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 0001
                                            Volume IX    
                                            Pages 9-1 to 9-206
                                            Exhibits See Index
              
                         COMMISSION ON JUDICIAL CONDUCT
                          Complaint No. 2000-110 et seq
              - - - - - - - - - - - - - - - - - - - x   
                                                    :
              In the Matter of Investigation of:    :
              The Honorable Maria I. Lopez,         :
              Associate Justice, Superior Court     :
              Department                            :
              - - - - - - - - - - - - - - - - - - - x 
              
              BEFORE:  Hearing Officer E. George Daher,
                         Chief Justice (Ret.)
              
                       Harvey Chopp, Clerk
                       
              APPEARANCES:
              
                  Goodwin Procter LLP
                       (by Paul F. Ware, Jr., Esq., Roberto 
                       M. Braceras, Esq., and Cheryl R.
                       Brunetti, Esq.) Exchange Place, Boston, MA  
                       02109, for the Commission on Judicial 
                       Conduct.
                       
              
                  Law Offices of Richard M. Egbert
                       (by Richard M. Egbert, Esq., and
                       Patricia A. DeJuneas, Esq.)
                       99 Summer Street, Suite 1800,
                       Boston, MA 02110, for the Honorable 
                       Maria I. Lopez.
              
              
                                    Held at:
                           Edward W. Brooke Courthouse
                              24 New Chardon Street
                              Boston, Massachusetts
                            Friday, December 6, 2002
                                    9:47 a.m.
              
                 (Jane M. Williamson, Registered Merit Reporter)
              
                                     * * * *
                                        
 0002
          1                         I N D E X
              
          2   WITNESS        DIRECT  CROSS  REDIRECT  RECROSS
              
          3   David Deakin
              (By Mr. 
          4   Braceras)      9-3
              
          5   (By Mr. Egbert)        9-116  
              
          6   
                                    *  *  * 
          7   
                                 E X H I B I T S
          8   
              EX. NO.                         FOR ID   IN EVID.
          9   
              25  Policy and procedures       9-18       9-21
         10       manual from the DA's
                  office
         11       
              1   Judge Lopez's response to             9-101
         12       the CJC charges
              
         13   E   Document headed                       9-124
                  "Sentencing Guidelines of
         14       the Superior Court"
                  
