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 0001
                                            Volume VIII  
                                            Pages 8-1 to 8-171
                                            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
                           Wednesday, December 4, 2002
                                    9:35 a.m.
              
                 (Jane M. Williamson, Registered Merit Reporter)
              
                                     * * * *
              
 0002
          1                         I N D E X
              
          2   WITNESS               DIRECT  CROSS 
              
          3   Leora Joseph
              (By Mr. Egbert)         8-3             
          4   
              David Deakin
          5   (By Mr. Braceras)      8-146
              
          6                         *  *  * 
              
          7                      E X H I B I T S
              
          8   EX. NO.                         FOR ID   IN EVID.
              
          9   23  Massachusetts sentencing               8-169  
         10       guidelines
         11   
         12   
         13   
         14   
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   
 0003
          1                   P R O C E E D I N G S
          2            HEARING OFFICER DAHER:  We have an 
          3   outstanding motion for a continuance.  We'll take 
          4   that up at one o'clock.  Let's see how far we 
          5   progress today.
          6                  LEORA JOSEPH, Previously Sworn
          7                    CROSS EXAMINATION, Resumed
          8       BY MR. EGBERT: 
          9       Q.   Good morning, Ms. Joseph.
         10       A.   Good morning.
         11       Q.   Would you turn in the exhibit book to 
         12   Exhibit No. 3, please.
         13       A.   Yes.
         14       Q.   This is the -- strike that.  Do you know 
         15   what this document is?
         16       A.   Yes.
         17       Q.   And how do you know what it is?
         18       A.   It says at the top it's a psychosocial 
         19   assessment and dispositional plan for Charles Ebony 
         20   Horton.
         21       Q.   Do you recall ever seeing it before?
         22       A.   Yes, I do.
         23       Q.   Do you recall seeing it on August 1st of 
         24   the Year 2000?
 0004
          1       A.   Yes, I do.
          2       Q.   And is this the document that was provided 
          3   to Judge Lopez by Anne Goldbach?
          4       A.   It is.
          5       Q.   Now, with regard to this document, do you 
          6   agree with everything that's said in it?
          7       A.   I don't know enough to agree with every 
          8   single thing that's said in it.  For example, it 
          9   says that, "Ebony has not had surgical castration.  
         10   This procedure is expensive and infrequently 
         11   performed in this country."  I don't know if that's 
         12   the case, if it's expensive, and I don't know if 
         13   it's infrequently performed.  It says here, "Ebony 
         14   has friends who had surgery, with results 
         15   controversial."  I don't know enough about the 
         16   surgical castration to know whether or not Ebony 
         17   Horton had friends who were castrated or not.
         18       Q.   Did you on August 1st of the Year 2000 seek 
         19   time from the Court to investigate any of these 
         20   matters, or didn't you care? 
         21            MR. WARE:  Your Honor, I'm going to object.  
         22   We've been over this for two days now.
         23            HEARING OFFICER DAHER:  Sustained.  "...or 
         24   didn't you care" is stricken.
 0005
          1       Q.   Did you investigate it?
          2            MR. WARE:  Objection.
          3            HEARING OFFICER DAHER:  Overruled.
          4       A.   Did I investigate the issue of surgical 
          5   castration?
          6       Q.   Any of the matters you --
          7            HEARING OFFICER DAHER:  Very simple 
          8   question.  Yes or no?
          9       A.   No.
         10            HEARING OFFICER DAHER:  Move on.
         11       Q.   Is there anything else in this report you 
         12   disagree with?
         13       A.   Well, I didn't say that I disagreed with 
         14   that.  I just said --
         15       Q.   Or that you can't form an opinion?
         16       A.   (Witness reviews document)  The part under 
         17   the "Clinical Impressions" where it says, "The 
         18   social worker writes that she finds it highly 
         19   unlikely that Ebony will repeat the behavior that 
         20   brought her to court in this case.  Further 
         21   incarceration will be a disaster for Ebony."  I 
         22   don't know enough about the defendant to say if the 
         23   defendant would be a repeat offender.
         24       Q.   So you don't disagree.  You just don't know 
 0006
          1   whether to agree with it or not.
          2       A.   That's correct.
          3       Q.   Is that right?
          4       A.   That's correct.
          5       Q.   But --
          6       A.   Most of the things in this report, even if 
          7   taken for the truth, I don't have any -- in the 
          8   context of the plea negotiations, I would have no 
          9   reason to think that there was any lie in this 
         10   report.
         11       Q.   That's not my question.  My question is a 
         12   simple one.  For you to point out for me those 
         13   matters which you didn't agree with or didn't have 
         14   enough information to form an opinion on. 
         15       A.   Obviously I disagree with the 
         16   recommendation section.
         17       Q.   Let's go to the one -- did you say you 
         18   disagree or don't have enough information with 
         19   regard to "I find it highly unlikely that Ebony will 
         20   repeat the behavior that brought him to court in 
         21   this case"? 
         22       A.   I suppose that I disagree with that 
         23   comment.
         24       Q.   Did you discuss that with Judge Lopez on 
 0007
          1   August 1st of the Year 2000?
          2       A.   Disagree with that specific comment? 
          3       Q.   Yes. 
          4       A.   No, I don't think I did.
          5       Q.   Did you tell Judge Lopez that you wanted to 
          6   have -- provide her information on the subject of 
          7   reoffending?
          8       A.   No, I don't believe I did.
          9       Q.   So you didn't seek to provide her any 
         10   further information.
         11       A.   On reoffending? 
         12       Q.   Right. 
         13       A.   No.
         14       Q.   So you agree with me that the only 
         15   professional opinion that was before the Judge at 
         16   that time was the opinion of Ms. Katz on the issue 
         17   of whether or not Mr. Horton was a likely 
         18   reoffender.
         19       A.   The only psychosocial opinion.
         20       Q.   Well, the only opinion, period.
         21       A.   Yes.
         22       Q.   Isn't that right?
         23       A.   Yes.
         24       Q.   In your understanding and experience as a 
 0008
          1   prosecutor --
          2       A.   Yes.
          3       Q.    -- is one of the major factors considered 
          4   by courts the likelihood of reoffending by a 
          5   particular defendant?
          6       A.   At what point do you mean that they should 
          7   consider?
          8       Q.   At the point of sentencing. 
          9       A.   At the point of sentencing, the primary 
         10   goal of sentencing is to punish for the crime that's 
         11   already been committed, and the factors that go into 
         12   that and the serious nature, I don't know that -- 
         13   I'm sure that courts do consider at some point the 
         14   likelihood of reoffending.  And a lot of that 
         15   depends, for example, on a defendant's prior record.  
         16   There's been a pattern of certain types of crimes 
         17   and then again the defendant appears before the 
         18   Court.  That would be an indication of a predictor.  
         19   But those -- you know, obviously no one can tell the 
         20   future, and the primary goal of the sentence is to 
         21   punish the defendant for the crimes that have been 
         22   committed to that point in time.
         23       Q.   Have you heard of punishment deterrence?
         24       A.   Yes.
 0009
          1       Q.   What's deterrence?
          2       A.   Deterrence is -- there's a twofold meaning 
          3   to that.  One is societal deterrence, which is to 
          4   convey a message to society that this type of 
          5   behavior isn't tolerated and the consequence that if 
          6   you kidnap and rape a child, you will be punished 
          7   for that so that that message would go out to other 
          8   potential child rapists that they would be punished.  
          9            And the other aspect of deterrence is to 
         10   show the particular defendant in that case that they 
         11   can't get away with that kind of behavior, that it's 
         12   unacceptable in our society, that for the period of 
         13   time that they would be imprisoned, for sure they 
         14   wouldn't be able to commit those crimes, but also 
         15   hopefully in the future they would realize that if 
         16   they did attempt again to kidnap somebody or rape 
         17   someone, that they would be punished.  So the 
         18   experience of having gone to prison would help focus 
         19   the person on --
         20       Q.   The sentence is to cover deterrence, 
         21   correct?  The sentence that's imposed, one of its 
         22   factors is deterrence, correct?
         23       A.   Yes.
         24       Q.   And it doesn't have to be prison to deter, 
 0010
          1   does it?
          2       A.   It doesn't have to be prison.
          3       Q.   You keep talking about sending to prison.  
          4   Deterrence is a part of sentencing.  And one of the 
          5   issues with deterrence is whether or not the 
          6   defendant would reofffend?
          7       A.   That's correct.
          8       Q.   And whether or not the defendant has taken 
          9   steps in his or her life to rehabilitate themselves 
         10   such that they are unlikely to reoffend.
         11       A.   That's a consideration in sentencing, yes.
         12       Q.   Not necessarily for the DA's office, 
         13   however.
         14       A.   No.  We would consider whatever positive 
         15   steps would be taken.  But again, each case has to 
         16   be judged on the merits.  A car thief or a drunk 
         17   driver or a child rapist, all of those are different 
         18   types of crimes, and I don't think we can make 
         19   blanket statements about when the DA's office would 
         20   evaluate what steps the defendant has made, 
         21   depending on specifics of the crime.
         22       Q.   Exactly.  So what it is is it's an 
         23   individualized sentencing based on the crime, the 
         24   seriousness of the crime, the characteristics of the 
 0011
          1   defendant, the likelihood of the offending, 
          2   deterrence and the like, rehabilitation --
          3       A.   Strength of the case, the ability --
          4       Q.   Strength of the case relates to the 
          5   Commonwealth's recommendation.
          6       A.   Right.
          7       Q.   Judges don't care about the strength of 
          8   your case, do they?
          9       A.   I understand, but your question was in the 
         10   DA's office.
         11       Q.   No.  I'm talking about sentencing.  We're 
         12   talking about sentencing with judges?
         13       A.   That's right.
         14       Q.   Judges consider things like deterrence, 
         15   rehabilitation, the seriousness of the crime --
         16            MR. WARE:  Objection, Your Honor.
         17            HEARING OFFICER DAHER:  What's your 
         18   objection? 
         19            MR. WARE:  We're just repeating things that 
         20   have already been said, and now we're talking about 
         21   what judges do. 
         22            HEARING OFFICER DAHER:  Go ahead.  You can 
         23   have it.  Overruled.
         24       A.   I'm sure those are all things that judges 
 0012
          1   consider, yes.
          2       Q.   Now, once the Judge on August 1st of 
          3   2000 -- strike that. 
          4            At some point you and Ms. Goldbach were 
          5   done advocating your positions; is that correct?
          6       A.   That's correct.
          7       Q.   You weren't shut off; you weren't cut off.
          8       A.   No, I wasn't.
          9       Q.   You weren't treated badly.
         10       A.   No.
         11       Q.   Normal everyday plea conference.
         12       A.   That's correct.
         13       Q.   And the Judge announced what her decision 
         14   would be.
         15       A.   That's correct.
         16       Q.   And that decision was that she would give 
         17   probation, with certain conditions that we don't 
         18   have to get into, but a number of conditions which 
         19   we've talked about earlier; is that right?
         20       A.   That's correct.
         21       Q.   Once she announced that, you knew, as you 
         22   said before, that as far as sentencing goes, the 
         23   case was over.
         24            MR. WARE:  Objection.  This was all done 
 0013
          1   yesterday.  We're just repeating.
          2            MR. EGBERT:  It was done as to Estrada and 
          3   Calixte. 
          4            HEARING OFFICER DAHER:  Overruled.  Go 
          5   ahead. 
          6       A.   Well, the sentence still needed to be 
          7   imposed, but the Judge's decision had been made.
          8       Q.   And the Judge's decision had been made.  
          9   And as far as what the sentence was going to be in 
         10   the case, that was concluded?
         11       A.   Yes.
         12       Q.   And any advocacy that was going to be done, 
         13   as you testified yesterday in the Horton case, was 
         14   going to be done basically to put the --
         15            HEARING OFFICER DAHER:  Mr. Ware, an 
         16   objection? 
         17            MR. WARE:  Yes. 
         18            MR. EGBERT:  I asked yesterday as to 
         19   Calixte --
         20            HEARING OFFICER DAHER:  Overruled.  I'll 
         21   give you some latitude.  Go ahead.
         22            THE WITNESS:  Can you repeat the question?
         23       Q.   And as you testified yesterday in Calixte 
         24   and Estrada, now the Commonwealth -- after this 
 0014
          1   sentence was announced, the Commonwealth's advocacy 
          2   basically was to put on the record for the public 
          3   its position with regard to this case at a future 
          4   sentencing hearing.
          5       A.   At the plea, yes.
          6       Q.   Is that right?
          7       A.   Yes.
          8       Q.   Now, when you left or just before you left 
          9   the August 1st conference, you indicated your 
         10   dissatisfaction with the Court's position, correct?
         11       A.   I said -- yes, I did.
         12       Q.   And you told the Court -- after expressing 
         13   your dissatisfaction, you said to the Court, "and 
         14   the press is following this case," right?
         15       A.   I don't believe that those were the words I 
         16   used.
         17       Q.   What words did you use?
         18       A.   I think I said something to the effect of, 
         19   "Your Honor, the Commonwealth is seriously objecting 
         20   to that sentence.  This is something that -- this is 
         21   a case that we've been taking very seriously.  I 
         22   believe there's been some attention or coverage in 
         23   the case, and we will object, to make -- to make it 
         24   perfectly clear, we will object to this probationary 
 0015
          1   sentence."  That was still part of the advocacy at 
          2   that point for the sentencing.
          3       Q.   When you told the Judge that it received 
          4   attention or coverage --
          5       A.   Yes.
          6       Q.    -- you were talking about press coverage, 
          7   weren't you?
          8       A.   Yes.  Well, I was talking about -- yes, 
          9   press coverage.
         10       Q.   And what press coverage had there been of 
         11   the Horton case?
         12       A.   My memory is that there had been an article 
         13   at the defendant's arraignment in the District Court 
         14   in one of the Dorchester weekly-type papers.  And I 
         15   know that my office had -- the press office in the 
         16   district attorney's office had expressed an interest 
         17   in the case and that I had been updating through the 
         18   channels the press office in our office about the 
         19   attention that this case had received.
         20       Q.   Well, your internal office -- strike that. 
         21            Your internal press office getting 
         22   information from you doesn't mean there's press 
         23   attention, correct?
         24       A.   Well, it means that our internal press 
 0016
          1   office is following the case.  I don't know what the 
          2   logical conclusion of that would be, but I felt the 
          3   need to be up front with the Judge about that.
          4       Q.   Didn't you feel the need to say to her, 
          5   after she was given the sentence that you didn't 
          6   like, there was going to be press attention to this 
          7   and she better look out?
          8       A.   No.  That's exactly not the case.
          9       Q.   The only press attention this case had 
         10   gotten was a single article in a local paper in 
         11   Dorchester some year or so before or some year and a 
         12   half or so before the date that you were appearing 
         13   before the Court; is that right?
         14       A.   I think it was only about six months 
         15   before.
         16       Q.   Six months?  Was it November of '99?
         17       A.   Correct.  The plea was August of 2000.
         18       Q.   So you're talking about ten months.
         19       A.   Between November of '99 and August of 2000 
         20   it's about eight months or so.
         21       Q.   Eight months to August, two months, 
         22   November, December; that's ten, right?
         23       A.   Yes.
         24       Q.   And that was a single article in some 
 0017
          1   Dorchester weekly, correct?
          2       A.   Yes.
          3       Q.   Nothing in major newspapers in the 
          4   Commonwealth.
          5       A.   Not that I know of.
          6       Q.   Nothing on any television station, on any 
          7   radio station anywhere, and you felt compelled, 
          8   based upon that article in the Dorchester weekly 
          9   some ten months before, to tell the Judge at the end 
         10   of the conference there's attention or coverage to 
         11   this case?
         12       A.   I felt compelled to let the Judge know that 
         13   our press office -- that there had been some 
         14   coverage, that our press office was interested, 
         15   because I know from my past experience with the 
         16   Judge that she didn't like media coverage of these 
         17   cases and I wanted her just to not be blind-sided.  
         18   I wanted her to have all that in her head, not in 
         19   terms of part of my advocacy for the sentence, but 
         20   simply so that she's aware of all the factors, just 
         21   like you would tell the Judge things like the 
         22   victim's family will be here and they would like to 
         23   make an impact statement.  That is not a piece of 
         24   advocacy, per se, in terms of making a sentence 
 0018
          1   recommendation, but it is a factor that judges, I 
          2   believe, should hear so that they're not taken aback 
          3   or surprised by any proceeding that would happen in 
          4   the courtroom.
          5       Q.   So you wanted to get it so that she 
          6   wouldn't be surprised.
          7       A.   That's correct.
          8       Q.   That's your testimony under oath?
          9       A.   Yes.
         10       Q.   And you and your supervisor, Mr. Deakin, 
         11   have engaged in the past with other judges with 
         12   threats of going to the press, have you not?
         13       A.   Not at all.
         14       Q.   And you're sure of that, too?
         15       A.   Yes.
         16       Q.   And you live by that answer?
         17       A.   Yes.
         18       Q.   And also let me ask you with regard to your 
         19   candor towards judges.  Do you recall the case of 
         20   Commonwealth versus Jermaine Gilmore in the Boston 
         21   Municipal Court before Judge Johnson?
         22            MR. WARE:  I'm going to object to this.  
         23   There is no evidence that Judge Lopez was aware of 
         24   anything of this nature, so how can it be an excuse 
 0019
          1   for whatever action the Judge took?
          2            HEARING OFFICER DAHER:  I'll hear you.
          3            MR. EGBERT:  It's on the question of 
          4   whether or not she has a pattern of lying to 
          5   judges --
          6            MR. WARE:  Your Honor, the pattern of a 
          7   witness is not relevant and not admissible.
          8            HEARING OFFICER DAHER:  Finish your 
          9   argument.
         10            MR. EGBERT:  -- a pattern of lying to 
         11   judges in serious cases in an attempt to get her own 
         12   way, in an attempt to get judges to do things that 
         13   they otherwise wouldn't do. 
         14            HEARING OFFICER DAHER:  To get a judge to 
         15   do something that he or she wouldn't do?
         16            MR. EGBERT:  By their lies.  There is 
         17   evidence --
         18            MR. WARE:  Objection.  Objection to counsel 
         19   making a speech, now attacking a witness.  We've 
         20   been through the victim.  Now we're turning to the 
         21   district attorneys here.  This is an irrelevant 
         22   third-party red herring, and --
         23            HEARING OFFICER DAHER:  Finish it up.
         24            MR. EGBERT:  I'll make an offer of proof.
 0020
          1            HEARING OFFICER DAHER:  I'm going to 
          2   sustain the objection.
          3            MR. EGBERT:  I'm going to make an offer of 
          4   proof.
          5            MR. WARE:  Let it be made at side bar.
          6            MR. EGBERT:  Judge, I don't know why, when 
          7   the Judicial Conduct Commission's lawyers always 
          8   want to have little speeches for the press, they 
          9   make sure and ask you to have them done out here.  
         10   If they want these transcripts and these matters to 
         11   be out in the public domain, then that's where they 
         12   ought to be.
         13            MR. WARE:  No one's a more practiced speech 
         14   maker than Mr. Egbert.  This is a matter that's 
         15   utterly irrelevant to the proceeding.
         16            HEARING OFFICER DAHER:  Side bar.
         17       (At side bar.)
         18            MR. EGBERT:  My offer of proof.  In the 
         19   case of Commonwealth versus Jermaine Gilmore, 
         20   9601CR001114, which was dismissed on August 14th of 
         21   1996, the attorney of record is Ms. Joseph, who was 
         22   the prosecutor on the case and had made indications 
         23   to a judge on three prior occasions that the witness 
         24   in the case was too afraid to come in and testify, 
 0021
          1   and, therefore, needed continuances and the like.  
          2            On a fourth occasion, when the lawyers were 
          3   coming in because they doubted what she had to say, 
          4   they brought the witness into the courtroom and had 
          5   the witness standing there.  When Ms. Joseph came 
          6   into the courtroom before Judge Johnson, she 
          7   informed Judge Johnson she had just got off the 
          8   phone with the witness, Tyesha Busby, who was 
          9   petrified and would not come to court, and, 
         10   therefore, the case couldn't go forward, at which 
         11   point Tyesha Busby stood up in the courtroom and 
         12   addressed the Judge, and the case was dismissed.  
         13            That's the information I've received from 
         14   counsel in the case.
         15            MR. WARE:  If that's the offer of proof, it 
         16   proves my point that there's nothing to this 
         17   whatsoever.
         18            HEARING OFFICER DAHER:  Thank you. 
         19       (End of side bar.)
         20       BY MR. EGBERT:  
         21       Q.   After you left court on August 1st of the 
         22   Year 2000, you went back to your office?
         23       A.   Yes.
         24       Q.   And spoke with Mr. Deakin?
 0022
          1       A.   Yes, I did.
          2       Q.   And when you spoke with Mr. Deakin, you 
          3   told him that you were shocked and dismayed about 
          4   the sentence that was going to be imposed by Judge 
          5   Lopez.
          6       A.   I told him I was shocked.  I don't know if 
          7   I said "dismayed."
          8       Q.   I think you said "stupified" on a prior 
          9   occasion, didn't you?
         10       A.   I don't remember saying "stupified."  I 
         11   believe I said I was shocked.
         12       Q.   And did you and Mr. Deakin discuss getting 
         13   Judge Lopez to reconsider her decision?
         14       A.   No.
         15       Q.   When lawyers typically are dissatisfied 
         16   with a judge's decision and think that it was wrong 
         17   or that maybe they were misled or the like, is it 
         18   customary for lawyers to seek reconsideration of 
         19   those proceedings?
         20            MR. WARE:  Objection as to the customary 
         21   practice of all lawyers in the Commonwealth.
         22            HEARING OFFICER DAHER:  Sustained.
         23       Q.   How about of the DA's office?
         24       A.   I'm not familiar with the practice of 
 0023
          1   requesting a judge, once they've announced their 
          2   sentence, to reconsider the sentence, unless there's 
          3   been facts that weren't brought up at the plea 
          4   conference.  For example, if there's a time period 
          5   between a plea conference and the actual plea and 
          6   during that time the defendant gets rearrested or 
          7   threats are made to the victim or any of those types 
          8   of circumstances, I think in those cases we would 
          9   petition the Court to reconsider the sentence.
         10       Q.   So there was nothing like that in this 
         11   case, the Horton case?
         12       A.   Not that I knew of.
         13       Q.   And from your perspective, no reason or 
         14   desire to seek a reconsideration.
         15       A.   Once Judge Lopez had made her decision and 
         16   we left court, it was clear that that was the 
         17   decision, and --
         18       Q.   Just answer my question.
         19       A.   No, there was --
         20       Q.   So you had no desire nor reason to seek a 
         21   reconsideration at that time.
