimony?
          4       A.   Could I see it now? 
          5       Q.   Yes.  You'd like to see your prior 
          6   statements?
          7       A.   Please.
          8            MR. EGBERT:  May I approach?
          9            HEARING OFFICER DAHER:  Please. 
         10            MR. WARE:  Could I have a page number? 
         11            MR. EGBERT:  Page 13, same one. 
         12       Q.   Why don't you read along with me.  "Did 
         13   anything in particular happen during the Estrada 
         14   case which led you to believe that Judge Lopez was 
         15   angry with you or your office?"  Correct?  Did I 
         16   read that correctly?
         17       A.   Yes.
         18       Q.   And you said, "She screamed on the record 
         19   that I was putting too many details in the plea 
         20   recommendation, in the recitation of fact for the 
         21   purposes of the colloquy before the whole courtroom.  
         22   And she just screamed.  I mean, it was awful."   
         23   Correct? 
         24       A.   Yes.
 0123
          1       Q.   Your words?
          2       A.   Yes.
          3       Q.   That's what you say happened during the 
          4   Estrada case?
          5       A.   Yes.
          6       Q.   And then you went on to say, didn't you, "I 
          7   haven't been reprimanded by anyone before and 
          8   definitely not by a judge in that way or anything 
          9   like that, never, ever, ever, ever," right? 
         10       A.   (Witness nods head.)
         11       Q.   Answer for the record, please. 
         12       A.   Yes.
         13       Q.   I want you to listen to this tape.  And it 
         14   should pick up on Page 17 of Exhibit 65.  
         15            (Tape playing)
         16       Q.   Let me stop you for a minute.  You 
         17   understand that background noise is the interpreter?
         18       A.   Yes.
         19            (Tape playing)
         20            THE COURT:  Tell me what your name is.
         21            DENISE CRUZ:   Denise Cruz.
         22            THE COURT:  Excuse me?
         23            DENISE CRUZ:  Denise Cruz.
         24            THE COURT:  And are you -- what's his 
 0124
          1   name -- Mr. Estrada's stepdaughter.
          2            DENISE CRUZ:  Yes.
          3            THE COURT:  And what would you like to see 
          4   happen with Mr. Estrada?
          5            DENISE CRUZ:  I just want him to have the 
          6   bracelet and just stay away for five years.
          7            THE COURT:  And why is it that you don't 
          8   want him to go to jail?
          9            DENISE CRUZ:  Because we can't pay the 
         10   house.
         11            THE COURT:  You can't pay the mortgage 
         12   if --
         13            DENISE CRUZ:  Mm-hmm.
         14            THE COURT:  -- he is incarcerated, right?
         15            DENISE CRUZ:  Mm-hmm.
         16            THE COURT:  Thank you very much.
         17            COURT OFFICER:  This way.
         18            THE CLERK:  Come forward, please.
         19            Would you raise your right hand, ma'am.
         20            Do you solemnly swear that the testimony 
         21   you're about to give this Court in the matter now in 
         22   hearing is the whole truth and nothing but the 
         23   truth, so help you God?
         24            CARMEN ESTRADA:  Yes.
 0125
          1            THE CLERK:  All right.
          2            Take the witness stand and state your name 
          3   for the record, please.
          4            THE COURT:  Tell me your name.
          5            CARMEN ESTRADA:  Carmen Estrada.
          6            THE COURT:  What's your relationship to Mr. 
          7   Estrada?
          8            CARMEN ESTRADA:  I'm his wife.
          9            THE COURT:  Okay.  Were you up here earlier 
         10   talking to me about what you thought should happen 
         11   to your husband?
         12            CARMEN ESTRADA:  Yes.
         13            THE COURT:  What is it that you think 
         14   should happen to your husband?
         15            CARMEN ESTRADA:  Well, we had agreed that 
         16   you was going to put him on house arrest.
         17            THE COURT:  That he was going to be placed 
         18   on house arrest?