         15   
              R-1 Interview of David         9-151
         16       Deakin by the CJC
              
         17   R-2 Deposition of David        9-151
                  Deakin
         18   
              
         19   
         20   
         21   
         22   
         23   
         24   
 0003
          1                   P R O C E E D I N G S
          2            HEARING OFFICER DAHER:  Sorry to keep you 
          3   waiting, but I was having a little discussion with 
          4   Judge Lombardi on some administrative matters.  I 
          5   think we'll pick up with Mr. Deakin.  That's where 
          6   we were.  
          7            THE CLERK:  You're still under oath.
          8            HEARING OFFICER DAHER:  Go ahead, Mr. 
          9   Braceras.     
         10                   DAVID DEAKIN, Previously Sworn
         11                    DIRECT EXAMINATION, Resumed
         12       BY MR. BRACERAS: 
         13       Q.   Mr. Deakin, when we broke on Wednesday we 
         14   were talking about the sentencing guidelines.  Do 
         15   you recall that?
         16       A.   Yes, I do.
         17       Q.   I believe you have before you Exhibit 23?
         18       A.   Yes.
         19       Q.   When you said that you and Ms. Joseph 
         20   considered the sentencing guidelines in reaching 
         21   your sentencing recommendation in the Horton case, 
         22   were you referring to the sentencing guidelines that 
         23   are Exhibit 23?
         24       A.   Yes.  Specifically I was referring to the 
 0004
          1   sentencing guide, which is the thinner of the two 
          2   packets of Exhibit 23, which ends with the 
          3   sentencing guidelines grid, which is the actual grid 
          4   that we consult when we look at the sentencing 
          5   guidelines.
          6       Q.   And is that sentencing guide part of the 
          7   overall guidelines that are Exhibit 23?
          8       A.   That's correct.  It's composed of the 
          9   sentencing guide and then a felony and misdemeanor 
         10   master crime list, which is a comprehensive list of 
         11   crimes.
         12       Q.   At the time of the Horton case in 2000, how 
         13   many sets of sentencing guidelines were in 
         14   circulation in Massachusetts?
         15       A.   There was -- the only one that I've ever 
         16   heard of anywhere at that time was this one, which 
         17   is the Massachusetts Sentencing Commission proposed 
         18   sentencing guidelines.
         19       Q.   Now, have you had experience using those 
         20   sentencing guidelines or Exhibit 23?
         21       A.   Yes, I have; extensive experience.
         22       Q.   And what is that experience?
         23            MR. EGBERT:  Objection.  Relevance.
         24            HEARING OFFICER DAHER:  What's the 
 0005
          1   relevancy?
          2            MR. BRACERAS:  We've heard extensive 
          3   testimony from Judge Lopez that there were no such 
          4   sentencing guidelines.  She testified in part, based 
          5   on her experience, that there were no such 
          6   sentencing guidelines.
          7            MR. EGBERT:  She testified --
          8            HEARING OFFICER DAHER:  Go ahead.
          9            MR. BRACERAS:  Mr. Deakin is here now to 
         10   say that sentencing guidelines were in circulation 
         11   and were relied upon even if they had not yet been 
         12   enacted into law.
         13            MR. EGBERT:  Judge, the fact that the 
         14   district attorney's office relies upon them is 
         15   totally irrelevant. 
         16            HEARING OFFICER DAHER:  What's the nexus 
         17   between the district attorney's office --
         18            MR. BRACERAS:  Your Honor, several points.  
         19   First of all, during the sentencing colloquy during 
         20   which Mr. Deakin was labeled "disingenuous," Mr. 
         21   Deakin relied on the sentencing guidelines, even 
         22   quoted the sentencing guidelines, cited the 
         23   sentencing guidelines to the Judge in his colloquy 
         24   and referred to these sentencing guidelines for the 
 0006
          1   proposed guidelines --
          2            HEARING OFFICER DAHER:  Overruled.  Go 
          3   ahead.
          4            MR. EGBERT:  That just is not so.  Mr. 
          5   Deakin referred to the sentencing guidelines, the 
          6   proposed sentencing guidelines in his colloquy to 
          7   the Court as to what his recommendation would be in 
          8   the case.  He did not refer to the sentencing 
          9   guidelines when he was referring to the question 
         10   asked by Judge Lopez as to a scale of 1 to 10.  
         11   Judge, my problem with all of this is Judge Lopez's 
         12   sentence is a legal sentence.  It is not an issue in 
         13   these proceedings.  The Commonwealth's manner of 
         14   making a recommendation is not an issue in these 
         15   proceedings.  There seems to be some misguided 
         16   approach by the Commission here that the 
         17   Commonwealth's recommendation is anything more or 
         18   carries some greater weight than one party's lawyer 
         19   advocating the position to a judge, and they may 
         20   take on some kind of legal effect, and they don't.  
         21            And to go into a lengthy embarkation on a 
         22   determination of what the sentencing guidelines 
         23   would be under -- not proposed sentencing 
         24   guidelines, by the way.  Sentencing guidelines which 
 0007
          1   were raised to the legislature and have been 
          2   rejected, have never been approved.  Even though 
          3   they've gone to hearings and the like, they have 
          4   never been adopted by the legislature.
          5            HEARING OFFICER DAHER:  Overruled.
          6       Q.   So what has your experience been in using 
          7   the sentencing guidelines that are Exhibit 23?
          8            MR. EGBERT:  Judge, just so the record is 
          9   clear, I object to this whole line of questioning.
         10            HEARING OFFICER DAHER:  Noted for the 
         11   record.
         12       A.   In most of the lobby conferences that I've 
         13   been involved in in Suffolk Superior Court --
         14            MR. EGBERT:  I object to anything about --
         15            HEARING OFFICER DAHER:  Sustained. 
         16       Q.   What has your experience been in using the 
         17   sentencing guidelines, Mr. Deakin?
         18       A.   The sentencing guidelines as I have 
         19   presented them to the Court on numerous occasions, 
         20   either at the Court's request --
         21            MR. EGBERT:  Judge, what court? 
         22            HEARING OFFICER DAHER:  I beg your pardon? 
         23            MR. EGBERT:  In what court? 
         24            MR. BRACERAS:  Your Honor, he's entitled to 
 0008
          1   cross examination.  He's answering my question.  
          2   You've overruled the objection.
          3            MR. EGBERT:  These vague references to what 
          4   he's done with other courts and what other judges 
          5   might do as to whether or not they might -- 
          6   different judges consider different things every 
          7   day.  And whether some unnamed judge may have 
          8   considered the proposed sentencing guidelines is 
          9   irrelevant to these proceedings.
         10            HEARING OFFICER DAHER:  Overruled.  Go 
         11   ahead. 
         12       Q.   Mr. Deakin, in approximately how many 
         13   sentencings have you been involved in in Superior 
         14   Court?
         15       A.   Dozens.
         16       Q.   In those dozens of sentencings, 
         17   approximately how many times did you introduce or 
         18   argue these sentencing guidelines?
         19       A.   I can only say the majority, if not the 
         20   vast majority.
         21       Q.   And in any of those instances was there 
         22   ever any confusion as to what you were relying on 
         23   when you discussed the sentencing guidelines? 
         24            MR. EGBERT:  Objection.
 0009
          1       A.   No.
          2            HEARING OFFICER DAHER:  I'm going to 
          3   sustain that one.
          4            MR. EGBERT:  Move to strike.
          5       Q.   Mr. Deakin, were you ever questioned as to 