         22       A.   Well, I had no reason to seek a 
         23   reconsideration.
         24       Q.   And nothing -- and you did nothing, your 
 0024
          1   office, from August 1st onward to seek a 
          2   reconsideration of Judge Lopez's ruling; is that 
          3   correct?
          4       A.   That's correct.
          5       Q.   Now, when you met with Mr. Deakin back at 
          6   the office, after saying that you were at least 
          7   shocked or whatever, did you discuss with Mr. Deakin 
          8   calling your press office?
          9       A.   Mr. Deakin and I spoke --
         10       Q.   Did you discuss with Mr. Deakin calling the 
         11   press office?
         12       A.   We didn't really discuss it.  Towards the 
         13   end of our discussion I said to him, "I don't know 
         14   if you want to tell Elizabeth Keeley," who's not in 
         15   the press office, but she's the first assistant --
         16       Q.   Ma'am, I would like you to just tell me if 
         17   you discussed it with the press office.
         18       A.   It wasn't really a discussion.
         19       Q.   Was there something said about calling the 
         20   press office?
         21       A.   Yes.
         22       Q.   Who said it?
         23       A.   I said to Mr. Deakin, "I don't know if 
         24   you'd like to inform Elizabeth Keeley or Jim 
 0025
          1   Borghesani," who was the press secretary, "about 
          2   this case.  I leave that to you."  And that was what 
          3   I said to him.  I don't know that he responded in a 
          4   meaningful way at that point in time.  And I went 
          5   back to my office.
          6       Q.   So then let me ask you these questions:  
          7   One, was it clear to you from your conversation with 
          8   Mr. Deakin that the press office was being notified?
          9       A.   Not at all. 
         10       Q.   Two, were you, quote, tasked with the -- 
         11   strike that. 
         12            Were you, quote, tasked with getting the 
         13   information to the press office?
         14       A.   No.
         15       Q.   Did you state, quote, that you thought that 
         16   the press office should be notified?
         17       A.   No, I don't believe I stated that I thought 
         18   they should be notified.  I --
         19            MR. WARE:  May the witness finish her 
         20   answer?
         21       A.   I left that to the discretion of my 
         22   supervisor.
         23       Q.   Did Mr. Deakin tell you to give the 
         24   information to Mr. Borghesani?
 0026
          1       A.   No, I don't believe he did.
          2       Q.   These "I don't believe he did," do you have 
          3   a memory one way or the other?
          4       A.   My only memory about a discussion regarding 
          5   notifying the press office was when I said to Mr. 
          6   Deakin, "David, I don't know if you want to let 
          7   Elizabeth or Jim Borghesani know about this."  
          8   That's my only memory.
          9       Q.   So as to the four questions I just asked 
         10   you to which you said "I don't believe so" --
         11       A.   Yes.
         12       Q.    -- the answer is that you did not have any 
         13   such conversation.  That's your testimony; is that 
         14   correct?
         15       A.   I do not remember -- if we could re-go over 
         16   those questions --
         17       Q.   Is your memory fuzzy about this particular 
         18   event?
         19       A.   No.
         20       Q.   Is it clear?
         21       A.   It's clear as to some of the specifics.
         22       Q.   I'll ask you again, and I'd ask for a clear 
         23   answer --
         24            MR. WARE:  Your Honor, I object.  The 
 0027
          1   witness has said she doesn't remember saying other 
          2   than what she said she said.
          3            HEARING OFFICER DAHER:  Overruled.  Cross 
          4   examination.
          5       Q.   One, was it clear to you the press office 
          6   was being notified?
          7       A.   No, that was not clear to me then.
          8       Q.   Two, were you, quote, tasked with getting 
          9   information to the press office?
         10       A.   No, I wasn't.
         11       Q.   Three, did you indicate that you thought 
         12   the press office should be notified?
         13       A.   I don't believe I did, no.
         14       Q.   And four, did Mr. Deakin tell you to give 
         15   the information to Mr. Borghesani?
         16       A.   I don't remember David saying that.
         17       Q.   You don't remember it or it didn't happen?
         18       A.   I don't know what information there was at 
         19   that point to give, and I don't believe --
         20       Q.   The question is you don't remember or it 
         21   didn't happen? 
         22            MR. WARE:  May the witness finish her 
         23   answer?
         24            HEARING OFFICER DAHER:  It's very simple.  
 0028
          1   You don't remember.  It didn't happen.
          2       A.   I don't remember that.
          3            HEARING OFFICER DAHER:  That's the answer.  
          4   Let's go.
          5       Q.   This was your case as the lead prosecutor; 
          6   is that correct?
          7       A.   That's correct.
          8       Q.   Do you understand yourself to be 
          9   responsible under the ethical rules for lawyers of 
         10   the Commonwealth of Massachusetts to oversee any 
         11   press involvement or public statements in your case?
         12       A.   I understand my obligation to exercise 
         13   reasonable care in making sure that the press office 
         14   is adequately notified, both per our office policy 
         15   and our ethical obligations about the current cases.  
         16   As to actual decisions about press releases, that 
         17   was not an area that I would be involved in as a 
         18   line ADA.
         19       Q.   Were you the prosecutor in this case?
         20       A.   Yes, I was.
         21       Q.   Are you familiar with Rule 3.8, the special 
         22   responsibilities of a prosecutor under the Code of 
         23   Conduct for Massachusetts lawyers?
         24       A.   I am, but if I could see a copy, that would 
 0029
          1   be --
          2       Q.   I will show it to you in a moment.  Are you 
          3   familiar with it?
          4       A.   Yes, I am.
          5       Q.   And you've seen a number of copies of it 
          6   since the deposition where you indicated you hadn't 
          7   seen it before; isn't that right?
          8       A.   That's correct.
          9       Q.   At the deposition you remember testifying 
         10   that you don't remember anything about Rule 3.8?
         11       A.   I don't remember saying exactly that, no.  
         12   I thought I said that I don't remember the 
         13   specifics.  If you'd like to show me where I said 
         14   that, that would be fine.  But I do know now what 
         15   Rule 3.8 is and how it reads.
         16       Q.   Did you know about Rule 3.8 back at the 
         17   time that the press release was issued by the DA's 
         18   office in the Horton's case?
         19       A.   I knew about the general rules that 
         20   obligate prosecutors that we used every day, our 
         21   ethical rules, and I knew about our office policies 
         22   as well.  I don't know that I knew to quote chapter 
         23   and verse from each statute.
         24       Q.   When you testified at the deposition, you 
 0030
          1   testified that you didn't know if you had ever read 
          2   Rule 3.8 before the day of the deposition; is that 
          3   right?
          4       A.   Was that before or after you showed me a 
          5   copy of the rule at that point during the 
          6   deposition? 
          7       Q.   Question -- let me give them to you.  Look 
          8   on at Page 80 of the first day of your deposition, 
          9   which would be C-2.  Do you have it?
         10       A.   Yes.
         11       Q.   I direct your attention to Page 80, Line 
         12   19.  The question is put to you, "I've put before 
         13   you what I've marked as Deposition Exhibit 1, which 
         14   is entitled 'Rule 3.8, Special Responsibilities of a 
         15   Prosecutor.'  Do you see that?"  And you answered, 
         16   "Yes, I do."
         17       A.   Yes.
         18       Q.   Then I asked you, "Have you ever read that 
         19   before?"  You said, "I may have," right?
         20       A.   That's correct.
         21       Q.   And I said, "Do you know" and you said, "I 
         22   don't know." 
         23            So you didn't know if you had even read the 
         24   ethical rules for prosecutors before the deposition 
 0031
          1   was taken in August of 2002.
          2       A.   I didn't remember reading the specific 
          3   statutes that were before me.
          4       Q.   They're not statutes, ma'am.  They're rules 
          5   of conduct for lawyers and prosecutors which you're 
          6   required to abide by in the conduct of your affairs, 
          7   aren't they?
          8       A.   Yes.
          9       Q.   And you didn't even know if you had ever 
         10   read it before?
         11       A.   I didn't remember if I had read it, looking 
         12   at it in the same way that the paper you handed me 
         13   looked.  I don't know --
         14       Q.   You thought I was asking you whether you 
         15   had read the exact copy that I was showing you?
         16       A.   No.  I don't know if I had seen it in a 
         17   photocopied fashion, in a book, in a summary form, 
         18   in a training.  I don't remember the specific way in 
         19   which those rules were taught to me.
         20       Q.   Well, you've at least learned about them 
         21   now, haven't you?
         22       A.   Yes.
         23       Q.   Because you've been going over them with 
         24   Mr. Ware and Mr. Braceras; is that right?
 0032
          1       A.   I don't think Mr. Ware and I went over 
          2   those, but you and I went over those at the 
          3   deposition at your office.
          4       Q.   You haven't gone over them since?
          5       A.   I spoke to my attorney about them.
          6       Q.   And that's all?
          7       A.   I don't remember if Mr. Ware or Mr. 
          8   Braceras and I spoke about the rules specifically or 
          9   whether we read them all together.
         10       Q.   And are you aware of the fact that Rule 3.8 
         11   requires a prosecutor to exercise reasonable care to 
         12   make sure that no one in the prosecutor's office 
         13   makes public comment outside of the rules of 
         14   conduct?
         15       A.   Yes.
         16       Q.   And what care did you take in the Horton 
         17   case to assure that no public comment would be made 
         18   that was inappropriate?
         19       A.   The care I took in the Horton case was to 
         20   provide an arraignment to our press office, a 
         21   factual background to the case, copies of the police 
         22   report and the grand jury minutes, copies of any 
         23   other reports that I had.  And the care I took in 
         24   regulating information to the press was simply to 
 0033
          1   follow the office policies, which was that I 
          2   entrusted that job to people who were in superior 
          3   positions to mine in the front office, to make those 
          4   decisions when they had all the facts that I had, 
          5   and to do with them what they will.  That was a 
          6   decision that was beyond my scope as a line ADA on 
          7   the cases.
          8       Q.   Where in the documents that you gave to the 
          9   press office does there appear the word 
         10   "transgendered"?
         11       A.   I don't know if I used in my direct 
         12   indictment request the word "transgendered."  I did 
         13   identify the issue about the defendant appearing as 
         14   a woman and undergoing some type of transsexual 
         15   transformation.  I think I used the word 
         16   "transsexual," but I'm not sure.
         17       Q.   In what document?
         18       A.   In my direct indictment request.
         19       Q.   Say that again.  Your direct indictment 
         20   request?
         21       A.   Yes.
         22       Q.   Well, your direct indictment request isn't 
         23   public information, is it?
         24       A.   No, it's not.
 0034
          1       Q.   That's not information that can be 
          2   disclosed by the DA's office in a press release, is 
          3   it?
          4       A.   No.  It's -- well, that document is an 
          5   internal work document that I provide to my 
          6   superiors, and they are then able to do with it what 
          7   they will.
          8       Q.   You're the prosecutor in the case, aren't 
          9   you?  You're responsible for the press -- are you 
         10   responsible to make sure that the press takes 
         11   reasonable care --
         12            HEARING OFFICER DAHER:  What's your 
         13   objection? 
         14            MR. WARE:  We've been over this.  She said 
         15   she gave the issue to her superiors, followed office 
         16   procedure.  Asking her three times isn't going to 
         17   change that.
         18            HEARING OFFICER DAHER:  If you need another 
         19   few questions --
         20            MR. EGBERT:  I do.
         21            HEARING OFFICER DAHER:  -- I'll give you 
         22   another few questions.
         23       Q.   Is there any document in the public domain 
         24   which you have which identifies the defendant as a 
 0035
          1   transgendered person?
          2       A.   I don't know what you mean by a document in 
          3   the public domain.
          4       Q.   Do you know what the public domain is?
          5       A.   Yes.
          6       Q.   That's things that are filed in court, for 
          7   example?
          8       A.   Yes.
          9       Q.   Things that are spoken about in court, for 
         10   example, on the record?
         11       A.   Yes.
         12       Q.   Not from your private file.
         13       A.   That's correct.
         14       Q.   Was there any document in the public domain 
         15   that identified the defendant as transgendered?
         16       A.   I don't know.
         17       Q.   Do you know where, then -- you know that 
         18   the press release ultimately issued had the word 
         19   "transgendered" in it.
         20       A.   I learned that, yes.
         21       Q.   Do you know where that came from?
         22       A.   It came --
         23       Q.   Do you know?
         24       A.   I don't know for a fact, no, I don't.
 0036
          1       Q.   Now, obviously -- so if you didn't know 
          2   about any press and you didn't know about any press 
          3   release, right?
          4            MR. WARE:  Objection.  The witness --
          5            HEARING OFFICER DAHER:  What's the 
          6   objection?
          7            MR. WARE:  The objection is the witness has 
          8   testified to the contrary, and we've been over this.
          9            HEARING OFFICER DAHER:  Go ahead.  
         10   Overruled.
         11       Q.   On August 1st of 2000 it's your testimony 
         12   that you didn't know the press office was going to 
         13   be notified, correct?
         14       A.   I didn't know if they would be, no.
         15       Q.   And you didn't know anything about a press 
         16   release, right?
         17       A.   That's correct.
         18       Q.   So then I take it you didn't seek the 
         19   victim's family's permission to put this matter in 
         20   the press.
         21       A.   We -- when the defendant was arraigned and 
         22   I sent the materials on to the press office, there 
         23   had already been press coverage in the case.  And we 
         24   didn't ask for permission --
 0037
          1            MR. EGBERT:  Judge, can I just get an 
          2   answer to my question, instead of the long-range --
          3            HEARING OFFICER DAHER:  She's instructed to 
          4   give you a response.
          5       A.   We didn't seek permission at arraignment to 
          6   notify our press office about the case, no.
          7       Q.   Let's go back to my question.  On August 
          8   1st of 2000 through August 4 of 2000 --
          9       A.   Yes.
         10       Q.   -- did you seek from the victim or his 
         11   family any permission or authority to notify the 
         12   press about his case?
         13            MR. WARE:  Objection.  It's irrelevant.  
         14   Already been in the press --
         15            HEARING OFFICER DAHER:  Mr. Ware, that's 
         16   the very same question he asked five minutes ago and 
         17   he didn't get a response to it.  Overruled.  Let's 
         18   move on.  Answer it. 
         19       A.   I don't remember specifically speaking to 
         20   the victim's family about --
         21            HEARING OFFICER DAHER:  Let's move on.  She 
         22   has no memory. 
         23       Q.   Now, you are very -- one of the issues that 
         24   you indicated you were concerned with as we get up 
 0038
          1   to August 4th in your direct testimony was the 
          2   impact of various matters on the victim, right?
          3       A.   Yes.
          4       Q.   Now, did you consider the impact of 
          5   heightened press attention in this case on the 
          6   victim?
          7       A.   Well --
          8       Q.   Did you or didn't you?
          9       A.   We considered it.
         10       Q.   "We"?  Who is the "we"?
         11       A.   The victim witness advocate.
         12       Q.   I'm asking you.  Did you consider it?
         13       A.   I think it was something that we talked 
         14   about.  I don't have a specific memory of discussing 
         15   the heightened press situation, because there was 
         16   none at that point and because the victim's name is 
         17   excluded from any press releases or from any 
         18   discussions in court, in open court.  So that 
         19   wasn't -- we were more concerned with helping the 
         20   victim through the process --
         21       Q.   So the answer is you didn't consider it.  I 
         22   just really want an answer to my question instead of 
         23   a lesson in sociology. 
         24       A.   I'm really trying to answer your questions, 
 0039
          1   and --
          2       Q.   Did you consider it?
          3       A.   I don't remember having a specific 
          4   discussion with anybody about press and the victim, 
          5   if that helps your question.
          6       Q.   That's the answer to my question.  Thank 
          7   you.
          8            HEARING OFFICER DAHER:  Mr. Egbert, I've 
          9   given you a lot of latitude in this.  What's the 
         10   relevancy? 
         11            MR. EGBERT:  The relevancy is, Judge, that 
         12   one of the issues here is that Ms. Joseph goes into 
         13   Judge Lopez's lobby on August 4th of 2000, after 
         14   this press attention has been created and after the 
         15   defendant is sent off to some room, and his mother's 
         16   screaming somewhere and the like and the plea is not 
         17   about to go forward.  And there is much discussion 
         18   in her direct examination that she had, one, nothing 
         19   to do with the press; two, didn't know it was going 
         20   to occur; three, told Judge Lopez or left Judge 
         21   Lopez with the position that she knew nothing about 
         22   it.  And her credibility in those areas is 
         23   extraordinarily important to the findings that were 
         24   made by Judge Lopez which are a matter of issue here 
 0040
          1   today, and all of her lack of doings of what one 
          2   would expect someone to do in that area go to the 
          3   credibility of those statements.
          4            HEARING OFFICER DAHER:  I think we're going 
          5   to have to change the line of questioning in regards 
          6   to this.  Just move on.
          7            MR. EGBERT:  With respect to that, I'll 
          8   move on and expect objections when they come.
          9            HEARING OFFICER DAHER:  Noted.
         10            MR. EGBERT:  But I'm going to have to ask 
         11   the questions.
         12            HEARING OFFICER DAHER:  Fine.
         13       BY MR. EGBERT:
         14       Q.   On August 1st of the Year 2000, you didn't 
         15   know whether or not there would be a plea in the 
         16   Horton case, did you?
         17       A.   I knew it would be a plea.
         18       Q.   How did you know that?
         19       A.   Well, we set the day for a plea.
         20       Q.   For a possible plea, correct?
         21       A.   It was a possible plea.
         22       Q.   And Mr. Horton -- Ms. Goldbach had not 
         23   informed the Court whether or not Mr. Horton had 
         24   accepted the offer of the plea, had she?
 0041
          1       A.   Well, she was advocating what her client 
          2   wanted prior to even going to the side bar.  So that 
          3   was what the defendant wanted.  I want probation.  
          4   She got probation.
          5       Q.   My question to you is, had Ms. Goldbach 
          6   informed the Court and you Mr. Horton would accept 
          7   the plea.
          8       A.   I don't know if she said officially, "My 
          9   client will accept this," or she said, "This will 
         10   work."
         11       Q.   Didn't she tell you and the Judge that to 
         12   put it on for August 4th when she had to meet with 
         13   her client and she had to talk to her client and see 
         14   if her client would accept the plea?  Did she tell 
         15   you that or didn't she?
         16       A.   She suggested that we put the matter on for 
         17   August 4th for a plea, and she said she just needs 
         18   to go over it with her client.  But the 
         19   implication --
         20       Q.   I want to know what she said, not the 
         21   implication.  She told you, didn't she, that she had 
         22   to go over it with her client?
         23       A.   As a formality.
         24       Q.   Didn't you call her on August 3rd at her 
 0042
          1   office in the afternoon and ask her whether or not 
          2   Mr. Horton was going to accept the plea and she 
          3   responded to you he and his family were in her 
          4   office at the time and they hadn't yet decided and 
          5   they would let you know in the morning?
          6       A.   I don't remember that conversation.
          7       Q.   Do you deny it occurred?
          8       A.   I don't remember, Mr. Egbert.
          9       Q.   You don't remember?
         10       A.   I don't remember.
         11       Q.   Do you have any memory of calling Ms. 
         12   Goldbach during that period of time and discussing 
         13   whether or not her client was going to accept the 
         14   offer or not?
         15       A.   I don't remember speaking to Ms. Goldbach 
         16   the day before the plea.
         17       Q.   Do you know whether or not it's appropriate 
         18   to put into a press release under the ethical 
         19   guidelines that someone might plead guilty in the 
         20   future?
         21            MR. WARE:  Objection.
         22            HEARING OFFICER DAHER:  Sustained.  Move 
         23   on.  
         24       Q.   Did the press release in this case indicate 
 0043
          1   that Mr. Horton would enter a plea on August 4th of 
          2   the Year 2000?
          3            MR. WARE:  Objection.  It speaks for 
          4   itself.  It's in evidence.
          5            HEARING OFFICER DAHER:  He can have that.  
          6   Go ahead. 
          7       A.   Just tell me what exhibit that is, so that 
          8   I can answer it.
          9            MR. WARE:  Seven.
         10       A.   It said that -- the title is that a "Boston 
         11   Man Is Expected to Plead to Child Kidnapping and 
         12   Sexual Assault."  It was an expectation.  That's 
         13   what the title of the press release said.
         14       Q.   Is there anything under the rules of ethics 
         15   for lawyers and prosecutors concerning the release 
         16   of information of a possible plea?
         17       A.   I don't believe so.
         18            MR. WARE:  Objection.
         19       Q.   You don't believe so?
         20            HEARING OFFICER DAHER:  It's answered.  
         21   Let's go.
         22       Q.   I want to hand you up a copy of the Rule 
         23   3.6 which the Court has already taken judicial 
         24   notice of. 
 0044
          1       A.   Thank you.  (Witness reviews document.) 
          2            HEARING OFFICER DAHER:  Do you want a copy, 
          3   Mr. Ware? 
          4            MR. WARE:  It would be helpful.
          5            HEARING OFFICER DAHER:  I'll get it for 
          6   you. 
          7            MR. WARE:  I'm all set, Your Honor.  I've 
          8   got one.
          9       Q.   Do you have that in front of you?
         10       A.   I do.
         11       Q.   And would you look at Note 5.  Do you see 
         12   in Note 5 it says, "There are, on the other hand, 
         13   certain subjects which are more likely than not to 
         14   have a material prejudicial effect on a proceeding"?  
         15   Do you see that statement?
         16       A.   Yes, I do.
         17       Q.   And it goes on to say, "These subjects 
         18   relate to..."
         19       A.   Correct.
         20       Q.   And then do you see where it indicates in 
         21   Paragraph 2 the possibility of a plea of guilty to 
         22   the offense?
         23       A.   Yes.
         24       Q.   And do you understand that to be a 
 0045
          1   recognition that the possibility of a plea in a 
          2   criminal case should not be released to the media 
          3   under our rules of conduct?
          4       A.   No. 
          5            MR. WARE:  Objection in any event, Your 
          6   Honor.  The testimony is clear that these decisions 
          7   were made by other people.
          8            HEARING OFFICER DAHER:  Again, for the last 
          9   35, 40 minutes, Mr. Egbert, that's been her 
         10   testimony.
