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 0001
                                            Volume VII   
                                            Pages 7-1 to 7-161
                                            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
                            Tuesday, December 3, 2002
                                    9:37 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. Egbert)         7-6
          4   
                                    *  *  * 
          5   
                                 E X H I B I T S
          6   
              EX. NO.                         FOR ID   IN EVID.
          7   
              C-1 Interview of Ms. Joseph     7-12
          8       conducted by the CJC on
                  8/21/01
          9   
              C-2 Volume I of the deposition  7-12
         10       of Ms. Joseph taken
                  August 20, 2002
         11   
              C-2 Volume II of the deposition 7-12
         12       of Ms. Joseph taken
                  September 17, 2002
         13   
              D   Letter dated 2/1/99 from              7-24
         14       Dr. Franca Centorrino of 
                  McLean Hospital
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   
 0003
          1                   P R O C E E D I N G S
          2       (At side bar)
          3            MR. EGBERT:  As to yesterday's allegations 
          4   by Mr. Braceras as it relates to Mr. Mindich, I have 
          5   investigated the matter.  Mr. Mindich denies it 
          6   vociferously.  More importantly, because I recall 
          7   the events, I and Mr. Mindich had happened to go to 
          8   the men's room at the same time yesterday.  I left.  
          9   When I left, present in the men's room was a 
         10   photographer from Channel 7, Alan McNaughton.  Mr. 
         11   McNaughton apparently stayed and chatted with Mr. 
         12   Mindich as they were leaving the men's room.  Mr. 
         13   McNaughton informs me that he followed Mr. Mindich 
         14   out of the bathroom.  He was within a body's length 
         15   of him on the way out and at no time did he ever 
         16   hear Mr. Mindich say anything like, "You're a piece 
         17   of shit" to Mr. Braceras.
         18            HEARING OFFICER DAHER:  Anything else? 
         19            MR. EGBERT:  No.
         20            HEARING OFFICER DAHER:  I tried to revisit 
         21   my notes, and this bothered me.  Page 133, when Ms. 
         22   Joseph was asked about the judge and some judge told 
         23   her something and you objected on the grounds it 
         24   would be hearsay, I would like to revisit that 
 0004
          1   question and hear argument on it.  I may allow it if 
          2   the other judge is going to be subpoenaed to 
          3   testify.
          4            MR. WARE:  Well, I can make --
          5            HEARING OFFICER DAHER:  I'll try to revisit 
          6   my ruling, but that bothered me last night.
          7            MR. WARE:  As an offer of proof, I would 
          8   say what the witness was going to say was that when 
          9   she came back from her maternity leave of several 
         10   months --
         11            HEARING OFFICER DAHER:  That would be whom? 
         12            MR. WARE:  When Ms. Joseph came back from 
         13   her maternity leave --
         14            MR. EGBERT:  Why don't we speak at a 
         15   level --
         16            MR. WARE:  If Ms. Joseph had been permitted 
         17   to answer the question, my representation is she 
         18   would have said that she was out of the district 
         19   attorney's office for a period of months after 
         20   Calixte and Estrada; and that when she came back, 
         21   she had a conversation with Judge --
         22            MR. EGBERT:  Is this a side bar or is it 
         23   broadcast journalism?
         24            HEARING OFFICER DAHER:  Tone it down.
 0005
          1            MR. WARE:  She had a conversation with 
          2   Judge Ball, in which Judge Ball advised her 
          3   Judge Lopez remained quite angry with her, and 
          4   that was one of the factors which caused her to 
          5   feel --
          6            HEARING OFFICER DAHER:  Is she being 
          7   subpoenaed? 
          8            MR. WARE:  No.
          9            MR. EGBERT:  They know Judge Ball says that 
         10   didn't occur.  They've interviewed Judge Ball.  
         11   Judge Ball told them that that conversation didn't 
         12   take place as they represented.
         13            MR. WARE:  That's absolutely flatly 
         14   incorrect.
         15            MR. EGBERT:  That's correct.
         16            MR. WARE:  But I do not intend to drag a 
         17   bunch of judges in here.
         18            HEARING OFFICER DAHER:  So the ruling 
         19   stands.  
         20            Do you want to add anything? 
         21            MR. WARE:  No, Your Honor.
         22            HEARING OFFICER DAHER:  The ruling 
         23   stands.
         24       (End of side bar)
 0006
          1                    LEORA JOSEPH, Previously Sworn
          2                      CROSS EXAMINATION, Resumed
          3       BY MR. EGBERT: 
          4       Q.   Good morning, Ms. Joseph.  I have a cold 
          5   and so if you have trouble hearing me or 
          6   understanding me, I want you to feel free to stop me 
          7   and tell me.  Would you do that?
          8       A.   Okay.
          9       Q.   I want to go back to the Estrada and 
         10   Calixte cases in a general sense. 
         11       A.   Okay.
         12       Q.   You were counsel for the Commonwealth in 
         13   those cases?
         14       A.   That's correct.
         15       Q.   And as to each of those cases they were 
         16   lobbied so called or a lobby?
         17       A.   There were separate conferences on both of 
         18   those cases, yes.
         19       Q.   Can we refer to those as lobby conferences 
         20   or plea conferences?  We're talking about the same 
         21   thing?
         22       A.   Yes.
         23       Q.   So both of those were in the First Session 
         24   of the court?
 0007
          1       A.   Yes.
          2       Q.   Now, at each of those -- and let's start 
          3   with Calixte -- you understood that by the time the 
          4   Calixte case came around, that Judge Lopez was or 
          5   had a custom of conducting lobby conferences at the 
          6   side bar, correct?
          7       A.   Yes.
          8       Q.   And that that custom was throughout her 
          9   First Session tenure; is that correct?
         10       A.   That was my experience with her.
         11       Q.   And you didn't learn of any other procedure 
         12   that she had, correct?
         13       A.   No.
         14       Q.   And you knew before you went in on Calixte, 
         15   because you obviously prepared for a lobby 
         16   conference on that day, didn't you?
         17       A.   Yes.
         18       Q.   So you had made preparation on what to do 
         19   and what to present at this lobby conference in 
         20   order to present the most or the best position for 
         21   the Commonwealth in regard to Commonwealth versus 
         22   Calixte, right?
         23       A.   Yes.
         24       Q.   So you prepared yourself on the facts, 
 0008
          1   correct?
          2       A.   Correct.
          3       Q.   And you prepared yourself on the law, 
          4   correct?
          5       A.   Correct.
          6       Q.   And you prepared yourself on sentencing and 
          7   sentencing alternatives, correct?
          8       A.   Correct.
          9       Q.   So when you got there that day, you went up 
         10   to side bar in a prearranged fashion with defense 
         11   counsel, correct?
         12       A.   Yes. 
         13       Q.   In order to discuss the Calixte case and 
         14   what the Court would do about it on a pleading.
         15       A.   Correct.
         16       Q.   And that's something that's done, to your 
         17   knowledge, every day throughout the Superior Court 
         18   system, correct?
         19       A.   Correct.
         20       Q.   Nothing unusual about it at all.
         21       A.   Correct.
         22       Q.   Some judges have it in their chambers, 
         23   correct?
         24       A.   Correct.
 0009
          1       Q.   Some have it at the side bar, correct?
          2       A.   Yes.
          3       Q.   Some have it -- I suppose that's about the 
          4   only two places.  Can you think of another?
          5       A.   I can't.
          6       Q.   Some have court reporters take it down, 
          7   correct?
          8       A.   Yes.
          9       Q.   Some don't.
         10       A.   That's correct.
         11       Q.   And that's been the process in the Superior 
         12   Court since you've known it.
         13       A.   That's what I've known, yes.
         14       Q.   Now, on the Calixte matter, you came and 
         15   the process was, wasn't it typical, that the Judge 
         16   asked the Commonwealth, Tell me what the case is 
         17   about, correct?
         18       A.   Yes.
         19       Q.   And then the Commonwealth then through you 
         20   provides the Court with factual underpinnings of the 
         21   case, the charges, and anything about the case that 
         22   the Commonwealth thinks is appropriate for 
         23   consideration in determining the appropriate 
         24   sentence, correct?
 0010
          1       A.   Yes.
          2       Q.   And you did that in Calixte.
          3       A.   Yes.
          4       Q.   And you laid out for Judge Lopez during the 
          5   Calixte conference everything you wanted to say 
          6   about the possible plea, the Commonwealth's 
          7   position, and what the Commonwealth thought ought to 
          8   happen.
          9       A.   I don't have a clear memory of every single 
         10   thing I said the day of the lobby conference.  I 
         11   don't know if there may have been some facts that 
         12   were nonmaterial that I omitted, but I tried to be 
         13   as thorough as possible in laying out the facts that 
         14   support the charges and in presenting any other 
         15   evidence in the Calixte case that would support the 
         16   Commonwealth's recommendation.
         17       Q.   So you don't remember if you left out some 
         18   nonmaterial facts, right?
         19       A.   I don't remember.
         20       Q.   But it's fair to say, isn't it, that you 
         21   were given a full and fair opportunity by Judge 
         22   Lopez to discuss your recommendation, to discuss the 
         23   facts, and to tell her anything you chose to tell 
         24   her which may be informative as relates to the 
 0011
          1   Calixte sentence?
          2       A.   Yes.
          3       Q.   You weren't stopped in your presentation at 
          4   any time?
          5       A.   I don't remember being stopped, no.
          6       Q.   And you would remember that, wouldn't you?
          7       A.   I think I would.
          8       Q.   You weren't inhibited or prohibited from 
          9   presenting any information to her at all.
         10       A.   Not that I remember. 
         11       Q.   And, in fact, you've testified in the past 
         12   at depositions that you were provided a full -- full 
         13   and fair opportunity to discuss the matters in the 
         14   Calixte case before Judge Lopez.
         15       A.   I remember being given an opportunity to 
         16   advocate the Commonwealth's position.
         17       Q.   You testified previously -- listen to the 
         18   question, if you can. 
         19            You were given a full and fair opportunity 
         20   to discuss your recommendation, the reasons for it, 
         21   and all of those types of considerations at the 
         22   lobby conference with Judge Lopez.  That's your 
         23   prior testimony, is it not?
         24       A.   I said that? 
 0012
          1       Q.   Is it not your prior testimony?
          2       A.   If I could see what you're reading from, 
          3   that would be very helpful.
          4            MR. EGBERT:  Sure.  And, in fact, if I may, 
          5   Judge, to save some time -- may I approach, Judge?
          6            HEARING OFFICER DAHER:  Yes. 
          7       Q.   I'm going to hand you up three volumes.  
          8   I'll identify them in a minute with you. 
          9            MR. EGBERT:  Your Honor, I have a set for 
         10   the Court for identification only.
         11            THE CLERK:  It will be C for ID.
         12                 (Documents marked as Exhibits C-1, C-2 
         13                 and C-3 for identification)
         14       Q.   Let's just identify the volumes, if we 
         15   could, so we're all dealing from the same deck.
         16            The first volume is -- 
         17            MR. EGBERT:  And you've labeled the first 
         18   one what, Mr. Chopp? 
         19            THE CLERK:  C-1.
         20       Q.   The first volume, which is now C-1 for ID, 
         21   that is your interview before the Commission on 
         22   Judicial Conduct, actually before Mr. Ware; is that 
         23   correct?  Or some lawyer, correct?
         24       A.   I don't believe it was Mr. Ware.
 0013
          1       Q.   But some other lawyer?
          2       A.   Yes.
          3       Q.   And that occurred on Tuesday, August 21st, 
          4   of the Year 2001, correct?
          5       A.   Yes.
          6       Q.   And then C-2, that is the first volume of 
          7   deposition that was given by you at my office on or 
          8   about August 20th of the Year 2002; is that correct?
          9       A.   Yes.
         10       Q.   And then C-3 is Volume II of your 
         11   deposition, which occurred in my office on September 
         12   17th of the Year 2002; is that correct?
         13       A.   Yes.
         14       Q.   Now, I want to ask -- I asked you a few 
         15   minutes ago a question about full and fair 
         16   opportunity.  Do you recall that?
         17       A.   Yes.
         18       Q.   Would you turn to Page 69 of Exhibit C-2.
         19       A.   Yes.
         20       Q.   And do you see there you were asked the 
         21   following question:  "And at Calixte, were you given 
         22   a full and fair opportunity to discuss your 
         23   recommendation, the reasons for it, and all of those 
         24   types of considerations at the lobby conference or 
 0014
          1   the lobby conference with Judge Lopez?"  Do you see 
          2   that question?
          3       A.   Yes, I do.
          4       Q.   And what's your answer?
          5       A.   "I believe so." 
          6       Q.   Do you have any reason to disbelieve that 
          7   now?
          8       A.   No.
          9       Q.   So as we stand here today, you were given 
         10   such opportunity as described in your previous 
         11   statements, correct?
         12       A.   I believe so.
         13       Q.   And in the time you've had to think about 
         14   it, there's nothing that's come to your mind to 
         15   indicate otherwise; is that correct?
         16       A.   Not at this moment.
         17       Q.   Well, you've had a bunch of time to think 
         18   about it.  You've testified about it three times 
         19   under oath, you're here for a fourth, you've been 
         20   prepared for a number of hours by the Judicial 
         21   Conduct Commission.  Is there anything that you 
         22   could think of now that would make your statement 
         23   inaccurate?
         24       A.   There's nothing that I can think of now 
 0015
          1   that would make my statement inaccurate.
          2       Q.   Now, after you were given that opportunity 
          3   in Calixte, the lawyer for the defendant was given 
          4   an equal opportunity to make a presentation; is that 
          5   correct?
          6       A.   Yes.
          7       Q.   And who was that lawyer, do you recall?
          8       A.   I don't remember his name.  I don't 
          9   remember his name.  I'm sorry.
         10       Q.   During the course of that presentation on 
         11   Calixte, was there some discussion or reference to 
         12   Mrs. Calixte having a previously undiagnosed mental 
         13   illness?
         14       A.   There was a discussion by the defense 
         15   attorney that the defendant did suffer from some 
         16   type of mental illness, yes.
         17       Q.   Do you recall what type of mental illness 
         18   you're talking about?
         19       A.   I don't recall.
         20       Q.   Does schizophrenia ring a bell?
         21       A.   I really don't recall.
         22       Q.   And during that side-bar conference, was 
         23   there a discussion of the fact that Ms. Calixte was 
         24   undergoing treatment at McLean Hospital, part of the 
 0016
          1   Massachusetts General Hospital, for this previously 
          2   undiagnosed schizophrenia?
          3       A.   I remember that during the plea conference 
          4   there was discussion of the defendant undergoing 
          5   treatment.  I don't remember if it was at McLean's 
          6   or Mass. General or where specifically it was.
          7       Q.   Were you provided that information by 
          8   defense counsel before that plea conference?
          9       A.   Yes.
         10       Q.   And did you investigate it?
         11       A.   I don't have a clear memory of 
         12   investigating that information.  I know that that's 
         13   the kind of information that I would discuss with my 
         14   supervisors.
         15       Q.   Your supervisors don't have any personal 
         16   knowledge as to Ms. Calixte's mental condition, do 
         17   they?
         18       A.   No, but they --
         19       Q.   Answer my question.  Do they?
         20       A.   No, they don't.
         21       Q.   So when I talk about investigation with 
         22   you, did you seek to subpoena Ms. Calixte's medical 
         23   records from the hospital?
         24       A.   I don't remember.
 0017
          1       Q.   Well, do you ever remember doing something 
          2   like that?
          3       A.   Doing something like what? 
          4       Q.   In other words, in Calixte, do you have any 
          5   recollection at all, as you search your memory, of 
          6   having subpoenaed or sought to subpoena Ms. 
          7   Calixte's medical records which the defense was 
          8   relying on in presenting to the Judge a sentencing 
          9   recommendation?
         10       A.   I don't remember.
         11       Q.   Do you have any record of doing such a 
         12   thing?
         13       A.   If there would be a record of it, it would 
         14   be at the district attorney's office in the file.
         15       Q.   Go into your mind's eye for a moment and 
         16   think back and see if you can see in your eye ever 
         17   looking at these medical records of Ms. Calixte from 
         18   various hospitals in the Commonwealth.
         19       A.   This was about four years ago.  I'm sorry, 
         20   I don't have a clear memory of looking at specific 
         21   medical records on the Calixte case.
         22       Q.   Because the truth of the matter is, you 
         23   never did it; isn't that fair?
         24       A.   I don't know.
 0018
          1       Q.   Did you seek an independent medical 
          2   examination of Ms. Calixte?
          3       A.   I don't believe we did.
          4       Q.   Do you know?
          5       A.   I don't have an independent memory.
          6       Q.   That's not something you've done very often 
          7   in your career as a prosecutor, seeking an 
          8   independent psychiatric examination, is it?
          9       A.   There have been numerous times, both when I 
         10   was an assistant district attorney in the District 
         11   Court, as well as in Superior Court, where the 
         12   defendant was sent to Bridgewater or one of those 
         13   types of institutions for criminal competency or 
         14   responsibility evaluations, and in that capacity, 
         15   especially in the District Court, that was something 
         16   that happened quite frequently.
         17       Q.   But that's quite different than seeking an 
         18   independent examination when a defendant seeks to 
         19   have medical records used in a sentencing procedure, 
         20   correct?  That's a very different thing, isn't it?
         21       A.   It's different.
         22       Q.   Because in talking about -- you were asked 
         23   yesterday, for example, about criminal 
         24   responsibility and the like.  Well, that's got 
 0019
          1   nothing to do with sentencing, does it?
          2       A.   Well, except for the fact that if a 
          3   defendant isn't criminally responsible, then I don't 
          4   believe they can plead guilty to the charges.
          5       Q.   They can't be sentenced.
          6       A.   They can't have a sentence.
          7       Q.   So when I say it has nothing to do with the 
          8   sentencing, people who are not criminally 
          9   responsible never get to a sentencing phase, do 
         10   they?
         11       A.   Until they're deemed responsible, yes.
         12       Q.   While they're not criminally responsible, 
         13   they can't be sentenced, can't be tried, can't be 
         14   pled guilty or the like, correct?
         15       A.   Correct.
         16       Q.   And criminal responsibility and -- strike 
         17   that.  And equally so, competence -- you were asked 
         18   about competence yesterday, competency.  That's also 
         19   much different than something involving a plea and 
         20   sentencing and medical records being used in 
         21   furtherance thereof, isn't it?
         22       A.   There are different stages of competency as 
         23   being an issue versus, yes, if medical records are 
         24   being offered to somehow mitigate a sentence.  Is 
 0020
          1   that what you're asking? 
          2       Q.   In other words, people who are incompetent 
          3   can't be sentenced, can they?
          4       A.   That's right.
          5       Q.   They cannot be tried, can they?
          6       A.   That's right.
          7       Q.   They cannot plead guilty, can they?
          8       A.   Correct.
          9       Q.   So the medical records relative to 
         10   sentencing, the psychiatric records relative to 
         11   sentencing, aren't on issues of competence or 
         12   criminal responsibility, are they?
         13       A.   Which psychiatric records? 
         14       Q.   Records which are used with relation to 
         15   sentencing are generally not on the issue of 
         16   criminal responsibility and competency, are they?
         17       A.   No, they're not.
         18       Q.   Usually what it is is one or the other side 
         19   has sought medical attention or psychiatric 
         20   attention to bring that information before the Court 
         21   insofar as that may affect the sentence imposed.
         22       A.   That's right.
         23       Q.   And that's what was done in Calixte, wasn't 
         24   it?
 0021
          1       A.   I remember the defense attorney talking 
          2   about the defendant's mental condition, yes.
          3       Q.   Don't you remember the defense attorney 
          4   submitting letters from medical doctors?
          5       A.   I don't know if there were letters or a 
          6   report -- I really don't have a clear memory.
          7       Q.   You knew that the defense in the Calixte 
          8   case -- you knew that they were going to make a 
          9   pitch that their client had suffered a previously 
         10   undiagnosed mental condition, that that mental 
         11   condition was currently being treated, and that that 
         12   was reason for the Judge to impose a sentence more 
         13   in line with what the defense was asking; isn't that 
         14   correct?
         15       A.   That actually wasn't the defense I thought 
         16   they were going to be using.