          6   which version of the sentencing guidelines you were 
          7   arguing?
          8            MR. EGBERT:  Judge, again, questioned by 
          9   who?  This is the vaguest form of hearsay evidence 
         10   without even identifying the participants.
         11            MR. BRACERAS:  Your Honor, it's not 
         12   hearsay.  It's just a question:  Has he ever been 
         13   questioned by a judge, by defense counsel as to the 
         14   source of the sentencing guidelines.  It goes to the 
         15   very heart of the question raised by Judge Lopez 
         16   that there was some confusion over the sentencing 
         17   guidelines.  She opened the door to this. 
         18            MR. EGBERT:  I'd like him to refer to what 
         19   section of Judge Lopez's testimony where she said 
         20   she was confused about what sentencing guidelines.
         21            HEARING OFFICER DAHER:  Mr. Braceras, can 
         22   you point to that bit of testimony? 
         23            MR. BRACERAS:  Your Honor --
         24            HEARING OFFICER DAHER:  I'm -- I'll take it 
 0010
          1   de bene and we'll strike it if he can't --
          2            MR. EGBERT:  May we at least have questions 
          3   and answers which don't call for hearsay responses?  
          4   If he had a conversation with a judge which he's 
          5   relying upon, then I think the conversation's 
          6   participants ought to be identified and who said 
          7   what at what time so that I can make an appropriate 
          8   objection.
          9            MR. BRACERAS:  Your Honor, it's not 
         10   hearsay, but why don't we take it one question at a 
         11   time and let's just go forward.
         12            HEARING OFFICER DAHER:  Okay.
         13       Q.   Mr. Deakin, you said you've been involved 
         14   in dozens of sentencings in Superior Court; is that 
         15   right?
         16       A.   Yes.
         17       Q.   In those dozens of sentencings on how many 
         18   occasions were you questioned by a judge as to what 
         19   the sentencing guidelines were?
         20       A.   I've never been questioned by judges as to 
         21   what they were.  It's common knowledge --
         22            MR. EGBERT:  Objection as to common 
         23   knowledge.
         24            HEARING OFFICER DAHER:  Sustained.
 0011
          1            MR. EGBERT:  Move to strike his answer.
          2            HEARING OFFICER DAHER:  Allowed.
          3            MR. BRACERAS:  Your Honor, I would just say 
          4   that just the last portion of that would be 
          5   stricken.
          6            HEARING OFFICER DAHER:  That's exactly 
          7   right.  I agree.  Go ahead.
          8       Q.   Mr. Deakin, what was the proposed sentence 
          9   under the guidelines in the Horton case? 
         10       A.   So that I'm clear, do you mean the sentence 
         11   that we proposed or the sentence that the guidelines 
         12   set out? 
         13       Q.   The sentence that the guidelines set out.
         14       A.   The guidelines for the crime of assault on 
         15   a child with intent to rape set out a presumptive 
         16   sentence of 60 to 90 months, which I think is 5 to 
         17   7-1/2 years, if my math is right. 
         18            As to kidnapping, at the time it was 
         19   difficult, because of the master crime list that I 
         20   had at the time, for me to know whether it was a 
         21   Level 7 or a Level 6 offense.  If it were a Level 7 
         22   offence, it would be the same presumptive sentence; 
         23   that is, it would be 90 months.  If it were a Level 
         24   6, it would be the presumptive sentence of 40 to 60 
 0012
          1   months, which is three years and four months to five 
          2   years, again, if my math is right.  
          3            And then for the crimes of indecent assault 
          4   and battery on a child, assault and battery by means 
          5   of a dangerous weapon, and assault and battery, they 
          6   were lesser presumptive sentences.  I don't know if 
          7   you want me to go through all of them.  We were 
          8   mainly operating with the two main charges.
          9       Q.   And those two main charges were?
         10       A.   Assault on a child with intent to commit 
         11   rape, and kidnapping.
         12       Q.   Now, you've discussed the presumptive 
         13   sentence of 5 to 7-1/2 years; is that right?
         14       A.   That's correct.
         15       Q.   What does that mean, presumptive sentence?
         16       A.   The grid is laid out in such a way that if 
         17   you take the sentence offense level, which runs down 
         18   the left side of the grid, up and down the left side 
         19   of the grid, and you look at the defendant's record 
         20   category, which runs along the bottom of the grid, 
         21   you then see where those two intersect.  And it 
         22   gives you a -- it gives a block, which you can see 
         23   here, and in that block is the presumptive sentence.  
         24   That means that is the sentence that it is 
 0013
          1   anticipated a judge will start from, a judge 
          2   following the guidelines will start from in imposing 
          3   a sentence.  
          4            A judge is then asked to consider 
          5   aggravating factors and mitigating factors, a 
          6   non-exhaustive list of which is included in the 
          7   sentencing guidelines.  The judge then applies those 
          8   factors and arrives at a sentence.  But the 
          9   presumptive sentence is the starting point for the 
         10   judge. 
         11       Q.   You met with Ms. Joseph to discuss the 
         12   sentencing recommendation before the August 1st 
         13   lobby conference?
         14       A.   That's right.
         15       Q.   Approximately how much before the lobby 
         16   conference?
         17       A.   As I said yesterday, I don't remember if it 
         18   was days or it was as much as a week or ten days.  I 
         19   think it was within a few days of the lobby -- a few 
         20   days before the lobby conference.
         21       Q.   Following the August 1st lobby conference 
         22   among Judge Lopez and counsel, did ADA Joseph report 
         23   back to you?
         24       A.   She did.  I believe that she called me from 
 0014
          1   the courthouse, and we spoke fairly briefly about 
          2   it.  She then returned to the office and we spoke 
          3   more extensively about it.
          4       Q.   What did she report to you happened at the 
          5   lobby conference?
          6            MR. EGBERT:  Objection.
          7            HEARING OFFICER DAHER:  What is your 
          8   objection? 
          9            MR. EGBERT:  Hearsay.
         10            HEARING OFFICER DAHER:  Overruled.  Go 
         11   ahead. 
         12       A.   She told me that she had presented the 
         13   Commonwealth's recommendation for sentence that we 
         14   had discussed previously.  She told me that the 
         15   defense had presented a request, a sentencing 
         16   recommendation.  She told me that the defense had 
         17   presented a -- at that time it was described as a 
         18   psychological report.  I understood it to be a 
         19   psychological report on the defendant, and that the 
         20   Judge -- that Judge Lopez had then announced or told 
         21   the parties what her contemplated sentence would be.  
         22   That's what she told me on the phone essentially, 
         23   and then we talked more once she got back.
         24       Q.   Did she discuss with you whether she should 
 0015
          1   contact the victim and the victim's family?
          2       A.   I don't recall specifically if she 
          3   discussed that.  That would be --
          4            MR. EGBERT:  Objection.
          5            HEARING OFFICER DAHER:  Sustained. 
          6       A.   I don't recall specifically if we discussed 
          7   that.
          8       Q.   Did you discuss how the district attorney's 
          9   press policy applied to the Horton case?
         10       A.   Yes, we did.  ADA Joseph asked me whether I 
         11   thought the press office ought to be notified.
         12            MR. EGBERT:  May I interrupt?  Is this 
         13   still on the telephone? 
         14            MR. BRACERAS:  I'll clarify that.