         11            MR. EGBERT:  Judge, that may be her 
         12   testimony, but her conduct is at issue here --
         13            MR. WARE:  No, her conduct isn't --
         14            HEARING OFFICER DAHER:  Let him finish.
         15            MR. EGBERT:  She, as the line prosecutor 
         16   under the rule, is responsible to see to it that any 
         17   press is appropriately done --
         18            HEARING OFFICER DAHER:  Sustained.  
         19   Objection sustained.
         20            MR. EGBERT:  May I finish? 
         21            HEARING OFFICER DAHER:  Go ahead.
         22            MR. EGBERT:  And I believe that this 
         23   witness would testify and has testified --
         24            MR. WARE:  I object to Mr. Egbert's 
 0046
          1   soliloquy on what the witness would say.  This is a 
          2   legal issue of what the canons or what the rules of 
          3   conduct require.
          4            MR. EGBERT:  That she would testify that a 
          5   judge has the right --
          6            MR. WARE:  Objection.
          7            MR. EGBERT:  If I could finish.
          8            HEARING OFFICER DAHER:  Mr. Egbert, the 
          9   objection has been sustained.
         10            MR. EGBERT:  If we're going to do it that 
         11   way -- I have a great deal of respect for you -- I'm 
         12   going to put on the record my statement of reasons.
         13            HEARING OFFICER DAHER:  Go ahead.  I will 
         14   tell you right now, Mr. Egbert, that the admiration 
         15   is mutual, but go ahead if you want to make your 
         16   comment.  
         17            MR. EGBERT:  It's not a comment.  This 
         18   witness has testified in the past that a judge --
         19            MR. WARE:  Objection to what a witness has 
         20   testified to in the past.
         21            MR. EGBERT:  It relates --
         22            HEARING OFFICER DAHER:  Side bar.
         23       (At side bar.)
         24            HEARING OFFICER DAHER:  I'll hear from Mr. 
 0047
          1   Ware first.
          2            MR. WARE:  My objection is that the 
          3   question that's currently on the record is with 
          4   respect to an interpretation of the obligation of a 
          5   lawyer under the particular rules.  That's a matter 
          6   for -- it's a matter of law.  It's a matter of the 
          7   Court's taking judicial notice.  
          8            Furthermore, the testimony in the case is 
          9   absolutely clear that this witness talked to her 
         10   superiors, followed office policy, and that's the 
         11   state of the evidence.  She doesn't have an 
         12   obligation as a line assistant to override her press 
         13   office, the district attorney, the first assistant.  
         14   It's a ludicrous point.
         15            MR. EGBERT:  Ludicrous.  Well, thank you 
         16   for your discussion of the law.  A couple of things.  
         17            No. 1, other witnesses will testify in 
         18   direct contravention to what she said here.  We're 
         19   going on the presumption that she's telling the 
         20   truth.  I have on the record Mr. Deakin under oath 
         21   saying you can talk -- he did talk to her about 
         22   going to the press.
         23            HEARING OFFICER DAHER:  Why can't he let it 
         24   in if he says he has witnesses who are going to 
 0048
          1   contradict?
          2            MR. WARE:  Let him put the witnesses on.  
          3   It's still an issue of law.  It has nothing to do 
          4   with the witness' credibility. 
          5            MR. EGBERT:  When I ask for an 
          6   interpretation of the rule, I'm asking for her 
          7   understanding of the rules of conduct and whether or 
          8   not she complied or comported with them.  
          9            Two things that occurred and I know will be 
         10   testified to in this case:  One, that they expected, 
         11   both Joseph and Deakin, that Judge Lopez would have 
         12   the right to rely on the fact that they were 
         13   complying with the rules of conduct, No. 1.  
         14            No. 2, Ms. Joseph came in and indicated 
         15   that she had no idea what was going on with the 
         16   press, which I'm paraphrasing it, obviously.  She 
         17   has an obligation under the rule to be responsible 
         18   for whatever press comes out of her cases.  It's 
         19   right in the rule.  Judge Lopez relied on that.  
         20            No. 3, Mr. Deakin has already testified 
         21   under oath previously, and I assume will testify 
         22   consistent with that here, that he discussed going 
         23   to the press with Ms. Joseph.  It was clear to him 
         24   from his conversation that she knew that the press 
 0049
          1   office was being contacted.  He tasked her, in his 
          2   words, with the obligation of providing the press 
          3   office the information for the press release, and 
          4   that they discussed the feasibility of going to the 
          5   press office, in direct contradiction to everything 
          6   she said.
          7            MR. WARE:  I mean, my response to that is 
          8   the question of the interpretation of the 
          9   prosecutor's obligation is a matter of law.  It's a 
         10   matter for the Court.  It's not a matter for this 
         11   witness.  The witness has testified.  If there's 
         12   contrary evidence, there's contrary evidence.  
         13   Memories may in fact vary over two years or three 
         14   years or four years.  That doesn't mean anything.  
         15   And it's up to the Court to draw whatever inference 
         16   is appropriate.
         17            HEARING OFFICER DAHER:  I expect you're 
         18   going to call Mr. Deakin and you're going to subject 
         19   him to cross examination; and if there are any 
         20   contradictions, it's going to be before the Court.
         21            MR. EGBERT:  The Commission on Judicial 
         22   Conduct has charged Judge Lopez with making findings 
         23   that weren't true.
         24            HEARING OFFICER DAHER:  I'm going to make 
 0050
          1   findings, too.  Obviously anything she has said is 
          2   going to be contrasted with any contradictory 
          3   testimony offered by Mr. Deakin.
          4            MR. EGBERT:  I understand.  But everything 
          5   that leads up to those findings, both her conduct, 
          6   what Judge Lopez knew about it, what she expected --
          7            HEARING OFFICER DAHER:  You've exhaustively 
          8   examined her for the past two or three days now.  
          9   You're going to bring in Mr. Deakin, who's going to 
         10   testify in a certain vein, and I'm going to make 
         11   findings --
         12            MR. EGBERT:  I understand that.
         13            HEARING OFFICER DAHER:  -- hopefully, if I 
         14   live long enough.  But again, absolutely it's an 
         15   interpretation.  It's a legal question.
         16            MR. EGBERT:  I'll accept your ruling, 
         17   Judge.
         18            HEARING OFFICER DAHER:  Thank you, Mr. 
         19   Egbert.
         20            MR. EGBERT:  I just wanted to put on the 
         21   record my reasons.
         22            HEARING OFFICER DAHER:  Absolutely.  I 
         23   always enjoy hearing them.  
         24       (End of side bar.)
 0051
          1            HEARING OFFICER DAHER:  We'll take a short 
          2   recess.
          3            (Recess)
          4       BY MR. EGBERT: 
          5       Q.   Ms. Joseph, when you went to court on 
          6   August 4th of the Year 2000 --
          7       A.   Yes.
          8       Q.   -- for the potential plea of Mr. Horton, 
          9   when you arrived in court, did you see Anne 
         10   Goldbach?
         11       A.   At some point I saw her, yes.
         12       Q.   Was that the first event of consequence?
         13       A.   I think the first thing I saw when I got 
         14   off the elevator was a victim witness advocate with 
         15   the child's grandmother, and Anne approached at that 
         16   point.
         17       Q.   And what was the conversation you had with 
         18   Ms. Goldbach at that point?
         19       A.   Ms. Goldbach was very upset, and she said 
         20   words to the effect of, "How could you do this?  The 
         21   press is here, my client's upset," something like 
         22   that.  
         23            I didn't know what she was talking about at 
         24   that time.  We were in the lobby before you get to 
 0052
          1   the courtroom.  I said, "What are you talking 
          2   about?"  She said, "I want to see the Judge."  I 
          3   said, "We can see the Judge, of course."  And that 
          4   was basically the substance of our conversation.
          5       Q.   And you went in to see the Judge?
          6       A.   First I went into the courtroom.
          7       Q.   You went into the courtroom?
          8       A.   Yes.
          9       Q.   What did you see?
         10       A.   I saw a camera in the courtroom.
         11       Q.   A camera?
         12       A.   I believe it was one camera.
         13       Q.   Did you see a bunch of reporters?
         14       A.   I don't remember seeing a bunch of 
         15   reporters.  I know that there was a man behind the 
         16   camera and there was a light-type thing.  I don't 
         17   know what the technical term is.  And I don't 
         18   remember seeing any reporters.  But I didn't believe 
         19   that the press was there for the Horton case at that 
         20   point.  So I went over --
         21       Q.   Did you not believe the press was there for 
         22   the Horton case because of the level of the 
         23   attention it was getting?
         24       A.   I don't know what you mean by that 
 0053
          1   question.
          2       Q.   By the amount of the press that was there 
          3   and the amount of reporters that were there?
          4       A.   Well, I don't remember seeing any reporters 
          5   there, and I don't remember seeing a lot of cameras.  
          6   I saw one, and I just didn't think it was there for 
          7   the Horton case.
          8       Q.   Okay.  So you go into chambers with Judge 
          9   Lopez and Anne Goldbach, right?
         10       A.   At some point we went into chambers, that 
         11   is correct.
         12       Q.   And tell me the first thing that was said 
         13   and by whom. 
         14       A.   The Judge started to scream at me.
         15       Q.   Right away?
         16       A.   Well, we sat down.  And then she told or 
         17   let the court officer or the clerk, whoever had 
         18   escorted us in -- she kind of made a motion for them 
         19   to leave.  And Anne Goldbach was really upset.  Anne 
         20   may have been crying at that point.  And the 
         21   Judge --
         22       Q.   Be clear now.  So the Judge is the first 
         23   one to speak?
         24       A.   It may have been Anne Goldbach or it may 
 0054
          1   have been the Judge.
          2       Q.   Do you know?
          3       A.   I don't have a clear memory if Anne was 
          4   speaking over her tears, or if she was -- if she was 
          5   simply just crying.  She was very upset.  And the 
          6   Judge within minutes looked right at me and started 
          7   to scream at me and said to me -- she said, "You're 
          8   very young, you're very mean, you're very mean.  You 
          9   belong in the suburbs.  You're mean.  You don't get 
         10   it.  I never want you appearing before me.  You're 
         11   very young.  You just don't get it.  You belong in 
         12   the suburbs.  You have no credibility with me.  You 
         13   called the press.  You belong in the suburbs.  You 
         14   don't get it."  She kept repeating those things.  It 
         15   was awful. 
         16       Q.   Was it worse or better than the screaming 
         17   and yelling in the Estrada case?
         18       A.   It was much worse then.
         19       Q.   Much worse.  Well, in the Estrada case you 
         20   said she was screaming and yelling, right?
         21       A.   I don't think I said "yelling."
         22       Q.   You didn't?
         23       A.   I don't remember --
         24       Q.   Screaming? 
 0055
          1       A.   I said that she screamed at me in open 
          2   court.
          3       Q.   Right, which we heard that scream on tape, 
          4   right?
          5       A.   That's correct.
          6       Q.   And this screaming was louder than that?
          7       A.   It's not so much a question of volume as it 
          8   was a question of being personally attacked by a 
          9   Superior Court Judge and by  --
         10       Q.   Screaming doesn't relate to the content.  
         11   It relates to the level of voice, right?
         12       A.   In my mind it relates to both of those 
         13   things.
         14       Q.   Okay.  So when you say "screaming," you 
         15   mean content was either derogatory or bad for you, 
         16   correct?
         17       A.   I mean that she was -- on August 4th that 
         18   morning she was screaming at me with a raised voice.  
         19   She was saying things that personally attacked my 
         20   character and my integrity.  She was very angry with 
         21   me.  She was humiliating me.  She was just 
         22   lambasting me in the chambers.
         23       Q.   And that's never happened to you before, 
         24   right?
 0056
          1       A.   Not like that, no.
          2       Q.   Not like that?
          3       A.   (Witness shakes head.)
          4       Q.   How about with Judge Johnson at the BMC?
          5       A.   Judge Johnson? 
          6            MR. WARE:  Objection.
          7            HEARING OFFICER DAHER:  I want to hear it.  
          8   She said "like that," and it's cross examination.  
          9   That would indicate some type of comparison.  He's 
         10   entitled to examine.  Go head. 
         11       A.   First of all, I've never known Judge 
         12   Johnson to scream.  And, second of all, I've never 
         13   known him to reprimand or scream at me in any way.  
         14   Especially what was significant about the morning of 
         15   August 4th was the personal nature of Judge Lopez's 
         16   attacks on my character.
         17       Q.   Let's --
         18            MR. WARE:  Could she finish her answer, 
         19   please?
         20            HEARING OFFICER DAHER:  You're entitled to 
         21   that.  Finish that response. 
         22       A.   And the personal attack that the Judge was 
         23   making on my character by saying that I was mean, by 
         24   saying that I was young, by saying that I didn't get 
 0057
          1   it, by saying that I belong in the suburbs, those 
          2   were things that were very personal to me.  And no 
          3   one's ever attacked my person in that way, no.  I've 
          4   never been spoken to like that.
          5       Q.   Weren't you accused of being a liar in the 
          6   case of BMC, where you lied to a judge about the 
          7   presence --
          8            HEARING OFFICER DAHER:  Sustained.  
          9   Sustained.  Next question.
         10       Q.   Now, all this happened without Anne 
         11   Goldbach saying anything to Judge Lopez; isn't that 
         12   right, according to you?
         13       A.   Again, I don't remember if Anne was 
         14   speaking at the onset when we walked into her lobby.  
         15   But when the Judge was screaming at me, no, no one 
         16   else in the room was talking.
         17       Q.   Before this screaming you don't recall Anne 
         18   Goldbach saying anything to Judge Lopez; is that 
         19   right?
         20       A.   I don't remember if she was upset over her 
         21   tears and talking or if she was just saying, "I 
         22   can't believe the press is here" or "My client's 
         23   upset."  I don't remember if she said that the 
         24   minute we walked in or a few minutes later, um --
 0058
          1       Q.   Don't you recall Anne Goldbach telling the 
          2   Judge, before she ever said a word to you, that the 
          3   press was here, the DA's office would issue a press 
          4   release, that the press was there and had an 
          5   altercation in the hallway with the defendant's 
          6   grandmother, that the defendant wouldn't come 
          7   downstairs for the Court, that the plea was in 
          8   jeopardy and all of those kinds of discussions?  
          9   Don't you recall anything like that?
         10       A.   I remember -- first of all, I don't 
         11   remember her ever saying that the district 
         12   attorney's office issued a press release or that the 
         13   plea was in jeopardy.  No, I don't remember her 
         14   saying those specific things.  She did say at some 
         15   point -- and I'm really not sure on the sequence -- 
         16   that yes, her client was very upset, that her client 
         17   and her client's mother had some type of verbal 
         18   situation with the press when they had gotten there 
         19   earlier this morning, and that her client was 
         20   somewhere in the courthouse being upset.  That was 
         21   the sum and substance --
         22       Q.   And that she wanted to continue the case 
         23   because of that; isn't that right?
         24       A.   No, I don't believe Ms. Goldbach at that 
 0059
          1   point was asking for a motion for continuance at 
          2   all.  She was simply saying, you know, "I don't know 
          3   what to do.  What should we do?"  In that morning in 
          4   the lobby there was no conclusion as to whether what 
          5   we're going to have is a continuance or not.
          6       Q.   Anne Goldbach's request for a 
          7   continuance --
          8       A.   She did not request a continuance.
          9       Q.   Your testimony under oath is that Anne 
         10   Goldbach didn't mention the fact that she wanted a 
         11   continuance because of what had gone on in the court 
         12   earlier?
         13       A.   She may have said something like, "I don't 
         14   know if we should continue the case.  I don't know 
         15   what to do now."
         16       Q.   Let's get rid of the "may haves" for a 
         17   moment.  Do you recall whether or not Anne Goldbach 
         18   said "I want a continuance"?
         19       A.   I don't believe she said --
         20       Q.   It's your testimony she didn't, right?
         21       A.   That's correct. 
         22       Q.   And did Judge Lopez say to you, "You belong 
         23   prosecuting cases in the suburbs"?
         24       A.   No.  She said, "You belong in the suburbs."
 0060
          1       Q.   So she did not say to you, "You belong 
          2   prosecuting cases in the suburbs"?
          3       A.   No.
          4       Q.   And you wouldn't have told David Deakin 
          5   that's what she told you?
          6       A.   No.  She said, "You belong in the suburbs."
          7       Q.   So you never told David Deakin that Judge 
          8   Lopez said, "You belong prosecuting cases in the 
          9   suburbs"?
         10       A.   No, I didn't.
         11       Q.   And it was clear to you, wasn't it, from 
         12   Judge Lopez's comments that she thought you were 
         13   responsible for the press being there?
         14       A.   That was clear to me, yes.
         15       Q.   Did you say anything?
         16       A.   I was pretty speechless at that point.
         17       Q.   Did you say anything?
         18       A.   If I said --
         19       Q.   Not "if."  Did you?
         20       A.   I'm really trying to answer your questions, 
         21   Mr. Egbert.
         22            HEARING OFFICER DAHER:  Take your time.
         23       A.   If I said anything at all --
         24            MR. EGBERT:  Judge, I --
 0061
          1            HEARING OFFICER DAHER:  She's thinking.  
          2   She's thinking.
          3            MR. EGBERT:  But "if" answers don't count.
          4            MR. WARE:  Truthful answers do count, and 
          5   you have to live with the truth.
          6            HEARING OFFICER DAHER:  Gentlemen, let's 
          7   cool it.
          8            MR. EGBERT:  I'm entitled to an answer from 
          9   her memory, not hypothetical. 
         10            HEARING OFFICER DAHER:  Why don't you 
         11   reflect if you have a memory.  Take your time.
         12            THE WITNESS:  Thank you. 
         13       A.   My memory is that if I said anything at 
         14   all, I said, "Judge" --
         15            MR. EGBERT:  Judge --
         16            MR. WARE:  Objection, Your Honor.
         17            MR. EGBERT:  -- I move to strike that 
         18   answer.
         19            HEARING OFFICER DAHER:  Again, obviously 
         20   that's not responsive, Mr. Ware:  "If."  Did she or 
         21   did she not say?
         22       A.   My memory is that I said, "Judge, I didn't 
         23   call the press."  That's my memory.
         24       Q.   So your memory is you said, "Judge, I 
 0062
          1   didn't call the press."
          2       A.   I don't know if I said, "Judge, I didn't 
          3   call the press," or if I simply said, "I didn't call 
          4   the press."  I didn't call the press.  I think I 
          5   said, "I didn't call the press."  I don't know if I 
          6   said, "Judge, I didn't call the press." 
          7       Q.   Now, when you gave your statement to the 
          8   Commission on August 21st of the Year 2001, you were 
          9   asked the following question --
         10            HEARING OFFICER DAHER:  Do you want to 
         11   direct us? 
         12            MR. EGBERT:  Page 48.
         13            HEARING OFFICER DAHER:  Go ahead. 
         14       Q.   Question at the bottom, "Did Judge Lopez 
         15   ever ask you whether you had called the press to 
         16   alert them to the case?"  
         17            "Answer:  No.  I didn't speak at all during 
         18   this time, at all during the lobby conference."  
         19            Do you recall giving that answer?
         20       A.   Yes, I do.
         21       Q.   Was it the truth when you gave it?
         22       A.   Yes.
         23       Q.   And that was under oath in August of 2001?
         24       A.   Yes, it was.
 0063
          1       Q.   Now your testimony is you told her, "I 
          2   didn't call the press"?
          3       A.   I have a vague memory of -- my primary 
          4   memory is being very speechless because of the tone 
          5   that the Judge took with me that morning.  There may 
          6   have been a point at which I shook my head.
          7            MR. EGBERT:  I move to strike that.  
          8   "Mays," "ifs" --
          9            HEARING OFFICER DAHER:  Stricken.
         10       Q.   Now, did you say it or didn't you?
         11       A.   I don't have a clear memory of speaking 
         12   that morning on August 4th.
         13       Q.   Fine.  And you accept that some year ago 
         14   under oath you said that you didn't say a word.
         15       A.   Yes.
         16       Q.   Now, how long did this lobby conference 
         17   take?
         18       A.   It seemed like a very long time.  
         19   Probably --
         20       Q.   I think you know what the question asked 
         21   for.  A time.
         22       A.   I wasn't timing it, Mr. Egbert.
         23       Q.   Well, give me your best estimate of the 
         24   time. 
 0064
          1       A.   Probably about ten minutes or so.
          2       Q.   And did Anne Goldbach -- strike that. 
          3            When you left the lobby conference, was 
          4   there any statement about a continuance?
          5       A.   We got up to leave the lobby conference, 
          6   and I was the first one to leave.  And at that point 
          7   the Judge said, "Maybe we'll just continue this case 
          8   until Ms. Joseph is on vacation."  She said that to 
          9   Ms. Goldbach, who was behind me.  I had already 
         10   basically walked out of the chambers.  And that was 
         11   the only comment at that point that I had heard 
         12   about a continuance.
         13       Q.   And how did Judge Lopez know you were going 
         14   on vacation?
         15       A.   I don't know if she did know.
         16       Q.   If she was going to continue it until you 
         17   were on vacation, when was that going to be?
         18       A.   Well, it was the summer.  And this was a 
         19   Friday in the summer.  She may have assumed that I 
         20   had a scheduled vacation.  I don't know if she knew 
         21   I had a vacation or not.
         22       Q.   And you're also clear on that remark?
         23       A.   Yes, I am.
         24       Q.   But you agree with me that you never 
 0065
          1   provided any information to Judge Lopez that you 
          2   were going on vacation.
          3       A.   That's correct.
          4       Q.   And this was her last day in the criminal 
          5   session in Suffolk County?
          6       A.   I don't remember that fact.
          7       Q.   Well, do you know, was it a Friday?
          8       A.   It was a Friday.
          9       Q.   It was a Friday, August 4th?
         10       A.   That's correct.
         11       Q.   Is that the end of the Suffolk County 
         12   session?
         13       A.   It may have been the end of that month.  I 
         14   don't know --
         15       Q.   And do you know that on that same day she 
         16   told you in open court later on that if you were 
         17   going to continue it, it had to be in Middlesex 
         18   because she was going to Middlesex?
         19       A.   She didn't say, "If we're going to continue 
         20   it, it has to be Middlesex."  She said, "I'm 
         21   continuing the case until I go to Middlesex."
         22       Q.   August 21st was her first statement?
         23       A.   That's right.
         24       Q.   Now, knowing the court system, if a judge 
 0066
          1   is in Suffolk on Friday, the last day of the 
          2   session, and in Middlesex on August 21st, do you 
          3   know whether or not they were leaving after August 
          4   4th?
          5       A.   I think that was a fair assumption.  I 
          6   wasn't really --
          7       Q.   That's what judges do.  They change?
          8       A.   Yes. 
          9       Q.   So you leave the lobby conference and you 
         10   go outside and you talk to Anne Goldbach.