         19            CARMEN ESTRADA:  Yes.
         20            THE COURT:  I told you at that --
         21            CARMEN ESTRADA:  And to stay -- yes.
         22            THE COURT:  -- that he was going to stay 
         23   away from --
         24            CARMEN ESTRADA:  From my kids --
 0126
          1            THE COURT:  -- the house --
          2            CARMEN ESTRADA:  -- and the house.
          3            THE COURT:  -- that you and your daughter 
          4   live in; is that right?
          5            CARMEN ESTRADA:  That's correct.
          6            THE COURT:  Do you understand that I'm 
          7   going to have Probation regularly check; and if he 
          8   is found in there, he'll be found in violation of 
          9   probation and be sent away to jail?
         10            CARMEN ESTRADA:  Yes, I understand.
         11            THE COURT:  Okay.  And why is it that you 
         12   want this particular sentence in this case?
         13            CARMEN ESTRADA:  Well, Your Honor, we have 
         14   a house.  And -- and like, that he could, you know, 
         15   keep his job.  And it's a big responsibility for me 
         16   alone to deal with.  I mean, I've got my grandson 
         17   and I have my daughter, and, you know --
         18            THE COURT:  And where do you work now?
         19            CARMEN ESTRADA:  I work at Burger King.
         20            THE COURT:  At Burger King?
         21            CARMEN ESTRADA:  Yes.
         22            THE COURT:  And does your daughter work?
         23            CARMEN ESTRADA:  Yes.  She works with me.
         24            THE COURT:  She works with you?
 0127
          1            CARMEN ESTRADA:  Yes.  She only works two 
          2   days.
          3            THE COURT:  Okay.  All right.  Thank you.
          4            CARMEN ESTRADA:  Okay.
          5            THE COURT:  He hasn't been sentenced yet.
          6            THE CLERK:  Right.  Edward Estrada, please 
          7   rise, sir.  On 97-11237, having pled guilty to the 
          8   charge of assault and battery, three offenses -- 
          9   strike that -- four offenses of indecent assault and 
         10   battery on a child under 14, two offenses of rape of 
         11   child, the Court, in consideration of these 
         12   offenses, places you on straight probation for five 
         13   years under the supervision of the Probation 
         14   Department. 
         15            The conditions of your probation is that 
         16   you wear a bracelet for a period of five years.  The 
         17   cost of that bracelet is $200 up front and $50 a 
         18   week. 
         19            A further condition of your probation is to 
         20   stay away from the home where your stepdaughter 
         21   lives. 
         22            May I have that address for the Probation 
         23   Department?
         24            MS. JOSEPH:  The address has already been 
 0128
          1   provided to the Probation Department.
          2            THE CLERK:  Okay.  Thank you. 
          3            Further conditions of your probation are 
          4   that you pay the mortgage on that house, that you 
          5   continue in the sex offender's program at the New 
          6   England Medical Center, that you register as a sex 
          7   offender, that you pay a $60 victim witness fee and 
          8   a $45-a-month probation fee.
          9            MR. REGAN:  Your Honor, if I could address 
         10   the probation fee.
         11            I don't believe that Mr. -- I think that 
         12   the $45-a-month probation fee will just be too much 
         13   for Mr. Estrada, given all the financial 
         14   responsibilities.  He will be paying $200 to $250 a 
         15   month for the bracelet.
         16            THE COURT:  Okay.  So he can do the 
         17   alternative community service.
         18            THE CLERK:  Nine hours of community service 
         19   a month. 
         20            MR. REGAN:  All right.
         21            THE CLERK:  Okay.  Mr. Estrada, listen to 
         22   this, please.  I'm going to have you sign this form.  
         23   That you register as a sex offender, and these are 
         24   your duties. 
 0129
          1            It is your duty to comply with all 
          2   applicable provisions listed below under General 
          3   Laws, Chapter 6, Section 178(C) and 1780. 
          4            If you intend to move to a different city 
          5   or town within Massachusetts, you must register in 
          6   person at the police station where you intend to 
          7   reside five days prior to establishing a new 
          8   residence. 