         15            HEARING OFFICER DAHER:  I'd appreciate 
         16   that. 
         17       Q.   Mr. Deakin, you've mentioned that there was 
         18   a telephone call and then a subsequent meeting.  Can 
         19   you distinguish --
         20            HEARING OFFICER DAHER:  He didn't say that.  
         21   He stated that he went from a telephone call in 
         22   regards to what the contemplated disposition may be, 
         23   and then you jumped into the press.  So we don't 
         24   know whether it took place contemporaneously or 
 0016
          1   subsequent thereto. 
          2            MR. BRACERAS:  I believe he testified that 
          3   they met afterwards, but we can clarify that.
          4            HEARING OFFICER DAHER:  Okay. 
          5       Q.   Mr. Deakin, after the August 1st lobby 
          6   conference, did you have any discussions with Ms. 
          7   Joseph?
          8       A.   Yes.  As I think I testified previously, 
          9   she called me from the courthouse, I believe.  We 
         10   had a fairly brief telephone conversation.  She 
         11   returned to the office and we had a more lengthy 
         12   discussion.
         13       Q.   Now, you reported some aspects of what ADA 
         14   Joseph reported to you on the lobby conference.  Can 
         15   you distinguish as to whether she told you those 
         16   items on the phone or during the subsequent meeting?
         17       A.   I know that she told me on the phone that 
         18   she had presented the recommendation that we had 
         19   agreed upon, presenting that the defense counsel had 
         20   presented a recommendation and that the Judge had 
         21   notified the parties of her contemplated sentence.  
         22   I don't recall if she discussed with me the 
         23   psychological report on the phone or when she 
         24   returned to the office.  I know we discussed it when 
 0017
          1   she returned to the office, but I'm not sure whether 
          2   we discussed it on the phone. 
          3            As to the press policy, I believe we 
          4   discussed that on the phone and then a follow-up 
          5   discussion in my office.  I'm fairly certain of 
          6   that.
          7       Q.   Now, in August 2000, did the district 
          8   attorney's office had have a press policy?
          9       A.   Yes, we did.
         10       Q.   Could you describe that for us?
         11       A.   The policy -- there was a written policy 
         12   and there was a customary policy.  The written 
         13   policy was part of the ADA employee manual that 
         14   every ADA was given and required to review at the 
         15   beginning of his or her employment and periodically 
         16   in service as we went on. 
         17            The written policy provided that, with one 
         18   exception, any time the press contacted an assistant 
         19   district attorney to discuss a case, the assistant 
         20   district attorney, before speaking with the press, 
         21   was required to speak to the press office to notify 
         22   them of the nature and -- well, the fact that there 
         23   had been contact and what the nature of that contact 
         24   was and what the press wanted to discuss. 
 0018
          1            The press office would then decide, in 
          2   consultation with the executive staff, whether the 
          3   ADA should discuss things with the press, whether 
          4   some other member of the office should discuss 
          5   things with the press, or no one should.
          6            The customary policy, which was reinforced 
          7   through both written interoffice memoranda, emails 
          8   and then sometimes just orally -- oh, actually, if I 
          9   may stop there, I said there was one exception to 
         10   the written policy.  The one exception is part of 
         11   the written policy was that if the press approached 
         12   an ADA just outside the courtroom after a hearing, 
         13   the ADA was permitted to repeat for the press those 
         14   things that had been said on the record so that the 
         15   press would have an accurate -- you know, ability to 
         16   quote accurately what was said on the record.
         17       Q.   Why don't we just stop right there. 
         18            MR. BRACERAS:  Your Honor, I would like to 
         19   mark for identification Exhibit 25.
         20                 (Document marked as Exhibit 25 
         21                 for identification)
         22            MR. BRACERAS:  Your Honor, may I approach? 
         23            HEARING OFFICER DAHER:  Please. 
         24       Q.   Mr. Deakin, showing you Exhibit 25, do you 
 0019
          1   recognize that?
          2       A.   I'm looking through it.  It appears to be a 
          3   copy of our office policy and procedures manual. 
          4       Q.   Does that include the written policy on the 
          5   press that you were just discussing?
          6       A.   Yes.
          7            MR. BRACERAS:  Your Honor, I would like to 
          8   offer that as Exhibit 25.
          9            HEARING OFFICER DAHER:  Any objection? 
         10            MR. EGBERT:  My objection is on the grounds 
         11   of completeness.  It is not a complete document.  It 
         12   purports to be a policy and procedures manual from 
         13   the DA's office, but only has a section in it, and I 
         14   don't have any other way of knowing that whether 
         15   there are other sections that relate to or from 
         16   these particular matters.  I'm entitled to the whole 
         17   document.
         18            MR. BRACERAS:  Your Honor, the whole 
         19   document has been made available to --
         20            MR. EGBERT:  No, it hasn't.
         21            MR. BRACERAS:  -- to Mr. Egbert.
         22            MR. EGBERT:  No, it hasn't.  Don't make an 
         23   allegation like that when you know better. 
         24            MR. BRACERAS:  Your Honor, we're 
 0020
          1   introducing the press policy.  The press policy is 
          2   contained in this. 
          3            HEARING OFFICER DAHER:  Could there be 
          4   something else in the manual --
          5            MR. BRACERAS:  We can ask Mr. Deakin 
          6   whether there's anything else.
          7            MR. EGBERT:  I don't have to take Mr. 
          8   Deakin's word for it.  When you introduce a manual, 
          9   you don't --
         10            HEARING OFFICER DAHER:  Where is the 
         11   manual? 
         12            MR. BRACERAS:  Your Honor, Mr. Egbert in 
         13   this case introduced sections of the DSM-IV.  He 
         14   didn't introduce the entire DSM-IV.
         15            HEARING OFFICER DAHER:  You didn't ask for 
         16   it.
         17            MR. BRACERAS:  Well, certainly it was 
         18   available.  If Mr. Egbert wants the rest of this 
         19   manual, he can request it and it will be provided to 
         20   him. 
         21            HEARING OFFICER DAHER:  Overruled.  If you 
         22   want it, you can make a motion and we'll get it for 
         23   you.
         24            MR. EGBERT:  I want it.
 0021
          1            HEARING OFFICER DAHER:  We'll get it.
          2            MR. EGBERT:  I want it before I begin cross 
          3   examination.
          4            HEARING OFFICER DAHER:  All right.
          5                 (Document marked as Exhibit 25 
          6                 moved into evidence)
          7       Q.    Mr. Deakin, turning to Exhibit 25, is that 
          8   the written press policy that you were discussing?
          9       A.   Yes, it is. 
         10       Q.   Now, were there any other aspects of the 
         11   written press policy that you have not described?
         12       A.   Well, I haven't listed every single 
         13   provision.  I basically have to read it for that, 
         14   but I think I've summarized it effectively.
         15       Q.   You've also said that there is an unwritten 
         16   policy or customary practice at the office 
         17   concerning the press; is that right?
         18       A.   That's correct.
         19       Q.   What is that? 
         20            MR. EGBERT:  I object.  If you have a 
         21   written press policy, I suppose that dictates what 
         22   goes on.  Now we get into some unwritten custom? 