         11       A.   No.  I called Elizabeth Keeley, the first 
         12   assistant, at that point.
         13       Q.   Did you at some point talk to Anne 
         14   Goldbach?
         15       A.   Later on that morning, yes.
         16       Q.   And did you ask her to give you a date, an 
         17   agreeable date for a continuance?
         18       A.   I did.
         19       Q.   Why did you do that if the case wasn't 
         20   going to be continued?
         21       A.   Well, I knew that it was a possibility that 
         22   the case would be continued, and I don't like coming 
         23   up to the podium and shuffling through calendars or 
         24   whatever it is to choose a date.  So I like speaking 
 0067
          1   with defense attorneys ahead of time to schedule a 
          2   date so that when you get up to the podium and the 
          3   clerk calls the case, we can say at that point we 
          4   have an agreed-upon date for a plea.
          5       Q.   For a continuance.
          6       A.   For a continuance, yes -- or an agreed-upon 
          7   date for anything. 
          8            So in this situation I wanted just to be 
          9   organized before we got up to the podium in case 
         10   that was what was going to happen.
         11       Q.   You didn't tell Anne Goldbach you objected 
         12   to a continuance, did you?
         13       A.   I said to her, "In case this case is being 
         14   continued, can we get some dates together?"
         15       Q.   The question is really a simple one.  Did 
         16   you tell Anne Goldbach that you objected to a 
         17   continuance?
         18       A.   I don't know if she asked me if I was going 
         19   to object or if we had that discussion.
         20       Q.   Ms. Joseph, please listen.  Did you tell 
         21   Anne Goldbach you objected to a continuance?
         22       A.   I don't think I did at that time.
         23       Q.   And you told her that you'd like to pick a 
         24   mutually-agreeable date, correct?
 0068
          1       A.   I said, "Let's look at some dates so that 
          2   we can get a date," yes.
          3       Q.   Now, after that, Mr. Deakin came over at 
          4   some point, right?
          5       A.   That's correct.
          6       Q.   And you had a conversation with Mr. Deakin?
          7       A.   That's correct.
          8       Q.   And at least at some time in those 
          9   conversations you all decided that you were going to 
         10   file a motion to object to the continuance that was 
         11   proposed?
         12       A.   That's correct.
         13       Q.   But according to you ,there was no 
         14   continuance proposed yet?
         15       A.   I knew that there was a possibility of a 
         16   continuance.  As I was leaving the lobby she said, 
         17   "Let's continue this case until Ms. Joseph is on 
         18   vacation."  I knew that Anne Goldbach was very upset 
         19   that morning.  I knew that she had represented that 
         20   her client was very upset that morning.  Anything 
         21   was possible in terms of a continuance.  I simply 
         22   just wanted to have some dates so that we would be 
         23   prepared.
         24       Q.   You prepared a motion objecting to the 
 0069
          1   continuance, which, according to you, no one had 
          2   even suggested was going to occur?
          3       A.   Judge Lopez suggested --
          4       Q.   According to you she made the remark, 
          5   "Let's continue it until you're on vacation."
          6       A.   That's correct.
          7       Q.   So you understood that to mean that the 
          8   case was being continued?
          9       A.   I understood that that was a possibility 
         10   that the case may get continued, yes.
         11       Q.   And then you and Mr. Deakin decided you 
         12   were going to file a motion pursuant to the statute 
         13   relating to child victims; is that correct?
         14       A.   Correct.
         15       Q.   And that's 278, 16F, is it?
         16       A.   I don't remember the exact statute.
         17       Q.   Are you familiar with Chapter 278, Section 
         18   16F?
         19       A.   I was then.
         20       Q.   Pardon?
         21       A.   I was then.
         22       Q.   Have you looked at it in a while?
         23       A.   Only insofar that I've seen the motion that 
         24   we've prepared.  I haven't reviewed the statute 
 0070
          1   since then.
          2       Q.   Let me first give you -- actually, look in 
          3   your book at No. 17.  This is the Commonwealth's 
          4   motion that was filed, correct?
          5       A.   That's correct.
          6       Q.   Now, as a beginning point, does this comply 
          7   with the statute, in your opinion?
          8       A.   At the time I believe I thought it did, 
          9   yes.
         10       Q.   Let's take a look at it.  Where in there 
         11   does it tell the Judge what the impact on the child 
         12   will be by a continuance?
         13            MR. WARE:  Objection, Your Honor.
         14            HEARING OFFICER DAHER:  What's your 
         15   objection? 
         16            MR. WARE:  It doesn't make any difference.  
         17   What's the relevance of whether this legally 
         18   followed the statute or didn't follow the statute?  
         19   Furthermore, there was an argument before the Court, 
         20   which is on the record and in evidence.
         21            MR. EGBERT:  There certainly was.
         22            HEARING OFFICER DAHER:  Tell me why.  Mr. 
         23   Ware's objection is going to be sustained.
         24            MR. EGBERT:  Whether or not they complied 
 0071
          1   with the statutory obligations --
          2            HEARING OFFICER DAHER:  Sustained.  The 
          3   objection is sustained.
          4            MR. EGBERT:  I'm not finished with why --
          5            HEARING OFFICER DAHER:  Go ahead.  You can 
          6   continue. 
          7            MR. EGBERT:  The competency of counsel in 
          8   their representations to the Court, the competency 
          9   of counsel throughout this proceeding and whether or 
         10   not they have an axe to grind and a bias in this 
         11   case in the testimony, all of their conduct in this 
         12   case is to whether or not they have an axe to grind 
         13   in the bias in their testimony.  
         14            The fact of the matter is you have seen in 
         15   the past this woman claiming that she was screamed 
         16   at and screamed at.  Fortunately, we had a tape that 
         17   showed what really happened.  And their bias and 
         18   their testimony here today is a reflection on their 
         19   virtual incompetency as it related to the leakage of 
         20   the Horton case; the facts they didn't provide the 
         21   Judge, the motions they filed which were not in 
         22   compliance with the statute, which is nothing more 
         23   than press releases, and the way in which they 
         24   handled this case impacted the way Judge Lopez 
 0072
          1   handled this case and the manner in which she dealt 
          2   with matters in this case and these counsel.
          3            HEARING OFFICER DAHER:  Mr. Ware? 
          4            MR. WARE:  Your Honor, this is just another 
          5   red herring, another excuse trumped up at this point 
          6   to derail this case from what is in fact important.  
          7   It doesn't matter whether this motion did or didn't 
          8   comply with the statute.  The Judge certainly raised 
          9   no issue with respect to that.  The Judge made 
         10   findings on account of the motion.
         11            HEARING OFFICER DAHER:  Last word, Mr. 
         12   Ware? 
         13            MR. EGBERT:  The Judge testified that she 
         14   did rely on the statute and she did rely on the fact 
         15   that these people did not comply with the statute or 
         16   provide her information under the statute.  And that 
         17   relates to her findings in this case.  Everything 
         18   she has in front of her and their conduct relate to 
         19   the findings she ultimately made in this case.
         20            HEARING OFFICER DAHER:  If my memory serves 
         21   me accurately, there was talk of a continuance.  
         22   That was the impression that was left with Ms. 
         23   Joseph.  She contacted the hierarchy at the district 
         24   attorney's office.  They came in about 2:30 in the 
 0073
          1   afternoon, believing that the Judge would continue 
          2   the matter. 
          3            Sustained.  The objection is sustained.  
          4   You've made your argument.  Move on.
          5       BY MR. EGBERT: 
          6       Q.   Did you put in this motion or anywhere on 
          7   the record that the child was promised that the case 
          8   would be over before he went to school?
          9            MR. WARE:  Objection.
         10            HEARING OFFICER DAHER:  Same argument? 
         11            MR. WARE:  Same argument.
         12            MR. EGBERT:  Judge, on direct examination 
         13   they asked her, what was the impact upon the victim 
         14   by this continuance.  She testified it was because 
         15   we promised him he was going to go to school before 
         16   August, it would be concluded before he went to 
         17   school, all of these factors, and they never told 
         18   the Judge any of these things.
         19            HEARING OFFICER DAHER:  Mr. Ware?  Mr. 
         20   Egbert's argument is on the money on this one.  He 
         21   states that she did that.  That was one of the 
         22   considerations.  They did not want to continue it.  
         23   They wanted the child to start on the September 
         24   starting date.
 0074
          1            MR. WARE:  On direct examination the 
          2   witness was asked the DA's basis for having imposed 
          3   the motion.  That's all. 
          4            HEARING OFFICER DAHER:  But the fact is 
          5   that once you open that door, Mr. Egbert has a right 
          6   to explore that.  Overruled.
          7            MR. WARE:  Your Honor, there was a 
          8   transcript here of the hearing and the argument with 
          9   respect to the victim.  This is just another red 
         10   herring.
         11            HEARING OFFICER DAHER:  Overruled.  You can 
         12   cross. 
         13       BY MR. EGBERT: 
         14       Q.   Let's start with this Exhibit 17.  Is there 
         15   anything in there that indicates to the Judge that 
         16   the victim was assured that this case would conclude 
         17   before he went back to school?  Yes or no? 
         18            MR. WARE:  Objection.  The document's in 
         19   evidence.  We can all read it.  There's a transcript 
         20   of the argument before the Judge.  There are 
         21   findings made by the Judge.  There was no testimony 
         22   here that there was a conversation with the victim.
         23            MR. EGBERT:  Judge, with all due respect, 
         24   she was asked under direct examination why they 
 0075
          1   imposed it and what was the impact on the victim by 
          2   this continuance, to show, I take it, that Judge 
          3   Lopez's finding that there would be little or no 
          4   impact on the alleged victim, as this is a plea, was 
          5   erroneous.
          6            HEARING OFFICER DAHER:  Go ahead.  You have 
          7   it.  Overruled.  Go ahead. 
          8       Q.   Now, can you answer my question yes or no? 
          9       A.   The motion indicates that we promised the 
         10   child that we would resolve the case that day.
         11       Q.   I'm sorry?  What does it say?
         12       A.   It says that we told the child and his 
         13   guardian that we would resolve that case today.
         14       Q.   Where does it say that?
         15       A.   On the third line of the motion.  It says, 
         16   "As reasons thereof, the Commonwealth states that 
         17   the child victim in this case and his family was 
         18   made aware that the case would be resolved today" --
         19       Q.   Right.  By a plea, right?
         20       A.   That's correct.
         21       Q.   Where does it say in there that they were 
         22   promised that the case would end before he went back 
         23   to school?
         24       A.   It doesn't say anything about the boy going 
 0076
          1   back to school.
          2       Q.   And you said --
          3            MR. WARE:  Your Honor, I object.  "Today"; 
          4   August 4th is before September.  It's not a big leap 
          5   here.
          6       Q.   Where in this do you tell the Judge that 
          7   the boy was promised that this would end before he 
          8   went back to school?
          9            HEARING OFFICER DAHER:  The document speaks 
         10   for itself. 
         11       A.   I don't mention it.
         12       Q.   And you don't mention it in your argument 
         13   to the Judge either, do you?
         14       A.   I don't argue that issue -- the motion 
         15   before the Judge.
         16            HEARING OFFICER DAHER:  It wasn't argued.  
         17   Next question.
         18       Q.   In your motion for opposition to have a 
         19   continuance, you indicate that the child's guardian, 
         20   his grandmother, his maternal grandmother, has been 
         21   present in the courtroom since early this morning 
         22   and she would like to be present when her impact 
         23   statement is read in court, correct?
         24       A.   Correct.
 0077
          1       Q.   Well, that could happen no matter when the 
          2   plea took place; isn't that right?
          3       A.   That's correct.
          4       Q.   The statute requires, doesn't it, that you 
          5   inform the Court of the impact upon the victim in 
          6   the case; isn't that right?
          7       A.   I don't have the statute in front of me, 
          8   but I believe that that's the substance of the 
          9   statute.
         10       Q.   And do you agree that what the statute says 
         11   is the opposition shall inform the Court of what 
         12   effect, if any, the granting of a continuance will 
         13   have on the child?
         14       A.   If I could see a copy, that would be great.  
         15   But that is the substance of what the statute does 
         16   say.
         17       Q.   Did I read it accurately?  
         18            (Hands document to witness.)
         19       A.   (Witness reviews document.) 
         20       Q.   "What effect, if any, the granting of a 
         21   continuance will have on the child," right?
         22       A.   Yes.
         23       Q.   And where in the motion does it tell the 
         24   Judge what effect a continuance will have on the 
 0078
          1   child?
          2       A.   It doesn't specifically talk about the 
          3   effect.  It simply states --
          4       Q.   It doesn't say it at all, does it?
          5       A.   Well, there's an understanding that closure 
          6   is very important for victims, and especially 
          7   children.  And that by promising the child and the 
          8   child's guardian that the case would be resolved 
          9   that day, we made a commitment to the closure of 
         10   this matter.  And that is understood; that a 
         11   continuance is very burdensome.
         12       Q.   It's understood.  So you think that's a 
         13   competent filing by an advocate?  The Judge is 
         14   supposed to read your mind as to what's going on? 
         15       A.   I think that an experienced judge 
         16   understands that closure for victims is very 
         17   important; and that when a case is scheduled for a 
         18   plea, that there's a lot of emotions attached to 
         19   that, and that it's important both for the family 
         20   and the child that that go along as planned.
         21       Q.   Then it was important for the DA's office 
         22   for this plea to go forward that day, correct?
         23       A.   Yes, it was.
         24       Q.   And you didn't want anything to interfere 
 0079
          1   with that, correct?
          2       A.   That's correct.
          3       Q.   And so you didn't want to cause the 
          4   defendant to be in such a position that he refused 
          5   to plead that day, did you?
          6       A.   That's correct.
          7       Q.   And after all, it's the defendant's right 
          8   to plea or not to plea.
          9       A.   Yes.
         10       Q.   You were informed by Anne Goldbach by then 
         11   that he wasn't going to plead under those 
         12   circumstances, weren't you?
         13       A.   No, and I don't believe Anne said he 
         14   wouldn't plead under those circumstances of the 
         15   press being present.  I believe that Anne said that 
         16   this was very difficult for the defendant.  I think 
         17   there were a number of options that the Judge and 
         18   the defense attorney had before them in order to 
         19   secure the plea on that day.
         20       Q.   What if they didn't want to?  What if the 
         21   defendant and the defendant's attorney didn't want 
         22   to?
         23       A.   That's their choice.
         24       Q.   And if it blew up, this case was going to 
 0080
          1   go to trial, right?
          2       A.   That's correct.
          3       Q.   And this victim was going to have to be put 
          4   in the courtroom and cross-examined, correct?
          5       A.   That's correct.
          6       Q.   And that wasn't to anyone's benefit, was 
          7   it?
          8       A.   I disagree with that.  I think that a trial 
          9   in this case would have resulted in a sentence that 
         10   would have been a just one for the defendant and 
         11   that the victim in this case, while it may have been 
         12   difficult to testify, would have felt good about 
         13   himself afterwards and would have been proud of 
         14   himself for having gone through this adversarial 
         15   process.
         16       Q.   So it's a good thing then for the victim to 
         17   testify.
         18       A.   I think it's a difficult thing, but it can 
         19   be good for them.
         20       Q.   So you would think that for the victim to 
         21   come into court and testify and be cross-examined 
         22   would be a catharsis.
         23       A.   I think that there can be an aspect of 
         24   cartharsis to that process, yes.
 0081
          1       Q.   Yesterday you didn't think that when you 
          2   told us that it was a horrible trauma for a victim 
          3   to come in and testify and the DA's office did 
          4   everything they could under all circumstances to 
          5   avoid it, right?
          6       A.   Yesterday I indicated that testifying in a 
          7   case for any witness is very difficult, but that 
          8   doesn't mean that there isn't good things that can 
          9   come out of a difficult process.  And that's what I 
         10   believe and that's what the DA's belief is.  We 
         11   evaluate each case as it comes to us, the strengths 
         12   of the victim, the ability of the victim to 
         13   participate in the process.  Even if it's difficult, 
         14   there can be good at the end of the process that 
         15   results both for the victim and for the system.
         16       Q.   Now let's go through the Court's findings 
         17   that you ultimately received. 
         18            First of all, you disagree with them, 
         19   right?
         20       A.   Yes, I do.
         21       Q.   And you find them to be personally bad for 
         22   you, right?
         23       A.   They're personally offensive, yes.
         24       Q.   Personally offensive?
 0082
          1       A.   Yes.
          2       Q.   And they basically criticize your conduct, 
          3   correct, as a lawyer?
          4       A.   As a lawyer and as a person.
          5       Q.   So these are bad things for you.
          6       A.   That's correct.
          7       Q.   So I take it you appealed them.
          8       A.   No.
          9       Q.   You left them on the record without an 
         10   appeal?  You thought they were unfounded, didn't 
         11   you?
         12       A.   That's correct.
         13       Q.   You thought they were not supported by a 
         14   record.
         15       A.   That's correct.
         16       Q.   They were not supported by fact.
         17       A.   That's correct.
         18       Q.   They were bad personally for you, both 
         19   personally and professionally.
         20       A.   That's correct.
         21       Q.   And you didn't appeal them?
         22            MR. WARE:  I object, Your Honor.  You can't 
         23   appeal a continuance.
         24            MR. EGBERT:  You can't? 
 0083
          1       Q.   Have you ever heard of Chapter 211, Section 
          2   3?  Have you?
          3            HEARING OFFICER DAHER:  Overruled.
          4       Q.   Have you ever heard of Chapter 211, Section 
          5   3?
          6       A.   Yes, I have.
          7       Q.   Is that the supervisory power of the 
          8   Supreme Judicial Court?
          9       A.   Yes, it is.
         10       Q.   And do they have the right to oversee such 
         11   matters as these findings?
         12       A.   Well, at the point realistically -- these 
         13   weren't filed until close to four o'clock on a 
         14   Friday, so the continuance was going to happen one 
         15   way or the other.  You couldn't appeal the 
         16   continuance.
         17       Q.   You could appeal the continuance and the 
         18   findings and ask to have them be reversed because 
         19   they were not supported by the record, correct?
         20       A.   How could you have a continuance reversed 
         21   if the day is over? 
         22       Q.   You could have the findings reversed, 
         23   couldn't you?
         24       A.   That's possible.
 0084
          1       Q.   You could have findings instituted by the 
          2   SJC that says this wasn't so, correct?
          3       A.   That's correct.
          4       Q.   You could have asked for reconsideration, 
          5   couldn't you?
          6       A.   Of the findings? 
          7       Q.   Of the findings. 
          8       A.   Yes, we could.
          9       Q.   You could have asked for an evidentiary 
         10   hearing, couldn't you?
         11       A.   I don't know if we could have asked for an 
         12   evidentiary hearing --
         13       Q.   You could have filed, for example, a motion 
         14   for reconsideration with affidavits by you refuting 
         15   these findings, correct?
         16       A.   That's possible.
         17       Q.   Never did any of it, did you?
         18       A.   No, we didn't.
         19       Q.   You let these findings stand on the record.
         20       A.   That's correct.
         21       Q.   Now, the findings are, first, that "ADA 
         22   Joseph unhappy with the Court's disposition."  
         23   That's clear.  You were unhappy with the Court's 
         24   disposition, weren't you?
 0085
          1       A.   As I said yesterday, I don't know if the 
          2   word is -- if "happy" is the exact word or 
          3   "unhappy" --
          4       Q.   Let's pick a word.  "Dissatisfied"?  
          5   "Upset"?  "Shocked"? 
          6       A.   Shocked, displeased --
          7       Q.   That would make you unhappy with them; is 
          8   that a fair statement?
          9       A.   I suppose, but...
         10       Q.   Now, it says -- Ms. Joseph called the press 
         11   in is basically what that says, right?
         12       A.   Yes.
         13       Q.   Now, you never denied calling the press in 
         14   in that lobby conference, did you?
         15       A.   Again, I don't remember if I said anything 
         16   that day specifically.  I know that I didn't call 
         17   the press in --
         18       Q.   No.  My question to you is a simple one.  
         19   Did you deny that you called the press in?
         20       A.   I think I said -- I shook my head when she 
         21   was screaming at me and saying, "You called in the 
         22   press."  I may have said --
         23       Q.   Not "may have," ma'am.  
         24            MR. EGBERT:  I would ask that "may haves" 
 0086
          1   don't come into this case.
          2            HEARING OFFICER DAHER:  As best as you can 
          3   remember.
          4       A.   As best as I can remember, it's possible 
          5   that I said, "I didn't call the press."
          6            MR. EGBERT:  I move to strike the 
          7   possibility.
          8            HEARING OFFICER DAHER:  Stricken.
          9            MR. WARE:  I object, Your Honor.  Judge 
         10   Lopez testified to that fact.  She said she didn't 
         11   call in the press.
         12            HEARING OFFICER DAHER:  Stricken.  Come on.  
         13   Let's go.
         14       Q.   Then it goes on, "Ms. Joseph has a habit of 
         15   doing this."
         16       A.   That's correct.
         17       Q.   Now, you had in two cases previously, 
         18   Calixte and Estrada, after the dispositions, gone 
         19   and given statements to the press and argued 
         20   sentencing matters in the press that you had never 
         21   mentioned in court; isn't that true?
         22       A.   No, that's not correct.
         23       Q.   Let's take the Estrada case, for example.  
         24   Did you argue in the Estrada case to Judge Lopez at 
 0087
          1   the sentencing that Estrada was a public menace and 
          2   he should not be given this kind of treatment 
          3   because "he just raped a girl in his own household 
          4   and you can't also look at the car thief and say 
          5   this guy's not a threat to me because he only steals 
          6   cars in poor neighborhoods, or that guy's not a 
          7   threat to me because he only breaks into houses in 
          8   rich neighborhoods.  Is that how we want to mete out 
          9   justice?"  Did you argue that to Judge Lopez?
         10       A.   In the Estrada case ,I don't believe I used 
         11   the car thief analogy --
         12       Q.   So you did not argue that to Judge Lopez --
         13            HEARING OFFICER DAHER:  Let her finish the 
         14   answer. 
         15       A.   In advocating the Commonwealth's position 
         16   for a sentence, the fact, however, that the 
         17   defendant was raping his stepdaughter in his home, I 
         18   did mention that on the record, that that was 
         19   something that had occurred repeatedly and that that 
         20   was the basis of the Commonwealth's recommendation.  
         21   That was something that was on the record.
         22       Q.   Let's get back to my question.  What I just 
         23   read to you, you did not -- from Ms. McNamara's 
         24   article -- you did not argue to the Court the 
 0088
          1   sentencing, correct?