          9            If you intend to change your address within 
         10   a city or town, you must notify the police 
         11   department within five days prior to establishing 
         12   that address. 
         13            If you intend to move out of Massachusetts, 
         14   you must first apply with the Probation Department 
         15   listed below for out-of-state supervision under the 
         16   Interstate Compact Agreement. 
         17            If that request is approved by the 
         18   receiving state, you must notify that police 
         19   department within five days. 
         20            If you intend to change your work address, 
         21   you must notify the police department where you 
         22   reside in writing within five days to establish a 
         23   new work address. 
         24            You are required to appear in person at 
 0130
          1   least once a year at your local police department to 
          2   verify the registration information on file remains 
          3   true and accurate. 
          4            On each anniversary of your initial 
          5   registration date the Criminal History System Board 
          6   shall mail by certified mail and non-referable 
          7   verification form to your last reported address, 
          8   which you are required to sign and return within 
          9   five days of receipt of the Criminal History 
         10   Program. 
         11            Your duty to register as a sex offender 
         12   shall end in twenty years from this date. 
         13            Do you understand that, sir? 
         14            THE DEFENDANT:  Yes.
         15            THE CLERK:  Okay.  I'm going to hand this 
         16   back to you, sir.  You are to sign and date it. 
         17            THE COURT:  Ms. Joseph, let me just state 
         18   something on the record. 
         19            Next -- do you want to stand up.  Stand up. 
         20            MS. JOSEPH:  Yes, Your honor.
         21            THE COURT:  Okay.  Next time that you are 
         22   going to recite facts to me on a plea, dispense with 
         23   hyperbole and subjective characterizations.
         24            MS. JOSEPH:  Yes, Your Honor.
 0131
          1            THE COURT:  Okay?  
          2            (End of tape)
          3       BY MR. EGBERT: 
          4       Q.   Is that the way you remember it? 
          5       A.   Yes.
          6       Q.   Pardon? 
          7       A.   Yes, it is.
          8       Q.   Screaming at you.  Never been spoken to 
          9   like that before in your life.  Horrified and 
         10   terrified from that.
         11       A.   She reprimanded me in an open courtroom and 
         12   humiliated me --
         13       Q.   Humiliated you?  She told you to obey the 
         14   rules of Court.  She told you not to provide 
         15   hyperbole, and she said it in a voice that was no 
         16   more raised than everything else she said that day; 
         17   isn't that right?
         18       A.   That's not how it appeared to me.
         19       Q.   Well, how it appeared to you, but how about 
         20   the true facts?  You heard the tape, didn't you?
         21       A.   I did.
         22       Q.   That's exactly what happened in the 
         23   courtroom, isn't it?
         24       A.   Yes, it is.
 0132
          1       Q.   She wasn't screaming at you, was she?
          2       A.   I felt --
          3       Q.   You felt -- you've been a lawyer for seven 
          4   years in the DA's office, tried all these cases, and 
          5   you considered that to be screaming, intimidating 
          6   conduct of an Superior Court judge?
          7       A.   I do.
          8       Q.   Is that why you left to go to the 
          9   Maimonides School, because you couldn't handle it?
         10       A.   No.
         11       Q.   You didn't belong in those courtrooms?
         12       A.   No.  I had an opportunity to work at my 
         13   son's school and to be with him on a regular basis 
         14   with hours that were much more friendly to being a 
         15   working mother.  I was offered a significant salary 
         16   increase to take the position at the school. 
         17            And there was an impending election in the 
         18   office.  That's not always a pleasant thing to be 
         19   around when you're working and there's an election 
         20   going on.  It seemed like an opportunity for me at 
         21   that point to take an interesting career change.  
         22   And I learned a lot in my new job and benefited from 
         23   being with my children that way.
         24       Q.   But as we leave this subject for the 
 0133
          1   moment, on that day, before that judge in that case, 
          2   you considered that conduct by Judge Lopez 
          3   terrifying to you?