         23            MR. BRACERAS:  Your Honor, that's cross 
         24   examination.  Mr. Egbert can cross-examine Mr. 
 0022
          1   Deakin on that point.  That does not go to this 
          2   question.
          3            HEARING OFFICER DAHER:  Overruled.  Go 
          4   ahead. 
          5       Q.   Is there a practice beyond the written 
          6   policy?
          7       A.   There is.
          8       Q.   And what is that?
          9       A.   It is that when ADAs or any other member of 
         10   the office encounter cases that are likely to 
         11   generate news coverage or may be in fact newsworthy, 
         12   they are instructed to notify the press office and 
         13   they can notify the press office directly or they 
         14   can go to their supervisors to discuss whether it's 
         15   appropriate to notify the press office.  But there 
         16   is an expectation that ADAs will come into contact 
         17   with newsworthy cases and notify the press office so 
         18   that they can monitor the status of the case and 
         19   contacts with the press.
         20       Q.   You mentioned the press office.  Who is in 
         21   the press office of the Suffolk County district 
         22   attorney's office?
         23       A.   At the time of this case? 
         24       Q.   At the time of the Horton case.
 0023
          1       A.   The chief of the press office was Jim 
          2   Borghesani.  He had an assistant -- I believe at 
          3   that time the assistant was Dave Falcone, but I 
          4   could be wrong.  I'm not positive.  But he always 
          5   had an assistant.  I believe it was Dave Falcone at 
          6   that time.
          7       Q.   And who in the office supervised the press 
          8   office?
          9       A.   The district attorney supervised the press 
         10   office.  Often he delegated that to the First 
         11   Assistant District Attorney's responsibility.  It 
         12   was one of the two of them or both.
         13       Q.   When you say the district attorney, you 
         14   mean Ralph Martin?
         15       A.   That's correct.
         16       Q.   And who was the First Assistant at the 
         17   time?
         18       A.   Elizabeth Keeley.
         19       Q.   As a result of your discussion with ADA 
         20   Joseph on August 1st -- and just to clarify, when 
         21   you said that she returned from the courthouse after 
         22   that conversation and you had a meeting with her, 
         23   that was still on August 1st?
         24       A.   That's correct.
 0024
          1       Q.   As a result of your discussion with Ms. 
          2   Joseph on August 1st, did you give consideration as 
          3   to whether the office press policy warranted 
          4   forwarding information about the Horton case to the 
          5   press office?
          6       A.   Yes, we discussed that.  And I concluded 
          7   that the press office ought to be notified.  I also 
          8   concluded that the first assistant district attorney 
          9   ought to be notified simultaneously.  In fact, what 
         10   I did was to call the first assistant district 
         11   attorney and review with her the appropriateness of 
         12   contacting the press office at that time.
         13       Q.   Do you recall when you made that contact 
         14   with the first assistant?
         15       A.   It was August 1st.  It was, I think, in the 
         16   afternoon, but it was August 1st.
         17       Q.   And to clarify, it was you who made the 
         18   final decision as the head of the child abuse unit 
         19   to forward this information to the first assistant?
         20       A.   That's correct.
         21       Q.   After speaking with First Assistant Keeley, 
         22   do you know whether she contacted the press office 
         23   to issue a press release?
         24       A.   I don't know from my own knowledge.  I know 
 0025
          1   what she indicated she would do, but that's what 
          2   I...
          3       Q.   What did she indicate she would do? 
          4            MR. EGBERT:  Objection. 
          5            HEARING OFFICER DAHER:  Sustained. 
          6       Q.   Do you know if the press office was ever 
          7   contacted?
          8            MR. EGBERT:  Objection.  Again, some basis 
          9   of knowledge for the statements are about to come.  
         10   "Do you know" could be based on any number of 
         11   things.
         12            HEARING OFFICER DAHER:  Mr. Braceras? 
         13            MR. BRACERAS:  Your Honor, he was 
         14   supervisor of the child abuse unit.  He knew that a 
         15   press release was subsequently issued by the press 
         16   office.  So I think a question as to whether you 
         17   know whether the press office was released is a 
         18   valid one.  As a supervisor in the office, he would 
         19   know whether one was released or not.
         20            MR. EGBERT:  Judge --
         21            HEARING OFFICER DAHER:  Could you lay a 
         22   foundation -- Mr. Braceras, would you get from Mr. 
         23   Deakin what precisely his position was and what his 
         24   duty was in the district attorney's office.
 0026
          1            MR. BRACERAS:  I think we got something 
          2   yesterday, but --
          3            HEARING OFFICER DAHER:  In re knowledge 
          4   that the press -- that a communication to the press 
          5   was made.
          6       Q.   Mr. Deakin, after your conversation with 
          7   Ms. Keeley, what was your understanding as to what 
          8   was going to happen in regards to the press of the 
          9   Horton case?
         10            MR. EGBERT:  Objection.  It's hearsay.
         11            HEARING OFFICER DAHER:  What we have right 
         12   here is the fact that the man is in a supervisory 
         13   position in the district attorney's office.  He has 
         14   knowledge as to the procedure, the customary 
         15   workings, the ordinary workings of the --
         16            MR. EGBERT:  Judge, we're not talking about 
         17   custom; we're not talking about ordinary workings.  
         18   We're talking about specific cases and specific 
         19   knowledge.  And if his basis of knowledge was based 
         20   upon hearsay evidence is inappropriate, I don't care 
         21   if it's the supervisor, the king or the president.  
         22   The fact of the matter is if he can't testify from 
         23   personal knowledge what he saw, felt, touched, it's 
         24   hearsay, unless there is some exception.
 0027
          1            MR. BRACERAS:  Your Honor, Exhibit 7 is 
          2   already in evidence.  It's the press release.  Mr. 
          3   Deakin knows that the press office issued the press 
          4   release.  If he had an understanding, after meeting 
          5   with Ms. Keeley, that a press release was going to 
          6   be issued, he can testify to that --
          7            HEARING OFFICER DAHER:  Overruled. 
          8       Q.   Mr. Deakin, what was your understanding, 
          9   after meeting with Ms. Keeley, as to what was going 
         10   to happen with regard to the press in the Horton 
         11   case?
         12       A.   My understanding is that she was inclined 
         13   to instruct the press office to issue a press 
         14   release, but I didn't know whether the final 
         15   decision had been made to that effect, but I 
         16   understood that that was where she was headed.
         17       Q.   By the way, what is the purpose of a press 
         18   release for the DA?
         19            MR. EGBERT:  Objection.
         20            HEARING OFFICER DAHER:  Sustained.
         21       Q.   Mr. Deakin, you're chief of the child abuse 
         22   unit?
         23       A.   Yes.
         24       Q.   Do you have experience with issuing press 
 0028
          1   releases in your cases?
          2       A.   I don't issue them myself, but I have 
          3   experience with working with the press office in 
          4   issuing press releases.
          5       Q.   And you've worked with the press office in 
          6   the past to issue press releases?
          7       A.   Yes.
          8       Q.   Why does the DA's office issue a press 
          9   release?
         10            MR. EGBERT:  Objection.
         11            HEARING OFFICER DAHER:  Mr. Braceras? 