          2       A.   You read a number of sentences to me --
          3       Q.   Did you argue that one?  That Mr. Estrada 
          4   was a public menace?
          5       A.   I don't believe I said "public menace," no.
          6       Q.   But you said it in a newspaper article with 
          7   Ms. McNamara, right?
          8       A.   When Ms. McNamara spoke with me, I said the 
          9   words "public menace," yes.
         10       Q.   And you said that he was a public menace, 
         11   correct?
         12       A.   Yes.
         13       Q.   You didn't argue that to Judge Lopez, 
         14   correct?
         15       A.   That's correct.
         16       Q.   And after that, you said this other 
         17   statement about the car thieves and the like that's 
         18   all in the record.  You didn't argue that to Judge 
         19   Lopez, correct?
         20       A.   That's all in the article, you mean? 
         21       Q.   Right. 
         22       A.   The car thief argument I did not make in 
         23   open court, no.
         24       Q.   So you made a sentencing argument in the 
 0089
          1   newspapers that you never made to the Judge 
          2   basically.
          3       A.   No.  When Ms. McNamara called me, she was 
          4   talking about sentencing in general, not only the 
          5   sentencing of a specific case, the Estrada case.  
          6   When I advocated the Commonwealth's position on the 
          7   Estrada case, I was speaking about the specific 
          8   facts of that case and the sentence in that case.  
          9   In the McNamara -- Eileen McNamara article, I was 
         10   talking about theories of sentencing in general.  
         11   Ms. McNamara informed me she was writing about this 
         12   economic theme, and in that sense, that's where that 
         13   analogy about the car theft came up:  Is in terms of 
         14   explaining that whether or not someone rapes his 
         15   child in his own home or in someone else's home, it 
         16   still is a serious crime and should be treated that 
         17   way. 
         18       Q.   When you argued in the Calixte case to 
         19   Judge Lopez, did you argue to Judge Lopez that she 
         20   must sentence Ms. Calixte in the way the 
         21   Commonwealth recommended, because it would send a 
         22   message to the victim in the Calixte case -- I'm 
         23   sorry.  The Estrada case -- let me go back to the 
         24   Estrada case. 
 0090
          1            Did you argue in the Estrada case that they 
          2   should send a message to the victim?
          3       A.   I don't think I used those words, no.
          4       Q.   Is it fair to say that the thoughts and 
          5   comments that you gave to Eileen McNamara in the 
          6   newspaper article were not conveyed to Judge Lopez, 
          7   as we just described?
          8       A.   No, it's not fair to say.  As we discussed 
          9   earlier today, the notion of deterrence is something 
         10   that judges take into consideration, for example, in 
         11   the societal message --
         12       Q.   There's a difference between what people 
         13   are thinking and what you argue.  I'm talking about 
         14   what you argue. 
         15       A.   I don't think I was arguing with Ms. 
         16   McNamara when I was speaking --
         17       Q.   What you argued to Judge Lopez.
         18       A.   Yes.
         19       Q.   What you spoke, not what you assumed she 
         20   thought. 
         21       A.   I never specifically argued to Judge Lopez 
         22   that she needs to consider the factor of deterrence 
         23   in sentencing.
         24       Q.   In sending these messages and all this 
 0091
          1   business, right?
          2       A.   That's correct.
          3       Q.   So basically you gave a different 
          4   sentencing argument to Eileen McNamara than you had 
          5   made to Judge Lopez?
          6       A.   No.  I gave different rationales for 
          7   sentencing.  Again, I wasn't arguing before Eileen 
          8   McNamara.  I was speaking with her on the phone.
          9       Q.   Let's go on with the findings.  Three, "The 
         10   defendant suffers from a sexual identity disorder.  
         11   She looks female in all respects."  That was true, 
         12   wasn't it?
         13       A.   Yes.
         14       Q.   In fact, the sexual identity disorder was 
         15   basically mentioned in the DA's press release by 
         16   "transgendered," correct?
         17       A.   That's correct.
         18       Q.   And then, No. 4, "When the defendant and 
         19   his mother were getting off the elevator on the 
         20   first floor, there was a television camera waiting 
         21   for her in the hallway."  That was reported to you 
         22   by Anne Goldbach?
         23       A.   That's correct.
         24       Q.   You had no contrary evidence to that.
 0092
          1       A.   That's correct.
          2       Q.   It was not in dispute.
          3       A.   That's correct.
          4       Q.   "The defendant and her mother refused to 
          5   get off the elevator.  There was a disruption in the 
          6   hallway, with the defendant's mother yelling."  That 
          7   was basically conveyed to everyone in the lobby 
          8   conference?
          9       A.   That's correct.
         10       Q.   And it was up on the screen.
         11       A.   That's correct.
         12       Q.   "The Court finds that Ms. Joseph attempted 
         13   to embarrass and ridicule the defendant suffering 
         14   from a psychological disorder," right?  That's the 
         15   Court's finding?
         16       A.   That's the Court's finding.
         17       Q.   Did you ever submit anything indicating 
         18   that that was not your intention?
         19       A.   No, I never submitted anything indicating 
         20   that I wasn't trying to ridicule a defendant for 
         21   being transgendered.  That finding is --
         22       Q.   That was my question.  "And the Court finds 
         23   that the Commonwealth caused the continuance because 
         24   it sought to turn the court proceedings into a 
 0093
          1   circus." 
          2            What was the purpose of informing the press 
          3   in a press release when you're dealing with someone 
          4   on the one hand, a 12- or an 11-year-old victim, a 
          5   transgendered defendant who suffers from sexual 
          6   identity disorder, and various other matters that 
          7   you've heard described -- what was the purpose in 
          8   sending a press release before the day of the plea, 
          9   saying that the defendant would plead guilty, he's a 
         10   transgendered person that dresses like a woman?  
         11   What was the purpose in that?
         12       A.   Well, again, I didn't send the press 
         13   release, and I don't know that I could answer; 
         14   therefore --
         15       Q.   If you can't, you can't. 
         16            Then the next finding:  "There is little, 
         17   if no, impact on the alleged victim, as this is a 
         18   plea."  Now, the only impact you've described is 
         19   matters which were indicated were not made known to 
         20   the Court; isn't that correct?
         21       A.   No, that's not correct.
         22       Q.   Tell me the impact on the victim from 
         23   switching the plea from September -- strike that.  
         24   From August to September.
 0094
          1       A.   The fact of closure in these cases is 
          2   extremely important to children and their families 
          3   and, in fact, to all victims in cases.
          4       Q.   Let me stop you --
          5            MR. WARE:  Objection.
          6            HEARING OFFICER DAHER:  Let her finish.
          7            MR. EGBERT:  Can I just stop her in a piece 
          8   of it?
          9            MR. WARE:  Objection, Your Honor.
         10            HEARING OFFICER DAHER:  Go ahead.  You 
         11   finish.
         12            MR. EGBERT:  We've heard this speech.  I 
         13   just want to take it one piece at a time.
         14       A.   When a person is victimized, what happens 
         15   is they lose control and power over what has 
         16   happened to them and also over the system. 
         17            We keep in touch with the victims on a 
         18   regular basis to help re-establish, allowing them 
         19   some feelings of control; this is what's going to 
         20   happen on such and such a day, this is what a 
         21   courtroom looks like, who says what and when, so 
         22   they are able to feel a bit more comfortable and 
         23   regain some of the control that they've lost by 
         24   becoming victimized in the first place. 
 0095
          1            So closure isn't a minor matter.  It's a 
          2   significant matter in a court proceeding, especially 
          3   where this was a situation where, you know, the 
          4   victim's guardian would have preferred that the 
          5   defendant be incarcerated.  And --
          6       Q.   Well --
          7            HEARING OFFICER DAHER:  Go ahead. 
          8            MR. EGBERT:  I'll just have to take notes.  
          9   Go ahead. 
         10       A.   And so this was at least being able to tell 
         11   them they weren't getting maybe the sentence that 
         12   they would have preferred, but there would be an end 
         13   to this.  It would end on this Friday before the 
         14   weekend, whatever it would be, before school 
         15   started.  Come to court early.  It wasn't a heavy 
         16   docket that day.  Those are the kinds of things that 
         17   we were able to communicate with the child and his 
         18   guardian about, so that they felt some control over 
         19   the system and some ability to be empowered.
         20       Q.   Let's start with the first thing:  This 
         21   control thing.
         22       A.   I don't know what you mean.
         23       Q.   When you say every victim wants closure --
         24       A.   Yes.
 0096
          1       Q.   -- that relates to every case you have, 
          2   right?
          3       A.   Every case I've had.
          4       Q.   There's nothing special about that in terms 
          5   of an individual case?
          6       A.   Well, all cases are special --
          7       Q.   That fact, I'm saying.  You say that one 
          8   applies to every case you have?
          9       A.   That the victims want closure?
         10       Q.   Yes. 
         11       A.   Yes.
         12       Q.   So we've got a statute here that says that 
         13   the Commonwealth has to tell the Court specifically 
         14   the impact on this particular victim, correct?
         15       A.   That's correct.
         16       Q.   Now, anywhere in the motion do you say to 
         17   the Judge, this victim wants closure?
         18       A.   By explaining in the motion that the victim 
         19   was promised and told --
         20       Q.   You made aware --
         21            MR. WARE:  Objection.  The witness is 
         22   entitled to answer the question, Your Honor.
         23            HEARING OFFICER DAHER:  Sustained.  Go 
         24   ahead.
 0097
          1       A.   The victim was told that the case would be 
          2   resolved that day.  That is what we refer to as 
          3   closure.
          4       Q.   But do you say in there anything like, 
          5   "They were made aware that the case would be 
          6   resolved today, and it's important to them that it 
          7   be done because he's got to go to school"?
          8            HEARING OFFICER DAHER:  Overruled.  She can 
          9   have that.  I'm going to give him some latitude.
         10       Q.   Does it say that?
         11       A.   No, it doesn't.
         12       Q.   Did you tell the Judge in the motion that 
         13   the grandmother was dissatisfied with the sentence? 
         14            MR. WARE:  Objection.
         15       A.   No, we didn't --
         16            HEARING OFFICER DAHER:  Overruled.  Go 
         17   ahead.  You can have it.
         18       A.   No, we didn't say that.  I did say that at 
         19   the side bar on August 1st.
         20       Q.   Did you say it in a motion -- 
         21            MR. WARE:  Objection.  The motion is in 
         22   evidence.  We can read it.
         23            HEARING OFFICER DAHER:  Mr. Egbert, we've 
         24   been over this avenue of interrogation.
 0098
          1            MR. EGBERT:  Not on the ear which she just 
          2   threw in, which --
          3            HEARING OFFICER DAHER:  Overruled.  I'll 
          4   give it to you. 
          5       A.   I didn't put that the grandmother was 
          6   dissatisfied --
          7            HEARING OFFICER DAHER:  There's no mention 
          8   of the grandmother.  Let's go.  Next question. 
          9       Q.   And then the last finding.  "The matter has 
         10   been rescheduled to September 6th, 2000."  
         11       A.   That's obviously true.
         12       Q.   There's no issue of that, correct?
         13       A.   Yes.
         14       Q.   Now, when did you get these findings?
         15       A.   They were faxed to our office late Friday 
         16   afternoon, around -- I believe it was around 3:30 or 
         17   so.  I don't remember the exact time that we got 
         18   them.
         19       Q.   And you've already agreed with me that your 
         20   office took no action whatsoever to appeal, 
         21   reconsider or otherwise overturn these findings, 
         22   right?
         23       A.   That's correct.
         24       Q.   And on -- would you turn to Exhibit 15 -- I 
 0099
          1   don't know if it's been put in the book yet or not.  
          2   It's the one that was recently offered by the 
          3   Commission. 
          4       A.   It's an article?  A newspaper article? 
          5       Q.   Yes. 
          6            THE CLERK:  It is in here.  I wrote it 
          7   down.
          8       Q.   Do you have it before you?  Is that an 
          9   article by John Ellement?
         10       A.   It is.
         11       Q.   And in that article, go to the second page, 
         12   about the third paragraph down.  Do you see where it 
         13   says, "No one should be deceived by this smoke 
         14   screen, Borghesani said"?
         15       A.   Yes.
         16       Q.   And that's referring to the continuance and 
         17   its findings, correct?
         18       A.   Yes.
         19       Q.   "Judge Lopez was prepared to hand down an 
         20   extremely lenient sentence and she balked when the 
         21   media was present to witness it," right?
         22       A.   Yes.
         23       Q.   Now, if a DA or a lawyer or a law office 
         24   has a gripe with the Judge's findings, where should 
 0100
          1   it be taken up?
          2            MR. WARE:  Objection.
          3            HEARING OFFICER DAHER:  What's your 
          4   objection? 
          5            MR. WARE:  Your Honor, again, we've been 
          6   all through this.  We've established it wasn't 
          7   appealed.
          8            HEARING OFFICER DAHER:  I think we have.  
          9   Sustained. 
         10       Q.   Did you authorize these statements to be 
         11   made in the case where you were the prosecutor?
         12            MR. WARE:  The statements the Judge faxed 
         13   to the media? 
         14            MR. EGBERT:  What is he talking about?  
         15   Exhibit 15 was not faxed to the media.
         16            MR. WARE:  Absolutely so.
         17            MR. EGBERT:  Exhibit 15 is a newspaper 
         18   article.  Would you like to look at it? 
         19            MR. WARE:  I know what it is.
         20            MR. EGBERT:  Do you think it was faxed to 
         21   the media?
         22            MR. WARE:  It quotes from the order the 
         23   Judge faxed to the media, as you well know.
         24       BY MR. EGBERT: 
 0101
          1       Q.   Do you see the article, lines in there, "No 
          2   one should be deceived by this smoke screen, 
          3   Borghesani said"?
          4       A.   Yes.
          5       Q.   Borghesani was the press person from your 
          6   office?
          7       A.   Jim Borghesani was the press secretary, 
          8   yes.
          9       Q.   Did you authorize that statement to be made 
         10   in your case?
         11       A.   No, I didn't.
         12       Q.   The next event in this case was on 
         13   September 6th -- in the Horton case -- when the plea 
         14   was to take place in Middlesex County, correct?
         15       A.   That's correct.
         16       Q.   And you testified that you got to court and 
         17   the -- I think you said the defendant and Ms. 
         18   Goldbach came out of a side door, something --
         19       A.   That's correct.  Once we got into the 
         20   courtroom itself, the defendant and Ms. Goldbach 
         21   came in from a different entrance.  That's correct.
         22       Q.   You're familiar, are you not, with the 
         23   process of court officers, clerks and judges, in 
         24   fact, making arrangements for various parties in 
 0102
          1   criminal cases when there is some issue as to media 
          2   attention or contact or confrontation?
          3       A.   I'm familiar with the ability of court 
          4   officers and judges and clerks to make 
          5   accommodations for witnesses in different 
          6   situations --
          7       Q.   I didn't say witnesses.  I said people.  
          8   It's not just witnesses; it could be anybody, right?
          9       A.   Yes, anybody.  It could be an issue of a 
         10   disability.  It could be an issue for children --
         11       Q.   It could be an issue that the last time the 
         12   press and Mr. Horton engaged each other, it blew the 
         13   case apart, caused a continuance, and the plea 
         14   didn't go forward?
         15            MR. WARE:  Objection.  There's no evidence 
         16   of that, Your Honor.
         17            MR. EGBERT:  There isn't? 
         18            HEARING OFFICER DAHER:  I don't see it.  
         19   Sustained.
         20            MR. EGBERT:  Judge, the fact of the matter 
         21   is Judge Lopez already testified to that.  That was 
         22   the matter of the continuance, that the plea 
         23   couldn't go forward that day.  There was a problem 
         24   with the defendant having encountered the press, the 
 0103
          1   whole incident with his mother being held upstairs, 
          2   and all of them crying all over the place, and it 
          3   was not conducive --
          4            HEARING OFFICER DAHER:  Let's go back two 
          5   to weeks, Mr. Ware.  How do you respond to that?
          6            MR. WARE:  I don't object to a general line 
          7   of questioning about whether accommodations can be 
          8   made.
          9            HEARING OFFICER DAHER:   Overruled.  You 
         10   can have it. 
         11       BY MR. EGBERT:
         12       Q.   You were aware, were you not, and in fact 
         13   you said it was undisputed by you, that there had 
         14   been a problem between the press and Mr. Horton on 
         15   August 4th?
         16       A.   That's what Anne Goldbach said, yes.
         17       Q.   And it's undisputed?
         18       A.   I have no reason to doubt that.
         19       Q.   It was undisputed by you?
         20       A.   Yes.
         21       Q.   And it caused what you would agree with me 
         22   was an emotional upset by the parties?
         23       A.   That's, again, what Anne Goldbach said, 
         24   yes.
 0104
          1       Q.   And it was undisputed?
          2       A.   That's correct.
          3       Q.   And ultimately Anne Goldbach was looking 
          4   for a continuance of the plea because of all those 
          5   matters?
          6       A.   That wasn't clear to me on August 4th.
          7       Q.   Well, the case was continued by Judge Lopez 
          8   having made certain findings with regard to the 
          9   press and their interaction with Mr. Horton and the 
         10   ability to get this matter done; isn't that right?
         11       A.   The case was continued, that's correct, 
         12   yes.
         13       Q.   And in part, based upon what had occurred 
         14   on August 4th between the press and Mr. Horton, 
         15   correct?
         16       A.   That's correct.
         17       Q.   And Mr. Horton, you will acknowledge, at 
         18   that time was suffering under a mental illness or 
         19   disorder?
         20       A.   Well, it sounds like his being 
         21   transgendered, which is something that's always been 
         22   with him, is a constant issue for him. 
         23      *Q.   Schizophrenics have constant issues, too, 
         24   but the fact is that it is true, isn't it, that Mr. 
 0105
          1   Horton suffered from that particular disorder? 
          2      *A.   That he was transgendered? 
          3            MR. WARE:  Objection.  There's no evidence 
          4   of that, Your Honor.  The Judge is the only one who 
          5   diagnosed him with the disorder.  Even the social 
          6   worker didn't do that.  He's transgendered.
          7            HEARING OFFICER DAHER:  Sustained.  
          8   Objection sustained.
          9            MR. EGBERT:  I want to be heard, too.
         10            HEARING OFFICER DAHER:  Go ahead. 
         11            MR. EGBERT:  The matters which have been 
         12   provided to the Court in the DSM indicate this 
         13   transgendered status is an accepted psychological 
         14   and psychiatric disorder.  That is a matter of law.  
         15   It is a matter of record.  The fact of the matter is 
         16   whether the social worker used the word "mental 
         17   illness" or not --
         18            HEARING OFFICER DAHER:  By the same token, 
         19   under the Diagnostic Manual, being a person of a 
         20   transgendered orientation, are you trying to create 
         21   the impression that he also suffers from anxiety, 
         22   has anxiety complex and other psychiatric problems? 
         23            MR. EGBERT:  Because they're all in the 
         24   report:  Chronic depression, anxiety.  All of those 
 0106
          1   things are diagnosed in the report that's before the 
          2   Judge, along with the transgendered status.
          3            MR. WARE:  Your Honor, interpretation of 
          4   the Diagnostic and Statistical Manual is not a 
          5   matter of law.  It's a matter of competent expert 
          6   testimony from a Ph.D. psychologist or psychiatrist, 
          7   of which there was nothing in this case.  So there 
          8   is no diagnosis of this man as having mental 
          9   illness, mental disorder.  He's termed 
         10   "transgendered," and that's it.  That's all the 
         11   evidence is.
         12            HEARING OFFICER DAHER:  How do you address 
         13   the issue of the fact, Mr. Egbert, that $1,500 worth 
         14   was approved by for a psychiatrist or clinical 
         15   psychologist or someone with an advanced degree of 
         16   the working of the mind, and what we have here is a 
         17   social worker who made some -- gave an opinion in a 
         18   report?
         19            MR. EGBERT:  Unrebutted.
         20            HEARING OFFICER DAHER:  And Mr. Ware is 
         21   questioning the validity or the weight that should 
         22   be given to the sociologist's report versus that 
         23   clinical psychologist and M.D. psychiatrist.
         24            MR. EGBERT:  Would the Commonwealth have 
 0107
          1   done that at the hearing?  They didn't question it.  
          2   You've heard Ms. Joseph indicate she didn't disagree 
          3   with anything in that.  I took her through it, and 
          4   the only matter she indicated she disagreed with 
          5   were the issue of whether or not he would reoffend, 
          6   if you recall.
          7            HEARING OFFICER DAHER:  Mr. Ware?
          8            MR. WARE:  Your Honor, the witness has 
          9   testified that she didn't contest the report.  There 
         10   was nothing to contest.  She wasn't challenging that 
         11   the defendant had a difficult personal life.  She 
         12   wasn't challenging that the defendant was 
         13   transgendered.  She wasn't asked, nor was there any 
         14   challenge by the defense to his competence or his 
         15   criminal responsibility.  Therefore, the report was 
         16   utterly irrelevant.  And in fact, defense counsel 
         17   proffered it only in aid of sentencing, as the 
         18   document says on its face, a dispositional plan, 
         19   sentencing plan by a social worker --
         20            MR. EGBERT:  I don't know what it has to do 
         21   with that.  In fact, what it was used for -- and 
         22   I'll address, by the way, your additional question 
         23   as to the supplemental expenses.  They never had to 
         24   spend them.  They never got to a point of trial, 
 0108
          1   where they would be using a psychiatric and a 
          2   psychological defense to the charges on criminal 
          3   responsibility or competency.  
          4            I'm sorry, Judge, but this cold of mine has 
          5   got my mouth drying up, and I apologize. 
          6            That never came to be, because the case was 
          7   pled out before they ever did it.  The fact of the 
          8   matter is what they did have were these findings by 
          9   the social worker, which were unrebutted and 
         10   unrefuted by the Commonwealth, and in fact, agreed 
         11   to by the Commonwealth as she sat here today, not to 
         12   mention the fact that just five minutes ago Ms. 
         13   Joseph indicated she agreed with the finding that 
         14   the defendant --
         15            HEARING OFFICER DAHER:  Mr. Ware, on the 
         16   fact that Ms. Joseph acquiesced in a sense to that 
         17   sociologist's report, social worker's report, I'll 
         18   hear you.