          4       A.   No, Mr. Egbert.  I've tried to explain that 
          5   what I found terrifying was a combination of this 
          6   conduct, as well as conversation I had at some point 
          7   when I returned -- this was prior to my maternity 
          8   leave with my daughter.  And --
          9       Q.   Now, you testified --
         10            MR. WARE:  Objection.
         11            HEARING OFFICER DAHER:  Let her finish.
         12       Q.   Conversation with whom?
         13       A.   I had a conversation when I returned, long 
         14   after this case, with another judge, who indicated 
         15   to me --
         16            MR. EGBERT:  Well, I object to conversation 
         17   with some other judge.
         18            HEARING OFFICER DAHER:  Sustained.
         19       A.   And those factors together --
         20            MR. WARE:  Defense counsel opened the door 
         21   twice on this issue, and I think the witness is 
         22   entitled to state why she believed that she was -- 
         23   why she was overwrought by this exchange with the 
         24   Judge.
 0134
          1            MR. EGBERT:  She was pretty clear in her 
          2   prior testimony, Judge.  It was all about that tape 
          3   and that event.
          4            MR. WARE:  We don't need Mr. Egbert's 
          5   testimony; we need the witness's testimony.
          6            HEARING OFFICER DAHER:  Again, I'm going to 
          7   sustain the objection.  Go ahead.
          8            MR. WARE:  Are you permitting her to finish 
          9   the answer, Your Honor?
         10            HEARING OFFICER DAHER:  She can finish the 
         11   answer.
         12            MR. EGBERT:  As to her conversation with 
         13   another Judge?
         14            HEARING OFFICER DAHER:  Yes.
         15       A.   It was a combination of factors that made 
         16   me scared to appear before Judge Lopez, both how she 
         17   treated me that day on the Estrada plea, but also 
         18   another Judge informed me a few months later that 
         19   Judge Lopez was very mad at me about the media 
         20   coverage on this case.  And because of that --
         21            HEARING OFFICER DAHER:  Mr. Ware, I'm going 
         22   to strike that part as to the media coverage.  If 
         23   we're talking about something that -- she was angry 
         24   at her because -- I'm going to strike that.
 0135
          1            MR. WARE:  This goes to the witness' state 
          2   of mind.  It's not offered for the truth.
          3            HEARING OFFICER DAHER:  We're going through 
          4   her state of mind during the course of the 
          5   proceeding which she tells her, avoid hyperbole and 
          6   subjective characterizations.  Now we're talking 
          7   about a time thereafter.  I have to be relevant.  
          8   I'm going to strike it.  Go ahead, Mr. Egbert. 
          9       BY MR. EGBERT: 
         10       Q.   Now, after the Estrada case and the Calixte 
         11   case, which by the way, as to both of those cases, 
         12   it's your opinion, isn't it, that it could go either 
         13   way; there was rationale basis to give probation; is 
         14   that correct?
         15       A.   I guess I don't know what you mean by the 
         16   question when you say it could go either way. 
         17            I think that there are a variety of 
         18   different options available, from probation to house 
         19   time to different amounts of imprisonment.  And in 
         20   that sense, a judge obviously has discretion to 
         21   impose a sentence that he or she believes is fair 
         22   and just, given the circumstances.
         23            The DA's position and my personal position 
         24   was that both on the Calixte case and the Estrada 
 0136
          1   case, that some form of imprisonment was merited.  
          2       Q.   Well, does your position and the DA's 
          3   position, for that matter, take into account the 
          4   fact that you are an advocate on one side of the 
          5   equation?
          6       A.   The DA's office understands that we 
          7   advocate for certain aspects of justice and we take 
          8   into consideration a number of different factors --
          9       Q.   Please answer my question.  Are you on one 
         10   side of the equation?  Do you know something about 
         11   what's called the adversary system of justice?
         12       A.   Yes.
         13       Q.   Do you know what that is?
         14       A.   Well --
         15       Q.   Do you know what it is?
         16       A.   I understand that litigation in court 
         17   involves opposing parties with a judge making 
         18   rulings.