         17       Q.   At sentencing? 
         18       A.   By the time we got -- that is something 
         19   that came up towards the end of the case, as we were 
         20   getting closer to the lobby conference.  When I was 
         21   preparing the case for trial --
         22       Q.   Ma'am, I'm not talking about trial --
         23            MR. WARE:  Objection, Your Honor.
         24            HEARING OFFICER DAHER:  Sustained.
 0022
          1            MR. EGBERT:  I would like to have an answer 
          2   to my question, Judge.
          3            HEARING OFFICER DAHER:  Again, she's 
          4   attempting to answer the question.  Go ahead.
          5       A.   When I was preparing the case for trial, up 
          6   until the end, when ultimately there was a plea, my 
          7   understanding of what the defense in that case was 
          8   going to be was to attack the primary victim in that 
          9   case, who was the defendant's eldest daughter, and 
         10   she at that point was living in a treatment home.  
         11   She was diagnosed with some underlying mental 
         12   illnesses.  And my understanding was that they were 
         13   going to attempt to discredit the girl and use her 
         14   mental illnesses as a way to argue at trial that the 
         15   defendant was not guilty.  And also at a plea to say 
         16   that there's more going on here; this was a child 
         17   who suffers from whatever it was she was suffering 
         18   from at the time.  That was the frame of mind I was 
         19   operating under.
         20       Q.   So when you were provided before -- you 
         21   said well before the plea conference you were 
         22   provided with evidence of the defendant's medical 
         23   condition and psychiatric condition, correct?
         24       A.   Yes.  I don't remember if it was a 
 0023
          1   psychiatric condition, but --
          2       Q.   Schizophrenia is something called a 
          3   psychiatric condition, isn't it?
          4       A.   I believe it is, but I just don't have a 
          5   memory that it was schizophrenia.  That's all.  
          6            MR. EGBERT:  May I approach, Your Honor?
          7            HEARING OFFICER DAHER:  Please. 
          8       Q.   I've shown you a letter.  Do you recognize 
          9   it?
         10       A.   Yes, I do.
         11       Q.   And what do you recognize it as being?
         12       A.   This is a letter that was -- I believe this 
         13   was a letter that was produced to the Court about 
         14   the defendant's psychiatric issues.
         15       Q.   In the case of Commonwealth versus Calixte?
         16       A.   Yes.
         17       Q.   And, in fact, this letter was given to you 
         18   also, wasn't it?
         19       A.   I believe it was.
         20       Q.   And it was given to you prior to any plea 
         21   conference on the Calixte case, correct?
         22       A.   It was definitely given to me prior to the 
         23   actual plea.  I don't know how much prior it was 
         24   given to me prior to the lobby conference.
 0024
          1       Q.   Do you know whether it was or not?
          2       A.   I don't have a clear memory, but I have no 
          3   reason to think that it wasn't or it was. 
          4       Q.   You don't know one way or the other.
          5       A.   I don't have a clear memory.
          6       Q.   There's no doubt that the letter was 
          7   offered during that Calixte proceeding, correct?
          8       A.   It was definitely offered during the plea, 
          9   yes.
         10            MR. EGBERT:  Your Honor, I would offer that 
         11   as the next defendant's exhibit.
         12            HEARING OFFICER DAHER:  Any objection?
         13            MR. WARE:  No objection.
         14            HEARING OFFICER DAHER:  Exhibit D.  
         15                 (Document marked as Exhibit D 
         16                 moved into evidence)
         17       Q.   Now, Exhibit D is a letter from a 
         18   psychiatrist at the Harvard Medical School, McLean 
         19   Hospital Associated Entity; is that correct?
         20       A.   It says here that he's an assistant 
         21   professor of psychiatry and he's a doctor.
         22       Q.   Well, is the heading of the letter "Harvard 
         23   Medical School, Department of Psychiatry"?
         24       A.   Yes, it is.
 0025
          1       Q.   And to the right of that does it say 
          2   "McLean Hospital"?
          3       A.   Yes.
          4            HEARING OFFICER DAHER:  What do we have? 
          5            THE CLERK:  I notice that the exhibit 
          6   list -- the one that I was given by the former clerk 
          7   has a different list ,and I've been going by this 
          8   list and not the defendant's list.
          9            MR. EGBERT:  I'm not sure I understand what 
         10   the problem is. 
         11            THE CLERK:  I didn't see that you had -- 
         12   the clerk's exhibit list --
         13            MR. EGBERT:  I'm satisfied to use whatever 
         14   lettering is easiest for you, and at the end of the 
         15   day we'll make it up.
         16            THE CLERK:  For now this will be D, and 
         17   later on we'll revise it.
         18            HEARING OFFICER DAHER:  Let's go.
         19       Q.   Does it also describe -- the person writing 
         20   the letter is Franca Centorrino, M.D., correct?
         21       A.   Correct.
         22       Q.   And does it describe his position as 
         23   Director of Bipolar and Psychotic Disorders - 
         24   Outpatient Clinic?
 0026
          1       A.   Yes, it does.
          2       Q.   And also as an Assistant Professor of 
          3   Psychiatry at the Harvard Medical School?
          4       A.   Yes.
          5       Q.   Now, when you received this letter, you 
          6   knew that the defense was using this letter in an 
          7   attempt to convince the Judge that a probationary 
          8   sentence was appropriate, correct?
          9       A.   I suppose so, yes.
         10       Q.   You've been a prosecutor for seven years, 
         11   correct?
         12       A.   Yes.
         13       Q.   Defense lawyers are advocates, aren't they?
         14       A.   Yes.
         15       Q.   And they're there to advocate a position 
         16   for their client.
         17       A.   Absolutely.
         18       Q.   And here comes this letter saying that this 
         19   particular person suffered a mental disorder, 
         20   correct?
         21       A.   Yes.
         22       Q.   And who's under treatment and responding 
         23   well.
         24       A.   Correct.
 0027
          1       Q.   Well, you certainly understood that the 
          2   defense lawyer was going to use that in an attempt 
          3   to persuade the Court that an appropriate sentence 
          4   is to continue on with treatment, continue this 
          5   advancement, and permit this person not to go to 
          6   jail, correct?
          7       A.   Yes.
          8       Q.   Did you do anything at all to investigate 
          9   the bona fides of these allegations?
         10       A.   As I said earlier, I really don't remember.
         11       Q.   So nothing at all?
         12       A.   I don't remember.
         13       Q.   Would a proper response by a prosecutor in 
         14   such a case where the prosecutor is representing the 
         15   citizens of the Commonwealth of Massachusetts, as 
         16   you described it, make an attempt to determine the 
         17   bona fides of these allegations?
         18       A.   I suppose that would be a proper response, 
         19   yes.
         20       Q.   You have been saying from the beginning of 
         21   these proceedings, and in newspaper articles and the 
         22   like, that you thought these sentences were too 
         23   lenient, starting with Calixte, correct?
         24       A.   I don't know if I said that I thought the 
 0028
          1   sentences were too lenient either in the paper or in 
          2   any of my testimony.  I've said repeatedly that the 
          3   sentences were disaggrieved from the Commonwealth's 
          4   perspective, and I don't remember specifically, but 
          5   it's possible that I did.
          6       Q.   Well, when you say it's possible, you don't 
          7   remember telling people, including Eileen McNamara, 
          8   that you thought these sentences were too lenient?
          9       A.   If I could see the exhibit, maybe I used 
         10   the word "lenient."  It's possible.
         11       Q.   There's no exhibit to see.  The exhibit 
         12   you're talking about is a newspaper article, 
         13   correct?
         14       A.   Isn't that the one you're talking about?
         15       Q.   You don't think that everything you said to 
         16   Ms. McNamara ended up in that article, do you?
         17       A.   I don't remember.
         18       Q.   Do you even remember what you told her?
         19       A.   I remember speaking to her for a period of 
         20   time and then -- again, this was four years ago -- 
         21   and an article appeared shortly after that.
         22       Q.   Do you remember what you told her?
         23       A.   I don't remember all of what I told her.
         24       Q.   Do you remember any of what you told her?
 0029
          1       A.   I remember telling her the things that I 
          2   saw in the article --
          3       Q.   The answer is no, isn't it?
          4       A.   I don't remember all the things I told her, 
          5   no.
          6       Q.   And we'll get to that article momentarily, 
          7   but let's not run around with this. 
          8            Isn't it your opinion, stated on a number 
          9   of occasions, that these sentences were too lenient?
         10       A.   It is my opinion that these sentences were 
         11   lenient, yes.
         12       Q.   And it also was your job as a prosecutor 
         13   with the Commonwealth of Massachusetts to present 
         14   every fact, every piece of evidence, challenge every 
         15   allegation to achieve the recommendation which you 
         16   sought because you thought it was appropriate, 
         17   correct?
         18       A.   It was our job to advocate for the 
         19   Commonwealth.
         20       Q.   And part of advocating is checking out the 
         21   facts; isn't that right?
         22       A.   Yes, it is.
         23       Q.   And investigating allegations, correct?
         24       A.   That's correct.
 0030
          1       Q.   And determining whether or not information 
          2   that's being provided to the judge upon which that 
          3   judge makes a decision is accurate?
          4       A.   That's correct.
          5       Q.   Did you do anything in the Calixte case to 
          6   investigate the accuracy, bona fides, or reliability 
          7   of the statements being made to the Judge with 
          8   regard to these mental conditions?
          9       A.   Mr. Egbert, I don't remember.
         10       Q.   Well, there's a file back at the office, 
         11   isn't there?
         12       A.   I would assume so.
         13       Q.   You have access to that file, don't you?
         14       A.   I don't work at the office anymore.
         15       Q.   Do you have access to that file?
         16       A.   I'm sure I could get it.
         17       Q.   I invite you, Ms. Joseph, to do whatever 
         18   you can to find out whether or not you did any such 
         19   thing, and we'd be happy to hear back from you.
         20            MR. WARE:  I object.  If counsel wants to 
         21   subpoena, he can subpoena. 
         22            MR. EGBERT:  Judge?  
         23            HEARING OFFICER DAHER:  Do you want a 
         24   subpoena?
 0031
          1            MR. EGBERT:  Do you want to give me 
          2   permission to subpoena?  As counsel knows, this is 
          3   not like other courthouses -- courtrooms.  I need 
          4   the permission of the Judicial Conduct Commission.
          5            HEARING OFFICER DAHER:  Do you want 
          6   permission? 
          7            MR. EGBERT:  I do.
          8            HEARING OFFICER DAHER:  You've got the 
          9   permission.  Let's move on.
         10            MR. EGBERT:  For both the Estrada and 
         11   Calixte files.
         12            HEARING OFFICER DAHER:  You've got it. 
         13            MR. EGBERT:  Thank you. 
         14       BY MR. EGBERT:
         15       Q.   After the Calixte hearing, sometime shortly 
         16   after that was the Estrada hearing in point of time 
         17   in chronology in your dealings with Judge Lopez; is 
         18   that correct?
         19       A.   Correct, yes.
         20       Q.   And in the Estrada case you had sought a 
         21   particular recommendation, correct?
         22       A.   That's correct.
         23       Q.   And the defendant had sought some lesser 
         24   recommendation, correct?
 0032
          1       A.   That's correct.
          2       Q.   And the same process occurred as we 
          3   described in the Calixte case as Estrada.  You had a 
          4   lobby conference, correct?
          5       A.   Yes.
          6       Q.   You were given a full and fair opportunity 
          7   to present your side.
          8       A.   Yes.
          9       Q.   No one stopped you from presenting 
         10   anything.
         11       A.   No.
         12       Q.   You advocated on behalf of the 
         13   Commonwealth.
         14       A.   Yes.
         15       Q.   Thereafter, the defense did the same in 
         16   their interests for their client, correct?
         17       A.   That's correct.
         18       Q.   And during that process, the defense 
         19   brought forward to Judge Lopez certain information 
         20   concerning, one, the defendant's current treatment 
         21   in a sexual offender program, correct?
         22       A.   That's correct.
         23       Q.   Let me stop there.  Did you look into that 
         24   sexual offender program?
 0033
          1       A.   Yes.  I remember looking -- trying to get 
          2   information about that program.  This was a 
          3   situation where the defendant was a sheriff, a 
          4   deputy sheriff at Nashua, and I remember there had 
          5   been some discussion that he had been receiving 
          6   treatment with some of the inmates in some type of a 
          7   sexual offender's program there.  I don't remember 
          8   the specifics of the treatment.  I know also that 
          9   the defendant had made a number of admissions about 
         10   raping his stepdaughter --
         11            MR. EGBERT:  Judge, respectfully, my 
         12   question was whether she looked into the sexual 
         13   offender's program.
         14            HEARING OFFICER DAHER:  Sustained. 
         15       Q.   Let's get back to the sexual offender's 
         16   program. 
         17       A.   Yes.
         18       Q.   Did you do anything to check it out?
         19       A.   I remember looking into it.  I don't 
         20   remember the specifics of what I did to check it 
         21   out.
         22       Q.   Did you subpoena the records?
         23       A.   I don't remember.
         24       Q.   Do you remember doing anything?
 0034
          1       A.   I don't have a clear memory of 
          2   investigating that case.
          3       Q.   The fact of the matter is, Ms. Joseph, you 
          4   didn't do anything.  You didn't look into any part 
          5   of that sexual offender's program, did you?
          6       A.   I don't think that's correct.
          7       Q.   Do you recall ever seeking his records?
          8       A.   I remember speaking with a therapist, who 
          9   was actually going to be a Commonwealth witness, to 
         10   whom the defendant had made a number of admissions.
         11       Q.   Was that therapist in the sexual offender's 
         12   program?
         13       A.   I don't remember if it was in that program 
         14   or if it was through a DSS program that was 
         15   involved.
         16       Q.   Let's get back to the sexual offender 
         17   program which the defendant had proffered to the 
         18   Court that he was in that program, maintaining that 
         19   program, making progress in that program, and it was 
         20   good for him and his likeliness to repeat offend, 
         21   correct?  That's basically what was on the table? 
         22            MR. WARE:  Objection.  That's at least six 
         23   questions, and I didn't understand it.
         24            HEARING OFFICER DAHER:  Sustained.
 0035
          1       Q.   Was the defendant proffering to the Court 
          2   that he was in a sexual offender's program?
          3       A.   Yes.
          4       Q.   That he was receiving treatment for --
          5       A.   Yes.
          6       Q.   Let me finish -- for being a sexual 
          7   offender.
          8       A.   Yes.
          9       Q.   That that treatment was good for him, 
         10   meaning that this kind of sexual offender treatment 
         11   was good for his progress to overcome that problem?
         12       A.   Yes.
         13       Q.   And that he was -- that that treatment was 
         14   good for society ,obviously; that it was stopping 
         15   him or prohibiting him from being a sexual offender 
         16   recidivist.
         17       A.   I don't remember anyone advocating that 
         18   that treatment was good for society, but the 
         19   defendant claimed that the treatment was helping 
         20   him.
         21       Q.   Do you recall now doing anything to 
         22   investigate those statements being made by the 
         23   defense to the Court?  Those statements; not some 
         24   others.  Those. 
 0036
          1       A.   I have a memory of investigating the issue 
          2   of the defendant receiving sexual offender 
          3   treatment.  I don't have a clear memory of what 
          4   specific steps I took, if anything was subpoenaed, 
          5   who, if anyone, I spoke with about that.
          6       Q.   It would be in the file, I take it, if you 
          7   did.
          8       A.   Some of it may be in the file, yes.
          9       Q.   Well, if you subpoenaed records, they'd be 
         10   in the file, wouldn't they?
         11       A.   Hopefully, yes.
         12       Q.   In any event, Mr. Estrada also proposed to 
         13   the Court or proffered to the Court the fact that 
         14   his stepdaughter, I believe it was, and wife were 
         15   there not on his behalf to condone his conduct, but 
         16   to seek not having him put in jail for various 
         17   reasons, correct?
         18       A.   I believe I actually told the Court that.
         19       Q.   I'm sorry? 
         20       A.   I believe I told the Court that; that both 
         21   the victim and the defendant's wife were not seeking 
         22   a jail sentence.
         23       Q.   And obviously the defendant and his counsel 
         24   knew that.
 0037
          1       A.   Yes.
          2       Q.   They had them there in court that day?
          3       A.   Yes.  I just want to make it clear that I 
          4   believe there are two different dates that we're 
          5   talking about, both in the Calixte and the Estrada 
          6   case.  One is the date of the lobby conference and 
          7   the other would be the date of the actual plea.  And 
          8   I doubt that the family was there, especially the 
          9   victim, on the day of the lobby conference.
         10       Q.   They were there on the day of the plea.
         11       A.   That's correct.
         12       Q.   And testified.
         13       A.   They gave their impact statements, yes.
         14       Q.   Well, they testified, didn't they?
         15       A.   Yes.
         16       Q.   Wasn't it proffered to Judge Lopez that 
         17   both the mother and the child were seeking to have 
         18   Mr. Estrada not go to jail?
         19       A.   That's correct.
         20       Q.   And Judge Lopez had those people sworn.
         21       A.   Absolutely.
         22       Q.   And she brought them up and had them 
         23   testify as to their desires.
         24       A.   That's correct.
 0038
          1       Q.   So in the Estrada case you had this 
          2   treatment program going on, and then the two -- at 
          3   least the victim and her mother indicated they did 
          4   not want a jail sentence?
          5       A.   That's correct.
          6       Q.   Now, in each of those cases you advocated 
          7   for a position in favor of the law, correct?
          8       A.   Correct.
          9       Q.   Is it fair to say you were upset about 
         10   that?
         11       A.   I wasn't upset personally.  It was 
         12   disappointing.
         13       Q.   Were you upset professionally?
         14       A.   I don't know that "upset" is the word I 
         15   would use.  I was disappointed professionally that 
         16   these cases, which our office deemed to be strong 
         17   cases and cases which merited incarceration, didn't 
         18   result in that.
         19       Q.   Do you recall being asked at Page 96, 
         20   Exhibit C-2, on a prior occasion, "And that bothered 
         21   you professionally as a member of the DA's office, 
         22   right?"  
         23            "Answer:  Right."  
         24            Do you recall that?
 0039
          1       A.   Yes.
          2       Q.   And that's the case.
          3       A.   It bothered me professionally.
          4       Q.   Now, back to the process of the plea for a 
          5   moment.
          6       A.   Yes.
          7       Q.   Once Judge Lopez made a decision as to the 
          8   sentence to be imposed, you knew, as a matter of 
          9   course, that was it.  It was over, except for the 
         10   formalities of taking the plea.
         11       A.   Well, I knew that her decision had been 
         12   made and that nothing was going to change that, but 
         13   I wouldn't necessarily refer to the plea as just a 
         14   formality.  But that's what we had to do.  We had to 
         15   put the plea on the record, and that's the job.
         16       Q.   But the advocacy for sentencing took place 
         17   at the lobby conference.
         18       A.   Well, the advocacy for sentencing took 
         19   place at the lobby conference.  But the advocacy on 
         20   the record is what takes place at the plea.
         21       Q.   Let's talk reality versus formality for a 
         22   moment.
         23       A.   Okay.
         24       Q.   Once -- you've already indicated once the 
 0040
          1   lobby conference ended and Judge Lopez announced her 
          2   decision, that it was over as far as what the 
          3   sentence was going to be, correct?
          4       A.   It was over --
          5       Q.   It was over as far as what the sentence was 
          6   going to be.
          7       A.   Yes.
          8       Q.   And so the place to advocate and get her to 
          9   go your way was at the lobby conference.
         10       A.   The place for her, to get her to go my way 
         11   absolutely was at the lobby conference.
         12       Q.   Because once the lobby conference was over, 
         13   there was no advocating on sentencing, because the 
         14   decision had been made.
         15       A.   There was no advocating to Judge Lopez.  
         16   There was still -- we still have an important job to 
         17   advocate the position of the Commonwealth on the 
         18   record.
         19       Q.   Creating a record of your position.
         20       A.   That's correct.
         21       Q.   But it was not there to convince the Judge 
         22   of anything.  That was over, right?
         23       A.   That's correct.
         24       Q.   So once the lobby conference was done, 
 0041
          1   convincing the Judge of anything was over, and this 
          2   was just for putting it on the record or for the 
          3   public or whatever, correct?
          4       A.   I wouldn't say it's just for, but that is 
          5   the purpose of a plea conference and the advocacy 
          6   that goes along with that.