         19            MR. WARE:  Junk science is still junk 
         20   science, whether or not it's rebutted.  The question 
         21   is whether there was anything to rebut here.  There 
         22   was a four-page piece of paper handed up on the day 
         23   of the disposition and plea or a lobby conference, 
         24   read quickly by the Judge and counsel, used by the 
 0109
          1   defense lawyer from her own social worker.  When she 
          2   had an opportunity to get a qualified professional 
          3   instead and chose not to, one might ask why.  And 
          4   there is nothing -- as the prosecution has 
          5   testified, there was simply nothing to rebut.  No 
          6   one challenged that the gentleman, the defendant in 
          7   question, had a difficult life or had many, many 
          8   strains in his upbringing.  That's true of every 
          9   criminal defendant.  It did not, in the 
         10   Commonwealth's view, as the prosecutor has said, 
         11   change the fact that he committed a crime.  It's 
         12   just that simple.  This is an irrelevant line.
         13            HEARING OFFICER DAHER:  Last word, Mr. 
         14   Egbert, before I make a ruling on it?
         15            MR. EGBERT:  Judge, the report was not 
         16   there to determine whether or not he committed a 
         17   crime.  That was a given.  This was a plea hearing, 
         18   a plea conference.  In fact, the report in its own 
         19   statements indicates that his behavior at the crime, 
         20   what he did at the crime, he wouldn't do that again, 
         21   he accepts his responsibilities and the like.  
         22            The purpose of this was, in fact, the 
         23   sentencing, the mental health of the defendant, 
         24   problems of the effective rehabilitation and the 
 0110
          1   like.
          2            HEARING OFFICER DAHER:  Overruled.  Go 
          3   ahead.  Continue. 
          4            MR. EGBERT:  Can I have the last question?
          5            *(Record read.)
          6       Q.   A sexual identity disorder as described, as 
          7   you already indicated, you agreed with, correct?
          8       A.   I agree that the defendant was 
          9   transgendered, yes.
         10       Q.   Didn't you agree two minutes ago and I read 
         11   you that finding that he suffered from a sexual 
         12   identity disorder --
         13            MR. WARE:  Objection.
         14            HEARING OFFICER DAHER:  Let him finish the 
         15   question.
         16       Q.   You indicated, "Yes, that's correct"?
         17            MR. WARE:  I object.  That's not what she 
         18   said.  The Judge made the finding of a sexual 
         19   identity disorder.  The only evidence was that he's 
         20   transgendered.
         21            MR. EGBERT:  That's Mr. Ware's testimony.  
         22   Her testimony was that she agreed with this finding. 
         23       Q.   Correct?
         24       A.   The finding on the press release? 
 0111
          1       Q.   Sexual identity disorder. 
          2       A.   If that's what being transgendered is, yes, 
          3   I agree.  If he is transgendered.
          4       Q.   Fine.  You heard Mr. Ware make a number of 
          5   arguments just a moment ago concerning the efficacy, 
          6   reliability and appropriateness of Exhibit 3, the 
          7   licensed social worker's report?
          8       A.   Yes.
          9       Q.   Did you ever make any of those arguments to 
         10   Judge Lopez?
         11       A.   That report --
         12       Q.   Did you ever make any of those arguments to 
         13   Judge Lopez?
         14       A.   There was nothing to rebut --
         15       Q.   Did you ever make any of those arguments to 
         16   Judge Lopez? 
         17            HEARING OFFICER DAHER:  Yes or no. 
         18       A.   No.
         19       Q.   Thank you. 
         20            Now, we were talking before about these 
         21   special arrangements, so called.  What I asked you 
         22   is, you had a defendant with a sexual identity 
         23   disorder, correct?
         24       A.   Correct.
 0112
          1       Q.   Are you all right?
          2       A.   Yeah.
          3       Q.   Just indicate if you're not. 
          4       A.   I'm okay.
          5       Q.   A sexual identity disorder.  You had a 
          6   prior problem between the press and the defendant?
          7       A.   That's correct.
          8       Q.   Which caused a disruption, correct?
          9       A.   That's correct.
         10       Q.   Does it strike you as odd that the Judge 
         11   would look to see that the disruption did not occur 
         12   again?
         13       A.   That wouldn't strike me as odd.
         14       Q.   Wouldn't that be in everybody's best 
         15   interests?
         16       A.   Yes, it would. 
         17       Q.   Now, when you get to court on November 6th, 
         18   prior to going to court, you indicated that you were 
         19   going to read the victim impact statement and Mr. 
         20   Deakin was going to do the advocating basically; is 
         21   that correct?
         22       A.   That's correct.
         23       Q.   Did you tell Judge Lopez that at any time?
         24       A.   I don't remember if Mr. Deakin informed 
 0113
          1   Judge Lopez of that ahead of time.
          2       Q.   Do you know?
          3       A.   I don't think he did, but I don't know.
          4       Q.   Well, how would he have done it?
          5       A.   Well, before the plea began, there was a 
          6   side-bar conference, just to say, is everything in 
          7   order, that kind of a thing.  That would have been 
          8   Mr. Deakin's opportunity to do that then.
          9       Q.   You were there for that, weren't you?
         10       A.   Yes, I was.
         11       Q.   He didn't say it, did he?
         12       A.   I don't think he did.
         13       Q.   So the answer is, you know that Mr. Deakin 
         14   didn't notify and you didn't notify Judge Lopez at 
         15   any time that you were going to participate as a 
         16   speaking role in that proceeding; isn't that 
         17   correct?
         18       A.   That's my memory, yes.
         19       Q.   And you were there basically as second 
         20   chair?
         21       A.   I suppose, yes.
         22       Q.   And with regard to that, at any time during 
         23   the proceedings -- strike that. 
         24            First of all, when the proceedings began 
 0114
          1   and counsel introduced themselves to the Court, did 
          2   you stand and introduce yourself?
          3       A.   I don't remember standing.  I don't 
          4   remember.
          5       Q.   You don't remember?
          6       A.   I don't remember. 
          7       Q.   Do you want us to play the tape? 
          8       A.   I mean, Mr. Deakin may have said, "With me 
          9   is Leora Joseph."  I don't remember exactly, or if I 
         10   stood at that point --
         11       Q.   Well, if you were going to participate in 
         12   the proceedings, it would be appropriate for you to 
         13   stand up and introduce yourself to the Court when 
         14   counsel is asked to identify themselves.
         15       A.   Not if Mr. Deakin was introducing me.
         16       Q.   You'd just sit by?
         17       A.   I would have made a motion to get up and 
         18   stand.
         19       Q.   And stand?
         20       A.   Yes.
         21       Q.   Did you?
         22       A.   I don't remember if I did or not.  I would 
         23   have normally -- those things happen very quickly.
         24       Q.   You would have if you were going to be 
 0115
          1   participating in the events?  You would have stood 
          2   up to the Judge and introduced yourself?
          3       A.   Had Mr. Deakin mentioned my name, I would 
          4   have gotten up.  I don't know how else to answer 
          5   your question, really.
          6            MR. EGBERT:  Can we play the beginning of 
          7   the tape, Judge? 
          8            MR. WARE:  I'm going to object, Your Honor.  
          9   We've played this tape over and over.  We're now on 
         10   the second witness two weeks into this case, and at 
         11   this point it's irrelevant anyway.
         12            MR. EGBERT:  It's not irrelevant --
         13            HEARING OFFICER DAHER:  Mr. Ware, the 
         14   stakes are very high in this case.  Overruled.  Go 
         15   ahead. 
         16            MR. EGBERT:  Mr. Ware will stipulate, to 
         17   save us some time, that Ms. Joseph did not stand, 
         18   nor introduce herself.
         19            HEARING OFFICER DAHER:  There we go.  Okay. 
         20       BY MR. EGBERT: 
         21       Q.   Now, before you got up -- strike that. 
         22            Did anyone, to your knowledge, inform Judge 
         23   Lopez during the proceedings that you were going to 
         24   be the person designated to read the victim impact 
 0116
          1   statement?
          2       A.   I don't believe so, no.
          3       Q.   And in fact, there was a bench conference 
          4   just before the victim impact statement was read; 
          5   isn't that correct?
          6       A.   I think so, yes. 
          7       Q.   And would you go to Exhibit 22, Page 20, 
          8   Line 3 -- you may want to just go back a page to 
          9   orient yourself to what's going on.  You may want to 
         10   go back to Page 19.  Do you see it?
         11       A.   (Witness nods head.)
         12       Q.   Do you see "Bench conference begins"?
         13       A.   Yes, I do.
         14       Q.   And Mr. Deakin is talking about the victim 
         15   impact statement?
         16       A.   Yes.
         17       Q.   And then go to Page 20, Line 3.  What does 
         18   Mr. Deakin say to Judge Lopez?
         19       A.   "As to the mother's statement, I would 
         20   propose to read it in its entirety.  As to the 
         21   grandmother's statement, there is one sentence that 
         22   we discussed with her that we don't feel comfortable 
         23   reading into the record, and I wanted to alert the 
         24   Court to that omission.  I'll allow the Court to 
 0117
          1   read the statements."
          2       Q.   So Mr. Deakin says as to the mother's 
          3   statement, "I would propose to read it in its 
          4   entirety" and then he goes on to talk to the 
          5   grandmother's statement and agreed to take part of 
          6   it out, correct?
          7       A.   Correct.
          8       Q.   At any time there does Mr. Deakin say to 
          9   the Judge, "By the way, there's another lawyer, 
         10   Leora Joseph, who I'm going to have do this"?
         11       A.   No.
         12       Q.   Are you familiar with the etiquette and 
         13   rules of conduct of the court with regard to whether 
         14   or not lawyers should be -- strike that.
         15            Are you familiar with the custom and 
         16   practice of the court where multiple lawyers are 
         17   involved in the representation of a single client?
         18       A.   I believe I'm familiar with it.  I haven't 
         19   reviewed that.
         20       Q.   Do you agree with me that the normal 
         21   practice is for one lawyer to address the Court in a 
         22   matter, unless permission is given for more?
         23       A.   One lawyer at a time? 
         24       Q.   No.  One lawyer. 
 0118
          1       A.   That's a common practice, for one lawyer to 
          2   do it at a time, but they're --
          3       Q.   At a time?
          4       A.   Yes.
          5       Q.   So that's your understanding.  Lawyers just 
          6   kind of bob up and down at a time, as long as only 
          7   one is up at a time?
          8       A.   Many times there are cases where there's 
          9   two counsel and they take turns asking different 
         10   questions or with different witnesses.
         11       Q.   Without seeking permission from the Court 
         12   to do so?
         13       A.   I don't know if there is official 
         14   permission that they need to seek or if it's one of 
         15   those things that's a customary matter of practice.
         16       Q.   You simply don't know what the custom is; 
         17   is that it? 
         18       A.   The custom is that there are times where 
         19   there are two lawyers that participate.  I'm not 
         20   sure as to the necessary formalities to initiate 
         21   those types of proceedings.
         22       Q.   Is there any lawyering done in the reading 
         23   of a victim impact statement?  Is there any special 
         24   skill involved?
 0119
          1       A.   I don't know what you mean by "lawyering." 
          2       Q.   Is there anything but reading what someone 
          3   else wrote?
          4       A.   No.
          5       Q.   That's all it is, isn't it?  It's not 
          6   advocating, it's not providing legal argument, it's 
          7   not doing anything but reading what some other 
          8   person wrote out loud.
          9       A.   I actually think that reading an impact 
         10   statement is part of advocacy because of the 
         11   relationship that the district attorney's office 
         12   develops with its victims, and that that's important 
         13   for the victims in the cases. 
         14            But in terms of a specific skill, I mean, 
         15   as long as you know how to read, then, yes --
         16       Q.   Anybody can do it?
         17       A.   You can read the impact statement, yes.
         18       Q.   You had no special skill over Mr. Deakin 
         19   with regard to reading the victim impact statement?
         20       A.   I didn't have a skill with respect to Mr. 
         21   Deakin in terms of reading; however --
         22       Q.   That's all I asked you.
         23            MR. WARE:  Your Honor, may the witness 
         24   finish her answer?
 0120
          1            MR. EGBERT:  The only question was, did she 
          2   have a special skill --
          3       A.   I was the one that had the relationship 
          4   with the child's family.  And for them, on that day, 
          5   I mean, I was the one who had been working with them 
          6   through this process.  And it was what we had worked 
          7   out --
          8       Q.   Did anybody tell Judge Lopez that you had a 
          9   special relationship with the family and you wished 
         10   to give the victim impact statement?
         11       A.   I don't believe anyone said that to Judge 
         12   Lopez.
         13       Q.   Or anything close to it?
         14       A.   She knew I was the lead prosecutor on the 
         15   case.
         16       Q.   You weren't the lead prosecutor then.  You 
         17   were just sitting by when Mr. Deakin was doing all 
         18   the work on that hearing; isn't that right?
         19       A.   On the day of the actual plea Mr. Deakin 
         20   took the lead, but up until that point in time I was 
         21   the lead prosecutor.
         22       Q.   Up until then?
         23       A.   Yes.
         24       Q.   But not then.
 0121
          1       A.   Not at the moment of the plea.
          2       Q.   Now, you were shown a statement by Judge 
          3   Lopez that said there were facts that would change 
          4   the characterization of the case that I, Judge 
          5   Lopez, am not permitted to publicly disclose.  Do 
          6   you recall that?
          7       A.   I didn't say that.
          8       Q.   Do you recall reading that statement of 
          9   Judge Lopez?
         10       A.   Yes, someone showed that to me.
         11       Q.   On your direct examination?
         12       A.   Yes.
         13       Q.   And being asked whether or not you could 
         14   think of any such facts; and you said, "No, I can't 
         15   think of any"?
         16       A.   That's correct.
         17       Q.   All the facts that were in Exhibit 3, the 
         18   sociologist's report --
         19       A.   Yes.
         20       Q.   -- in your understanding of the law, was 
         21   Judge Lopez able to make public comment on those 
         22   outside of the courtroom?
         23       A.   The theme of that assessment was the 
         24   fact --
 0122
          1       Q.   Ma'am, please, you know, would you answer 
          2   my question.  Were all the facts that were in this 
          3   report permissibly disclosed by Judge Lopez in a 
          4   public forum outside of the courtroom?
          5       A.   Well, the report was never filed with the 
          6   Court, and she didn't have a copy of it.  So I don't 
          7   know that she would have been able to go through all 
          8   the facts in the public way --
          9       Q.   Ms. Joseph, why don't you stick to my 
         10   question just for a moment.  Do you want me to go 
         11   fact by fact?  I will. 
         12       A.   I guess I don't understand the theme --
         13       Q.   There's no theme to it.  You testified on 
         14   direct there were no facts known by Judge Lopez 
         15   which could not be disclosed by her --
         16            HEARING OFFICER DAHER:  What's your 
         17   objection? 
         18            MR. WARE:  That's not the testimony.  It 
         19   was that the witness didn't believe there were any 
         20   such facts.  And, moreover, this is a question for 
         21   Judge Lopez.
         22            HEARING OFFICER DAHER:  Go ahead.
         23            MR. EGBERT:  They asked her on direct 
         24   whether or not there were any facts -- she looked at 
 0123
          1   that press release -- whether there were any facts 
          2   that Judge Lopez could not release to the press.
          3            MR. WARE:  No, that was not the inquiry. 
          4            MR. EGBERT:  Give me five minutes to get 
          5   the record.
          6            HEARING OFFICER DAHER:  Dig it out.
          7            MR. WARE:  The statement says certain facts 
          8   known to the prosecutors and the defense counsel.
          9            MR. EGBERT:  Right.
         10            MR. WARE:  And I asked the witness, "Were 
         11   there any facts known to you as a prosecutor which 
         12   could not have been made public?"
         13            MR. EGBERT:  Okay.  I'll rephrase the 
         14   question
         15       BY MR. EGBERT:
         16       Q.   Did you know what was in this Exhibit 3?
         17            HEARING OFFICER DAHER:  Do you want a 
         18   break? 
         19            THE WITNESS:  Yes.  
         20            (Recess.)
         21       BY MR. EGBERT: 
         22       Q.   Turn to Exhibit 24, if you would. 
         23       A.   Yes.
         24       Q.   And go to the part that says, "Final 
 0124
          1   Version."  Do you see in the upper right-hand corner 
          2   there will be a designation "Final Version"?
          3       A.   Yes.
          4       Q.   Do you have that?
          5       A.   Yes, I do.
          6       Q.   Now, halfway down you were asked about this 
          7   on direct, this line in the statement:  "In this 
          8   case there were certain facts before me known by 
          9   both the prosecutor and the defense attorney that 
         10   were part of the plea conference and cannot be 
         11   revealed by me, but which would undoubtedly change 
         12   the characterization of this case as currently 
         13   reported by some media outlets," right?
         14       A.   That's correct.
         15       Q.   Now, there's no doubt there were a number 
         16   of facts before Judge Lopez at the plea conference, 
         17   including the contents of this Exhibit 3, 
         18   psychosocial report, which were not facts which 
         19   could be released by her; isn't that right?
         20       A.   I don't know if they were or weren't facts 
         21   that could be released by her, but --
         22       Q.   Let's stick with that question.  I know you 
         23   want to get to the next part of it.  Let's stick 
         24   with the facts.  You want to say you don't think 
 0125
          1   they change the characterization of the case, right?
          2       A.   That's correct.
          3       Q.   That's your opinion?
          4       A.   That's correct.
          5       Q.   Her opinion might be much different than 
          6   yours?
          7       A.   Of course.
          8       Q.   So let's get to the factual issues; not the 
          9   opinion questions.
         10            HEARING OFFICER DAHER:  Didn't Judge Lopez 
         11   in a sense make a significant part of that 
         12   psychosocial report public when she said, in her 
         13   handwriting, "The defendant suffers from an identity 
         14   disorder.  She looks female in all respects" --
         15            MR. EGBERT:  She made that part of the 
         16   report public information.  Her report as to chronic 
         17   depression, anxiety, the mother and father 
         18   situation, the beatings she had as a child, the 
         19   current treatment, the current psychological 
         20   situation, the medications, the use of hormone 
         21   therapy and various things -- I can go through a 
         22   number of them.  Each and every one of them were not 
         23   made public, were not a matter of any public 
         24   record --
 0126
          1            HEARING OFFICER DAHER:  Wasn't that your 
          2   argument about an hour ago?  You're trying to show a 
          3   nexus between identity disorder and a host of other 
          4   psychological or psychiatric problems? 
          5            MR. EGBERT:  Because you're dealing with 
          6   inferences, Judge.  We're dealing with facts.  
          7   They're inferences.  You can infer from a number of 
          8   facts a specific conclusion.  But these facts --
          9            HEARING OFFICER DAHER:  So, indirectly 
         10   didn't Judge Lopez make that public disclosure in 
         11   stating, "The defendant suffers from an identity 
         12   disorder.  She looks female in all respects"?  I 
         13   mean, that's the thrust --
         14            MR. EGBERT:  First of all, the DA's office 
         15   made that disclosure first in a press release.  That 
         16   disclosure was made before Judge Lopez's findings.  
         17   The DA's office made that disclosure in a press 
         18   release.  That's first off. 
         19            Secondly, I agree with you that Judge Lopez 
         20   indicated in her finding that the defendant suffered 
         21   from a sexual identity disorder.  No question about 
         22   that.  And I think he said, in all respects, dresses 
         23   and acts like a woman.  What the exact words were, I 
         24   don't have it.  But there is nothing in the public 
 0127
          1   record that goes to any of the facts which I'm about 
          2   to relate to you.  
          3            For example, "She's been treated with 
          4   female hormones for a couple of years."  There is 
          5   nothing in the public record about that.  Aren't I 
          6   right? 
          7            HEARING OFFICER DAHER:  Mr. Ware is 
          8   objecting before we move to the next question.  Go 
          9   ahead, Mr. Ware.
         10            MR. WARE:  The testimony from Judge Lopez 
         11   is there was no fact that she thought she couldn't 
         12   make public.
         13            MR. EGBERT:  That's not true.
         14            MR. WARE:  In Exhibit 32, her transcript of 
         15   sworn testimony, she said it here again:  "I don't 
         16   dispute that on August 1st there were aspects of 
         17   Exhibit 3, the social worker's four-page paper, that 
         18   were not public, all these hardships in the 
         19   defendant's life.  That's true.  And that's true of 
         20   most criminal defendants.  But the issue here is 
         21   whether or not those facts would have changed the 
         22   public's perception."
         23            MR. EGBERT:  No.  The issue here is whether 
         24   or not there were facts that she could not release.  
 0128
          1   That's what the issue is:  Whether there were facts 
          2   that were known to her that could not be released to 
          3   the press.  That's exactly what she says in the 
          4   press release.  She then goes on to say that it 
          5   would change the characterization.  That's her 
          6   opinion, and that's what she testified here today -- 
          7   I mean last week.  But the first issue is --
          8            HEARING OFFICER DAHER:  "She looks female 
          9   in all respects."  That's the basic import of the 
         10   report that Ms. Goldbach submitted.  I mean, 
         11   "Identity disorder.  She looks female in all 
         12   respects."  And this is an experienced jurist who 
         13   says, "She looks female in all respects."  I mean, 
         14   isn't that making the report public, Mr. Egbert? 
         15            MR. EGBERT:  No.  It is simply not.  It's 
         16   simply not. 
         17       BY MR. EGBERT: 
         18       Q.   Was this report on the public record?
         19       A.   No, this report was not made public.
         20       Q.   And do you know whether or not a judge can 
         21   comment on facts not on the public record in the 
         22   press? 
         23            MR. WARE:  Objection.  
         24            HEARING OFFICER DAHER:  What's the 
 0129
          1   objection? 
          2            MR. WARE:  It's a matter of law.
          3            HEARING OFFICER DAHER:  Sustained.  
          4   Sustained. 
          5       Q.   You testified yesterday there were no facts 
          6   known to you which could not be released to the 
          7   public, correct?
          8       A.   I don't think that's what I said yesterday.  
          9   I thought I said that there were no facts that I 
         10   knew that would change or mitigate in any way the 
         11   defendant's criminal conduct on the day that he 
         12   committed the crime.
         13       Q.   Question on Page 103:  "To your knowledge, 
         14   were there any facts in the Horton case which could 
         15   not be disclosed?  
         16            "Answer:  Well, the child's name is 
         17   supposed to be protected by statute."
         18       A.   Could I just ask where you're reading from? 
         19       Q.   Listen to me.  Listen along.
         20            MR. WARE:  If the witness would like to see 
         21   the transcript that counsel is reading from, she 
         22   should be given it.
         23            MR. EGBERT:  This is my daily transcript.  
         24   I don't have copies of it. 
 0130
          1            HEARING OFFICER DAHER:  We'll get it.
          2            MR. EGBERT:  Judge, by the way, I think 
          3   it's perfectly appropriate to read from a transcript 
          4   and ask the witness if that's what they said without 
          5   providing transcripts to a witness.