         19       Q.   And do you understand that your position as 
         20   a district attorney or assistant district attorney 
         21   is to present the position of the Commonwealth 
         22   through the DA's office?
         23       A.   Yes, we represent the people.
         24       Q.   You represent the people. 
 0137
          1            The defense counsel's position is to 
          2   represent their client, correct?
          3       A.   Absolutely.
          4       Q.   And various factors go into all of the 
          5   judgments that get made, correct, and then a judge 
          6   makes the call?
          7       A.   Correct.
          8       Q.   Oftentimes judges disagree with you; is 
          9   that right?
         10       A.   Of course.
         11       Q.   Oftentimes they disagree with defense 
         12   counsel?
         13       A.   Of course.
         14       Q.   It doesn't make you right or them wrong, 
         15   correct?
         16       A.   That's correct.
         17       Q.   It just makes your opinion that they're 
         18   wrong; isn't that correct?
         19       A.   No.
         20       Q.   Well, do you ever recommend sentences that 
         21   you think are inappropriate?
         22       A.   No.
         23       Q.   So every time a judge goes against what you 
         24   do, you think they've done something that's 
 0138
          1   inappropriate; isn't that right?
          2       A.   No, that's not the case.  I think that 
          3   sentencing is an area where educated and reasonable 
          4   people can disagree on some of the numbers.  And I 
          5   think that that happens regularly.  It doesn't make 
          6   someone wrong and someone right. 
          7       Q.   Well, is it, in fact, -- was it, in fact, 
          8   your testimony on previous occasions that you could 
          9   see how the Calixte case could end up with just 
         10   probation?
         11       A.   I understood why the Judge chose probation, 
         12   given -- I understood that.  I don't see how it 
         13   happened.
         14       Q.   Pardon me?
         15       A.   It wasn't the recommendation of the DA's 
         16   office.
         17       Q.   Well, just because it wasn't the 
         18   recommendations of the DA's office doesn't mean that 
         19   you couldn't see the rationale behind it, correct?  
         20   You weren't that closed-mind?
         21       A.   No, I understood there was a rationale 
         22   behind the decision.
         23       Q.   And you have testified in the past that 
         24   when the Calixte case is reviewed, you could see the 
 0139
          1   reason for giving Ms. Calixte probation, correct?
          2       A.   Can you please show me where that is.
          3       Q.   I'm talking as a general concept for the 
          4   moment.  Do you have any memory of saying things 
          5   like that?
          6       A.   If you could show me, that would be 
          7   helpful.
          8       Q.   You just met with your counsel during the 
          9   break -- by the way, you have counsel present here, 
         10   don't you?
         11       A.   Yes, I do.
         12       Q.   Your own lawyer, right?
         13       A.   Yes.
         14       Q.   Not one from the Judicial Conduct 
         15   Commission?
         16       A.   That's correct.
         17       Q.   You have your own lawyer, Mr. Kiley, 
         18   present?
         19       A.   That's correct.
         20       Q.   Mr. Kiley sat here and told you to make 
         21   sure you read all these transcripts we talked about 
         22   before you answer a question, correct?
         23            MR. WARE:  Objection.
         24            HEARING OFFICER DAHER:  Overruled.
 0140
          1       Q.   He said it right out in the open, didn't 
          2   he?
          3            MR. WARE:  This has to be the subject of a 
          4   privilege between the lawyer and Ms. Joseph.
          5            HEARING OFFICER DAHER:  Overruled.  Go 
          6   ahead.  Very simple question.
          7       Q.   Is that right?
          8       A.   He told me to think before I answered. 
          9            THE COURT:  That part is in.
         10       Q.   Do you have a memory of saying the 
         11   following words:  "Like in the Calixte case, for 
         12   example, one could say, well, first of all, it's the 
         13   mother of the child.  Women generally don't get 
         14   state prison sentences.  It's more men.  Just a fact 
         15   of life.  And she didn't have a record and it's her 
         16   mother and that kind.  She has some mental issues or 
         17   whatever it is.  So I could see an argument being 
         18   made for no jail time.  I could see it." 