          7       Q.   After Calixte and Estrada, you spoke to 
          8   Eileen McNamara, correct?
          9       A.   That's correct.
         10       Q.   And at the time you were mad at Judge 
         11   Lopez, right?
         12       A.   At that time I was upset about what had 
         13   happened towards the end of the Estrada case.
         14       Q.   You were terrified, in your words, by Judge 
         15   Lopez yelling and screaming at you as we heard on 
         16   tape yesterday, correct?
         17       A.   Well, I used the word "terrified" to 
         18   describe how I felt about reappearing in front of 
         19   her, given both what happened in the Estrada case 
         20   and the subject -- and conversations I had 
         21   subsequent to that about how Judge Lopez felt about 
         22   me.
         23       Q.   Ms. Joseph, you are not without any 
         24   emotions, are you?
 0042
          1       A.   I don't think so.
          2       Q.   Well, you told us yesterday that you had 
          3   gone through an experience that you perceived -- 
          4   your perception was that you had been screamed at, 
          5   yelled at, humiliated and the like during the 
          6   Estrada hearing, correct?
          7       A.   Yes.  I testified --
          8       Q.   Now, as a person, were you angered by that?
          9       A.   I don't remember if I was angry or just sad 
         10   or humiliated.  I don't remember the degree of 
         11   emotion I was showing then, four years ago, about 
         12   how she treated me in Estrada.  I may very well have 
         13   been angry.  More likely I was upset.
         14       Q.   Well, you had gone through this process of 
         15   having two cases before her; failed in your mission 
         16   in each of those, correct?
         17       A.   Correct.
         18       Q.   And then you perceived that she yelled at 
         19   you and humiliated you in the Estrada case, correct?
         20       A.   Correct.
         21       Q.   And now you get a chance to go sit with 
         22   Eileen McNamara, right, on the QT, right?
         23       A.   What do you mean by "QT"? 
         24       Q.   Just what I said.  You went and sat with 
 0043
          1   Eileen McNamara, correct?
          2       A.   No.  I didn't meet with her.  She called 
          3   me --
          4       Q.   Talked with her on the telephone?
          5       A.   That's correct.
          6       Q.   Anyone else present?
          7       A.   I believe so.
          8       Q.   Who?
          9       A.   I don't have a clear memory if it was 
         10   either a colleague or a victim witness advocate or 
         11   someone from the press office in our office, but I 
         12   do have a vague memory of someone being with me in 
         13   the room when I spoke with Ms. McNamara.
         14       Q.   As a witness?
         15       A.   I don't know if the word "witness" is what 
         16   I would use.  We had always been cautioned to be 
         17   careful when speaking with the press.  And it was my 
         18   preference to have somebody with me during all my 
         19   time at the DA's office whenever those opportunities 
         20   would happen.
         21       Q.   Can you tell us who that person was, this 
         22   witness?
         23       A.   This person that was with me at the --
         24       Q.   Right. 
 0044
          1       A.   It may have been Dave Falcone.  It may have 
          2   been the advocate in the case or a colleague.  I 
          3   really don't remember.
          4       Q.   So you have no idea what the answer is.  It 
          5   may have been any number of people, but you can't 
          6   tell us anybody, who it is.
          7       A.   Right.  That's what I said a few minutes 
          8   ago.  I don't remember who it was. 
          9       Q.   When you met with Eileen McNamara, you at 
         10   that time were looking to get back at Judge Lopez.
         11       A.   No, that's not correct.
         12       Q.   Didn't have the slightest feeling of trying 
         13   to give her a little zing?
         14       A.   No, that's not correct.
         15       Q.   After all you've testified about the way 
         16   you felt about the Estrada case and the like?
         17       A.   I was more upset than I was angry at that 
         18   time.  And I just also want to clarify that I didn't 
         19   meet with Ms. McNamara.  I spoke with her on the 
         20   telephone, absolutely.
         21       Q.   In content of information being passed, 
         22   whether it was on the telephone or otherwise, you 
         23   spoke with her at some length.
         24       A.   Yes.  I don't remember how long it was, but 
 0045
          1   yes.
          2       Q.   And you don't remember what you said to 
          3   her?
          4       A.   I don't remember all the things I said to 
          5   her, no. 
          6      *Q.   But you testified yesterday that in this 
          7   conversation with Eileen McNamara about the Estrada 
          8   and Calixte sentences you never mentioned the name 
          9   "Judge Lopez".
         10       A.   I don't remember exactly what I said 
         11   yesterday about specifics about Judge Lopez.  When 
         12   Ms. McNamara --
         13       Q.   Please.  Did you testify --
         14            MR. WARE:  Objection, Your Honor.
         15            HEARING OFFICER DAHER:  What's your 
         16   objection? 
         17            MR. WARE:  The witness ought to be allowed 
         18   to respond to the question.
         19            HEARING OFFICER DAHER:  Sustained.  Go 
         20   ahead.  Finish.
         21            THE WITNESS:  Can you repeat the question? 
         22            *(Question read)
         23       A.   I don't think I said I never -- I don't 
         24   think that I said yesterday that I never said the 
 0046
          1   words "Judge Lopez."  I do know that the article 
          2   that Ms. McNamara was writing, she wasn't asking me 
          3   my personal opinions about the Judge.  She was 
          4   talking about the cases.  I --
          5       Q.   Are you done?  Do you want to see your 
          6   transcript of what you said yesterday?
          7       A.   Sure.
          8            MR. EGBERT:  May I approach?
          9            HEARING OFFICER DAHER:  Please. 
         10       Q.   Let's see if we can read aloud together.  
         11   Page 88.  This is Mr. Ware's question of you. 
         12       A.   Okay.
         13       Q.   Can you see it?
         14       A.   Yes.
         15       Q.   "Question:  At no time during the course of 
         16   this interview did you mention Judge Lopez's name; 
         17   is that correct?  
         18            "Answer:  No, I didn't mention her name." 
         19            Now, was that your testimony yesterday or 
         20   wasn't it?
         21       A.   That was my testimony yesterday about the 
         22   article that was appearing.  Mr. Ware was having me 
         23   read that on the screen yesterday --
         24       Q.   Ma'am, let's listen to the question.
 0047
          1            MR. WARE:  Your Honor, again, I object.  
          2   The witness is entitled to answer the question.
          3            HEARING OFFICER DAHER:  Sustained.  Go 
          4   ahead, if you would. 
          5       A.   At that point yesterday, Mr. Ware was 
          6   having me read some exhibits off of a screen and was 
          7   asking me to read out loud certain quotations.  In 
          8   none of those quotations did I mention Judge Lopez's 
          9   name.
         10       Q.   Now, were you asked the following question 
         11   and give the following answer?  Listen carefully.  
         12   "At no time during the course of this interview did 
         13   you mention Judge Lopez's name; is that correct?"  
         14   Did I read that correctly?
         15       A.   You did.
         16       Q.   Was that the question that was asked of you 
         17   yesterday?
         18       A.   It was.
         19       Q.   Did you understand it when it was asked of 
         20   you?
         21       A.   Yes, I did.
         22       Q.   You've been around -- you've been a lawyer 
         23   for how many years?
         24       A.   Since '93.
 0048
          1       Q.   Did you mention Judge Lopez's name during 
          2   the course of the interview --
          3            HEARING OFFICER DAHER:  That's my memory.  
          4   I was searching for it.  You picked it up.  It's on 
          5   Page 88.  Let's move on.
          6       Q.   And did you testify truthfully yesterday?
          7       A.   Excuse me? 
          8       Q.   Did you testify truthfully yesterday?
          9       A.   Of course.
         10       Q.   So it's your testimony, then, that during 
         11   the interview with Eileen McNamara you never 
         12   mentioned Judge Lopez's name.
         13       A.   I have no memory of mentioning Judge 
         14   Lopez's name in my discussion with Eileen McNamara.
         15       Q.   What did you talk about?
         16       A.   First of all, she was asking me about the 
         17   facts of the two cases that were before the Court, 
         18   and that took some time to talk about them.  One of 
         19   the cases, the Calixte case, was being co-prosecuted 
         20   by the Middlesex County district attorney's office.  
         21   That was something that I mentioned.  And she asked 
         22   what the basis of our sentencing recommendation was 
         23   from the DA's office, and I explained to her some of 
         24   the key points of evidence that we felt were very 
 0049
          1   strong points, leaning towards incarceration.
          2            She never asked me what I thought about the 
          3   Judge or any of those types of comments.  That 
          4   wasn't what the article was about.  It was about the 
          5   sentences.
          6       Q.   The sentences imposed by Judge Lopez.
          7       A.   That's right.
          8       Q.   And were you not attempting to be critical 
          9   of Judge Lopez's sentence during the course of this 
         10   interview?
         11       A.   I was attempting to answer the questions 
         12   the best that I could.
         13       Q.   Well, did you make the statement to Eileen 
         14   McNamara that, as far as Mr. Estrada, you were 
         15   wondering who then is a public menace if Mr. Estrada 
         16   is not?
         17       A.   I remember saying that.
         18       Q.   Is that right?
         19       A.   Yes.
         20       Q.   And was that meant to convey to the public 
         21   that Judge Lopez had let a public menace go on 
         22   probation?
         23       A.   That was meant to convey my impression and 
         24   that of my office that the defendant was a public 
 0050
          1   menace.
          2       Q.   And a public menace is someone who, I take 
          3   it, you consider to be a substantial danger to the 
          4   community; is that right?
          5       A.   Yes.
          6       Q.   And did you present any evidence to Judge 
          7   Lopez or seek to present any evidence to Judge Lopez 
          8   in the Estrada case that Mr. Estrada would be a 
          9   repetitive pedophilic offender?
         10       A.   The facts in the Estrada case spoke for 
         11   themselves in terms of the repetition.  He had been 
         12   consistently raping his stepdaughter over a period 
         13   of time.  Even during the treatment, she came back 
         14   to us and said he would grab at her breast, he would 
         15   make comments to her.  There was no indication in 
         16   the facts that he was cured or nonrepetitive.  
         17            There was more than one charge of rape for 
         18   more than one day.  It had been something that had 
         19   been going on for quite some time.  And it was 
         20   repetitive to the daughter, the stepdaughter.
         21       Q.   The daughter that was asking that he not be 
         22   sent to jail.
         23       A.   That's right.
         24       Q.   And the mother was asking that he not be 
 0051
          1   sent to jail.
          2       A.   That's right.
          3       Q.   And it wasn't your intent to convey to the 
          4   public that Judge Lopez had leniently sentenced a 
          5   public menace, correct?
          6       A.   I don't know that I was conveying it to the 
          7   public.  It was more a characterization of the 
          8   defendant in the Estrada case that he is in fact a 
          9   menace.
         10       Q.   Ma'am, when you made these statements to 
         11   Ms. McNamara, you recognized that those statements 
         12   were being made with the intention of having them go 
         13   into a newspaper article, correct?
         14       A.   I recognized that.
         15       Q.   And that that's going to go to the public.
         16       A.   Yes.
         17       Q.   And you understand your ethical obligations 
         18   as it relates to discussions with newspaper 
         19   reporters.
         20       A.   Yes, I do.
         21       Q.   When did you learn them?
         22       A.   The ethical obligations? 
         23       Q.   Yes. 
         24       A.   Those are obligations that we are taught at 
 0052
          1   different points in our work at the DA's office, 
          2   both when we first come on board in terms of office 
          3   policies and guidelines, and then the training that 
          4   we get day to day about what to do and what not to 
          5   do and how to do it.  All those things together form 
          6   part of our training.
          7       Q.   Well, when you were in my office for a 
          8   deposition, you didn't even know what ethical rules 
          9   related to lawyers speaking with the press; isn't 
         10   that correct?
         11       A.   That's not my memory.  My memory of that 
         12   day is I wasn't sure it if it was 3.6 or 3.8 or what 
         13   exactly was the number on the statutory --
         14       Q.   Do you recall being asked in my office 
         15   whether or not you knew whether or not lawyers were 
         16   required under the rules to take reasonable 
         17   precautions to make sure that public statements were 
         18   not made by employees and personnel in their office?  
         19   Do you remember that discussion? 
         20       A.   I remember that general discussion.
         21       Q.   And do you remember saying you never heard 
         22   of that?
         23       A.   I don't remember that.
         24       Q.   Have you read the depositions recently?
 0053
          1       A.   Yes, I have.
          2       Q.   When?
          3       A.   I read some on Wednesday before 
          4   Thanksgiving and again on Sunday night two days ago.
          5       Q.   And have you discussed this area of inquiry 
          6   with Mr. Ware and Mr. Braceras, these ethical rules?
          7       A.   I have.
          8       Q.   And when is the last time you discussed it 
          9   with them?
         10       A.   It wasn't on Wednesday.  I believe it may 
         11   have been the week before when we met.
         12       Q.   And did you put out the actual rules and 
         13   talk about them with Mr. Ware and Mr. Braceras?
         14       A.   I don't know if we had actual copies of the 
         15   rules or -- I think we did.
         16       Q.   And you studied them together, did you?
         17       A.   We looked at them together, yes.
         18       Q.   And to kind of bone up for your 
         19   presentation here?
         20       A.   As part of preparing, yes.
         21       Q.   When you said to Eileen McNamara in the 
         22   article -- and you did say this, didn't you -- "If 
         23   you say he's not a threat because he just raped a 
         24   girl in his own household, then can't you also look 
 0054
          1   at the car thief and say this guy's not a threat to 
          2   me because he only steals cars in poor 
          3   neighborhoods, or that guy's not a threat to me 
          4   because he only breaks into houses in rich 
          5   neighborhoods?  Is that how we're going to mete out 
          6   justice?"
          7       A.   Correct.  Yes.
          8       Q.   Would you tell me what you were talking 
          9   about there?
         10       A.   Yes.  Ms. McNamara told me during our 
         11   interview that her theme of the article was about 
         12   economic issues as they related to justice, and that 
         13   in that situation, her point being that do children 
         14   of different backgrounds receive different types of 
         15   treatment based on their economic status.  My point 
         16   there that I was trying to analogize to is a car 
         17   thief.  Similarly, someone who steals a car in a 
         18   better neighborhood or a worse neighborhood, that 
         19   fact of where the crime is committed shouldn't 
         20   matter in terms of sentencing.  That was the point 
         21   that I was trying to make at that point.
         22       Q.   Did Judge Lopez sentence Mr. Estrada based 
         23   upon the economic position -- strike that.  The 
         24   economic status of Mr. Estrada?
 0055
          1       A.   I believe that in her sentencing, she 
          2   indicated that because of the family's dependence on 
          3   the defendant's financial ability and his economic 
          4   status, she didn't -- that was one of the reasons 
          5   she didn't want to send him to state prison.
          6       Q.   One of the reasons, right?
          7       A.   That's correct.
          8       Q.   And in fact, the people who espoused those 
          9   reasons were in fact the victim and her mother who 
         10   came in and said to the Judge, "Please don't send 
         11   him to jail.  We need the support that he provides 
         12   and we think that you can develop and have developed 
         13   a sufficient other kind of sentence to protect us 
         14   under these circumstances."  Isn't that basically 
         15   what they said to her?
         16       A.   Yes.  I don't think they said that second 
         17   part of your question about devising a sentence, but 
         18   they did ask her not to send him to jail.
         19       Q.   Didn't they talk about devising a sentence 
         20   where they wouldn't come in contact with him?
         21       A.   They said they would abide by a stay-away 
         22   order.
         23       Q.   And that that was being imposed for their 
         24   protection.
 0056
          1       A.   Yes.
          2       Q.   And the Judge would take into consideration 
          3   their thoughts and their desires in that regard.
          4       A.   Yes.
          5       Q.   As you sit here today, do you think the 
          6   Judge was sentencing differently based upon whether 
          7   someone was rich or poor?
          8       A.   I don't know what you mean by "sentencing 
          9   differently."  I think that that economic argument 
         10   was persuasive to the Judge, and that is one of the 
         11   reasons she did not send him to state prison.
         12       Q.   It's equivalent to this guy's not a threat 
         13   to me because he only steals cars in poor 
         14   neighborhoods?
         15       A.   What --
         16       Q.   That's what you were trying to convince the 
         17   public was going on in this sentencing.
         18       A.   I was saying that in the same way that a 
         19   car thief should be sentenced, independent of the 
         20   neighborhood in which he commits a crime.  A child 
         21   rapist should face a similar equilibrium independent 
         22   of economic status.
         23       Q.   So in your opinion, then, sentencing ought 
         24   to be done wholly in a vacuum.
 0057
          1       A.   No, I didn't say that.
          2       Q.   In your opinion, should Judge Lopez have 
          3   taken into consideration the statements of the 
          4   victim and her mother saying "Please don't send him 
          5   to jail"?
          6       A.   Should she take them into consideration? 
          7       Q.   Yes.
          8       A.   Absolutely.
          9       Q.   And should she take into consideration 
         10   their pleas that he not go to jail so that they not 
         11   end up out on the street --
         12       A.   Yes.
         13       Q.   -- as a judge in the Superior Court?
         14       A.   I think she should take those things into 
         15   consideration. 
         16       Q.   And then you say that -- you go on in the 
         17   article, at least, and say, "Brief jail time sends a 
         18   message to everyone, especially the victim, that 
         19   society does not condone the rape and beating of 
         20   children, even in your house," correct?
         21       A.   That's correct.
         22       Q.   Now, that message is to go to who?  Who's 
         23   that message for?
         24       A.   That was what I said to Ms. McNamara.
 0058
          1       Q.   Who's that message for?  Who are we sending 
          2   a message to in that case?
          3       A.   We sent a message both to the victim and to 
          4   the public at large that when you rape a child, you 
          5   go to jail.
          6       Q.   Period.
          7       A.   Yes.
          8       Q.   Is that the law in this Commonwealth?
          9       A.   No, it isn't.
         10       Q.   Is there any such law in existence in the 
         11   Commonwealth of Massachusetts that says, for 
         12   example, that a rape of a child is a mandatory 
         13   sentence?
         14       A.   There may be -- I don't recall -- a rape of 
         15   child second offense --
         16       Q.   You know what we're talking about, don't 
         17   you?  You just said that you want to send a message 
         18   to everyone, under any circumstance, no matter what, 
         19   that the rape of a child, you go to jail in this 
         20   Commonwealth, correct?
         21       A.   Yes.
         22       Q.   Is that the law of this land?
         23       A.   The law of the land is that a child rape 
         24   case can face a range of from life to probation.  
 0059
          1   That's the statutory guidelines.
          2       Q.   So it is not the law of this land that 
          3   every person charged with rape of a child under any 
          4   circumstance go to jail, is it?
          5       A.   That's correct.
          6       Q.   The Estrada case was heard before Judge 
          7   Lopez on February 10th of '99, the actual plea; is 
          8   that correct?
          9       A.   That's correct.
         10       Q.   And after that, did you leave the DA's 
         11   office for a period of time?
         12       A.   I gave birth on March 25th to my daughter.
         13       Q.   And did you leave the DA's office for a 
         14   period of time?
         15       A.   Yeah.  I took a four-month, 
         16   four-and-a-half-month maternity leave.
         17       Q.   And when did you return?
         18       A.   I don't remember.  It was probably the end 
         19   of August of '99, maybe the beginning of September, 
         20   something like that.
         21       Q.   When did you come upon or begin your 
         22   association with the Horton case?
         23       A.   I received that case from my supervisor at 
         24   some point after the defendant's arrest -- 
 0060
          1   arraignment in District Court.  So that would be 
          2   November of '99, shortly after I came back from 
          3   maternity leave.
          4       Q.   And when you received that case, was the 
          5   defendant on bail, Horton?
          6       A.   I believe when I had received the case, he 
          7   was still in custody.
          8       Q.   Do you know that for a fact?
          9       A.   I believe he was still in custody.  I know 
         10   at some point he did post bail.  And I believe that 
         11   he was in fact summonsed into court for his Superior 
         12   Court arraignment.  He had already posted the 
         13   $10,000 cash bail by that moment.
         14       Q.   10,000?
         15       A.   I believe that was what the bail was.
         16       Q.   I'm sorry?
         17       A.   I think that's what the bail was.
         18       Q.   Do you have the exhibit book in front of 
         19   you?
         20       A.   Yes, I do.
         21       Q.   Could you turn to it, please?
         22       A.   Yes.  Which exhibit? 
         23       Q.   Go to Exhibit 2, if you would. 
         24            When did the defendant post bail, if you 
 0061
          1   can tell from these docket entries?