         12            MR. BRACERAS:  What's the objection?  It 
         13   goes to what the purpose of a press release is.  Mr. 
         14   Egbert has made the great argument that this press 
         15   release is somehow being prejudicial to the 
         16   defendant.  I think it's relevant as to why the DA's 
         17   office would issue a press release.
         18            MR. EGBERT:  This is outside the scope of 
         19   his knowledge and authority.  He's already told us 
         20   that he's not authorized to issue a press release, 
         21   he's not authorized to decide whether a press 
         22   release issues at all.  And the fact that he's 
         23   worked on them doesn't mean he knows whether the 
         24   district attorney issues press releases.
 0029
          1            HEARING OFFICER DAHER:  Overruled.
          2       A.   The purpose of issuing a press release is 
          3   to notify -- to notify the press who will presumably 
          4   then notify the general public of the cases that the 
          5   district attorney's office is bringing before the 
          6   Court, the nature of the crimes that are being 
          7   prosecuted, the efforts made on behalf of the people 
          8   of the Commonwealth by the district attorney's 
          9   office to see that the crimes are prosecuted 
         10   properly, and to notify the public of the outcome of 
         11   the prosecution.
         12       Q.   Mr. Deakin, if you would just turn to the 
         13   bigger notebook on the witness stand and turn to 
         14   Exhibit 7.
         15       A.   I see Exhibit 7. 
         16       Q.   Do you recognize Exhibit 7?
         17       A.   Yes, I do.
         18       Q.   Exhibit 7 is the press release for the 
         19   Horton case that was issued on August 3rd; is that 
         20   right?
         21       A.   Yes, it is.
         22       Q.   With the headline or title "Boston Man 
         23   Expected to Plead to Child Kidnapping, Sexual 
         24   Assault"?
 0030
          1       A.   Yes.
          2       Q.   Did you draft Exhibit 7?
          3       A.   No, I did not.
          4       Q.   Who was responsible in the office for 
          5   preparing press releases?
          6       A.   The press office.
          7       Q.   Since August 1st have you been able to 
          8   determine whether or not your office complied with 
          9   its press policies in the Horton matter?
         10       A.   The press office, as far as I can tell, 
         11   complied with the office policies in issuing the 
         12   press release in the Horton matter, yes.
         13       Q.   To your knowledge, did Ms. Joseph make any 
         14   contact with the press or do anything that was 
         15   inconsistent with the DA's press policy?
         16       A.   No.
         17       Q.   Would it have been inconsistent had you not 
         18   presented the Horton case to the first assistant?  
         19   That is, inconsistent with the DA's press policy?
         20       A.   I think it would have been inconsistent 
         21   with the press policy for us not to present it to 
         22   the press office.  Presenting it to Elizabeth Keeley 
         23   was a step that I took because of the nature of the 
         24   case.  But had we not presented it at a minimum to 
 0031
          1   the press office, it would have been a violation, in 
          2   my view, of the office's press policy.
          3       Q.   And in your view would it have been 
          4   inconsistent with the your press policy had ADA 
          5   Joseph not raised the matter with you in the first 
          6   instance?
          7       A.   Again, I think her obligation under the 
          8   policy was to notify the press office.  I think she 
          9   contacted me for the same reason that I contacted 
         10   Elizabeth Keeley:  Was to review the application of 
         11   the press policy to the case.  But had she not 
         12   raised it with either me or the press office, she 
         13   would have been in violation of the press policy.
         14       Q.   Do you know whether Ms. Joseph was 
         15   instructed to forward information on the Horton case 
         16   prior to the August 1st lobby conference at the time 
         17   of arraignment?
         18       A.   I don't know of my own.  I don't know.  I 
         19   don't recall whether I instructed her to or not.  
         20   And I don't know whether anyone else did.
         21       Q.   What type of information in your child 
         22   abuse unit would be forwarded to the first assistant 
         23   or the press office at the time of arraignment?
         24            MR. EGBERT:  Which one?  First assistant or 
 0032
          1   the press office?
          2            MR. BRACERAS:  Let's start with the first 
          3   assistant.
          4       A.   That would depend.  Typically -- the first 
          5   assistant -- as I think I testified on Wednesday, 
          6   the first assistant district attorney has to sign 
          7   off on all direct indictment requests.  Often the 
          8   first assistant will put a note on the direct 
          9   indictment request, "ADA -- let's use my name -- ADA 
         10   Deakin to keep press office and first assistant 
         11   apprised of developments in the case."  Sometimes 
         12   the first assistant will just write, "Keep press 
         13   office apprised of developments in the case."  
         14            So what materials would be provided would 
         15   depend a lot on the specific facts of the case.  
         16   Sometimes there would be actual materials like 
         17   supplementary police reports that we received or 
         18   other documentation.  Sometimes it would just be 
         19   emails to the relevant parties, saying here's what's 
         20   going on.  Sometimes it would just be informal 
         21   conversations.  It really depends on what the 
         22   facts -- how the case develops.
         23       Q.   You said in your conversations with ADA 
         24   Joseph that there was some discussion about a 
 0033
          1   defense report; is that right?
          2       A.   That's correct.
          3       Q.   What was your understanding of what that 
          4   report was on August 1st?
          5       A.   My understanding of what that report was 
          6   was a report prepared by somebody who worked for the 
          7   Committee for Public Counsel Services about the 
          8   defendant and the defendant's psychological 
          9   background.  I didn't have extensive discussions 
         10   with ADA Joseph about it.  My understanding was that 
         11   the report didn't raise questions of the defendant's 
         12   competency to stand trial or the defendant's 
         13   criminal responsibility.  But other than that, 
         14   that's about all I can remember.
         15       Q.   Did the DA's office respond to that report?
         16       A.   No, we did not.
         17       Q.   Why not? 
         18            MR. EGBERT:  Objection.  He wasn't even 
         19   there.
         20            MR. BRACERAS:  Your Honor, at any time.  He 
         21   became aware of the report on August 1st.  He became 
         22   involved in the case one or two days later.  And the 
         23   question is, did he respond to the report.  He's the 
         24   supervisor on the case and he became aware of this 
 0034
          1   report. 
          2            MR. EGBERT:  This case was over as far as 
          3   what sentence was being imposed at the conclusion of 
          4   the August 1st lobby conference, and everything 
          5   relating to this report and what the DA clearly 
          6   should have done in reference to refuting the report 
          7   was completed by the time she left the court on 
          8   August 1st.
          9            HEARING OFFICER DAHER:  Overruled.  Go 
         10   ahead.
         11       A.   I'm sorry.  Can you repeat that?
         12       Q.   Why didn't the DA respond to this report?  
         13            MR. EGBERT:  Objection.
         14       A.   ADA Joseph was very dismissive of the 
         15   report.
         16            MR. EGBERT:  Your Honor --
         17            HEARING OFFICER DAHER:  Sustained.
         18            MR. EGBERT:  Move to strike.
         19            HEARING OFFICER DAHER:  Stricken. 
         20            THE WITNESS:  I apologize, Your Honor.