         19            Do you recall testifying in that fashion 
         20   under oath in the past?
         21       A.   Yes, I do.
         22       Q.   And then do you also recall testifying as 
         23   follows:  "In Estrada, you could argue, Well, the 
         24   girl herself got up and said, 'I don't want him to 
 0141
          1   go to jail.'  Even there there's a hook for her to 
          2   hang her hat on in that sense," correct?
          3       A.   Yes.
          4       Q.   And when you say "her hat," you were 
          5   talking about Judge Lopez's hat, correct?
          6       A.   Correct.
          7       Q.   Because in Estrada, in fact, in the case 
          8   you were just referring to, in Estrada, in fact, the 
          9   alleged victim or the victim in the case actually 
         10   asked the Judge not to put him in jail?
         11       A.   That's correct.  The 12 year old 
         12   child asked the judge --
         13       Q.   Whatever the age was, the alleged victim 
         14   asked that he not be put in jail?
         15       A.   The victim asked the Judge not to place him 
         16   in jail.
         17       Q.   And the victim's mother asked that the 
         18   defendant not be put in jail?
         19       A.   That's correct.
         20       Q.   And the defendant had been receiving 
         21   therapy for a mental illness or a mental condition 
         22   with regard to sexual offenders, correct?
         23       A.   I don't know if it was a mental condition.  
         24   I know he was in a group setting, receiving 
 0142
          1   counseling for being a pedophile of some sort or 
          2   being attracted to young girls.
          3       Q.   He was receiving counseling for that, 
          4   wasn't he?
          5       A.   Therapy, yes.
          6       Q.   Sexual therapy --
          7       A.   I don't really know the nature of the 
          8   therapy.  If it was sexual therapy, I don't really 
          9   know --
         10       Q.   Did you investigate that therapy --
         11       A.   Yes.
         12       Q.   -- before you -- strike that. 
         13            Did you investigate what therapy he was 
         14   receiving before you decided what sentence to seek?
         15       A.   Absolutely.  A number of the people that we 
         16   had planned to call as witnesses were somehow --
         17       Q.   My question is, first of all -- did you 
         18   investigate?  That's my question.
         19       A.   Therapy --
         20       Q.   What therapy he was receiving?
         21       A.   In the Estrada case? 
         22       Q.   Yes. 
         23       A.   Yes, we did.
         24       Q.   So you understood what it was?
 0143
          1       A.   At the time, yes.
          2       Q.   And you understood that the victim was 
          3   asking Judge Lopez not to send Mr. Estrada to jail?
          4       A.   That's correct.
          5       Q.   As was the victim's mother?
          6       A.   Correct.
          7       Q.   And you indicated, as you said in that 
          8   transcript, that you could understand the basis for 
          9   that or the hook, as you described it, correct?
         10       A.   I believe what I said is that I could 
         11   understand an argument being made to support 
         12   probation, yes.
         13       Q.   And in fact, on the two cases that you had 
         14   with Judge Lopez before the Horton case, you 
         15   advocated strongly on behalf of the Commonwealth for 
         16   the position you thought was appropriate, correct?
         17       A.   Correct.
         18       Q.   And on each of those occasions you and the 
         19   Commonwealth sought substantial jail time, correct?
         20       A.   In the Estrada case we were recommending an 
         21   eight to ten, and I think that is substantial jail 
         22   time.  The five to seven on the Calixte case -- I 
         23   don't know if five to seven is considered 
         24   substantial.  It's jail time.
 0144
          1       Q.   Have you ever done five to seven years in a 
          2   state prison?
          3       A.   No, I haven't.
          4       Q.   Most people might consider that 
          5   substantial?
          6       A.   I believe that might be the case.
          7       Q.   In any event, you were recommending or 
          8   advocating on the behalf of your client a particular 
          9   position, correct?