          2       A.   He had already posted bail, I believe.
          3       Q.   So one thing we can agree on is that he 
          4   came to the arraignment in Superior Court on bail, 
          5   on release.
          6       A.   Yes.
          7       Q.   Not in custody.
          8       A.   That's correct.
          9       Q.   Right?
         10       A.   That's my memory.
         11       Q.   Now, at the time that he was arraigned in 
         12   the Superior Court, you had available to you a 
         13   statute which permitted a court to hold a person 
         14   without bail or on substantive conditions if in fact 
         15   that person was a danger to the community; am I 
         16   correct?
         17       A.   I don't remember if once a defendant -- the 
         18   statute says that upon a defendant's first 
         19   appearance in court, a dangerousness hearing can be 
         20   held.  And there's been some discussion -- and I 
         21   don't know what the ultimate case law has been -- 
         22   whether or not at your new arraignment on the same 
         23   charges in Superior Court, you were entitled to that 
         24   hearing.  So I don't know legally --
 0062
          1       Q.   So the answer is, then, when you arraigned 
          2   Mr. Horton on or about, what, January of the Year 
          3   2000 --
          4       A.   That's correct.
          5       Q.    -- you didn't even know the law as related 
          6   to dangerousness hearings, right?
          7       A.   I don't remember what it was at that time.  
          8   I know that --
          9       Q.   Did you know the law at the time on 
         10   dangerousness hearings?
         11       A.   Yes, I did.
         12       Q.   What was it?
         13       A.   I don't have a clear memory today.
         14       Q.   Do you have a vague memory?
         15       A.   I know that that was something that we were 
         16   discussing in the office.  That there were 
         17   discussions being held amongst supervisors and line 
         18   ADAs about whether or not a dangerousness hearing 
         19   could apply at a Superior Court arraignment.  I know 
         20   that it was the practice of the child abuse unit not 
         21   to have dangerousness hearings --
         22       Q.   We're going to get to that.  We're talking 
         23   about the law for a minute, not the practice. 
         24            So my question to you once again is, do you 
 0063
          1   know what the law was in January of 2000 as it 
          2   relates to dangerousness hearings.  And if you do, 
          3   please tell us what it was. 
          4       A.   My memory is that in January of 2000, there 
          5   was not a clear decision yesterday rendered as to 
          6   whether a dangerousness hearing can be held on a 
          7   Superior Court arraignment.  The dangerousness 
          8   statute was relatively new and that that was 
          9   something that hadn't worked itself out either from 
         10   our office's perspective or in the case law.  That's 
         11   simply my memory.
         12            MR. EGBERT:  May I have a moment, please?  
         13            (Pause)
         14       BY MR. EGBERT: 
         15       Q.   Now, this relatively new statute in the 
         16   Year 2000, would you agree with me that it was 
         17   passed in 1994?
         18       A.   Yes, I believe that's when it was passed.
         19       Q.   So that's about six years to figure it out, 
         20   right?
         21       A.   That's correct.
         22       Q.   And it was still pretty new to you and you 
         23   couldn't quite figure it out?
         24       A.   It was something that the District Courts 
 0064
          1   were doing regularly, was the dangerousness 
          2   hearings.  The office hadn't completely adopted that 
          3   practice at that time in the Superior Court.
          4       Q.   I'm not talking about the practice.  All 
          5   I'm trying to figure out is if, as January of 2000 
          6   came around, you knew what the law was. 
          7       A.   My memory is that it was unclear still from 
          8   a legal perspective as to whether or not a 
          9   dangerousness hearing can be conducted at the 
         10   Superior Court level when the charges are the same 
         11   as they were in the District Court.
         12       Q.   And were the charges the same as they were 
         13   in the District Court in this case?
         14       A.   I believe so. 
         15       Q.   Well, you know they weren't, don't you?
         16       A.   I don't have the original police report in 
         17   front of me right now.
         18       Q.   The police report?
         19       A.   Yeah.  Or a docket sheet from the District 
         20   Court would be helpful.
         21            MR. EGBERT:  Judge, would this be a good 
         22   time for a morning break so I can find the District 
         23   Court documents?
         24            HEARING OFFICER DAHER:  We'll take five.  
 0065
          1            (Recess)
          2       BY MR. EGBERT: 
          3       Q.   Ms. Joseph, with regard to the answers you 
          4   gave yesterday concerning the dangerousness hearing, 
          5   do you recall being asked about that yesterday?
          6       A.   Yes, I do.
          7       Q.   Yesterday you said that it was the policy 
          8   of your office to not have dangerousness hearings in 
          9   child sexual abuse cases because you didn't want the 
         10   child to testify more than once, correct?
         11       A.   That's correct.
         12       Q.   Now, first of all, let me ask you at the 
         13   outset, is it a requirement under the dangerousness 
         14   statute that the child testify?
         15       A.   It isn't a requirement, but defense 
         16   attorneys would have subpoena powers to present 
         17   evidence that they wanted, and there would be no 
         18   reason why they wouldn't be able to subpoena a child 
         19   victim.
         20       Q.   And so it's very important, I take it, from 
         21   the standpoint of your office, that child sexual 
         22   assault victims -- when we say "child," we mean 
         23   anywhere from 16 under, correct?
         24       A.   Yeah.
 0066
          1       Q.   -- that child sexual assault victims not be 
          2   subjected to the trauma of testifying in open court, 
          3   correct?
          4       A.   We try and minimize the trauma as much as 
          5   we can.
          6       Q.   And you consider that to be a major trauma 
          7   for a child sexual assault victim.
          8       A.   I think that for any witness, testifying is 
          9   very difficult.  And I think for children --
         10       Q.   Let's stick with child sexual assault 
         11   victims.
         12       A.   I think it's very difficult to testify, 
         13   yes.
         14       Q.   And so you would consider that -- you and 
         15   your office, and in fact experts that you've 
         16   consulted over the years, agree that that is an 
         17   extremely traumatic experience.
         18       A.   It's very difficult, yes.
         19       Q.   And in fact, it is -- it often -- that 
         20   consideration often drives in some ways the manner 
         21   in which the DA's office conducts these cases.
         22       A.   Yes, it does.
         23       Q.   Out of a consideration for avoiding that 
         24   kind of testimony, if at all possible.
 0067
          1       A.   Absolutely.
          2       Q.   It's a very important consideration.
          3       A.   Yes.
          4       Q.   Now, coming up to the Horton case, you at 
          5   least do agree with me that the Commonwealth never 
          6   sought a dangerousness hearing, right?
          7       A.   That's correct.
          8       Q.   And Mr. Horton was free on bail within the 
          9   community without restriction, except for some 
         10   curfew, I think it was?
         11       A.   Right.  There were a few stay-away type 
         12   orders, stay away from the victim, that type of 
         13   thing, and the bail that he had to post.
         14       Q.   But generally he was in the community, out 
         15   and about, so to speak?
         16       A.   That's right.
         17       Q.   And there was no further restriction in 
         18   that regard.
         19       A.   Right.
         20       Q.   At the time of his arraignment, Mr. 
         21   Horton's arraignment, did you have any information 
         22   that Mr. Horton was a pedophile?
         23       A.   I knew that he was sexually attracted to a 
         24   prepubescent boy from the facts of the case.  I 
 0068
          1   didn't have any document in front of me that said he 
          2   was a pedophile.  I knew that he, himself, in his 
          3   statement to the police, indicated that he did have 
          4   some types of relationships with other teenagers --
          5       Q.   He said adults -- teenagers, but over the 
          6   age of 16, didn't he?
          7       A.   I thought he said 15 and 16, but it may be 
          8   that they were 16 and 17.  So I knew that from his 
          9   own statement.  Um --
         10       Q.   Well, have you done some studying in the 
         11   area of pedophilia?
         12       A.   I've never studied the issue of pedophilia 
         13   from a -- you mean like psychology classes? 
         14       Q.   From a forensic legal standpoint. 
         15       A.   I have read articles about that in the 
         16   course of being an assistant DA in the child abuse 
         17   unit, but it's nothing that I had ever studied, 
         18   specifically the topic of pedophilia.
         19       Q.   And in fact would you agree with me, at 
         20   least, that pedophilia, from your understanding, 
         21   relates to an uncontrollable impulse to commit 
         22   sexual acts with children?
         23       A.   I'm not comfortable -- I don't know exactly 
         24   what the legal definition or the psychiatric 
 0069
          1   definition of "pedophilia" is.
          2       Q.   If you don't know, you don't know. 
          3            So, then, on the date of arraignment --
          4       A.   Yes, in Superior Court.
          5       Q.    -- in Superior Court -- that's where you 
          6   were present, correct?
          7       A.   Yeah.
          8       Q.   -- did you seek to have Mr. Horton's bail 
          9   adjusted in any way from the Superior Court bail?
         10       A.   From the District Court bail?
         11       Q.   From the District Court bail. 
         12       A.   I had no basis to seek --
         13       Q.   My question only was, did you do it.
         14       A.   No, I didn't.  I didn't.
         15       Q.   So now we come to the Horton case, and it's 
         16   going along in accordance with typical procedures in 
         17   Superior Court, discovery and the like, correct?
         18       A.   Correct.
         19       Q.   And your obligations during the course of 
         20   discovery are to not only provide the information 
         21   that is going to be used at trial, but also to 
         22   provide something called exculpatory evidence; is 
         23   that correct?
         24       A.   That's correct.
 0070
          1       Q.   And exculpatory evidence is evidence which 
          2   may tend to show that the defendant did not commit 
          3   the particular crime involved, correct?
          4       A.   Correct.
          5       Q.   Or may cast doubt on the Commonwealth's 
          6   case, to put it another way?
          7       A.   I would say that exculpatory evidence is 
          8   the kind of evidence that would -- I mean, it would 
          9   exculpate the defendant.  It would negate a material 
         10   fact.
         11       Q.   It would be favorable to the accused, 
         12   correct?
         13       A.   Correct.  It would be very favorable.
         14       Q.   And in this particular instance there was 
         15   an allegation that Mr. Horton required or forced the 
         16   victim to suck on a screwdriver, correct?
         17       A.   That's correct.
         18       Q.   And when we say suck on a screwdriver, 
         19   we're talking about the handle of the screwdriver, 
         20   correct?
         21       A.   Correct.
         22       Q.   And there were statements from the victim 
         23   that he actually did that.
         24       A.   That's correct.
 0071
          1       Q.   Isn't that correct?
          2       A.   That's correct.
          3       Q.   Now, the Commonwealth sought to have that 
          4   screwdriver tested to determine whether or not there 
          5   was the residue of saliva or DNA by Mr. Horton on 
          6   the screwdriver; isn't that right?
          7       A.   That's correct.
          8       Q.   And that was done very early on in the 
          9   case; isn't that correct?
         10       A.   I don't remember exactly when it was done, 
         11   but it would have been routine that the police 
         12   seized that and it would be sent to the crime lab 
         13   for analysis.
         14       Q.   And you know that was done in this case.
         15       A.   Yes.
         16       Q.   Now, prior to August 1st of the Year 2000, 
         17   did you ever report to the defendant or the Court 
         18   that the tests on that screwdriver were negative for 
         19   the kinds of things to be expected if in fact Mr. 
         20   Horton had sucked on that screwdriver?
         21       A.   I reported it to the defendant's attorney 
         22   -- not the defendant -- Ms. Goldbach, that the 
         23   results from that lab were negative; that there was 
         24   no saliva found on the screwdriver.
 0072
          1       Q.   And how did you report that?
          2       A.   I told her that -- I don't remember if it 
          3   was a telephone conversation or I told her that at a 
          4   hearing, one of the status dates, but I told her 
          5   that, and at some point I also gave her the lab 
          6   report.
          7       Q.   Isn't it true that you did not notify the 
          8   defense of that lab report until August 14th of the 
          9   Year 2000?
         10       A.   No, that's not true.
         11       Q.   And so it's your statement that you gave 
         12   Ms. Goldbach that report?
         13       A.   That's correct.
         14       Q.   Before August 1st of the Year 2000?
         15       A.   I know that I spoke to her about the 
         16   report.
         17       Q.   You gave her the contents of the report?
         18       A.   Absolutely.
         19       Q.   Before August 1st of 2000?
         20       A.   (Witness nods head.)
         21       Q.   And there's simply no doubt in your mind 
         22   about that.
         23       A.   No.
         24       Q.   Is that correct?
 0073
          1       A.   Yes.
          2       Q.   Now, when you're coming up to the Horton 
          3   case on August 1st --
          4       A.   Yes.
          5       Q.    -- there was a planned plea conference in 
          6   that case, correct?
          7       A.   Yes.
          8       Q.   In other words, like we talked about 
          9   before, you and the defense attorney had scheduled a 
         10   date to go before the Judge and to discuss the 
         11   possible disposition of this criminal case.
         12       A.   That's right.
         13       Q.   Now, leading up to that, you had already 
         14   had experience with Judge Lopez in the Calixte case.
         15       A.   That's correct.
         16       Q.   And the Estrada case.
         17       A.   That's correct.
         18       Q.   And you had given interviews to Eileen 
         19   McNamara, which at least you'll agree with me could 
         20   be perceived as your complaining that the sentences 
         21   were too lenient.
         22       A.   I gave an interview to Eileen McNamara 
         23   about the sentences in the case and the office's 
         24   perception of those sentences, yes.
 0074
          1       Q.   The office's perception as being too 
          2   lenient; is that right?
          3       A.   That's correct.
          4       Q.   And you also had experience with Judge 
          5   Lopez having an interest and listening to arguments 
          6   concerning mental illness as they were related to 
          7   defendants, correct?
          8       A.   My experience was similar to that of other 
          9   judges who take that into consideration.  I don't 
         10   know that she showed any particular interest.
         11       Q.   Nor did I ask you about particular 
         12   interest, did I?  What I'm trying to do is to get 
         13   the facts with regard to you and Judge Lopez.  What 
         14   other judges do or don't do is not my question. 
         15       A.   Okay.
         16       Q.   My question is that from the Calixte case, 
         17   certainly, you knew that Judge Lopez, in sentencing, 
         18   considered and received evidence of mental illness 
         19   as it related to her sentence.
         20       A.   That's correct.
         21       Q.   And also as it relates to treatment in 
         22   relation to her sentence.
         23       A.   Yes, that's correct.
         24       Q.   Same in Estrada?
 0075
          1       A.   Yes, that's correct.
          2       Q.   So you were armed with all of this 
          3   information before August 1st of the Year 2000, 
          4   correct?
          5       A.   Yes.
          6       Q.   On August 1st of 2000 you arrive in court.  
          7   Are you prepared to argue about disposition in the 
          8   Horton case?
          9       A.   Yes.
         10       Q.   Have you done your homework?
         11       A.   Yes.
         12       Q.   Have you gotten the information you needed 
         13   to put your best foot forward with the Court?
         14       A.   Yes.
         15       Q.   At least in your opinion.
         16       A.   Yes.
         17       Q.   Now, let's start with the facts that you 
         18   describe to the Court -- in fact, all of the 
         19   information you gave the Court about the offense, 
         20   would you please tell us that now. 
         21       A.   Yes.  I told the Court that this was a 
         22   serious case and that the --
         23            HEARING OFFICER DAHER:  Speak louder, 
         24   please. 
 0076
          1       A.   -- that the facts were as follows.  That 
          2   the boy -- the victim in this case was walking home 
          3   from a friend's house, that the defendant approached 
          4   him and asked him to help her look for her son, that 
          5   at some point the boy got into the car with the 
          6   defendant --
          7       Q.   Voluntarily?
          8       A.   That the boy -- I don't remember at that 
          9   point if I said that the boy went in voluntarily to 
         10   help look for the son under that pretense or if in 
         11   fact the defendant pulled the boy's arm.
         12       Q.   Well, which did you tell the Judge?
         13       A.   I'm not sure which one I told the Judge.
         14       Q.   Well, let's stop you there for a moment. 
         15            Would you have told the Judge the same 
         16   thing that Mr. Deakin told the Judge on September 
         17   6th when he described the facts with regard to that 
         18   incident?
         19       A.   It was probably very similar to what Mr. 
         20   Deakin said.
         21       Q.   Well, would you turn to Exhibit 22 in your 
         22   book, and turn to the bottom of Page 12 and to the 
         23   top of Page 13.  Do you see that?
         24       A.   Yes.
 0077
          1       Q.   And Mr. Deakin says -- do you see on Line 
          2   24 -- "The defendant told the boy that the defendant 
          3   was searching for a missing son named Michael and 
          4   that the defendant would pay $100 to anyone who 
          5   found the missing boy.  The defendant asked the 
          6   victim to get into the car, and the boy agreed." 
          7            Do you see that?
          8       A.   Yes, I do.
          9       Q.   Now, is that what you told Judge Lopez on 
         10   August 1st of the Year 2000?
         11       A.   I believe that that is what I told her.  I 
         12   may have also added that the boy said that he was at 
         13   some point pulled into the car --
         14       Q.   You may have?  Do you know? 
         15       A.   I don't remember exactly what I said about 
         16   the boy getting into the car on --
         17       Q.   Well, wouldn't it be important in a 
         18   rape/kidnap case to show that there was force used?
         19       A.   It would.
         20       Q.   And doesn't it strike you as interesting 
         21   that when Mr. Deakin provided the facts to Judge 
         22   Lopez, he doesn't say a word about force being used 
         23   to get the boy in the car?
         24       A.   There was no specific charge that 
 0078
          1   related --
          2       Q.   I asked you if you found it interesting.
          3       A.   Is it interesting? 
          4       Q.   Yeah. 
          5       A.   I suppose it's interesting.
          6       Q.   Well, if you're trying to convince a Judge 
          7   to give a substantial sentence in a case, you want 
          8   to bring the facts to bear before that judge which 
          9   may persuade that judge that this conduct, no matter 
         10   what the other factors were, ought to be punished in 
         11   the way you want it punished, correct?
         12       A.   Correct.
         13       Q.   An important fact would be, "Judge, this 
         14   boy was pulled in through a window of the car by the 
         15   arm," correct?
         16       A.   Well, I don't think there was ever a 
         17   factual basis for saying he was pulled in through 
         18   the window.
         19       Q.   Well, what did you understand the facts to 
         20   be?
         21       A.   I understood the facts to be that the boy 
         22   was approached by the defendant to get into the car, 
         23   that the defendant said she was looking for her son, 
         24   that the defendant offered the boy money to get into 
 0079
          1   the car, and at some point the boy got into the car.  
          2   I don't know if he was at that point helped by a 
          3   little pull.  I do know that, in the scheme of all 
          4   the other facts, how the boy got into the car wasn't 
          5   the most serious of the issues before me.
          6       Q.   You don't think it's serious -- you don't 
          7   think it's serious and something a judge ought to 
          8   know if there is a factual basis to say that not 
          9   only did the defendant cajole and try to con the boy 
         10   into the car, but when it didn't work, the defendant 
         11   had to use physical force to pull the boy into the 
         12   car against his will?  You don't think that's a fact 
         13   that a judge ought to be told when deciding what 
         14   sentence to give a defendant?
         15       A.   I do think that is a serious fact.  I think 
         16   I may have said that at the side bar --
         17       Q.   You may have? 
         18       A.   I don't have a clear memory of every single 
         19   word that I said at the side bar.
         20       Q.   Well, when Mr. Deakin gave his statement of 
         21   the facts in your presence and in front of the press 
         22   and everybody else on television, did you tell him, 
         23   "Hey, David, don't forget to put in there that this 
         24   boy was pulled into a car through a window or 
 0080
          1   through the door against his will"?
          2       A.   I don't remember having that conversation 
          3   with David.
          4       Q.   Do you see anywhere in this recitation by 
          5   Mr. Deakin where he says that?
          6       A.   I haven't had a full chance to read over 
          7   the recitation.
          8       Q.   Take your time and look at it.
          9       A.   (Witness reviews document.)
         10       Q.   Do you see anything in there?
         11       A.   I don't.  I don't. 
         12       Q.   Now, when you went to this lobby conference 
         13   on August 1st with Ms. Goldbach and yourself -- 
         14   correct?
         15       A.   Yes.
         16       Q.   -- finish telling us what facts that you 
         17   told the Judge of in your presentation.