         21            HEARING OFFICER DAHER:  That's okay.
         22            MR. EGBERT:  I object to the apologies from 
         23   a lawyer who knows better.
         24            MR. BRACERAS:  Your Honor, it's not Mr. 
 0035
          1   Egbert's place to start reprimanding a witness.
          2            MR. EGBERT:  When Mr. Deakin turns to the 
          3   Court with his apologies --
          4            HEARING OFFICER DAHER:  I think Mr. Deakin 
          5   was just being courteous, and if he had misspoken, 
          6   he was apologizing, and I think that's the vein that 
          7   it should be accepted.
          8       Q.   Mr. Deakin, I'm just trying to get beyond 
          9   the distraction here.  Why didn't you respond to the 
         10   report? 
         11            MR. EGBERT:  I'm sorry; I didn't hear the 
         12   question. 
         13       Q.   Why didn't you respond to this report? 
         14            MR. EGBERT:  Objection.  There's no 
         15   evidence in the case yet to get to that question.
         16            MR. BRACERAS:  Your Honor, you just 
         17   overruled that objection.
         18            HEARING OFFICER DAHER:  Overruled.
         19       A.   After discussing the report, we didn't feel 
         20   that it merited --
         21            MR. EGBERT:  I object to the "we."  The 
         22   reason for this, it's very important we have his own 
         23   testimony here.
         24            MR. BRACERAS:  Your Honor, they were in a 
 0036
          1   meeting.  These are two DAs working on a case.  They 
          2   came to a conclusion as to whether to respond to 
          3   this report.  This is a legitimate answer.
          4            HEARING OFFICER DAHER:  I'm going to allow 
          5   him to use the first person plural.  Go ahead.
          6       A.   We concluded that the report was not of a 
          7   type that required a response in the circumstances 
          8   of this case.  It was also not clear to me at the 
          9   time -- it appeared to me the report had not been 
         10   made part of the record, and it was not clear to me 
         11   to what extent, if any, the Judge intended to rely 
         12   upon it in sentencing.  For those two reasons, we 
         13   did not respond to the report.
         14       Q.   Now, on August 4th the Horton case was 
         15   scheduled for a plea and disposition; is that right? 
         16       A.   That's correct.
         17       Q.   You didn't go to court that morning on 
         18   August 4th, did you?
         19       A.   No.  It was an office day for me.  I was 
         20   working in my office.
         21       Q.   Who was assigned to handle the plea and 
         22   disposition in the Horton case?
         23       A.   ADA Joseph, who had been assigned to it all 
         24   along.
 0037
          1       Q.   What happened in the Horton case that 
          2   morning? 
          3            MR. EGBERT:  Objection.  He wasn't there. 
          4            MR. BRACERAS:  Your Honor, he's the 
          5   supervisor on the case.
          6            HEARING OFFICER DAHER:  Sustained. 
          7       Q.   Did you at some point receive a report from 
          8   Ms. Joseph on the Horton case after the conference 
          9   on August 4th?
         10       A.   Yes, I did.  I actually received two calls, 
         11   one from the first assistant, one from ADA Joseph.  
         12   They were both about the Horton case and ADA Joseph.  
         13   I cannot recall which came first.  I believe that 
         14   the call from the first assistant came first, but 
         15   I'm not positive of the order.
         16       Q.   After receiving these calls, what was your 
         17   understanding as to what had occurred in the Horton 
         18   case?
         19            MR. EGBERT:  It's a report of hearsay 
         20   statements.
         21            MR. BRACERAS:  Your Honor, we're getting at 
         22   Mr. Deakin's understanding.  Several things.  First 
         23   of all, we're getting at his understanding.  He was 
         24   the supervisor of this case.  He's testified that --
 0038
          1            HEARING OFFICER DAHER:  Overruled. 
          2       A.   My understanding was that there had been a 
          3   lobby conference --
          4            MR. EGBERT:  Sorry.  If you're letting in 
          5   his understanding based on conversation, I object to 
          6   it obviously.  You overruled me.  At least have him 
          7   put in the conversation, not some conclusory 
          8   statement.
          9            HEARING OFFICER DAHER:  I'm not going to 
         10   tell Mr. Braceras about how to put in his case.  You 
         11   obviously have great experience as an examiner, Mr. 
         12   Egbert.  I'm pretty sure you'll get it in.  
         13   Overruled.
         14       A.   My understanding is there had been a lobby 
         15   conference with the Judge, defense counsel, and ADA 
         16   Joseph; that during that lobby conference, the Judge 
         17   had berated Ms. Joseph and criticized her very 
         18   sharply and in harsh tones, and that there was some 
         19   question of whether the plea was going to go forward 
         20   on that day or not.
         21       Q.   What did Ms. Keeley instruct you to do with 
         22   respect to the Horton case?
         23       A.   She instructed me to go to the courthouse 
         24   and assist ADA Joseph in resolving the situation.
 0039
          1       Q.   And did you do that?
          2       A.   Yes, I did.
          3       Q.   Approximately how long after your 
          4   conversations with Ms. Keeley and Ms. Joseph did you 
          5   arrive at the courthouse?
          6       A.   However long it took me to pack up my 
          7   things and walk over there.  Fifteen minutes, I 
          8   would guess.
          9       Q.   When you arrived at the courthouse, did you 
         10   meet with Ms. Joseph?
         11       A.   I did.
         12       Q.   How did she appear?
         13       A.   She appeared shaken, upset.  I had never 
         14   seen her look that way before.
         15       Q.   After meeting with Ms. Joseph, did you have 
         16   an opportunity to have a conversation with the 
         17   defense counsel, Ms. Goldbach?
         18       A.   I did.  I first had a conversation with Ms. 
         19   Joseph, a fairly brief one, and then I had a 
         20   conversation with Anne Goldbach, defense counsel.  
         21   Part of that conversation was just the two of us, me 
         22   and Anne Goldbach, and part of that conversation was 
         23   with ADA Joseph present.  I'm not sure whether we 
         24   spoke -- I'm sorry; I don't recall whether Anne 
 0040
          1   Goldbach and I spoke alone first and then Ms. Joseph 
          2   joined us or whether the three of us spoke first and 
          3   then Ms. Goldbach and I spoke alone.
          4       Q.   What was the substance of this first 
          5   conversation with Ms. Goldbach?
          6            MR. EGBERT:  Objection.  Hearsay.
          7            MR. BRACERAS:  Your Honor, it's not 
          8   hearsay.  It's not offered for the truth of the 
          9   matter.
         10            MR. EGBERT:  What's it offered for? 
         11            MR. BRACERAS:  It's offered for what Mr. 
         12   Deakin did in response to this conversation.  We 
         13   have to get at what he did on August 4th.
         14            MR. EGBERT:  Judge, it is an attempt to get 
         15   in out-of-court statements of Ms. Goldbach without 
         16   complying with the rules.  It is not relevant to 
         17   anything else.  And when asking what he did as a 
         18   result of some conversation, that's fine, but not 
         19   the contents of it.
         20            HEARING OFFICER DAHER:  Last word? 
         21            MR. BRACERAS:  It's plainly not hearsay.  
         22   It's not offered for the truth of the matter.
         23            HEARING OFFICER DAHER:  What is it offered 
         24   for?
 0041
          1            MR. BRACERAS:  It's offered to see what Mr. 
          2   Deakin did in response.
          3            MR. EGBERT:  Just ask him.
          4            MR. BRACERAS:  We will get there, but this 
          5   is my witness, and if he wants to ask him --
          6            HEARING OFFICER DAHER:  Overruled.  Go 
          7   ahead.
          8       Q.   What was the subject of your first 