         10       A.   We don't have a client.
         11       Q.   You don't?  Aren't the people who elect the 
         12   district attorney your client?
         13       A.   I think the DA's office represents all the 
         14   people in the Commonwealth.
         15       Q.   The common good?
         16       A.   The public.
         17            HEARING OFFICER DAHER:  Let her finish.
         18       A.   We represent the public, yes.
         19       Q.   You represent the public as you see it?
         20       A.   Yes.
         21       Q.   And as you determine what's good or bad for 
         22   the public?
         23       A.   The DA's office takes into a number of 
         24   factors what would be good in a given sentence when 
 0145
          1   a crime is committed.
          2       Q.   One of those factors is getting elected, 
          3   correct?
          4       A.   I don't believe that that plays a role in 
          5   sentencing recommendations.
          6       Q.   You don't think that the DA's office 
          7   considers their electability and re-electability in 
          8   making judgments as to what kinds of sentence to 
          9   seek in criminal cases?
         10       A.   The line ADAs and their supervisors who are 
         11   making the sentencing recommendations -- and in 
         12   fact, all the way up to the first assistant, aren't 
         13   elected officials.  We're appointed.
         14       Q.   Appointed by whom?
         15       A.   By the district attorney.
         16       Q.   Who is what?  Elected, correct? 
         17       A.   That's correct.
         18       Q.   In any event, this common good that you all 
         19   represent in the DA's office, you advance positions 
         20   to judges, correct?
         21       A.   That's correct.
         22       Q.   And at least you've admitted that many 
         23   judges disagree many times with the statement of 
         24   common good that you bring to them on behalf of the 
 0146
          1   DA's office, correct?
          2       A.   Many judges disagree with our sentencing 
          3   recommendations.
          4       Q.   Which you think is for the common good?
          5       A.   Which we believe represents -- yes.
          6       Q.   And so these judges disagree with you on 
          7   what is for the common good, correct?
          8       A.   They agree generally -- they agree in part 
          9   with the Commonwealth's position that they can 
         10   understand what our basis of a recommendation is.  
         11   And they can make assessments based on that.  I 
         12   don't know that a judge has ever said, "I disagree 
         13   with your opinion of the common good."
         14       Q.   By their adopting the recommendation other 
         15   than yours or lesser than yours, they are in fact 
         16   stating that they think in a particular case your 
         17   recommendation is not as appropriate as the one they 
         18   are going to impose?
         19       A.   That's correct.
         20       Q.   That happens all the time?
         21       A.   Absolutely.
         22       Q.   In courts throughout the Commonwealth, 
         23   correct?
         24       A.   Yes.
 0147
          1       Q.   And you would expect that to happen, 
          2   wouldn't you?
          3       A.   Yes.
          4       Q.   And in fact, defendants and defense 
          5   attorneys also make recommendations from their 
          6   points of view in criminal cases; is that correct?
          7       A.   Of course.
          8       Q.   And many times those are rejected or at 
          9   somewhere some compromised position is brought by 
         10   many judges in many cases every day in our criminal 
         11   courtroom, correct?
         12       A.   Absolutely.
         13       Q.   But in this particular instance with Judge 
         14   Lopez, you had two cases before her where your 
         15   recommendations were rejected?
         16       A.   That's correct.
         17       Q.   Your advocacy did not work, correct?
         18       A.   That's correct.
         19       Q.   You did not achieve what you hoped to 
         20   achieve?
         21       A.   That's correct.
         22       Q.   And you, at least as far as your function 
         23   as a DA, you considered yourself to have failed in 
         24   that regard as to accomplishing what you wanted to 
 0148
          1   accomplish; isn't that right?
          2       A.   No, because I believed that I --
          3       Q.   Is it right?  Yes or no?
          4       A.   It's not right.
          5       Q.   And when you perceived Judge Lopez talking 
          6   to you -- strike that -- screaming at you in the 
          7   Estrada case, do you think that might have been the 
          8   subject of you personalizing a little bit as to what 
          9   was going on?