         18       A.   After the boy got in the car, the defendant 
         19   drove the boy to an area that the boy didn't know 
         20   and ultimately stopped the car.  And the boy asked 
         21   to be able to go back home.  The defendant then used 
         22   some vulgarity to ask the boy to perform a sex act 
         23   on the defendant.  And when the boy refused, the 
         24   defendant took his hand and put it on top of the 
 0081
          1   boy's head, forcing the boy over the defendant's lap 
          2   in the driver's seat.  The defendant unbuttoned his 
          3   pants, and the defendant then -- the boy then said 
          4   that the Defendant then forced him to suck on the 
          5   defendant's finger, and the defendant then put a 
          6   screwdriver -- when the boy said "no," the defendant 
          7   put a screwdriver to the boy's neck.  The defendant 
          8   then made the boy suck on the screwdriver.  And the 
          9   boy was crying.  And at that point was about when 
         10   the police arrived on the scene and saw the boy's 
         11   head bob up and down in front of -- over the 
         12   defendant's lap. 
         13            They approached the car, which was in this 
         14   secluded area.  They went to the car.  The boy was 
         15   crying.  They took the boy out of the car.  They 
         16   approached the defendant's side as well.  The 
         17   defendant's pants were down.  They found the 
         18   screwdriver in the console.  They found a condom on 
         19   the floor.  The defendant made some statements to 
         20   the police at that point, saying that they had just 
         21   kissed, that he thought the boy was older, that 
         22   there was a likelihood they may have engaged in oral 
         23   sex; that when the defendant saw the police 
         24   approaching, he gave the boy $50 and told the boy 
 0082
          1   not to say anything to the police.  And the police 
          2   actually recovered the money as well from the child 
          3   when they took him out of the car.  Those were 
          4   essentially the facts that I relayed to the Court.
          5       Q.   And then what else did you say to the Court 
          6   concerning the Commonwealth's position?
          7       A.   I said that this was a serious case.  I 
          8   said that it was a strong case.  I said that the 
          9   victim's family had been cooperative with the 
         10   district attorney's office, and that they were 
         11   willing and able to participate in the process.  I 
         12   indicated that -- I may have shown the Court a copy 
         13   of the defendant's statement to the police at that 
         14   time.  I said that the boy appeared very credible, 
         15   that he seemed like a good kid.  Those were 
         16   basically the facts.  They may have recovered a few 
         17   other things from the car.  Those were basically the 
         18   facts.
         19       Q.   Can you remember anything else you told the 
         20   Judge?
         21       A.   Those were the facts that I basically 
         22   outlaid -- at some point the Judge asked me a 
         23   question about transgendered people --
         24       Q.   We're going to get to that.  I'm asking 
 0083
          1   anything else you said about the facts or 
          2   recommendation or the reason for the sentence or 
          3   anything like that. 
          4       A.   I believe I had a copy of the defendant's 
          5   record and indicated that there was a record, but it 
          6   wasn't a substantial record.
          7       Q.   There was a record of convictions?
          8       A.   There was a -- I don't know if there were 
          9   convictions.  There had been, I believe, a 
         10   continuance without a finding.  There had been a 
         11   juvenile matter.  I showed that record to the Judge 
         12   for what it was.  I can't remember any of the other 
         13   specific facts that I told the Judge that day.
         14       Q.   So that's what you told her in advocating 
         15   your position for the sentence of what? 
         16       A.   I was recommending an 8 to 10.
         17       Q.   And that was your full advocacy, correct?
         18       A.   Correct.
         19       Q.   And you weren't stopped by the Judge?
         20       A.   No.
         21       Q.   You weren't prohibited from saying anything 
         22   you wanted?
         23       A.   No.
         24       Q.   You weren't prohibited from arguing 
 0084
          1   anything you wanted?
          2       A.   No.
          3       Q.   You were given a full and fair opportunity 
          4   to present the Commonwealth's position?
          5       A.   That's correct.
          6       Q.   And to try to convince the Judge of the 
          7   appropriateness of your sentence?
          8       A.   That's correct.
          9       Q.   Now, did you tell the Judge that -- 
         10   obviously you didn't from what you just said.  You 
         11   didn't tell the Judge that Ebony Horton, according 
         12   to the victim, threatened to kill the victim.
         13       A.   I don't remember saying that. 
         14       Q.   That would be an important fact, wouldn't 
         15   it?
         16       A.   Yes, it would.
         17       Q.   To let a judge know that a defendant in a 
         18   criminal case was threatening to kill a victim?  
         19   Would that be an important fact, Ms. Joseph?
         20       A.   You know, I don't remember that fact --
         21       Q.   No, would it be an important fact?
         22       A.   Yes, it would.
         23       Q.   Do you have any doubt that that's what the 
         24   victim said on a videotape?
 0085
          1       A.   No, I don't have any doubt.
          2       Q.   In fact, you know from yesterday that what 
          3   he said was that Mr. Horton threatened to kill him 
          4   if he opened his mouth, or words to that effect, 
          5   right?
          6       A.   That's correct.
          7       Q.   And you didn't tell the Judge that, did 
          8   you?
          9       A.   I don't have a clear memory of telling the 
         10   Judge that, no.
         11       Q.   Well, a few minutes ago you knew you 
         12   didn't.
         13       A.   I don't think I did. 
         14       Q.   Now, was that just an error on your part?
         15       A.   An error?  It may have been an oversight.
         16       Q.   An oversight?
         17       A.   Yes.
         18       Q.   You prepared for this hearing, right?
         19       A.   I did.
         20       Q.   Now, you also didn't tell the Judge, did 
         21   you, that Mr. Horton, apparently, according to the 
         22   victim, went over to the passenger's side and laid 
         23   on the victim, body to body, correct?  You didn't 
         24   tell the Judge that, did you?
 0086
          1       A.   I think I did tell the Judge that at some 
          2   point, but I don't have a clear memory of that.
          3       Q.   Well, certainly Mr. Deakin never said 
          4   anything like that in his presentation to the Court, 
          5   did he?
          6       A.   No, he didn't.
          7       Q.   And you didn't remember it moments ago when 
          8   you told us the facts that you told the Judge.
          9       A.   That's right.
         10       Q.   Now suddenly it may have, might have?
         11       A.   I don't specifically remember.
         12       Q.   And you were asked yesterday whether or not 
         13   the Judge asked to see the videotape.  Do you 
         14   remember being asked, "Did the Judge have access to 
         15   the videotape?"  You answered, "Yes."  Do you recall 
         16   that?
         17       A.   She didn't ask if she could see it.
         18       Q.   You said the Judge had access to the tape, 
         19   right?
         20       A.   If she wanted to, yes.
         21       Q.   Did you even tell her there was a tape?
         22       A.   There were tapes in all child sexual 
         23   cases --
         24       Q.   Did you tell her there was a tape?
 0087
          1       A.   I don't know if I began the presentation by 
          2   saying that in the sane interview -- that's what we 
          3   call those -- the sane interview, what the specific 
          4   facts were.  There are -- in all child abuse cases 
          5   we do a tape.  That's standard.
          6       Q.   Ma'am, one, did you tell her that there was 
          7   a tape?
          8       A.   I don't remember specifically mentioning 
          9   the video.  I may have begun by telling her that.
         10       Q.   May have.  You have no idea, do you?
         11       A.   I have no idea.
         12       Q.   Two, did you ask her to look at it?
         13       A.   No, I didn't.
         14       Q.   Did you have it with you that day?
         15       A.   I don't think so, no.
         16       Q.   Did you ask the Court to take a recess, so 
         17   that she could go look at a tape because you thought 
         18   it was important?
         19       A.   No, I did not ask the Court --
         20       Q.   Who was the advocate here?  You are, aren't 
         21   you?
         22       A.   That's correct.
         23       Q.   You're there to present the Judge any and 
         24   all information that you believe she ought to 
 0088
          1   consider during her opinion?
          2       A.   That's correct.
          3       Q.   And during her sentencing, right?
          4       A.   That's correct.
          5       Q.   You never asked her to look at the tape?
          6       A.   That's correct.
          7       Q.   You never asked her to take the tape home 
          8   with her?
          9       A.   That's correct.
         10       Q.   You never asked her to call a recess to 
         11   look at it?
         12       A.   That's correct.
         13       Q.   Period, correct?
         14       A.   Correct.
         15       Q.   You never argued to the Judge a reason why 
         16   probation would be inappropriate in this case, did 
         17   you?
         18       A.   My argument was that -- I did.  My argument 
         19   was that an 8 to 10 prison sentence was appropriate 
         20   because of the extreme serious nature of these 
         21   charges.  And that is inconsistent with an argument 
         22   that probation would be appropriate.
         23       Q.   Did you argue to her that this particular 
         24   defendant was not an appropriate candidate for 
 0089
          1   probation, counseling, and the like for any 
          2   particular reason other than solely the facts of the 
          3   case?
          4       A.   Other than the facts of the case? 
          5       Q.   Other than just the facts of the case. 
          6       A.   Other than the facts of the case -- other 
          7   than the facts of the case, that was the basis of 
          8   the Commonwealth's recommendation for the sentence.
          9       Q.   And you knew the defense was seeking 
         10   probation, correct?
         11       A.   That's correct.
         12       Q.   And so in coming forward on the day of the 
         13   lobby conference, did you prepare yourself to 
         14   discuss with the Judge why probation and counseling 
         15   and electronic monitoring and those kinds of things 
         16   would be inappropriate for this particular defendant 
         17   for reasons related to this particular defendant?
         18       A.   This particular defendant committed very 
         19   serious crimes, and that is the reason why probation 
         20   for this defendant was not appropriate.  He 
         21   kidnapped and tried to rape a boy, using a weapon.
         22       Q.   So, then, other than the facts of the case, 
         23   which was your rationale -- other than the facts of 
         24   the case, there was no other rationale why probation 
 0090
          1   would be inappropriate for this particular 
          2   defendant.
          3       A.   Why probation would be -- no, there wasn't.
          4       Q.   And so your reliance was consistently on 
          5   the facts of the case and that was it?
          6       A.   The facts of the case and the strength of 
          7   the case, yes.
          8       Q.   Well, does the strength of the case mean 
          9   anything at a plea?
         10       A.   It does.
         11       Q.   What does it mean?
         12       A.   It means that we're able to prove the case.  
         13   It means that the DA's office is in a situation 
         14   where we could go forward at trial and prove our 
         15   points. 
         16            In some child abuse cases, for example, the 
         17   children become unavailable, either from having 
         18   stress or mental illness themselves, and, therefore, 
         19   even on serious facts we couldn't really proceed at 
         20   trial.  That would be something I would tell a 
         21   judge.  But that wasn't the case here.
         22       Q.   You would tell a judge, "We can't proceed 
         23   to trial.  Now let's figure out a plea for this 
         24   defendant"?
 0091
          1       A.   I would probably not be advocating an 8 to 
          2   10 in that case.  I would advocate -- it depends 
          3   really on the different situations.  It depends how 
          4   traumatized the child is, what the child's 
          5   therapists are relaying to the Office in terms of 
          6   their ability to testify at a later date.
          7       Q.   Let's go back to this case for a moment.
          8       A.   Okay.
          9       Q.   On the facts in this case, was it important 
         10   to you, as you sat there talking about the plea, 
         11   that the victim be spared testifying at trial?
         12       A.   It was important to me.
         13       Q.   And that was a major consideration for you 
         14   as an advocate for the victim also, correct?
         15       A.   No, that wasn't a major consideration.  
         16   This was a case where we felt that the boy was in 
         17   good shape to be able to testify.  And we had a lot 
         18   of contact with the family that he was doing well.  
         19   They were supportive of the DA's office's position.  
         20   And it was a case that would have been not easy, but 
         21   easyish to prepare for trial, given not only the 
         22   victim's performance and credibility, but also the 
         23   strong corroborating facts of the case.
         24       Q.   You said, the victim's credibility and 
 0092
          1   corroboration.  I would like to just talk about a 
          2   few of those matters. 
          3       A.   Okay.
          4       Q.   By the way, just as a predicate, in your 
          5   many years of experience in the DA's office, have 
          6   you had occasion to determine that police officers 
          7   sometimes lie?
          8       A.   I haven't had an experience with a police 
          9   officer who lied, I don't think.
         10       Q.   And have you ever had an experience where a 
         11   police officer exaggerated the facts?
         12       A.   I can't remember a specific case like that, 
         13   where --
         14       Q.   So you in your career have never run across 
         15   the phenomenon of a police officer lying or 
         16   exaggerating facts, correct?
         17       A.   Not in my career, no.
         18       Q.   Then somebody had to be wrong on certain 
         19   facts, because you know that the police officers 
         20   testified to things that the young man in his 
         21   videotaped statement said were not true; isn't that 
         22   right?
         23       A.   I don't know what you're referring to. 
         24       Q.   Well, let's start with the fact that the 
 0093
          1   police said when they came on the scene, Mr. 
          2   Horton's pants were down around his knees, correct?
          3       A.   That's right.
          4       Q.   And the victim on videotape denied that 
          5   specifically; isn't that true?
          6       A.   I don't think he denied it specifically.  
          7   He said they were unbuttoned.  And I don't know how 
          8   much in the dark the victim was able to see of where 
          9   the pants were.  I don't think that those things --
         10       Q.   The victim was certainly able to see from 
         11   being next -- sitting next to Horton as much as the 
         12   police were able to see from outside the car, 
         13   wouldn't you agree?
         14       A.   Well, except that the police -- the boy was 
         15   almost raped.  I don't know how much attention he 
         16   was paying to where exactly the defendant's pants 
         17   were.
         18       Q.   He indicated on the tape how much attention 
         19   it was.  He said they absolutely weren't down when 
         20   asked three times on the tape and said all they were 
         21   was unbuttoned.  Don't you remember that?
         22       A.   He said they were unbuttoned.  I don't 
         23   believe he said they absolutely weren't down.
         24       Q.   We'll play the tape in a minute. 
 0094
          1       A.   Okay.
          2       Q.   The police said that when they arrived at 
          3   the scene, the young man was crying?
          4       A.   That's correct.
          5       Q.   The boy denied that, correct?
          6       A.   No.  The boy said he was crying.
          7       Q.   You're sure of that?
          8       A.   Yes --
          9       Q.   When the police came?
         10       A.   At some point he did stop crying --
         11       Q.   Not at some point.  You understand my 
         12   question, don't you? 
         13            When the police arrived, they said the boy 
         14   was crying at that time, correct?
         15       A.   Correct.
         16       Q.   The boy said, "When the police arrived, I 
         17   was not crying"; isn't that correct?
         18       A.   The boy said that he stopped crying at the 
         19   point when the police came.  I don't think that 
         20   those two things are mutually --
         21       Q.   We're going to watch the tape again.  
         22   Actually --
         23            MR. EGBERT:  Your Honor, I'm going to ask 
         24   to play the videotape in its entirety this time.
 0095
          1            HEARING OFFICER DAHER:  Let's go. 
          2            MR. EGBERT:  Would I be allowed to stop it 
          3   occasionally?
          4            HEARING OFFICER DAHER:  Sure.
          5            THE WITNESS:  May I take a short break?
          6            HEARING OFFICER DAHER:  Absolutely.  We're 
          7   going to take a short break. 
          8            MR. WARE:  It seems to me the same rules 
          9   should pertain with respect to cameras during the 
         10   course of the video.
         11            HEARING OFFICER DAHER:  I agree.
         12            (Recess)
         13       (Videotape playing.)
         14       "Q.  ... and then we can talk about why it's 
         15   hard and how we can make it easier for you.  Okay?
         16       A.   Yes.
         17       Q.   Ramon, do you know why you're here today?
         18       A.   Yes.
         19       Q.   And why is that?
         20       A.   Because something happened that shouldn't 
         21   have. 
         22       Q.   Do you think you could tell me in your own 
         23   words from the beginning to the end about what it is 
         24   that happened?
 0096
          1       A.   Yeah.
          2       Q.   Okay. 
          3       A.   I was walking from my friend's house, 
          4   because I just got dropped off from UMass.  And I 
          5   was like at the corner of the second street from my 
          6   house.  Then this lady said, 'Oh, I know you from 
          7   somewhere.  Will you help me look for my son?'  I 
          8   was like, 'What?'  I ignored her.  I kept walking.  
          9   The second time, she was like, 'Oh, I know you.  Can 
         10   you help me find my son?'  I was like, 'I don't even 
         11   know you.'
         12       Q.   Where was the lady?
         13       A.   Well, she was at the corner of the same 
         14   street I was at.
         15       Q.   Was she standing on the street?
         16       A.   Hum-um, a car.
         17       Q.   She was in a car.  And then what happened?
         18       A.   Then after that, she said, Oh, I'll offer 
         19   somebody $100, whoever helps me find my son.  So I 
         20   was like, um, I know where he was, but -- she was 
         21   like, can you show me?"  
         22            (Videotape stopped.)
         23            MR. EGBERT:  Let me stop it there for a 
         24   minute.
 0097
          1       BY MR. EGBERT:
          2       Q.   What did you understand Mr. Suarez to be 
          3   saying at that with regard to what he told Ebony 
          4   Horton as to knowing where this child was?
          5       A.   I think that he wanted the money, and so he 
          6   said he would help her find her son.
          7       Q.   Well, before that, though, did you hear 
          8   some discussion where Mr. Suarez says to Ebony 
          9   Horton, "I know where he was"?
         10       A.   Yes.
         11       Q.   Who did you understand that he was talking 
         12   about at that time?
         13       A.   The defendant's son.
         14       Q.   So Mr. Suarez was telling Ebony Horton, a 
         15   transgendered male --
         16       A.   Yes.
         17       Q.   -- that he had seen Ebony Horton's son 
         18   earlier that day, correct?
         19       A.   I don't know if he said it earlier, but -- 
         20   he said, "I know where he was."
         21       Q.   The import was "I know where he was."
         22       A.   Correct.
         23       Q.   So in that tense, it's "I know where he 
         24   was" sometime before they were talking.
 0098
          1       A.   Correct.
          2       Q.   And what would a boy -- in your dealing 
          3   with the case, I take it you interviewed Mr. Suarez?
          4       A.   My only interview with Mr. Suarez was this 
          5   videotape.
          6       Q.   No further discussion?
          7       A.   No.
          8       Q.   So as a line prosecutor on the case, you 
          9   heard that statement, "I know where he was."  Who 
         10   did you think he was talking about?
         11       A.   I thought he was talking about the 
         12   defendant's son.
         13       Q.   But the defendant doesn't have a son.
         14       A.   I know that.
         15       Q.   So Mr. Suarez was saying to Ebony Horton -- 
         16   and I don't mean to be -- "I know where your 
         17   fictitious son is"?
         18       A.   Well, Ebony Horton was saying to the boy, 
         19   "Come help me look for my fictitious son, and" --
         20       Q.   Well, he was saying --
         21            MR. WARE:  May the witness finish, Your 
         22   Honor?
         23            HEARING OFFICER DAHER:  Go ahead.  Finish. 
         24       A.   And at the point where the defendant 
 0099
          1   offered the boy money to help him look for this son, 
          2   the child said, Yes, I know where he is, after 
          3   having denied knowing who the defendant was.
          4       Q.   So what did you take from that, is what I'm 
          5   getting at?
          6       A.   I took it that the boy was going to get 
          7   into the car to help the defendant look for his son, 
          8   so he could get the $100.
          9       Q.   So the boy was, in your opinion, making up 
         10   a story to Ebony Horton in order to get the $100?
         11       A.   To the defendant, yes.
         12       Q.   In English, right?
         13       A.   Yes.
         14       Q.   And that's basically what had been reported 
         15   to you by whatever police officials or the like that 
         16   you had been dealing with in this case?
         17       A.   That was consistent with the report.  I 
         18   mean, what was reported to me -- my first line of 
         19   investigation in this case was this videotape, but 
         20   before going to the grand jury.  So it was before I 
         21   had in-depth conversations with the police officers.
         22       Q.   Were you a part of preparing -- that's an 
         23   inartful question.  I'll withdraw it. 
         24            I notice that the interviewer -- I'm 
 0100
          1   familiar with these tapes -- has an ear piece?
          2       A.   Yeah.
          3       Q.   Am I correct that that's connected to some 
          4   people outside of the room?
          5       A.   That's right.  We sit behind a one-way 
          6   mirror, and we're able to observe the boy.  And we 
          7   can communicate with a microphone into the 
          8   interviewer's piece.