          6            HEARING OFFICER DAHER:  You're right.  Go 
          7   ahead.
          8       Q.   Were you asked this question:  "To your 
          9   knowledge, were there any facts in the Horton case 
         10   which could not be disclosed?"  And you answered:  
         11   "Well, the child's name is supposed to be protected 
         12   by statute, and I know that's something that's not 
         13   to be disclosed.  Other than that, I don't know of 
         14   any facts that cannot be disclosed to the public or 
         15   to the Court."  Do you recall saying that?
         16       A.   Yes.
         17       Q.   Now, my question is, would the Judge be 
         18   permitted to disclose the facts in this report which 
         19   were not a matter of public record to the public in 
         20   a press release.
         21            MR. WARE:  Objection.
         22            HEARING OFFICER DAHER:  Sustained.
         23            MR. EGBERT:  Well, then, Judge, I move to 
         24   strike her answers to questions on Page 102, 103, 
 0131
          1   and 104 on this subject.  She was asked whether or 
          2   not there were any facts that couldn't be disclosed 
          3   by the Judge, and now I'm cross-examining that and 
          4   I'm being prohibited from doing that.
          5            HEARING OFFICER DAHER:  Motion to strike 
          6   responses on Pages 102, 103, and 104.  I'll take it 
          7   under advisement and make a ruling on it.
          8            MR. EGBERT:  And I'll give you specific 
          9   lines, if you want.
         10            HEARING OFFICER DAHER:  I'd appreciate it.
         11       Q.   Was the defendant's criminal record public 
         12   information?
         13       A.   That would have been -- yes, I believe that 
         14   was in the court record, yes.  I don't think it was 
         15   public information, but it accompanied the docket 
         16   sheet -- you know, Probation was there in court and 
         17   they had a copy of it.
         18       Q.   CORI information is not permitted to be 
         19   released to the public; is that right?
         20       A.   That's right.
         21       Q.   There's no doubt that the Judge and you and 
         22   the defense counsel all had possession of the facts 
         23   concerning Mr. Horton's criminal record or lack 
         24   thereof --
 0132
          1       A.   That's right.
          2       Q.   -- which the Judge was not permitted to 
          3   disclose to the public; is that correct?
          4       A.   That's correct.
          5       Q.   And the opinion of the licensed social 
          6   worker with regard to whether or not Horton was 
          7   likely to reoffend, that was not in the public 
          8   record, was it?
          9       A.   I don't know that that opinion was stated 
         10   on the record, no.
         11       Q.   Can you think of any place where it might 
         12   be in the public record?
         13       A.   No.
         14       Q.   And the clinical impressions of the social 
         15   worker contained in the report, none of that was in 
         16   the public record, was it, aside from the 
         17   transgendered --
         18       A.   Right.  The primary impression was of the 
         19   defendant's transgendered status, and that was in 
         20   the public record.
         21       Q.   Was anything about the defendant suffering 
         22   chronic depression in the public record?
         23       A.   In the report, that was subsumed under the 
         24   concept of the defendant being transgendered.
 0133
          1       Q.   It was subsumed?
          2       A.   That's my understanding, yes.
          3       Q.   So when the report says, "Ebony has a 
          4   chronic depression," you think that's subsumed by 
          5   being transgendered?
          6       A.   The report relates the depression to the 
          7   defendant's status as transgendered, that she was 
          8   struggling with this transgendered issue, and as a 
          9   result, that was depressing for her.
         10       Q.   And does one necessarily follow the other, 
         11   as far as you're concerned?
         12       A.   No, not in life, but in this report I 
         13   believe they did.
         14       Q.   So my question to you again is, the fact 
         15   that she suffered chronic depression was not in the 
         16   public record, correct?
         17       A.   Not the specifics of the depression.
         18       Q.   Not the fact that she suffered chronic 
         19   depression, correct?
         20       A.   That's correct.
         21       Q.   Along with the fact that she was having 
         22   suicidal thoughts was not in the public record, 
         23   correct?
         24       A.   That's correct.
 0134
          1       Q.   Also not in the public record was her prior 
          2   relationship to medications.
          3       A.   That's correct.
          4       Q.   And her current standing with regard to 
          5   medications.
          6       A.   That's correct.
          7       Q.   Also not in the record was her prior 
          8   psychological counseling.
          9       A.   The fact that she wasn't in counseling? 
         10       Q.   Her prior counseling. 
         11       A.   I don't know.  At some point Anne Goldbach 
         12   mentioned that she was receiving therapy on the 
         13   record.  I don't know in the context of the plea --
         14       Q.   Do you have any memory of her saying that?
         15       A.   I don't.  No, I don't remember the 
         16   counseling issue --
         17       Q.   And certainly it wasn't indicated the place 
         18   and type of counseling that she had received on the 
         19   record anywhere; is that correct?
         20       A.   No.
         21       Q.   Those were all matters which you knew about 
         22   because you had seen or heard the report, correct?
         23       A.   Yes.
         24       Q.   Defense counsel knew about it, correct?
 0135
          1       A.   Yes.
          2       Q.   And the Judge knew about it?
          3       A.   Yes.
          4       Q.   Along with the CORI information which we 
          5   just discussed?
          6       A.   Yes.
          7            MR. EGBERT:  May I have a moment, please?  
          8            (Pause.)
          9            MR. EGBERT:  I have nothing further, Judge.
         10            HEARING OFFICER DAHER:  Are you all done 
         11   with Ms. Joseph? 
         12            MR. EGBERT:  Yes.
         13            HEARING OFFICER DAHER:  Mr. Ware? 
         14            MR. WARE:  I have no questions for the 
         15   witness.  Thank you, Ms. Joseph. 
         16            HEARING OFFICER DAHER:  Please step down. 
         17            MR. WARE:  Your Honor, we'd like to call 
         18   David Deakin.  As I mentioned to the Court, I would 
         19   like to have Mr. Braceras conduct direct 
         20   examination, if that's okay with the Court.
         21            HEARING OFFICER DAHER:  I think you've 
         22   already agreed to that? 
         23            MR. EGBERT:  I've agreed to it, and I think 
         24   it's appropriate that you be asked and be consulted.
 0136
          1            HEARING OFFICER DAHER:  Thank you very 
          2   much.  I appreciate that courtesy. 
          3            Mr. Ware, let's talk about your situation 
          4   for the motion to continue. 
          5            MR. WARE:  Yes, Your Honor.  The Commission 
          6   opposes a continuance in this case for the reasons I 
          7   think I articulated, but I'll do so again. 
          8            First of all, obviously this is a schedule 
          9   to which both parties agreed.  No time is perfect.  
         10   It's an imposition on everyone.  I and my colleagues 
         11   are appearing in this case on a pro bono basis.  We 
         12   have a practice to get back to at some point.  
         13            We're approaching the Christmas holidays.  
         14   There are a great many people on both sides and 
         15   court personnel involved in the matter.  It's a 
         16   matter, as you have pointed out on a number of 
         17   occasions, that is one of great import, and I think 
         18   the continuity for the purposes of witnesses, the 
         19   testimony, the Court's absorption of the information 
         20   is important to the process.  
         21            I don't believe, without demeaning in any 
         22   way what Judge Lopez intends to do in Cuba, that 
         23   that ought to take preference or precedence over a 
         24   formal court proceeding before Your Honor.  I think 
 0137
          1   that's an inappropriate request.  And I think that 
          2   there is no basis for putting everybody on hold and 
          3   picking up again on the 15th and 16th of December, 
          4   running into Christmas week.  I think that's 
          5   unreasonable.  We oppose it, and I think it's a 
          6   burden on a great many other people. 
          7            HEARING OFFICER DAHER:  Mr. Egbert? 
          8            MR. EGBERT:  I don't know what Mr. Ware 
          9   indicated about a burden on various people.  There's 
         10   been no showing that anybody is unavailable or the 
         11   like.  It's a matter of continuing for a week, which 
         12   is not uncommon in administrative-type hearings, 
         13   which this is.  And we don't have jurors waiting and 
         14   we don't have court personnel all dedicated to the 
         15   beginning and end of a trial.  And I've been 
         16   involved in numerous administrative-type proceedings 
         17   where hiatuses have been taken for appropriate 
         18   purposes.  
         19            Judge Lopez made these plans, I think, in 
         20   early September -- I might add, just in case -- and 
         21   I hate to rely on newspaper accounts, but I read a 
         22   newspaper account of what you were told and it's not 
         23   what you were told, and I want to make sure there's 
         24   no misunderstanding.  I read a newspaper account 
 0138
          1   that said that you were told that this was an ABA 
          2   international committee --
          3            HEARING OFFICER DAHER:  I wasn't told 
          4   anything. 
          5            MR. EGBERT:  -- by me or by Judge Lopez, 
          6   and that's not what you were told.  And what it 
          7   is -- so it's crystal clear -- I think it was clear 
          8   last time -- Judge Lopez has been involved for a 
          9   year or more, involved in increasing and improving 
         10   the relations between Cuba and the United States in 
         11   a number of ways, and she has been one of the few 
         12   that is permitted to have visas and permits to take 
         13   American citizens over for cultural, legal and the 
         14   type.  I think this is her third or fourth trip.
         15            JUDGE LOPEZ:  Twelfth.
         16            MR. EGBERT:  Twelfth.  She has taken 
         17   Congressmen over in the past and the like and met 
         18   with various officials.  This trip was planned with 
         19   some 20 or 30 people.  It has been planned well in 
         20   advance.  She is the sponsor, basically, of the 
         21   trip.  And as part of not just the trip, in dealing 
         22   with the cultural affairs in that regard, while 
         23   there, she has been asked by -- and again -- what's 
         24   his name? 
 0139
          1            JUDGE LOPEZ:  By Don DeAmicis.
          2            MR. EGBERT:  By Don DeAmicis, who is the 
          3   president-elect in the American Bar Association, 
          4   International Law Committee, to organize because 
          5   they've been turned down by Cuba on previous 
          6   occasions.  Judge Lopez while in Cuba has set up --
          7            HEARING OFFICER DAHER:  Let's talk about 
          8   scheduling, if you would, Mr. Egbert.  I have no 
          9   doubt it's probably a very noble project, but let's 
         10   talk about scheduling.  We had a problem in 
         11   September.  You were tied up, Mr. Ware was tied up, 
         12   and we kept on bandying around a date.  We finally 
         13   came to the date, I think, of sometime in November.
         14            MR. EGBERT:  November 4th.
         15            HEARING OFFICER DAHER:  Okay.  When did 
         16   Judge Lopez schedule -- when did she make the 
         17   arrangements for this? 
         18            MR. EGBERT:  In September I believe was the 
         19   origination of it. 
         20            HEARING OFFICER DAHER:  And she was advised 
         21   obviously that we would start in November.
         22            MR. EGBERT:  We thought we would start on 
         23   November 4th, and the original projection by the 
         24   Commission was that their case would take three 
 0140
          1   days.  That's what we were told.  And certainly if 
          2   we started on November 4th, we wouldn't be running 
          3   into this problem.  It was not my problem, you 
          4   remember.  Mr. Ware sought the continuance from 
          5   November 4th to the 18th or so because he had a case 
          6   in Maine, I think it was, in a conflict from the 
          7   original schedule that we had all written in stone, 
          8   so to speak.  I didn't present this until it became 
          9   clear to me it was going to be a problem.  I was 
         10   hopeful it wouldn't be.  I talked with Mr. Ware 
         11   about it a bit ago to let him know that.  Other than 
         12   we don't start and finish from beginning to end, I 
         13   don't see a substantial inconvenience to the 
         14   proceedings or to the parties. 
         15            HEARING OFFICER DAHER:  Not putting this on 
         16   a monetary level, but Mr. Ware's office -- you just 
         17   heard him -- is strictly pro bono, and he has other 
         18   cases to try.
         19            MR. EGBERT:  So do I.  And he's hardly 
         20   strictly pro bono, from what I understand.  I always 
         21   thought pro bono was you don't charge.
         22            HEARING OFFICER DAHER:  Let's not get into 
         23   that.
         24            MR. EGBERT:  He makes that statement to 
 0141
          1   you, Judge.
          2            HEARING OFFICER DAHER:  I have an idea as 
          3   to what pro bono means.  It's what we're all working 
          4   for here today.
          5            MR. WARE:  I might also mention that Mrs. 
          6   Braceras's wife will be delivering a baby in a few 
          7   weeks, too.
          8            HEARING OFFICER DAHER:  He's not going to 
          9   be delivering the baby.
         10            MR. BRACERAS:  She wants me present.
         11            MR. WARE:  We really are running up against 
         12   a major time problem here. 
         13            MR. EGBERT:  I don't see it, Judge.  I 
         14   don't see we're running up against time.  The two 
         15   major witnesses in this case are now done.  And have 
         16   in mind that the Commission indicated that their 
         17   whole case was a three-day case when we scheduled 
         18   this matter.
         19            MR. WARE:  I disagree with that.
         20            MR. EGBERT:  The record will show it.
         21            MR. WARE:  We both gave estimates that the 
         22   case would wrap up within a three-week period.
         23            MR. EGBERT:  You said three days and I said 
         24   two weeks.
 0142
          1            MR. WARE:  I've probably only taken three 
          2   days.  You've taken another five or six.
          3            HEARING OFFICER DAHER:  Let's not have the 
          4   acrimony. 
          5            Harvey, could we get a Thursday courtroom? 
          6            THE CLERK:  Now we have to deal with the 
          7   other courts.
          8            HEARING OFFICER DAHER:  Can we get another 
          9   courtroom for a Thursday to make up for the --
         10            THE CLERK:  I don't know.
         11            HEARING OFFICER DAHER:  I'm going to allow 
         12   the continuance and I'm going to see if we can speed 
         13   up the process by getting -- rather than have a 
         14   hiatus on Thursday, if we can get another courtroom 
         15   to make up for the lost time.
         16            MR. EGBERT:  Tomorrow? 
         17            HEARING OFFICER DAHER:  I don't think I can 
         18   do it tomorrow.  So the motion for a continuance is 
         19   allowed.  And let's pick up with Mr. Deakin. 
         20            MR. WARE:  Your Honor, there is a cost 
         21   involved in keeping the electronics available, and 
         22   I'd at least ask that the defense counsel pay that 
         23   extra cost of the delay.
         24            HEARING OFFICER DAHER:  What is the cost? 
 0143
          1            MR. WARE:  I don't know the numbers.
          2            HEARING OFFICER DAHER:  What is it for?  Is 
          3   it a rental?  
          4            MR. BERRIMAN:  Yes, all screens and wiring.
          5            HEARING OFFICER DAHER:  That's a rental? 
          6            MR. WARE:  Yes. 
          7            HEARING OFFICER DAHER:  You people don't 
          8   have this as part of your standard equipment at an 
          9   office like that? 
         10            MR. WARE:  We do not.
         11            MR. EGBERT:  They can return it and bring 
         12   it back when they need it. 
         13            HEARING OFFICER DAHER:  What is the cost? 
         14            MR. WARE:  We can submit that to the Court.  
         15   I couldn't say specifically off the top of my head.  
         16   I don't know.  Jim, do you know? 
         17            MR. BERRIMAN:  A few hundred dollars.
         18            HEARING OFFICER DAHER:  Do we have to 
         19   rewire it?
         20            THE CLERK:  We could leave it here.
         21            HEARING OFFICER DAHER:  Why don't we stop 
         22   with Mr. Deakin at one.  Then we'll talk about the 
         23   ways of resolving the logistics in this matter.
         24            MR. WARE:  I also want to reiterate that I 
 0144
          1   have another trial scheduled in January.  We're 
          2   certainly not going to finish this case before 
          3   Christmas at this rate.  And we're going to start up 
          4   again on what date?  The 15th or 16th?  We're going 
          5   to go four days.
          6            HEARING OFFICER DAHER:  I'm going to try to 
          7   pick up another day.  The reason that we go four 
          8   days is because this courtroom is pretty heavily 
          9   used on Thursdays, which is an eviction day.
         10            MR. WARE:  This request for continuance, as 
         11   I understand it, is for all of next week and at 
         12   least Monday of the following week; isn't that 
         13   right? 
         14            HEARING OFFICER DAHER:  No.  She's coming 
         15   back on Sunday, right? 
         16            JUDGE LOPEZ:  Monday.
         17            MR. WARE:  We're missing, in effect, eight 
         18   days --
         19            JUDGE LOPEZ:  I can try and change my 
         20   return to Sunday.
         21            HEARING OFFICER DAHER:  So we won't miss a 
         22   Monday.
         23            MR. EGBERT:  And we'll do that.  Judge, 
         24   would it make sense to go full days? 
 0145
          1            HEARING OFFICER DAHER:  I'll be delighted 
          2   to.  I thought of that.  That's what I had in mind.  
          3   We'll go on Thursdays and we'll try to go until 4:30 
          4   -- I thought of that before -- to make up for the 
          5   hours that we're missing.  We'll double up --
          6            MR. WARE:  It's okay with me if that's our 
          7   only alternative.  I think it's unreasonable and I 
          8   think it's a burden on everyone except Judge Lopez, 
          9   and I think the Court should not allow it in a 
         10   proceeding of this dimension.  I see no reason for 
         11   that.  But to the extent the Court's ruled, if the 
         12   alternative is running this case into January or up 
         13   until Christmas Eve, then yes, I'd like to go to 
         14   4:30 or 5:00.  And what I'd really prefer is for the 
         15   Court to put a time limit on the case and the Court 
         16   order that this case be completed by a specific 
         17   date, come hell or high water.  If we have to sit 
         18   until six o'clock, we sit.
         19            HEARING OFFICER DAHER:  We're faced with 
         20   Judge Lopez's and every respondent's due process 
         21   rights.
         22            Let me see what we can do right after we 
         23   get started with Mr. Deakin. 
         24            Before we get started, Mr. Egbert, is that 
 0146
          1   a problem with the wiring?  The way his office feels 
          2   is that if there's a cost involved with the wiring 
          3   and your client is taking a week off as a hiatus, is 
          4   that a problem with picking up the cost of the 
          5   wiring?  It's not going to break the bank?
          6            MR. EGBERT:  That's the only question.  I 
          7   don't know what it is.  If it's something 
          8   reasonable, I'm not going to squawk about it.
          9            HEARING OFFICER DAHER:  Okay.  Let's go. 
         10                   DAVID DEAKIN, Sworn
         11                    DIRECT EXAMINATION
         12       BY MR. BRACERAS: 
         13       Q.   Would you state your name for the record, 
         14   please.
         15       A.   David Deakin.
         16       Q.   And can you briefly describe your education 
         17   for us. 
         18       A.   I graduated from Williams College in 1986 
         19   with a Bachelor of Arts in English literature.  I 
         20   graduated from Oxford University in England in 1988 
         21   with a second bachelor's degree in English 
         22   literature, and I graduated from Harvard Law School 
         23   in 1991 with a juris doctorate degree.
         24       Q.   Where did you go to work after Harvard Law 
 0147
          1   School?
          2       A.   After law school I spent a year as a 
          3   judicial clerk for the then Honorable -- I guess she 
          4   still is -- the Honorable Ruth Abrams, who was then 
          5   on the Supreme Judicial Court of Massachusetts.
          6       Q.   After your clerkship?
          7       A.   After that I went to work in the Norfolk 
          8   County district attorney's office.
          9       Q.   How long were you in the Norfolk DA's 
         10   office?
         11       A.   From September of 1992 to April of 1996, so 
         12   roughly three and a half years.
         13       Q.   What positions did you hold there?
         14       A.   Initially, for the first year I was there I 
         15   was a line assistant district attorney in Quincy 
         16   District Court, which just means a trial prosecutor, 
         17   general assignment trial prosecutor in the District 
         18   Court. 
         19            The second year I was in Quincy District 
         20   Court.  I continued to be a line prosecutor, but I 
         21   was also the co-supervisor in that office.  After 
         22   that year -- so at the two-year mark I was asked to 
         23   join the sexual assault and domestic violence unit 
         24   which was based in the Dedham headquarters of the 
 0148
          1   district attorney's office.  I spent a year and a 
          2   half in that unit.  Initially I was having sexual 
          3   assault cases involving abuse of adults and children 
          4   in the various district courts in Norfolk County.  
          5   And gradually, after I had been there for about a 
          6   year, I began presenting cases to the grand jury and 
          7   doing some work in Norfolk Superior Court.
          8       Q.   At some point did you move to the Suffolk 
          9   DA's office?
         10       A.   I did.  I believe it was either April or 
         11   May of 1996.
         12       Q.   What brought that about?
         13       A.   I was approached initially by a former 
         14   colleague in the Norfolk DA's office, who had moved 
         15   to the Suffolk district attorney's office, about 
         16   whether I would be interested in joining the child 
         17   abuse unit in Superior Court in the Suffolk County 
         18   district attorney's office.  And when I expressed an 
         19   interest, I had a formal interview with the man who 
         20   was then the chief of that unit.
         21       Q.   Who was that?
         22       A.   His name is Josh Wall.  He's now the deputy 
         23   district attorney.
         24       Q.   So when you joined the Suffolk's DA's 
 0149
          1   office, you joined the child abuse unit?
          2       A.   That's correct.
          3       Q.   And you were a line ADA in that unit?
          4       A.   I was a line ADA in Superior Court, so I 
          5   was a trial prosecutor in Superior Court.
          6       Q.   When you were a line ADA in Superior Court 
          7   in the child abuse unit, approximately how many 
          8   cases per year did you handle?
          9       A.   I would be estimating.  Based on my 
         10   familiarity with the overall statistics, I would 
         11   imagine it was somewhere in the range of 150 to 175 
         12   investigations each year.
         13       Q.   And out of those investigations 
         14   approximately how many cases were indicted?
         15       A.   Indictments would probably have run 
         16   somewhere between 12 and maybe 18 or 20 per year out 
         17   of that number.
         18       Q.   At some point you became chief of the child 
         19   abuse unit?
         20       A.   That's correct.  It was at the beginning of 
         21   December of 1998.
         22       Q.   Generally speaking, what are your 
         23   responsibilities as chief of the child abuse unit?
         24       A.   Well, in addition, I have a case load still 
 0150
          1   which is similar to a line ADA's case load except 
          2   somewhat reduced to allow for administrative 
          3   responsibilities.  I'm responsible for overseeing 
          4   all referrals of child abuse to law enforcement in 
          5   Suffolk County.  In particular, I am responsible for 
          6   reviewing all the cases that come to us via the 
          7   police, the Department of Social Services, and then 
          8   other -- that's the bulk of our referrals.  I'm 
          9   responsible for reviewing those cases, assigning 
         10   them for prosecution and supervising the work of the 
         11   prosecutors, who then investigate and prosecute 
         12   those cases.