         10       A.   At the end of the day she humiliated me by 
         11   reprimanding me in open court.  There was a 
         12   defendant who plead guilty to raping his 
         13   stepdaughter, and he wasn't in any way reprimanded 
         14   or anything.  And she was motioning to me -- she was 
         15   yelling at me in court --
         16       Q.   Yelling at you?
         17            HEARING OFFICER DAHER:  Let her finish.  
         18   You asked the question. 
         19       A.   That's how it felt.
         20       Q.   So in other words, she was talking to you 
         21   about your conduct as a lawyer, as an officer of the 
         22   Court, correct?
         23       A.   Yes.
         24       Q.   And she was talking to you about 
 0149
          1   appropriate court procedures; is that correct?
          2       A.   She was talking to me about -- she wasn't 
          3   giving a class about appropriate court procedures --
          4       Q.   She was telling you in her courtroom not to 
          5   use hyperbole when discussing a statement of facts 
          6   which a defendant has to agree to for purposes of a 
          7   plea, correct?
          8       A.   She was being critical to my --
          9       Q.   Can't you take any criticism? 
         10            MR. WARE:  Objection.
         11            HEARING OFFICER DAHER:  Wait a minute, Mr. 
         12   Egbert.  You've asked her three times, and every 
         13   time she tries to respond you interrupt her.  
         14   Finish.  Go ahead. 
         15       A.   She was being critical of what I believed 
         16   was doing my job by putting the facts on the record 
         17   which she didn't like to hear.  And she reprimanded 
         18   me to not put the facts on the record.
         19       Q.   Let me ask you a question.  She reprimanded 
         20   you to not put the facts on the record or hyperbole 
         21   on the record?
         22       A.   Well, she called it hyperbole.  I believe 
         23   that I was -- the factual part of a plea 
         24   recommendation at that point serves two purposes.  
 0150
          1   One is to supply the facts for the purposes of the 
          2   defendant to plead guilty.  And the other is to 
          3   allow the district attorney's office to advocate 
          4   their position in why they felt certain sentences is 
          5   important.
          6       Q.   You know that's not true, don't you?  You 
          7   just made that up, didn't you? 
          8       A.   No. 
          9       Q.   So you think when a judge says, "Mr. 
         10   District Attorney" or "Ms. District Attorney, put on 
         11   the record the facts which the Commonwealth intends 
         12   to prove at trial, because I'm going to ask the 
         13   defendant whether or not he admits or denies those 
         14   facts," that you have then the right to put on 
         15   opinion, hyperbole, and the like, as if it was a 
         16   sentencing argument?
         17       A.   I believe that in plea colloquies, the DA's 
         18   office has an opportunity when we put the facts on 
         19   the record to also use that opportunity that the 
         20   facts speak for themselves in some cases as the 
         21   basis for a sentencing recommendation, and that 
         22   those two things can be commingled in our advocacy.
         23            HEARING OFFICER DAHER:  Mr. Egbert, how 
         24   much longer do you have with this witness? 
 0151
          1            MR. EGBERT:  A long time, Judge.
          2            HEARING OFFICER DAHER:  Do you want to 
          3   break?  It's 1:00.
          4            MR. EGBERT:  Sure.
          5            HEARING OFFICER DAHER:  Mr. Ware, is that 
          6   okay with you? 
          7            MR. WARE:  Yes, Your Honor.
          8            HEARING OFFICER DAHER:  See you tomorrow 
          9   morning.
         10                 (Whereupon, the hearing was
         11                 adjourned at 1:00 p.m.)
         12   
         13   
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         16   
         17   
         18   
         19   
         20   
         21   
         22   
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 0152
          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 VI, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on Monday, December 2, 2002, 2002.
          7   
          8   
          9                  _____________________________
         10                            Jane M. Williamson
         11                  Registered Merit Reporter
         12   
         13   
         14                        -  -  -  -
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   

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