          9       Q.   So the answer to my question is, that ear 
         10   piece is connected to someplace outside the room?
         11       A.   That's right.
         12       Q.   There are DAs or personnel outside that 
         13   room communicating with the interviewer?
         14       A.   Correct.
         15       Q.   And were you the person communicating in 
         16   this instance with the interviewer?
         17       A.   I was one of the people, yes.
         18       Q.   So you were actually witnessing this whole 
         19   thing firsthand?
         20       A.   Right.
         21       Q.   Correct?
         22       A.   Right.  
         23            (Videotape playing.) 
         24      "A.   ... sort of pulled me in.
 0101
          1       Q.   In where?
          2       A.   The car.  Then after she pulled me in the 
          3   car, she drove around, stopped.  She locked the 
          4   doors and windows.
          5       Q.   How did she do that?
          6       A.   She -- like on her side of the car, there's 
          7   like a lock thing that locks the doors and the 
          8   windows."  
          9            (Videotape stopped.)
         10       BY MR. EGBERT:
         11       Q.   Let me stop you there.  Was there a 
         12   forensic investigation made of the defendant's car?
         13       A.   I know at some point I was interested in 
         14   seeing some aspect of one of the chairs, if it 
         15   reclined or not, but I don't remember where that 
         16   went.  I simply don't remember.
         17       Q.   Was the car seized by the Commonwealth?
         18       A.   I believe it was seized initially.  I don't 
         19   know if at some point it was released back to the 
         20   defendant.
         21       Q.   And you don't know whether or not there was 
         22   any forensic examination of the car?
         23       A.   I don't remember.
         24       Q.   Do you recall ever seeing such a report?
 0102
          1       A.   I don't.
          2       Q.   Do you recall providing that report to the 
          3   defense?
          4       A.   I don't.
          5       Q.   Do you recall providing it to the Court?
          6       A.   I don't.
          7       Q.   Did you provide to the Court -- strike 
          8   that.  So you simply have no memory?
          9       A.   Right.  
         10            (Videotape playing.) 
         11      "A.   ... because I tried to unlock the window 
         12   and run out, but it was locked.  And I -- and then 
         13   she took me to some specific place I don't even 
         14   know.  Then she said, 'Oh, well, you can suck on my 
         15   private part.'  and I was like, 'No.  I want to go 
         16   home.'  she was like, 'You're going to go home.'  I 
         17   was like, 'I want to go home now.'  she said, 'Oh, 
         18   you're going to go home,' and I started crying.  
         19   Then after that, she was like -- oh, she grabbed my 
         20   head, pulled me down like this and said, 'Suck on my 
         21   finger.'  And then after that she told me to suck on 
         22   a screwdriver.  I was about to yell, and then she 
         23   held that same exact screwdriver up to my neck like 
         24   this (indicating).  And then she was like, 'Oh, you 
 0103
          1   better be quiet or else I'm going to tell my husband 
          2   to come out and kill you.'  I was like, 'I want to 
          3   go home.'  And then she unbuttoned her pants.  
          4   Then" -- 
          5            (Videotape stopped.)
          6       BY MR. EGBERT:
          7       Q.   You heard him say that the defendant told 
          8   him that she, Ebony Horton, would have her husband 
          9   come out and kill Mr. Suarez, correct?
         10       A.   Correct.
         11       Q.   And that's not a fact you reported to the 
         12   Court; is that correct?
         13       A.   I don't recall reporting that.  
         14            (Videotape playing.) 
         15      "A.   ... what she was doing.  And then after 
         16   that, then my head popped up like and then after 
         17   that, they took me out to the car and asked me what 
         18   happened.  And I told them what happened.  And then 
         19   after that, they took me in the car -- they arrested 
         20   her.  Then from there I went to a hospital and they 
         21   did some, like, tests on me to make sure I was all 
         22   right. 
         23       Q.   Uh-hum.  And did you talk to anybody there?
         24       A.   Yeah, some detectives came.
 0104
          1       Q.   You just told me a whole lot about what 
          2   happened.  I'm going to back up and ask you a couple 
          3   more questions about it.  Okay?
          4       A.   Uh-hum.
          5       Q.   First of all, do you know when this was, 
          6   Ramon?
          7       A.   It was on a Saturday, about 8:00.
          8       Q.   In the evening?
          9       A.   Yes.
         10       Q.   You said you had just come from UMass and 
         11   you were at a friend's house?
         12       A.   Yeah.  Because I was coming from swimming.  
         13   I came from there, and then my coached dropped me 
         14   off at his house.  Then --
         15       Q.   What was your coach's name?
         16       A.   Domingos.  Then from there, I kept walking 
         17   from his house, because I was going to call my house 
         18   and then tell my mom I was on my way.
         19       Q.   Uh-hum. 
         20       A.   So then after that, he left, and then I 
         21   seen her.
         22       Q.   So what street were you actually on, do you 
         23   know?
         24       A.   First I was on Holiday.  I kept walking.  
 0105
          1   Then I got on Corona.
          2       Q.   Corona?
          3       A.   Yes.
          4       Q.   And is that when you saw her?
          5       A.   Yes.
          6       Q.   And you said that she asked you two 
          7   different times to help find her son?
          8       A.   Yes.
          9       Q.   And could you see what type of car she was 
         10   in or what color it was?
         11       A.   It was a Toyota, but it was like a gold, 
         12   like -- I can't say -- I don't really know what 
         13   color it was, but it was sort of like a goldish 
         14   color.
         15       Q.   And how did you know it was a Toyota?
         16       A.   Because I seen the thing that said 
         17   "Toyota."
         18       Q.   Do you like to look at cars?  Do you know 
         19   anything about cars?
         20       A.   Yes.
         21       Q.   Okay.  So the first time was she on your 
         22   side of the street or the other side of the street 
         23   in the car?
         24       A.   She was on this side of the street 
 0106
          1   (indicating).
          2       Q.   So when she asked you, were you next to the 
          3   driver window or was she --
          4       A.   On the passenger's side.  She was on the 
          5   driver's side, but she, like, leaned over --
          6       Q.   To speak to you through the passenger 
          7   window?
          8       A.   Yes.
          9       Q.   And so the first time what did you do?
         10       A.   I ignored her and kept walking.
         11       Q.   And then how far did you walk before she 
         12   asked you again?
         13       A.   Not that far.  Like at least two -- what, 
         14   seven steps away.
         15       Q.   So not very much?
         16       A.   Yeah.
         17       Q.   And she asked you again?
         18       A.   Yeah.
         19       Q.   And she said what?
         20       A.   She was looking for her son.  Then she said 
         21   she has a reward for $100.
         22       Q.   Did this person look familiar to you, this 
         23   lady?  Had you ever seen her before?
         24       A.   No.
 0107
          1       Q.   So you didn't know if she had a son or who 
          2   her son was or anything?
          3       A.   No.  And she lied and said she was a 
          4   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'm like, 'Oh, 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.
         13       Q.   Someone can get it for you, or would you 
         14   like me to go get it.  What do you want to do?
         15       A.   Somebody can get it.
         16       Q.   Do you have a cough?
         17       A.   Yes.
         18       Q.   Take your time.  
         19            (Water handed to Mr. Suarez)
         20       A.   Thank you. 
         21       Q.   Does that help a little bit?
         22       A.   Yes.
         23       Q.   So you said you didn't want to get in the 
         24   car?
 0108
          1       A.   No.  And then she, like, grabbed my hand 
          2   and started pulling me in the car.  I tried to 
          3   scream, but nobody was around at the time."  
          4            (Videotape stopped.)
          5       BY MR. EGBERT:
          6       Q.   Did you tell the Judge in this lobby 
          7   conference that this boy was pulled into the car by 
          8   the hand forcibly and screaming while it happened?
          9       A.   I don't remember if I said that.
         10       Q.   But you know you didn't, don't you?
         11       A.   I don't remember.
         12       Q.   Well, don't you agree with me that you 
         13   can't have it both ways with the Judge?  On 
         14   September 6th you're telling the Judge that the boy 
         15   got into the car voluntarily pursuant to a ruse, 
         16   correct?
         17       A.   I didn't say that to the Judge.
         18       Q.   Mr. Deakin did.
         19       A.   That's correct.
         20       Q.   And you're sitting there?
         21       A.   That's correct.
         22       Q.   You're the lead prosecutor in the case?
         23       A.   Yes.
         24       Q.   Right?
 0109
          1       A.   Yes.
          2       Q.   And you wouldn't permit Mr. Deakin to 
          3   present facts to the Court which were false, 
          4   correct?
          5       A.   That's correct.
          6       Q.   And so which is it, which of the facts that 
          7   the Commonwealth was relying on?  That he was forced 
          8   into the car or that he wasn't forced into the car?
          9       A.   Well, first of all, no matter how the boy 
         10   got into the car, he was forced, either by ruse or 
         11   by the hand.
         12       Q.   That's an artful choice of words, but I 
         13   think you know what I was talking about, don't you?  
         14   Pulled into the car screaming, right?  Do you know 
         15   about that? 
         16       A.   Do I know about that? 
         17       Q.   My question is, which was the 
         18   Commonwealth's position with Judge Lopez?  That the 
         19   boy was pulled into the car screaming or that he was 
         20   brought in on a ruse?
         21       A.   The Commonwealth's position was that -- on 
         22   September 6th -- was that he was brought in by a 
         23   ruse.
         24       Q.   And was your position different on August 
 0110
          1   1st?
          2       A.   I don't remember if I mentioned to the 
          3   Judge that the defendant pulled the boy in as well.  
          4   As I said earlier, in the scheme of the facts and in 
          5   the scheme of the charges, we didn't specifically 
          6   charge for a touching of the hand.  In the scheme of 
          7   what had happened that day, how the boy got into the 
          8   car wasn't the most serious part of the case.
          9       Q.   How about telling the Judge the truth?  
         10   That's pretty important, isn't it?
         11       A.   Absolutely.
         12       Q.   Well, the boy had told you that he was 
         13   pulled into the car against his will, screaming, 
         14   correct? 
         15       A.   Yes.
         16       Q.   Not that he had gone in on a ruse, correct? 
         17       A.   The boy I believe said both things; that he 
         18   had gone in on a ruse and that he was pulled in.  
         19   And I don't --
         20       Q.   You have listened to this testimony -- 
         21   statement by the boy, correct?
         22       A.   He goes into it in more in detail later, I 
         23   believe.
         24       Q.   You tell me when to stop when he says that 
 0111
          1   he got in voluntarily and nobody took his hand and 
          2   pulled him in, okay? 
          3       A.   Okay.  
          4            (Videotape playing.) 
          5      "Q.   So you got in the car?
          6       A.   Yes.  And I tried to get out, but she, 
          7   like, locked the windows.
          8       Q.   Did you say anything to her when she locked 
          9   the windows or when you were trying to get out?"  
         10            MS. JOSEPH:  Right there.  
         11            (Videotape stopped.)
         12            MS. JOSEPH:  He's asked a question by the 
         13   interviewer, "So you got into the car," and the boy 
         14   responded, "Yes, I got into the car."
         15            MR. EGBERT:  Let's go back and watch that 
         16   in context, all right?  
         17            (Videotape playing.) 
         18      "A.   "... get out, but she, like, locked the 
         19   windows.
         20       Q.   Did you say anything to her when she locked 
         21   the windows or when you were trying to get out?
         22       A.   No.
         23       Q.   Okay.  And then what happened?  How far did 
         24   she drive?  How long, do you think? 
 0112
          1       A.   At least down the street. 
          2       Q.   And then what happened?
          3       A.   Then after that, she stopped the car.  I 
          4   still tried to get out, but she locked the doors.  
          5   And then after, she took me to some place that I 
          6   don't even know, which was by some bowling alley.
          7       Q.   Do you know the name of the bowling alley?
          8       A.   Lucky Strike.
          9       Q.   Had you been there before?
         10       A.   Yes. 
         11       Q.   Okay.  And she took you to a place --
         12       A.   Past it.
         13       Q.   Past it, okay.  And was the car still 
         14   moving or did she stop it?
         15       A.   She stopped -- well, after she took me -- 
         16   she took me around, like, the place, and then she 
         17   stopped the car. 
         18       Q.   And when she topped the car, where were 
         19   you?" 
         20            (Videotape stopped.)
         21            MR. EGBERT:  I may have gone past the spot, 
         22   and I don't want to mislead you.
         23            HEARING OFFICER DAHER:  I think we have to 
         24   go prior to the cup being on the table. 
 0113
          1            MR. EGBERT:  Let me see if I can do that.  
          2            (Videotape playing.)
          3            "(Water handed to Mr. Suarez.)
          4       A.   Thank you. 
          5       Q.   Does that help a little bit?
          6       A.   Yeah.
          7       Q.   So you said you didn't want to get in the 
          8   car?
          9       A.   No.  And then she, like, grabbed my hand 
         10   and started putting me in the car.  I tried to 
         11   scream, but nobody was around at the time. 
         12       Q.   And she said she was going to give you 
         13   $100?
         14       A.   Yes.
         15       Q.   So you got in the car?
         16       A.   Yes.  And I tried to get out, but she, 
         17   like, locked the windows.
         18       Q.   Did you say anything to her when she locked 
         19   the windows or when you were trying to get out?
         20       A.   No.
         21       Q.   And then what happened?  How far did she 
         22   drive?  How long, do you think?
         23       A.   At least down the street. 
         24       Q.   And then what happened?
 0114
          1       A.   Then after that, she stopped the car.  I 
          2   still tried to get out, but she locked the doors.  
          3   And then after, she took me to some place that I 
          4   don't even know, which was past the bowling alley.
          5       Q.   Do you know the name of the bowling alley?
          6       A.   Lucky Strike. 
          7       Q.   Lucky Strike.  Had you been there before?
          8       A.   Yes.
          9       Q.   And she took you to a place --
         10       A.   Past it.
         11       Q.   Past it?
         12       A.   Uh-hum.
         13       Q.   And was the car still moving or did she 
         14   stop it?
         15       A.   She stopped -- well, after she took me, she 
         16   took me around like the place, and then she stopped 
         17   the car. 
         18       Q.   And when she stopped the car, where were 
         19   you?
         20       A.   I looked around, and I didn't even know 
         21   where I was.
         22       Q.   What did you see?
         23       A.   Like in front was like these boxes and 
         24   there was a train track.
 0115
          1       Q.   And then what happened?
          2       A.   Then she said, 'Oh, while we're waiting, 
          3   you can suck on my private part.'  I was like 'No, I 
          4   want to go home.'  She's like, 'Oh, you're going to 
          5   go home.'  I said, 'No, I want to go home.'  She 
          6   said, 'Oh, you're going to go home.'  Then I cried, 
          7   and she put my head down and like, 'Oh, suck on my 
          8   finger.'
          9       Q.   Now, you said you sucked on her finger.  
         10   How did you know it was her finger?
         11       A.   Because it was, like, rough.
         12       Q.   What else did you notice about it?
         13       A.   It had, like, a long nail.  And I'm not 
         14   really sure if it was a girl or boy.
         15       Q.   Why do you say that?
         16       A.   Because she had like this deep voice.
         17       Q.   Okay.  And you said that she wanted you to 
         18   suck on her finger?
         19       A.   Uh-hum.
         20       Q.   Did you suck on her finger?
         21       A.   Like, she put her finger in my mouth 
         22   between -- she moved my head up and down like that 
         23   (indicating).
         24       Q.   Okay.  And was she saying anything to you 
 0116
          1   when she did that?
          2       A.   No. 
          3       Q.   Do you know where her other hand was?
          4       A.   No. 
          5       Q.   Was she making any noises or sounds at all?
          6       A.   Hum-um.
          7       Q.   How long do you think that was going on 
          8   for?
          9       A.   A minute.  And then she told me to suck on 
         10   a screwdriver.
         11       Q.   What part of the screwdriver?
         12       A.   The part that you hold, the end.
         13       Q.   And what did you do with that screwdriver?
         14       A.   After that, I was about to scream, but she 
         15   put the screwdriver up to my neck like that 
         16   (indicating).
         17       Q.   But when she asked you -- when she told you 
         18   to suck on it, what did she do with it?
         19       A.   She put my head back down, and then she put 
         20   it in my mouth.
         21       Q.   And then what did she do?
         22       A.   Then after that she --
         23       Q.   Did she move your head like she did with 
         24   her finger or differently?
 0117
          1       A.   Yeah, she did the same thing.
          2       Q.   And did you hear her make any noises or 
          3   sounds or say anything when that was happening?
          4       A.   No.
          5       Q.   And then what happened?
          6       A.   Then she unbuttoned her pants.  And then 
          7   like three minutes after that, the police came.  And 
          8   then after that, she gave me $50 and told me to be 
          9   quiet.
         10       Q.   When she pulled down her pants --
         11       A.   Uh-hum -- no, she unbuttoned her pants."  
         12            (Videotape stopped.)
         13       BY MR. EGBERT:
         14       Q.   Do you see where the interviewer says, 
         15   "When she pulled down her pants," and he corrects 
         16   her and says, "No, she unbuttoned her pants"?  Do 
         17   you recall that?
         18       A.   Yes.
         19       Q.   Earlier we talked about that particular 
         20   fact.  Now, the police claim that when they came, 
         21   Mr. Horton's pants were down around his knees, 
         22   correct?
         23       A.   Correct.
         24       Q.   And did you do anything to reconcile those 
 0118
          1   two pieces of information?
          2       A.   I don't know -- towards the end of the tape 
          3   is when we asked questions of the interviewer.
          4       Q.   So you think he changes it again?
          5       A.   I don't know if he changes -- I don't know 
          6   if he clarified that at a later point.
          7       Q.   What is your best memory now as you sit 
          8   here?
          9       A.   I haven't seen the tape in a lot of years.
         10       Q.   You haven't?
         11       A.   No.
         12       Q.   You didn't see the tape when you were with 
         13   Mr. Ware?
         14       A.   No.  
         15            (Videotape playing.)
         16      "Q.   ... pull them down or just unbuttoned them?
         17       A.   Unbuttoned them.
         18       Q.   And could you see that her pants were 
         19   unbuttoned?
         20       A.   Yes, because I seen her unbutton them.
         21       Q.   And what did you see when her pants were 
         22   unbuttoned?
         23       A.   Just the unbuttoned part; that's it.
         24       Q.   Did you see any part of her body?
 0119
          1       A.   No.
          2       Q.   When she put your head down like that, 
          3   where on her body were you?
          4       A.   Like right here (indicating).
          5       Q.   Where on her body?  So where was her 
          6   finger?
          7       A.   Her finger was right here (indicating). 
          8       Q.   And what part of her body was it closer to?  
          9   The knees or the thighs or closer to the middle 
         10   part?
         11       A.   Her thigh.
         12       Q.   Her thigh.  Can you point on your body how 
         13   close she was to her own, this part or --
         14       A.   Like right here (indicating).
         15       Q.   So her finger was right there, in that 
         16   part?
         17       A.   Yes.
         18       Q.   Okay.  And when she unbuttoned them, her 
         19   pants, did she say why she was doing that?
         20       A.   No.
         21       Q.   Or what she wanted you to do?
         22       A.   Basically she wanted me to suck on her 
         23   private part.
         24       Q.   How did you know that?
 0120
          1       A.   Because she said, 'While we're waiting, she 
          2   can suck on -- I can suck on her private part,' and 
          3   I said, 'No.'
          4       Q.   That's what you said in the very beginning?
          5       A.   Yeah, when we stopped.
          6       Q.   Did she say anything about that again after 
          7   she had you suck on the screwdriver?
          8       A.   Hum-um.
          9       Q.   What word did she use for private part?
         10       A.   The "p" word.
         11       Q.   You know what?  I know sometimes it's hard 
         12   to say things -- certain words, but it would be 
         13   helpful for me to know exactly the words she used.  
         14   It won't be hard for me to hear it, because I talk 
         15   to lots and lots of kids about lots of different 
         16   things.  You can even write it down if you want.  
         17   But I need to know the word she said. 
         18       A.   (Writing.)
         19       Q.   "Pussy."  So that's the word she used?
         20       A.   Yeah.
         21       Q.   And she said, 'I want you to suck on my 
         22   pussy'?
         23       A.   Uh-hum.
         24       Q.   Did she say that just that one time, or did 
 0121
          1   she say that at all again during the time she 
          2   wouldn't let you get out of the car?