         13       Q.   You said, I think, that you still handle 
         14   cases?
         15       A.   Yes, I do.
         16       Q.   And you also mentioned that you review all 
         17   of the cases that come into the unit?
         18       A.   That's correct.  Actually, all of the cases 
         19   that come into the district attorney's office 
         20   involving child abuse.
         21       Q.   All of the cases that remain with the child 
         22   abuse unit, do you keep current with the cases and 
         23   the development of those cases?
         24       A.   Yes, I do.  I also try to keep current with 
 0151
          1   the cases that are referred back to District Court, 
          2   although that's somewhat more difficult and involves 
          3   some cooperation with the District Court 
          4   supervisors, but the cases that remain in the child 
          5   abuse unit in Superior Court I try to remain current 
          6   with.
          7       Q.   And you do that by meeting with the line 
          8   ADAs?
          9       A.   That's correct, and also exchanging memos 
         10   and emails at times and meeting with them both 
         11   formally and informally.
         12       Q.   At some point you became involved in the 
         13   Horton case; is that right?
         14       A.   That's correct.
         15       Q.   About when was that?
         16       A.   I believe it was the end of November of 
         17   1999.  I'm not sure of the precise date.
         18       Q.   How were you first alerted to the Horton 
         19   case?
         20       A.   I don't recall exactly which came first.  I 
         21   know that we received a referral from the District 
         22   Court where he had been arraigned.  I have a memory 
         23   that he was arraigned on a Monday.  I'm not certain 
         24   of that, but I know we received a referral.  We also 
 0152
          1   received a fax of police reports from the Boston 
          2   Police Department sexual assault unit.  I don't 
          3   recall which of them came first, but they came in 
          4   very close succession to one another, and I reviewed 
          5   those reports.
          6       Q.   Now, you mentioned that it's one of your 
          7   responsibilities to assign cases that came in; is 
          8   that right?
          9       A.   That's correct.
         10       Q.   To whom did you assign the Horton case?
         11       A.   To Assistant District Attorney Leora 
         12   Joseph.
         13       Q.   And how did you make that decision to 
         14   assign the case to her? 
         15            MR. EGBERT:  Objection.  Relevance.
         16            HEARING OFFICER DAHER:  Overruled.
         17       A.   My normal procedure is I basically keep 
         18   sort of an informal duty rotation among the 
         19   assistants in the unit, and the general assignment 
         20   criteria is whoever is next, whoever has not had a 
         21   case assigned to them in the longest period of time.  
         22   Whoever is up.  I sometimes --
         23            MR. EGBERT:  We're not asking for 
         24   procedures.  We're asking what he did in this case.  
 0153
          1   The question was how did he come to pick Leora 
          2   Joseph.
          3            HEARING OFFICER DAHER:  Relevancy. 
          4            MR. BRACERAS:  I think he was answering 
          5   that question, but fine.  I'll put another question 
          6   to the witness.
          7            HEARING OFFICER DAHER:  Sustained.
          8       Q.   Why did you assign the case to Ms. Joseph?
          9       A.   I had probably assigned it to her --
         10            MR. EGBERT:  Motion to strike.
         11            HEARING OFFICER DAHER:  Sustained to the 
         12   word "probably."
         13       A.   To the best of my memory I assigned it to 
         14   her because she was the next prosecutor on the duty 
         15   list.
         16       Q.   She was next up in the rotation?
         17       A.   Correct.
         18       Q.   At the time that you assigned the case to 
         19   Ms. Joseph, that would have been in November of '99?
         20       A.   Correct.
         21       Q.   So shortly after you received the case?
         22       A.   Either that day or the next morning.  I'm 
         23   not sure which.
         24       Q.   Now, when you assigned the case to Ms. 
 0154
          1   Joseph, Judge Lopez was not on the case; is that 
          2   right?
          3       A.   No.  In Superior Court the judges rotate.  
          4   Even after a case has indicted, it's very difficult 
          5   to know what judge is going to sit on what case, and 
          6   they sometimes sit on a part of it and then rotate 
          7   out and another judge sits. 
          8            At this point it hadn't yet even been 
          9   indicted, so there's no way to know what Superior 
         10   Court judge might come into contact with it.
         11       Q.   Now, you're familiar with dangerousness 
         12   hearings?
         13       A.   Yes, I am.
         14       Q.   Was there a dangerousness hearing requested 
         15   in the Horton case?
         16       A.   No, there was not.
         17       Q.   When is a dangerousness hearing sought?
         18       A.   Virtually always -- well, dangerousness 
         19   hearing by statute has to be sought at the time a 
         20   defendant is first brought before the Court.  
         21   Virtually always if a dangerousness hearing is 
         22   sought, it would be sought at the defendant's first 
         23   presentation in District Court, which is virtually 
         24   always at arraignment.  That's virtually always the 
 0155
          1   defendant's first contact with District Court.
          2       Q.   Is that your office's practice as to when 
          3   to seek a dangerousness hearing?
          4       A.   Absolutely.
          5       Q.   Now, does the fact that you may not seek a 
          6   dangerousness hearing in a case reflect on whether 
          7   the defendant is dangerous?
          8       A.   In general.  I mean, obviously if we seek a 
          9   dangerousness hearing, it's because we believe a 
         10   defendant is dangerous.  There are many instances, 
         11   however, that we recognize that a defendant poses a 
         12   potential danger where we do not seek a 
         13   dangerousness hearing.
         14       Q.   Why is that?
         15       A.   In the child abuse unit the most common 
         16   reason is the dangerousness hearing permits a 
         17   defense counsel to call witnesses, including the 
         18   child victim.  Because the dangerousness hearing is 
         19   under a very strict time chronology -- that is, 
         20   there are very strict provisions about how long it 
         21   can continue -- that generally means that a defense 
         22   attorney can subpoena the victim to testify in a 
         23   serious child abuse case within days or maybe as 
         24   much as a week or ten days of the abuse. 
 0156
          1            We generally find that this process is hard 
          2   enough on children as it is, without asking them to 
          3   go through what I would view as a very demanding 
          4   ordeal of testifying within days of the assault.
          5       Q.   Now, in this case, the Horton case, the 
          6   decision not to seek a dangerousness hearing, that 
          7   would have been your decision as head of the unit?
          8       A.   I don't actually believe that I was 
          9   consulted on the question of whether to seek a 
         10   dangerousness hearing in the District Court.  
         11   Because of people's schedules and the difficulty of 
         12   getting in touch with people, a decision is often 
         13   made with District Court supervisors --
         14            MR. EGBERT:  Objection as to what's often 
         15   done and what possibly might be done.
         16            HEARING OFFICER DAHER:  Sustained.
         17       Q.   The fact that a dangerousness hearing was 
         18   not sought in the Horton case is not a decision by 
         19   your office that the defendant was not dangerous; is 
         20   that right? 
         21            MR. EGBERT:  That's leading. 
         22            HEARING OFFICER DAHER:  I'll give some 
         23   latitude.
         24       A.   No, it was not.
 0157
          1       Q.   And is a sentence of imprisonment -- let's 
          2   step back and say eventually in this case, the 
          3   Horton case, you recommended a sentence of 
          4   imprisonment; is that right?
          5       A.   That's correct.
          6       Q.   Now, do you view a recommendation of 
          7   imprisonment to be inconsistent in any way with the 
          8   failure to seek a dangerousness hearing?
          9       A.   Absolutely not.  We regularly recommend 
         10   sentences of incarceration, including to the state 
         11   prison, on defendants who are on bail, who have 
         12   posted bail and are at liberty during the pendency 
         13   of the proceedings.  That happens if not daily, 
         14   certainly weekly.
         15       Q.   Now, before the August 1st lobby conference 
         16   in the Horton case, did you consult with Ms.  
         17   Joseph, ADA Joseph, on the Horton case?
         18       A.   On several occasions.
         19       Q.   What matters did you discuss?
         20       A.   Initially when I assigned the case to her, 
         21   we had a meeting to discuss the investigation, what 
         22   needed to be done and in what order.  We had sort of 
         23   ongoing informal meetings, essentially meetings on 
         24   the fly as she was involved in that investigation.  
 0158
          1   And then sometime thereafter, I'm not certain 
          2   exactly when, but shortly thereafter Ms. Joseph 
          3   submitted a request for direct indictment approval, 
          4   which is our form for an ADA to request permission 
          5   of the office to present evidence to a grand jury.  
          6   And I reviewed that document, discussed it with her, 
          7   put my comments on it, and sent it to First 
          8   Assistant District Attorney Elizabeth Keeley.  
          9            After that time we had a brief discussion 
         10   toward the end of her grand jury presentation about 
         11   the state of the grand jury, the evidence before the 
         12   grand jury.  And we also had a meeting to discuss, 
         13   shortly thereafter, after the grand jury returned an 
         14   indictment, the statement of the case that she would 
         15   file and talk to her about the contents of that. 
         16            Subsequently, in the several ensuing months 
         17   while discovery was going on in the case, we 
         18   discussed it in a very sort of brief fashion as we 
         19   were discussing a whole series of her cases.  Not a 
         20   great deal was happening from a supervisory point of 
         21   view during discovery. 
         22            And then sometime before the August 1st 
         23   lobby conference -- I'm not exactly certain of the 
         24   time frame -- but it was fairly shortly before, she 
 0159
          1   let me know that there would be a lobby conference, 
          2   and we met at some length to discuss the 
          3   Commonwealth's recommendation on sentencing.
          4       Q.   Before we get to that meeting -- and that 
          5   was a meeting that you had to discuss the sentencing 
          6   recommendation?
          7       A.   Yes.
          8       Q.   Before we get to that meeting, you said 
          9   that you discussed with ADA Joseph her direct 
         10   indictment request?
         11       A.   That's correct.
         12       Q.   Does that direct indictment request list 
         13   the charges to indict the defendant on?
         14       A.   Yes, it does.
         15       Q.   Did you approve the charges in that direct 
         16   indictment request?
         17       A.   Yes, I did.
         18       Q.   Is it then office policy that those charges 
         19   have to be approved by the first attendant?
         20       A.   That's correct.
         21       Q.   Now, getting back to this meeting before 
         22   the August 1st lobby conference on the sentencing 
         23   recommendation, do you recall how much before the 
         24   lobby conference that meeting occurred?
 0160
          1       A.   I'm not certain.  I believe it was days, 
          2   but I'm not certain of that.
          3       Q.   Did you eventually agree with ADA Joseph on 
          4   a sentence recommendation?
          5       A.   Yes, I did.
          6       Q.   What was that?
          7       A.   It was a sentence of 8 to 10 years in state 
          8   prison, followed by a lengthy period of probation to 
          9   be served from and after the incarcerated portion of 
         10   the sentence.
         11       Q.   Whose responsibility was it to approve a 
         12   sentencing recommendation?
         13       A.   It was mine.
         14       Q.   And in this case, in the Horton case, who 
         15   had the responsibility to approve the sentencing 
         16   recommendation?
         17       A.   I did.
         18       Q.   And you did approve the sentencing 
         19   recommendation in this case?
         20       A.   That's right.
         21       Q.   Now, in this meeting with Ms. Joseph, what 
         22   factors did you consider in reaching the 
         23   8-to-10-year term of imprisonment? 
         24            MR. EGBERT:  Objection.  Relevance, Judge.
 0161
          1            HEARING OFFICER DAHER:  What's the 
          2   relevancy? 
          3            MR. BRACERAS:  Your Honor, I think this is 
          4   certainly relevant that Judge Lopez has put the 
          5   basis for her sentence at issue in this matter.
          6            HEARING OFFICER DAHER:  Overruled.  You can 
          7   have it.  Let's go with it. 
          8       A.   We considered first and foremost the nature 
          9   and circumstances of the alleged -- at that time 
         10   alleged assault.  We took into account the strength 
         11   of the case from an adjudicative point of view; that 
         12   is, for trial.  We took into account the defendant's 
         13   criminal history, which was not particularly 
         14   significant.  We took into account the sentencing 
         15   guidelines.  I think those are the factors 
         16   essentially that we took into account.
         17       Q.   So just to take these one at a time, you 
         18   said you took into account the facts and 
         19   circumstances of the crime.  What were those facts 
         20   and circumstances as you understood them?
         21       A.   As we understood them, the victim in this 
         22   case, the boy, was lured into the defendant's 
         23   automobile by a ruse, perhaps also assisted by 
         24   physical force.  That wasn't entirely clear to me at 
 0162
          1   that point.  The defendant then, on false pretenses, 
          2   drove the boy around, claiming to be looking for 
          3   sons that the defendant obviously didn't have, drove 
          4   the boy eventually to a remote location where they 
          5   wouldn't be observed, and then tried to force the 
          6   boy to perform oral sex on him by putting his hand 
          7   behind the boy's head and pushing the boy's head 
          8   down towards the defendant's lap.  And then when the 
          9   boy resisted, forcing the boy to simulate oral 
         10   sexual activity first with the defendant's finger 
         11   and then with a screwdriver, refusing to allow the 
         12   boy to leave and go home, even though the boy cried 
         13   and asked to be let go home.  
         14            At one point or perhaps two points -- I'm 
         15   not sure -- placing the -- I think it was one point 
         16   -- placing the sharp end of the screwdriver against 
         17   the boy's neck and telling him to be quiet.  Even -- 
         18   as I said, refusing to let the boy leave, and 
         19   ultimately, when the please arrived, offering the 
         20   boy money in return for his silence.
         21       Q.   Now, you said that you also considered the 
         22   evidentiary strength of the case; is that right?
         23       A.   That's correct.
         24       Q.   What did you understand that to be?
 0163
          1       A.   We -- first of all, I discussed with ADA 
          2   Joseph at some length --
          3            MR. EGBERT:  I would object to this again 
          4   on grounds of relevance as --
          5            HEARING OFFICER DAHER:  Overruled.
          6            MR. EGBERT:  This is the first time we've 
          7   gone into issues like this, so I intend to cross- 
          8   examine fully --
          9            HEARING OFFICER DAHER:  I have no doubts 
         10   that you will.
         11            MR. EGBERT:  -- as to their recommendations 
         12   in other cases.
         13            HEARING OFFICER DAHER:  Overruled.  
         14   Continue with your direct examination.
         15       Q.   So how did you assess the evidentiary 
         16   strength of this case?
         17       A.   First I discussed with ADA Joseph the 
         18   credibility of the boy in the case and his 
         19   willingness and ability to testify.  She assured me 
         20   that both she and the investigative team believed 
         21   that he was very credible and that he was willing, 
         22   if not anxious, to testify.  We noted that in the 
         23   case, the two police officers, uniformed police 
         24   officers of the Boston Police Department, had 
 0164
          1   arrived on scene and had observed what they 
          2   described as a long-haired person in the driver's 
          3   seat of the car they pulled up on moving his or her 
          4   head -- it wasn't clear entirely -- up and down or 
          5   back and forth rapidly.  They observed this for a 
          6   period of several seconds.  
          7            When it stopped a few seconds later, they 
          8   saw another head emerge from the area of the lap of 
          9   the driver of the car and sit up into the area of 
         10   the passenger's seat of the car, which corroborated 
         11   the child's account of what had happened to him. 
         12            The police also, as they approached the 
         13   car, noticed or heard -- one police officer heard 
         14   the defendant saying to the boy, "Tell them you're 
         15   helping me look for my sons," which is what the boy 
         16   had told us the defendant had said to him.  They 
         17   observed the defendant's pants to be down, sort of 
         18   pulled down around the hip area, which tended, in 
         19   our view, to corroborate the boy's account of what 
         20   had happened to him.  
         21            The police recovered a screwdriver from the 
         22   console area between the driver's side and the 
         23   passenger's side -- the driver's seat and the 
         24   passenger seat of the car, which was exactly where 
 0165
          1   the boy had said the defendant had placed the 
          2   screwdriver after using it on him. 
          3            The police also noted that the boy was 
          4   upset and crying at the time that they came upon him 
          5   and testified to that effect in the grand jury as 
          6   well. 
          7            The detective assigned to his case, and his 
          8   partner, Detective Keeley and Detective Hargrove 
          9   with the sexual assault unit, subsequently 
         10   interviewed the defendant, and during that interview 
         11   he conceded that he had been involved with sexual 
         12   activity with the child and conceded that he had 
         13   hoped to perform oral sex on the child -- or have 
         14   oral sex with the child, which was consistent with 
         15   what the child had said the defendant had sought to 
         16   do.  Based on all of these factors, we assessed our 
         17   likelihood of success at trial as quite high.
         18       Q.   Now, you said that in considering the 
         19   recommended sentence, that you also considered the 
         20   Defendant Horton's criminal history; is that right?
         21       A.   That's right.
         22       Q.   And how did you assess that in this case?
         23       A.   His -- as I recall, the defendant's 
         24   criminal history was he had prior charges -- my 
 0166
          1   recollection is that most, if not all, of them were 
          2   dismissed or otherwise did not result in 
          3   adjudications of guilt.  As a result, we viewed him 
          4   as having, for the purposes of this sentencing, no 
          5   record.  There was nothing in his record that 
          6   indicated that we should increase our sentencing 
          7   recommendation because of the record.
          8       Q.   Finally, Mr. Deakin, you said that in 
          9   reaching a determination as to the recommended 
         10   sentence, that you considered sentencing guidelines; 
         11   is that right?
         12       A.   That's correct.
         13            MR. BRACERAS:  I'd like to mark this for 
         14   identification as Exhibit 23.
         15            HEARING OFFICER DAHER:  Mr. Egbert? 
         16            MR. EGBERT:  I think using the back door to 
         17   get in sentencing guidelines which don't exist is 
         18   both improper and unfair.  The Commission knows and 
         19   Mr. Deakin knows that the sentencing guidelines 
         20   which are now being put up are not the law of the 
         21   Commonwealth of Massachusetts, and to put them in 
         22   the public record as something related to this 
         23   case --
         24            HEARING OFFICER DAHER:  Mr. Braceras, help 
 0167
          1   me out.  At one time I felt that these had been 
          2   adopted.  They were on the website, but they were 
          3   the proposed sentencing guidelines.  Why don't you 
          4   respond to Mr. Egbert's argument.
          5            MR. BRACERAS:  Your Honor, Mr. Egbert might 
          6   say that they didn't exist, but they're here and 
          7   exist.  And whether or not they've been enacted into 
          8   law or not, the question to Mr. Deakin was whether 
          9   he relied on them.  They're clearly relevant.  They 
         10   existed as of 1998.  They were recommended by the 
         11   Massachusetts Sentencing Commission, the Honorable 
         12   Robert Mulligan, chairman of the sentencing 
         13   Commission.  So whether they were written into law 
         14   is irrelevant to the question of whether the DA's 
         15   office and whether Superior Court judges, for that 
         16   matter, relied on them.  And the evidence will be 
         17   that the DA's office and Superior Court judges --
         18            HEARING OFFICER DAHER:  I don't know how 
         19   you can say Superior Court judges -- Mr. Egbert, in 
         20   re the fact that Mr. Deakin may have relied on these 
         21   proposed sentencing guidelines --
         22            MR. EGBERT:  Is irrelevant.
         23            HEARING OFFICER DAHER:  Tell me why it's 
         24   irrelevant. 
 0168
          1            MR. EGBERT:  His recommendation in this 
          2   case and how he came to it is of no relevance to the 
          3   charges here.  They made the recommendation.  We all 
          4   know that.  We know what the recommendation was and 
          5   we know what Judge Lopez ultimately did.  And the 
          6   justness or nonjustness --
          7            (Mr. Ware stands up)
          8            HEARING OFFICER DAHER:  Now we have Mr. 
          9   Ware jumping into this.
         10            MR. BRACERAS:  Your Honor, Mr. Egbert 
         11   cannot say that the sentencing recommendation --
         12            HEARING OFFICER DAHER:  But why is it 
         13   important as to how Mr. Deakin arrived at it?
         14            MR. BRACERAS:  Two ways.  At the September 
         15   6th hearing the DA in this case was being accused of 
         16   being disingenuous when he put forth what he thought 
         17   was a legitimate sentencing recommendation and when 
         18   he described this as is a serious case.  In getting 
         19   to the conclusion that this was a serious case, in 
         20   part, Mr. Deakin has already testified he relied on 
         21   the sentencing guidelines.  
         22            Further, No. 2, Judge Lopez has already 
         23   testified that she issued a press release in which 
         24   she referenced sentencing guidelines.  And she said 
 0169
          1   that the Horton case, when she used the term "low 
          2   scale," she was referring to the sentencing 
          3   guidelines.
          4            HEARING OFFICER DAHER:  Overruled.  Go 
          5   ahead.  You got it. 
          6            THE CLERK:  For ID? 
          7            MR. BRACERAS:  I'll offer this.
          8            HEARING OFFICER DAHER:  Fine. 
          9                 (Document marked as Exhibit 23 
         10                 moved into evidence)
         11            HEARING OFFICER DAHER:  I'd like to go a 
         12   little longer today, if that's okay with everybody. 
         13            MR. EGBERT:  How long are you going to go? 
         14            HEARING OFFICER DAHER:  2:00? 
         15            MR. EGBERT:  I just have to make a phone 
         16   call.
         17            HEARING OFFICER DAHER:  I have to make a 
         18   phone call, too. 
         19            (Recess)
         20            THE CLERK:  Is 23 in for an exhibit? 
         21            HEARING OFFICER DAHER:  It's an exhibit.
         22            MR. BRACERAS:  May I approach?
         23            HEARING OFFICER DAHER:  Please.
         24       BY MR. BRACERAS: 
 0170
          1       Q.   Mr. Deakin, I'm showing you Exhibit 23.  Do 
          2   you recognize that?
          3       A.   Yes.  Let me skim through it quickly.  It 
          4   is the Massachusetts Sentencing Commission Proposed 
          5   Sentencing Guidelines.
          6            MR. EGBERT:  I want to approach the Bench.
          7            (Bench conference off the record)
          8            HEARING OFFICER DAHER:  Because of 
          9   information proffered to the Court, we're going to 
         10   recess now at this time and we'll pick it up on 
         11   Friday.  And you'll take care of the security 
         12   aspect? 
         13            MR. EGBERT:  Yes, absolutely.  Thank you, 
         14   Judge.
         15                 (Whereupon, the hearing was
         16                 adjourned at 1:25 p.m.)
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   
 0171
          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 VIII, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on Wednesday, December 4, 2002.
          7   
          8   
          9                  _____________________________
         10                        Jane M. Williamson
         11                    Registered Merit Reporter
         12   
         13   
         14                        -  -  -  -
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   

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