          3       A.   She said it that one time.
          4       Q.   And when she unbuttoned her pants, did she 
          5   say anything to you about why she was unbuttoning 
          6   them?
          7       A.   No.
          8       Q.   And what happened before the police came?
          9       A.   Oh, she got on top of me and told me to be 
         10   quiet.
         11       Q.   What do you mean, she got on top of you?
         12       A.   Because, like, the seat was leaning -- she 
         13   pulled the seat and leaned it back.
         14       Q.   The passenger seat?
         15       A.   Uh-hum.
         16       Q.   And when it was leaned back, what happened?
         17       A.   Well, I sort of fell back, and then she got 
         18   on top of me right then.
         19       Q.   And what was she doing when she was on top 
         20   of you?
         21       A.   She told me, 'Oh, be quiet before I get my 
         22   husband to come out here and kill you.'.
         23       Q.   What was she doing -- where was her body?
         24       A.   On top of mine.
 0122
          1       Q.   And what was she doing with her hands, with 
          2   the rest of her body when she was on top of you?
          3       A.   She told me -- like, her hands were like on 
          4   her other side, but she told me to be quiet. 
          5       Q.   Were her pants still unbuttoned?
          6       A.   Yes.
          7       Q.   And could you see her pussy or any part of 
          8   her?
          9       A.   Hum-um.
         10       Q.   And was her body -- what was her body doing 
         11   when she was on top of you?
         12       A.   Nothing.  Just like --
         13       Q.   Laying still or moving or what?
         14       A.   Staying still.
         15       Q.   Why did she get on top of you?
         16       A.   Because she didn't want me to scream or 
         17   nothing like that.
         18       Q.   How do you know that?
         19       A.   Because I was like -- I was moving up, and 
         20   I was like trying to scream. 
         21       Q.   And did she say anything about not 
         22   screaming?
         23       A.   Yeah.  She said, 'Be quiet.'
         24       Q.   And had she seen the police yet?
 0123
          1       A.   She seen the car pull by, behind her.  She 
          2   noticed it was the police.
          3       Q.   Was she on top of you when she saw the 
          4   police?
          5       A.   Hum-um.  Like three minutes before that, 
          6   she got off of me.
          7       Q.   Uh-hum.  So did anything else happen when 
          8   she got on top of you?
          9       A.   No.
         10       Q.   And then what happened?
         11       A.   Then the police came, and then they asked 
         12   me what happened.
         13       Q.   What door did they come to?
         14       A.   There were two police officers.  So one 
         15   came on my side and one came on her side.
         16       Q.   And how were they able to speak to you, 
         17   because you said everything was locked and the 
         18   windows were up?
         19       A.   She unlocked the windows and the door and 
         20   she rolled it down and the police asked her, 'What's 
         21   going on here?'
         22       Q.   And what did she say?
         23       A.   She was like, 'Oh, I'm looking for my son.'  
         24   And they asked her, 'Who's that?'  And she's like, 
 0124
          1   'Oh, that's my son's friend.'  And the other police 
          2   officer told me to get out of the car, and then he 
          3   took me to where his car -- where the car was, and 
          4   she told me to be quiet.
          5       Q.   Who told you --
          6       A.   He asked me what happened, and I told him.
          7       Q.   You told me earlier you had been crying.  
          8   Were you still crying when the police came or had 
          9   you stopped by then?
         10       A.   I stopped."  
         11            (Videotape stopped.)
         12       BY MR. EGBERT:
         13       Q.   Did you see that statement?
         14       A.   Yes.
         15       Q.   She asked whether or not he was still 
         16   crying when the police came, and he said he stopped.
         17       A.   Yes.
         18       Q.   That's really basically the same thing that 
         19   this whole Jay Greene discussion was about, isn't 
         20   it?  Whether or not this young man was crying at the 
         21   time?  Do you know what I'm talking about?
         22       A.   I do.  I mean, Detective Greene said that 
         23   he arrived at some point later and the boy wasn't 
         24   crying, yes.
 0125
          1       Q.   And this was the whole discussion you had 
          2   had with Anne Goldbach, about how she wanted to talk 
          3   to Jay Greene and all of that stuff --
          4       A.   Yes.
          5       Q.   -- about whether or not -- for whatever 
          6   reason, about whether or not this boy was crying or 
          7   not at the time the police came, right?
          8       A.   Yes.
          9       Q.   Because you had police reports that said he 
         10   was crying?
         11       A.   Yes.
         12       Q.   You had himself saying he wasn't?
         13       A.   He said he stopped crying when the police 
         14   came.
         15       Q.   When they came?
         16       A.   Yes.
         17       Q.   So that's your interpretation?
         18       A.   Yes.
         19       Q.   He was crying when they arrived and then 
         20   stopped --
         21       A.   He stopped when they came.
         22       Q.   So that's your interpretation of that 
         23   event, right?
         24       A.   Yes.  
 0126
          1            (Videotape playing.)
          2      "Q.   -- anything else that happened that you can 
          3   think of?
          4       A.   No.
          5       Q.   Was the radio playing in the car at all?
          6       A.   No.
          7       Q.   Not the whole time you were there?
          8       A.   No.
          9       Q.   Did she have a phone or make any phone 
         10   calls or anything like that when you were there?
         11       A.   No.
         12       Q.   (Inaudible)?
         13       A.   No.
         14       Q.   And did she say anything to you before she 
         15   opened the windows to the police?
         16       A.   She told me to be quiet.
         17       Q.   Is that all she said?
         18       A.   Yes.
         19       Q.   I'm just going to see if there's other 
         20   questions, which there probably are.  I always 
         21   forget something.  
         22            (Pause)
         23       Q.   There's a couple of things I'm still 
         24   wondering about.  I think you told me that you said 
 0127
          1   you were on Holiday Street when you first saw her?
          2       A.   Hum-um.  I was walking from Holiday Street, 
          3   and then I was on Corona.
          4       Q.   When you saw her, you were on Corona?
          5       A.   Yeah, at the corner.
          6       Q.   And when you got into her car, were you 
          7   still on Corona?
          8       A.   Yes.  And then she drove off down the 
          9   street.
         10       Q.   What street did she drive down?
         11       A.   Like, all the way down past the T stop near 
         12   Field's Corner.
         13       Q.   Was she still on Corona when she drove past 
         14   the T stop or did she turn onto another street?
         15       A.   She rode all the way down.
         16       Q.   On Corona?
         17       A.   No.  Corona is like here, and then Field's 
         18   Corner and the station is right here.  She drove all 
         19   the way past my street.
         20       Q.   Do you know what street she drove on?
         21       A.   No.  It was like down.
         22       Q.   Okay.  Do you know if this person had a 
         23   son?  Had you ever seen her son before?
         24       A.   No, but I know a Michael.  But I'm not sure 
 0128
          1   if it's her son.
          2       Q.   She said her son was Michael?
          3       A.   (Nods head.)
          4       Q.   Did she say how old he was?
          5       A.   No.
          6       Q.   (Inaudible.)
          7       A.   Yes.
          8       Q.   I think I asked you this before.  You had 
          9   never seen her before?
         10       A.   No.
         11       Q.   And you think you know some kid named 
         12   Michael, but you don't know who she was talking 
         13   about?
         14       A.   Yes.
         15       Q.   Now, you know how you told me about the 
         16   screwdriver?
         17       A.   Uh-hum.
         18       Q.   When was the first time that you saw that 
         19   screwdriver?
         20       A.   When she, like, turned on her light and 
         21   then she was digging for something, and I seen the 
         22   screwdriver.  That's what she was looking for.
         23       Q.   Where was she digging?
         24       A.   On, like, the side, on the door, and then 
 0129
          1   there's a pocket like that and --
          2       Q.   So the screwdriver was in the side of the 
          3   door?
          4       A.   Yes; yeah.
          5       Q.   Did she turn on her light?
          6       A.   Uh-hum.
          7       Q.   Which light?
          8       A.   The light on her roof there.
          9       Q.   What did you notice when she turned on the 
         10   light?  What could you see?
         11       A.   I could see that she was over there digging 
         12   for something and that there was like a locked door 
         13   over there, that the things were locked, the doors.
         14       Q.   Did you see her pull the screwdriver out?
         15       A.   Yes.
         16       Q.   What color was it, do you know?
         17       A.   It was black and red; like it had a red 
         18   line.
         19       Q.   And what did she do with the screwdriver 
         20   when she pulled it out?
         21       A.   She kept it on like -- like in the middle 
         22   of the, like where you keep your stuff and then you 
         23   lift that thing up.  I can't think of what it is.
         24       Q.   Is there a space in between the --
 0130
          1       A.   Yeah.
          2       Q.   -- in between the front seat?
          3       A.   Yeah, uh-hum.
          4       Q.   So she put it in there or on top of it?
          5       A.   On top.
          6       Q.   And did she do anything with it when she 
          7   got it out the first time?
          8       A.   Hum-um.
          9       Q.   When she got it out the first time. 
         10       A.   No.
         11       Q.   So when was it that she did something with 
         12   it?
         13       A.   I'd say at least ten minutes after.
         14       Q.   What was the first thing she did with it?
         15       A.   She stuck it at my neck right here 
         16   (indicating).
         17       Q.   Did she cut you?
         18       A.   No.
         19       Q.   Did she say why she was getting it, digging 
         20   it out?
         21       A.   No.
         22       Q.   Did you ask her, What that's for, or 
         23   anything like that?
         24       A.   Yeah.
 0131
          1       Q.   What did she say?
          2       A.   She didn't answer. 
          3       Q.   What did you say to her?
          4       A.   I said, 'Why do you got that for?'  She 
          5   didn't say nothing after that.
          6       Q.   During this time that she -- this whole 
          7   time that she got on top of you or any other time 
          8   that she was having you do this to her, did any 
          9   other part of her body touch you?
         10       A.   No.
         11       Q.   When she was on top of you, did she do 
         12   anything with her face or her mouth?
         13       A.   No.
         14       Q.   Did she do anything else with her hands?
         15       A.   No.
         16       Q.   Did she try to?
         17       A.   No.
         18       Q.   Do you remember you told me that you knew 
         19   it was her finger that was in your mouth because it 
         20   was rough and a nail?
         21       A.   Yeah.  Like, she had nails -- like, you 
         22   know how you grow nails on her fingers?  That was 
         23   how.
         24       Q.   Uh-hum.  And where was her hand when she 
 0132
          1   had you do that to her finger?
          2       A.   Her upper hand was on this side 
          3   (indicating).
          4       Q.   Uh-hum.
          5       A.   In her pocket.
          6       Q.   Remember you had told me she was holding 
          7   your head?
          8       A.   Uh-hum.
          9       Q.   So you just said now her hand was in her 
         10   pocket.  I'm a little confused.
         11       A.   This hand she told me to put -- she put my 
         12   mouth in -- she put her finger in my mouth, and her 
         13   other hand was in her pocket.
         14       Q.   Okay.  Don't you remember you told me she 
         15   was holding your head?
         16       A.   Uh-hum.  She was doing it -- oh, I'm 
         17   confused.
         18       Q.   Maybe you should just put the marker down 
         19   for a minute and just think for a second.  All 
         20   right?
         21       A.   Oh, she had this finger in my mouth, and 
         22   then she was holding it down like that.
         23       Q.   And just think for a second and listen to 
         24   what I'm going to ask you. 
 0133
          1            Where was her hand, the one that put her 
          2   finger in your mouth?  Where was that in relation to 
          3   her body?  Was it closer to here or here or here?
          4       A.   Towards her thigh.
          5       Q.   How close to her thigh?
          6       A.   It was like right here (indicating).
          7       Q.   Was her hand holding anything when she was 
          8   doing that?
          9       A.   Hum-um.
         10       Q.   I may have asked you this, but did she say 
         11   anything at all when she was moving your head up and 
         12   down like that?
         13       A.   No.
         14       Q.   Ramon, do you have an older brother?
         15       A.   Yes.
         16       Q.   And what's his name?
         17       A.   Seneca -- I have two older brothers and one 
         18   younger brother.
         19       Q.   Say that again?
         20       A.   I have another younger brother named Juan, 
         21   and then I have two older brothers.
         22       Q.   Where do they live?
         23       A.   One lives with my grandmother and one lives 
         24   in Delaware, but he's coming up.
 0134
          1       Q.   What's the one that lives with your 
          2   grandmother?  What's his name?
          3       A.   Tyson Jones.
          4       Q.   Tysine?
          5       A.   Tyson.
          6       Q.   And the other brother lives in Delaware?
          7       A.   Yes.
          8       Q.   How old is Tyson?
          9       A.   He's 14 -- no, 15.
         10       Q.   And how old is Seneca?
         11       A.   Eighteen.
         12       Q.   And how long has he lived in Delaware?
         13       A.   For about a year.
         14       Q.   Do you know anybody in your neighborhood 
         15   named Mike or James?
         16       A.   James?  No.
         17       Q.   How about Mike? 
         18       A.   Yeah.
         19       Q.   What Mike do you know?
         20       A.   He lives up the street from my friend.
         21       Q.   Which friend?
         22       A.   He lives on Holiday, the one that I came 
         23   from his house.
         24       Q.   What's his first name?
 0135
          1       A.   Joseph.
          2       Q.   And how old is this Mike that you know?
          3       A.   I think 13 -- no; 12, I think.
          4       Q.   And how do you know him?
          5       A.   Because he goes swimming.  He's on the swim 
          6   team, too.
          7       Q.   I've asked you a lot of questions, Ramon.
          8       A.   Uh-hum.
          9       Q.   Is there anything else you can think of 
         10   that I didn't ask you that you think is important to 
         11   know?
         12       A.   No. 
         13       Q.   No? 
         14       A.   Hum-um.
         15       Q.   Then I want to thank you for coming in.  I 
         16   like the colors you chose here."  
         17            (Videotape stopped)
         18       BY MR. EGBERT:
         19       Q.   Would you say it's a fair characterization 
         20   of that young man's testimony that the defendant 
         21   told him that the defendant was searching for a 
         22   missing son named Michael and the defendant would 
         23   pay $100 to anyone who found the missing boy, and 
         24   the defendant asked the victim to get into the car 
 0136
          1   and the boy agreed?  Would you say that's a fair 
          2   characterization of his statement?
          3       A.   Yes.
          4       Q.   After he repeatedly and repeatedly and 
          5   repeatedly said that he was pulled in by force,  
          6   screaming into the car?
          7       A.   I don't think those two things are mutually 
          8   exclusive.
          9       Q.   You think that by telling the Judge he 
         10   agreed to get in the car is the same thing as 
         11   telling her that the boy was being pulled into the 
         12   car, screaming not to go?  Is that the same to you?
         13       A.   They're not the same.  But I don't -- 
         14   again, the way the boy got into the car wasn't one 
         15   of the main factors that we considered in making our 
         16   sentencing recommendation.
         17       Q.   But you're talking to a judge who you're 
         18   trying to give the facts to, a well-rounded set of 
         19   facts in all fashions, so that she can have a good 
         20   idea of what went on, correct?  Is that a correct 
         21   statement?
         22       A.   Yes.
         23       Q.   And you neglected to tell her -- neglected 
         24   to tell her that this boy had been pulled into the 
 0137
          1   car, screaming?
          2       A.   I don't remember if I told her that on 
          3   August 1st.
          4       Q.   Well, you certainly know that Mr. Deakin 
          5   didn't tell her that, right?
          6       A.   That's correct.
          7       Q.   And you'll agree with me that you and Mr. 
          8   Deakin had discussed this case?
          9       A.   Yes.
         10       Q.   And that you and he were working from the 
         11   same set of facts?
         12       A.   Yes.
         13       Q.   And, of course, there's no record of your 
         14   conversation with the Judge, right?
         15       A.   On August --
         16       Q.   August 1st. 
         17       A.   Or 4th. 
         18       Q.   On the 1st, at the bench conference --
         19       A.   That's right; there's no record.
         20       Q.   -- when you made these representations to 
         21   the Court. 
         22       A.   That's correct.
         23       Q.   Now, having discussed all of this, have you 
         24   exhausted now the matters which you discussed with 
 0138
          1   Judge Lopez on August 1st from your point of view?
          2       A.   Well, at different points there were 
          3   different opportunities for me to speak during the 
          4   few minutes of the lobby conference.  There was the 
          5   recitation of the facts, there was the part where 
          6   she had inquired of me if I knew about transgendered 
          7   people, there was the part where I told her that our 
          8   office is taking this case very seriously, that it 
          9   was a serious case.
         10       Q.   Well, your office takes all cases seriously 
         11   of child sexual abuse, don't they?
         12       A.   Yes.
         13       Q.   So that was not a particularly newsworthy 
         14   piece of information to the Judge.  I mean, 
         15   obviously the DA's office takes crime seriously; 
         16   isn't that right?
         17       A.   Yes.  Newsworthy or not, I think it was a 
         18   question of the fact that we perceived this 
         19   defendant in the scheme of cases to be serious; that 
         20   this was a serious crime.
         21       Q.   This defendant or the crime?
         22       A.   The crime.
         23       Q.   You said "this defendant."
         24       A.   I mean the crime.
 0139
          1       Q.   You mean the crime; is that correct?
          2       A.   Yes.
          3       Q.   Now, all of -- and we'll get to the rest of 
          4   your discussion.  But again, let me repeat it to 
          5   you.  You made these representations to the Court?
          6       A.   Yes.
          7       Q.   And then it was Ms. Goldbach's turn, right?
          8       A.   Yes.
          9       Q.   Is that correct?
         10       A.   Yes.
         11       Q.   Ms. Goldbach gave her recitation of what 
         12   she wanted to present to the Judge?
         13       A.   Correct.
         14       Q.   And one of the things that she wanted to 
         15   and did present to the Judge was this psychosocial 
         16   evaluation or report, correct?
         17       A.   Correct.
         18       Q.   Which is Exhibit 3 in this case; is that 
         19   right?
         20       A.   Yes.
         21       Q.   Now, you've testified that Anne Goldbach 
         22   never told you about this report, gave you this 
         23   report or offered you this report prior to the 
         24   August 1st hearing, correct?
 0140
          1       A.   That's correct.
          2       Q.   But she did offer you a predecessor to this 
          3   report, didn't she, at an arraignment on -- the 
          4   arraignment in Superior Court, when bail was going 
          5   to be a consideration?
          6       A.   I don't remember if she gave me anything 
          7   that day.
          8       Q.   Well, you recall that -- do you know 
          9   whether or not there was a report prepared for 
         10   arraignment which included the information up to and 
         11   including that period of time that Ms. Katz had 
         12   evaluated?
         13       A.   I don't remember if there was a report at 
         14   the Superior Court.
         15       Q.   Do you remember looking at Ms. Goldbach 
         16   when she offered you the report at arraignment and 
         17   looking at her -- telling you to take a look at it, 
         18   and handing it back to her and telling her, "I don't 
         19   want this"?
         20       A.   I don't remember that.
         21       Q.   Do you now deny that it happened?
         22       A.   I have no memory --
         23       Q.   Do you deny that it happened?  That would 
         24   stand out in your mind, wouldn't it?
 0141
          1       A.   As we sit here today, I don't have a memory 
          2   of being presented anything at the defendant's 
          3   arraignment.  As we discussed earlier, there was no 
          4   bail issued -- being discussed at the arraignment.  
          5   He walked in on his own.  I don't remember receiving 
          6   a report or seeing a report from Ms. Goldbach at the 
          7   Superior Court arraignment.
          8       Q.   So you lack a memory -- would it refresh 
          9   your memory if I told you that Ms. Goldbach says 
         10   exactly that; that she tried to give you that report 
         11   on more than one occasion -- not that report, but 
         12   it's predecessor, on more than one occasion, and you 
         13   turned it down?
         14       A.   That doesn't refresh my memory.
         15       Q.   Well, in any event, here you are on the 1st 
         16   of August before Judge Lopez, and Ms. Goldbach 
         17   presents the Court a report, correct?
         18       A.   Correct.
         19       Q.   You don't know what it is, you've 
         20   testified?
         21       A.   I knew what type of report it was.
         22       Q.   What type?
         23       A.   Yes.
         24       Q.   Do you think it competent advocacy to say, 
 0142
          1   I know the type of report and, therefore, I won't 
          2   ask for a copy?
          3       A.   No.
          4       Q.   Did you ask for a copy?
          5       A.   No, I didn't.
          6       Q.   Did you ask to read it?
          7       A.   I had an opportunity to read it alongside 
          8   with the Judge, to glimpse through it and to hear 
          9   the Judge read it out loud to me.
         10       Q.   The Judge read this out loud to you?
         11       A.   She read parts of it out loud, yes.
         12       Q.   Parts of it?
         13       A.   Yes.
         14       Q.   Did she read all of it to you out loud?
         15       A.   No.
         16       Q.   Did it strike you as competent advocacy to 
         17   say, "Judge, before you consider that report, I'd 
         18   like to see a copy and read it myself"?
         19       A.   I didn't say that, no.
         20       Q.   Did you misunderstand my question?  We're 
         21   talking about competent advocacy. 
         22            Do you think it's competent advocacy at a 
         23   sentencing proceeding to simply not even ask to see 
         24   a report that a judge is relying on and considering 
 0143
          1   in developing a sentence in the case?
          2       A.   I was giving the report --
          3       Q.   Please answer my question. 
          4       A.   I'm trying to answer.
          5            MR. EGBERT:  Judge, can I have an answer to 
          6   my question?
          7            HEARING OFFICER DAHER:  He's entitled to 
          8   it.  It's a very, very simple question.  So if you 
          9   would. 
         10       A.   Given the circumstances of that day, I 
         11   think I gave the report the weight that it was due 
         12   with the Judge.
         13       Q.   The weight that it was due.  You didn't 
         14   even know what was in it.  It could have had a 
         15   letter to the Judge saying, Here's $100,000 for 
         16   taking care of my sentence."  How do you know?  
         17   Isn't it elementary --
         18            MR. WARE:  Objection.  If that's a 
         19   question, let's have the witness answer it.  If it's 
         20   a speech, I object.
         21            HEARING OFFICER DAHER:  Sustained.
         22       Q.   Isn't it elementary advocacy, when a judge 
         23   is reviewing documents presented by the other side, 
         24   to seek to see a copy so you know what's in them?
 0144
          1       A.   I was able to see the copy simultaneously, 
          2   at the same time as the Judge was.
          3       Q.   You were?
          4       A.   She didn't keep a copy, I didn't keep a 
          5   copy.  She read parts of it out loud.  I've seen 
          6   many reports like this from CPCS.
          7       Q.   Are they standard format, transgendered 
          8   psychological disorder format?  Have you ever seen 
          9   one of those before?
         10       A.   I don't know if I've ever seen one dealing 
         11   with a transgendered individual before.
         12       Q.   Let's ask the questions one at a time. 
         13            Have you ever seen a CPCS report with 
         14   regard to a person with transgendered emotional or 
         15   mental illness? 
         16            MR. WARE:  Objection.  The report says 
         17   nothing about mental illness.
         18            HEARING OFFICER DAHER:  Sustained. 
         19       Q.   Have you seen any report in the past, other 
         20   than this one, which discusses transgendered people 
         21   who look and feel female?
         22       A.   I don't remember if I had any other cases 
         23   when I was a District Court ADA where this issue of 
         24   being transgendered played a role.  In the Superior 
 0145
          1   Court I did not have any other cases where there was 
          2   a transgendered defendant, but I have seen many CPCS 
          3   reports, psychosocial assessments, talking about 
          4   sentencing recommendations and the background of the 
          5   defendant in terms of the life that they've had; if 
          6   they've had a hard life or if they have any issues 
          7   or if they're in therapy.  Those types of reports 
          8   are pretty routine.
          9       Q.   So is it your testimony, then, that you did 
         10   know the contents of the report at the August 1st, 
         11   2000 hearing?
         12       A.   I didn't know every word that was in here, 
         13   nor did I know all of the specific contents.  I knew 
         14   that this was a report that talked about the 
         15   defendant's family and that talked about the fact 
         16   that the defendant was transgendered.  The Judge 
         17   read out loud some of those issues surrounding the 
         18   transgendered and the fact that the defendant has a 
         19   tenancy to hang out -- I don't really remember where 
         20   it was -- but with children or younger people and 
         21   had some further issues.  I remember having the 
         22   Judge read that out loud.  
         23            I remember Ms. Goldbach, when she presented 
         24   the report to the Court, saying that this was 
 0146
          1   something to do with the -- to do with sentencing, 
          2   that kind of thing; that it was something that she 
          3   had prepared -- that she had had prepared to 
          4   advocate her sentence.
          5       Q.   And so you didn't seek a copy of the 
          6   report?
          7       A.   I did not seek a copy of the report.
          8       Q.   You knew that the Judge was being swayed by 
          9   the report, didn't you?
         10       A.   I actually didn't think the Judge was being 
         11   swayed by the report.  That wasn't the impression 
         12   that I was given.  I know that the Judge didn't seek 
         13   a copy either, that one was never filed, and that 
         14   the Judge skimmed it for like a minute while we were 
         15   up at the side bar.
         16       Q.   Didn't Judge Lopez change her attitude 
         17   after seeing the report?
         18       A.   My memory is that Judge Lopez changed her 
         19   position on the case as soon as Anne Goldbach 
         20   mentioned that the defendant was transgendered, and 
         21   that that was the most persuasive advocacy that Anne 
         22   Goldbach brought to the side bar.
         23       Q.   Do you recall testifying at Page 40 of your 
         24   initial interview before the Commission, at Line 8, 
 0147
          1   "She agreed," meaning the Judge, "agreed it was a 
          2   serious case and she would be hard-pressed to give 
          3   probation.  Then when she heard the defendant had 
          4   this transgendered issue and she saw the report, I 
          5   think she was like, well, she was swayed at that 
          6   point, I think"?
          7       A.   Yes.
          8       Q.   Do you remember testifying in that regard?
          9       A.   Yes, I do.
         10       Q.   Do you want to change that testimony?
         11       A.   No, I don't.
         12       Q.   So after she heard about this transgendered 
         13   issue and after she saw the report --
         14       A.   Yes.
         15       Q.   -- she was beginning to be swayed, correct?
         16       A.   Correct.
         17       Q.   Did you at that time say, "Can I see this 
         18   report, Judge"? 
         19       A.   At that point I had seen as much of the 
         20   report, basically, as she had.
         21       Q.   How do you know that?  She was reading it 
         22   to herself, wasn't she?
         23       A.   I was standing right next to her up at the 
         24   side bar, similarly to when you've been showing me 
 0148
          1   deposition testimony and you come up here, and then 
          2   I'm able to read alongside you, some parts out loud, 
          3   but you'll often read a whole --
          4       Q.   I do remember a little bit about Suffolk 
          5   Superior Court.
          6       A.   Yes.
          7       Q.   There is a bench in the First Session, 
          8   correct?
          9       A.   Yes.
         10       Q.   Former Federal Court, correct?
         11       A.   Yes.
         12       Q.   It's a former Federal Court bench?
         13       A.   Yes.
         14       Q.   And the Judge was on the bench?
         15       A.   Yes.
         16       Q.   And you were standing down below?
         17       A.   I'm the one that generally gets to go up -- 
         18   my experience has been that I get to walk up a few 
         19   stairs to -- there's a few stairs that go up to 
         20   where the Judge is sitting, and then she comes very 
         21   close to the parties, because it's off the record, 
         22   so you need to be huddled.  And I'm up the stairs, 
         23   and then Ms. Goldbach is below me, essentially.  And 
         24   I'm able -- I'm kind of katty-corner with the Judge 
 0149
          1   at that point.
          2       Q.   Katty-corner, looking over her shoulder?
          3       A.   Right.
          4       Q.   Did you say to her, "Judge, before you 
          5   accept that report and the facts that are in it, we 
          6   want an independent examination"?
          7       A.   No, I didn't.
          8       Q.   Now, you testified yesterday that you had 
          9   no right to ask for such a thing.  That's not true, 
         10   is it?
         11       A.   No.  I testified yesterday that 
         12   realistically, it wouldn't be possible to get that.  
         13   I could have asked for an independent social worker 
         14   or psychosocial worker, whatever that person was, to 
         15   do that, but the defendant, prior to a plea, has 
         16   every right to refuse to speak to an agent of the 
         17   Commonwealth or an independent worker.  And 
         18   realistically a defense attorney would not have 
         19   their client speak to the DA's office or to one of 
         20   our agents in the preparation for sentencing prior 
         21   to going through the plea.
         22       Q.   Ms. Joseph, have you ever heard of looking 
         23   at a judge when the defense presents a report like 
         24   this and saying, "Judge, I want to make an 
 0150
          1   independent evaluation; and if the defendant won't 
          2   go along with it, you should reject their report, 
          3   because we haven't had an opportunity to do an 
          4   independent examination"?  That's done all the time, 
          5   isn't it?
          6       A.   I don't know if that's done all the time.
          7       Q.   Well, you took no action to seek to do your 
          8   own investigation, right?
          9       A.   Of the psychosocial report? 
         10       Q.   Yes. 
         11       A.   Correct.
         12       Q.   So all of those factors were relayed in 
         13   that report to the Judge, right?
         14       A.   Correct.
         15       Q.   One of them being that the defendant was 
         16   unlikely to reoffend, correct?
         17            MR. WARE:  Objection to the 
         18   characterization of that as a fact.
         19            HEARING OFFICER DAHER:  Sustained.
         20       Q.   Was it an opinion of the social worker who 
         21   had provided this information to the Judge that the 
         22   defendant was unlikely to reoffend?
         23       A.   That was the opinion, yes.
         24       Q.   Did you do anything to challenge that 
 0151
          1   opinion?
          2       A.   There was nothing to challenge.  That was 
          3   the author's opinion.
          4       Q.   Well, did you do anything to counter it?
          5       A.   We didn't really discuss the offending 
          6   issue.
          7       Q.   Did you even know it was in the report, 
          8   since Judge Lopez was doing the reading?
          9       A.   Ms. Goldbach may have mentioned that and I 
         10   may have seen that.
         11       Q.   Do you know?
         12       A.   I don't have a clear memory of discussing 
         13   the specific issue about reoffending as it relates 
         14   to the defendant.
         15       Q.   So here you are faced with a report by a 
         16   person who's a licensed social worker -- and you 
         17   knew that at the time, didn't you?
         18       A.   I knew it was prepared by someone 
         19   through CPCS, either a social worker or a consultant 
         20   for CPCS, a psychologist or some type of a 
         21   therapist.  I didn't know the person's official 
         22   title.
         23       Q.   Some form of expert?
         24            MR. WARE:  Objection.
 0152
          1       A.   Some form of a professional.
          2            HEARING OFFICER DAHER:  What is your 
          3   objection? 
          4            MR. WARE:  Well, an expert in what?  This 
          5   is a social worker who's doing a dispositional 
          6   plan --
          7            HEARING OFFICER DAHER:  Sustained.  You 
          8   have it. 
          9       Q.   Did you argue to Judge Lopez that this was 
         10   a social worker doing a dispositional plan and she 
         11   should reject it because she was unqualified to 
         12   provide the information she got?
         13       A.   No.
         14       Q.   Never said such a thing, did you?
         15       A.   No.
         16       Q.   Mr. Ware might make that speech, but you 
         17   never did?
         18       A.   I didn't.
         19       Q.   You never looked at the Judge and said, 
         20   "This report shouldn't be considered by you," did 
         21   you?
         22       A.   No.  I didn't say that the report shouldn't 
         23   be considered.  I did say that the Commonwealth's 
         24   position should be considered and that the 
 0153
          1   Commonwealth's position was for a sentence 
          2   imprisonment.  And that the Commonwealth felt that 
          3   this was a very serious case.
          4       Q.   We've heard all that.  We've heard all of 
          5   that. 
          6            Did you challenge any of the assertions 
          7   made in the report?
          8       A.   There really didn't seem to me to be 
          9   anything to challenge.  The report stated that the 
         10   defendant is transgendered.  Okay.  The report -- 
         11   that seemed to be the main focus of Ms. Goldbach's 
         12   presentation, was that factor.  And that factor, 
         13   from the Commonwealth's perspective, had no bearing 
         14   on a sentence recommendation, what the sexual 
         15   identity of a defendant is.
         16       Q.   What if that sexual identity is a disorder?
         17            MR. WARE:  Objection.  The report never 
         18   characterizes anything as a disorder.
         19            MR. EGBERT:  Judge there's already been 
         20   testimony in this record from Judge Lopez that when 
         21   she saw the words, transgendered and counseling in 
         22   those matters, that she took that --
         23            MR. WARE:  There was nothing in the 
         24   report --
 0154
          1            HEARING OFFICER DAHER:  Sustained.  
          2   Sustained.  Sustained.
          3       Q.   Well, you didn't know what was in the 
          4   report at the time, in any event, right, with regard 
          5   to whether or not there was any mention in there of 
          6   psychological counseling or disorders, correct?
          7       A.   I knew that it mentioned that the defendant 
          8   was transgendered and therefore, suffered some 
          9   issues in coming to that -- in being transgendered.  
         10   There was nothing specifically to rebut about that 
         11   issue.  It was a given.
         12       Q.   How about the issue of whether or not the 
         13   defendant was in need of counseling, for example?  
         14   Did you know whether or not that was in the report?
         15       A.   I don't remember if it said that that was 
         16   in the report, but that's not a factor I would rebut 
         17   one way or the other.  I believe the defendant is in 
         18   need of counseling.  One can get that in state 
         19   prison.  Counseling is very important for all 
         20   defendants in criminal cases, I think.
         21       Q.   And how about the issue of whether or not 
         22   the defendant would suffer serious consequences in 
         23   state prison, and those types of consequences?  Was 
         24   that discussed in the report?
 0155
          1       A.   Anne Goldbach did mention --
          2       Q.   Was that discussed in the report?
          3       A.   I don't -- on August 1st? 
          4       Q.   Yes. 
          5       A.   I don't remember if that was specifically 
          6   something that was read in the report.  I do 
          7   remember that Anne Goldbach --
          8       Q.   My question was, was it discussed in the 
          9   report?
         10            MR. WARE:  Mr. Egbert, please stop talking 
         11   for a moment.  Let her finish.
         12            HEARING OFFICER DAHER:  Let her finish.
         13            MR. EGBERT:  Judge, my question was --
         14            MR. WARE:  Objection.
         15            HEARING OFFICER DAHER:  Answer.  Complete 
         16   your response. 
         17       A.   I do remember that Anne Goldbach said that 
         18   a prison sentence would be difficult for this 
         19   defendant because of the transgender situation, and 
         20   that was something she said in introducing the 
         21   report.
         22       Q.   But lawyers' statements to the Court are 
         23   advocacy, correct?
         24       A.   Yes.
 0156
          1       Q.   Here you had a report by a licensed 
          2   professional, correct?
          3       A.   That was part of the advocacy.
          4       Q.   Here you had a report by a licensed 
          5   professional, correct?
          6       A.   That was being --
          7       Q.   Here you had a report by a licensed 
          8   professional, correct? 
          9            MR. WARE:  Objection.
         10            HEARING OFFICER DAHER:  It's a very simple 
         11   question, Mr. Ware.  You're entitled to it.  Just 
         12   answer it. 
         13       A.   Yes, the report was done by a professional.
         14       Q.   Thank you.  And the Judge was taking that 
         15   report and giving it some credence in relying on it, 
         16   as you noticed and you testified earlier, correct?
         17       A.   Yes.
         18            MR. EGBERT:  Is this a good time, Judge?
         19            HEARING OFFICER DAHER:  If you want to go a 
         20   little longer, I don't mind.  If you want to break, 
         21   that's fine.
         22            MR. EGBERT:  We need to see the Court on a 
         23   couple of matters, anyway.
         24            HEARING OFFICER DAHER:  Sure.  Let's 
 0157
          1   suspend here. 
          2            (Discussion off the record)
          3            HEARING OFFICER DAHER:  Do you want to 
          4   address the Court?
          5            JUDGE LOPEZ:  Yes.  I understand that my 
          6   counsel has presented to you --
          7            HEARING OFFICER DAHER:  Come up to the 
          8   stand, please.
          9            JUDGE LOPEZ:  I understand my counsel has 
         10   already made my request to you that I have this trip 
         11   that was planned about two months ago on the 
         12   assumption that this case was going to start on 
         13   November 4.  And I am supposed to meet 20 people in 
         14   Miami on Sunday, who are counting on me to do this 
         15   trip. 
         16            In addition to that, there's actually 
         17   something even more important to me concerning this 
         18   trip, which is I have been contacted by the 
         19   International Section of the American Bar 
         20   Association.  They want to do a trip to Cuba.  They 
         21   have been unable to.  I have meetings scheduled with 
         22   officials in Cuba to see if I can put a program 
         23   together for them for March.  It is very important 
         24   to the work I have been doing in terms of having a 
 0158
          1   dialogue between the U.S. legal system and the Cuban 
          2   legal system.  I am one of the founding members of 
          3   what is known as the U.S. Cuba Legal Forum, a very 
          4   recent organization, and it's a very important 
          5   project for me and for a lot of people that are 
          6   involved in the long-term involvement in this 
          7   situation in the hopes of transition to democracy 
          8   and a number of other things that we're working for.
          9            HEARING OFFICER DAHER:  How long are you 
         10   going to be in Cuba?
         11            JUDGE LOPEZ:  For a week.
         12            HEARING OFFICER DAHER:  Mr. Ware? 
         13            MR. WARE:  Yes, Your Honor.  As I said at 
         14   the side bar, I oppose any continuance or 
         15   interruption in this trial.  This is, in effect, a 
         16   trial proceeding before the Hearing Officer.  There 
         17   are a great many people's lives affected here, not 
         18   just Judge Lopez.  There is importance in terms of 
         19   the witnesses who are prepared to come here.  There 
         20   is the importance of continuity in this proceeding.  
         21   We are all being pushed up against the Christmas 
         22   season with all of our attendant responsibilities to 
         23   family and friends, and I am very much opposed to a 
         24   hiatus for the purpose of an American Bar 
 0159
          1   Association liaison trip or some group that was 
          2   planned two months ago, at which point the Judge 
          3   greed to this schedule.  Moreover, Your Honor, the 
          4   defense of this case gave you a list of no less than 
          5   33 witnesses they intend to call.
          6            MR. EGBERT:  Potential witnesses.
          7            MR. WARE:  Now they're potential.  In any 
          8   event, there is a list in my hand of 33 witnesses.  
          9   There could have been no expectation that this case 
         10   would be done in 8 or 10 trial days, which is where 
         11   we'll be.  So I think, Your Honor, it's unreasonable 
         12   in terms of the effect on everyone, including 
         13   counsel for both sides, the Court personnel, the 
         14   witnesses involved, to interrupt this case for 
         15   purposes of a trip to Cuba.
         16            HEARING OFFICER DAHER:  The matter is being 
         17   taken under advisement.  I'll give you an answer 
         18   tomorrow morning.
         19            MR. EGBERT:  A couple of facts.  You should 
         20   know that I discussed this matter with Mr. Ware 
         21   sometime last week to apprise him of the 
         22   possibility.  I didn't know how far we were going to 
         23   go and basically the speed of this thing. 
         24            And I also want to put on the record that 
 0160
          1   no one thinks it more important than Judge Lopez in 
          2   these proceedings.  Mr. Ware may think it affects 
          3   other people's lives; it certainly has affected her 
          4   life.  But these are matters that she has been 
          5   involved in intricately over the years and more 
          6   recently, and I believe she's traveled on these 
          7   missions, so to speak, with congressmen and court 
          8   officials and various people over the past year to 
          9   build this bridge.  And it's not one that's 
         10   easily -- and I think, quite frankly, if she doesn't 
         11   take the group that's going now, they probably can't 
         12   go and achieve their purposes.
         13            HEARING OFFICER DAHER:  I'll give you an 
         14   answer tomorrow morning.  Let me think about it.
         15            (Off the record)
         16            HEARING OFFICER DAHER:  They're talking 
         17   about redesigning the courthouse and the big move 
         18   from P.O. Square, et cetera.  Okay.  I'll let you 
         19   know tomorrow morning. 
         20            MR. EGBERT:  Thank you.
         21                 (Whereupon, the hearing was
         22                 adjourned at 1:03 p.m.)
         23   
         24   
 0161
          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 VII, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on Tuesday, December 3, 2002.
          7   
          8   
          9                  _____________________________
         10                            Jane M. Williamson
         11                  Registered Merit Reporter
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