          9   conversation with Ms. Goldbach?
         10       A.   In the first conversation that I had with 
         11   Ms. Goldbach, she expressed real dissatisfaction, I 
         12   mean, anger at me and the office for issuing a press 
         13   release, which she actually showed me.  It was the 
         14   first time I actually had seen it.  And she had it.  
         15   I don't remember her exact words, but it was 
         16   something like how could you do this or something to 
         17   that effect.
         18       Q.   And that press release is Exhibit 7?
         19       A.   That's right.
         20       Q.   What was your response to this concern of 
         21   Ms. Goldbach?
         22       A.   Well, first I told her that I hadn't read 
         23   it, and she gave me the copy to read.  And as I was 
         24   reading it, she pointed specifically to the first 
 0042
          1   line of the second paragraph, which says, "Charles 
          2   Horton, 31, a transgendered person who appears as a 
          3   woman," and then she pointed to that portion and she 
          4   said, "Why is that in there?  Why is that in there?"  
          5   I took her to mean the fact that the defendant was 
          6   transgendered.
          7       Q.   How did you respond to her?
          8       A.   Well, first I asked her to let me finish 
          9   reading the whole thing so that I could comment on 
         10   it.  And after I did that, I told her that I didn't 
         11   know why it was in there and that I regretted that 
         12   sentence or that phrase in the press release.
         13       Q.   You mean you regretted the use of the word 
         14   "transgendered"?
         15       A.   Right, "a transgendered person who appears 
         16   as a woman."  I regretted that phrase. 
         17       Q.   Now, when you say you regretted that use of 
         18   the phrase, you're not suggesting that --
         19            MR. EGBERT:  Objection to leading.
         20            HEARING OFFICER DAHER:  I didn't hear that 
         21   again.  What was the question?  Can you play that 
         22   back for me?
         23            MR. BRACERAS:  Your Honor, I was in the 
         24   middle of a question.
 0043
          1            MR. EGBERT:  Any question that begins 
          2   "you're not saying" --
          3            HEARING OFFICER DAHER:  Would you play it 
          4   back. 
          5            MR. BRACERAS:  I should at least be allowed 
          6   to finish the question.
          7            HEARING OFFICER DAHER:  You are entitled to 
          8   that.  Go ahead.  Finish the question. 
          9       Q.   Mr. Deakin, when you said that the use of 
         10   the word "transgendered" was regrettable, you 
         11   weren't suggesting that this violated the 
         12   office's -- the office's press policy, were you? 
         13            MR. EGBERT:  Objection.
         14            HEARING OFFICER DAHER:  What's the 
         15   objection? 
         16            MR. EGBERT:  Leading.
         17            HEARING OFFICER DAHER:  It is, but I'm 
         18   going to allow him some latitude.  Go ahead.
         19       A.   No, I'm not suggesting it violated the 
         20   office press policy.
         21       Q.   You're not suggesting it violated any other 
         22   standard of ethics?
         23       A.   No, I'm not.
         24       Q.   Now, did Ms. Goldbach raise any other 
 0044
          1   concerns with you on August 4th?  Let's stay with 
          2   that first meeting. 
          3       A.   She raised other concerns with me.  Whether 
          4   it was in the first meeting or -- I can't tell you 
          5   which meeting.  This was a very sort of fluid 
          6   situation.  I'm not sure which part of the meeting 
          7   she raised it, but she did raise another concern 
          8   with me.
          9       Q.   And what was that?
         10       A.   She said to me something like -- and I 
         11   don't think I'm quoting her directly -- but, "This 
         12   isn't what it looks like."  And she said -- and I 
         13   asked her, "What do you mean?"  And she said, "Talk 
         14   to Jay Greene."  And the name didn't immediately 
         15   ring a bell for me.  I asked her, "Who is Jay 
         16   Greene?"  She said he was one of the detectives on 
         17   the case.  And I said, "What does Jay Greene say?"  
         18   Because I wasn't aware of any report or anything 
         19   from Jay Greene in the case.  And she said, "Talk to 
         20   Jay Greene."  And I said, "Anne, what would he say?  
         21   Why are you asking me to talk to Jay Greene now on 
         22   the eve of the plea?"  And we went back and forth 
         23   like that.  And finally she said, "He would say that 
         24   when he got there, the boy, was" -- she used an 
 0045
          1   expression -- I don't know if it was "cool as a 
          2   cucumber" or something like that -- something that 
          3   means calm.  That when Jay Greene got there, he was 
          4   calm.  And she said also Jay Greene would say that 
          5   the boy is not the -- again, she used a word like 
          6   "angel" or "choirboy."  I don't remember what it 
          7   was, but it was an image that means innocent.  It 
          8   conveys innocence.  "He's not the angel or choirboy 
          9   that you're saying he is."
         10       Q.   Did you ever speak with Jay Greene?
         11       A.   No, I did not.
         12       Q.   Why not?
         13       A.   Because, as I told Anne Goldbach, I took 
         14   Anne Goldbach's word for what she was saying Jay 
         15   Greene would say.  I told her, "Anne, I've known you 
         16   for a long time.  If you say he said this, I believe 
         17   he said it."  I asked her, "What is the relevance of 
         18   either of those pieces of information, assuming that 
         19   Jay Greene would say it, to the offense or to the 
         20   plea that we're here today," and she either couldn't 
         21   or wouldn't answer it -- I'm sorry.  She did not 
         22   answer me.
         23       Q.   What was your understanding as to when 
         24   Detective Greene arrived on the scene of the 
 0046
          1   incident?
          2       A.   My understanding was that the initial -- 
          3   the grand jury testimony is that the initial 
          4   responding officers were Officers Rose and Sweeney, 
          5   uniformed officers of the Boston Police Department, 
          6   who actually came upon the crime as it was 
          7   happening.  And that at some point they called for 
          8   detectives to respond, and several detectives 
          9   responded.  I think it was two pairs of two 
         10   detectives, and Jay Greene, as I understand it, was 
         11   one of those detectives.
         12       Q.   Did you ever hear from any source that 
         13   Detective Greene was first on scene?
         14       A.   I've heard from every source that's 
         15   involved in the case that he was not first on scene.  
         16   First on scene were the uniformed Officers Rose and 
         17   Sweeney.
         18       Q.   Now, did anyone suggest to you on August 
         19   4th that the defendant's plea was in jeopardy?
         20       A.   You mean that it was in jeopardy of not 
         21   happening? 
         22       Q.   Yes. 
         23       A.   No, no one ever suggested that to me.
         24       Q.   Were you concerned that the defendant's 
 0047
          1   plea was in jeopardy or that the defendant might 
          2   choose not to plead guilty?
          3       A.   No.
          4       Q.   Did Judge Lopez ever express concern that 
          5   the defendant may choose not to plead guilty on 
          6   August 4th?
          7       A.   Not in my presence, no.
          8       Q.   Now, on August 4th did you at some point 
          9   approach the courtroom clerk?
         10       A.   Yes.
         11       Q.   Why did you do that?
         12       A.   I asked the court clerk to see whether Anne 
         13   Goldbach and I could meet with Judge Lopez to 
         14   discuss the situation in her chambers.
         15       Q.   Why did you want to see the Judge?
         16       A.   I hoped, based on a small amount of prior 
         17   experience before Judge Lopez, that I might be able 
         18   to speak with her and Anne Goldbach and try to 
         19   resolve some of the tension that seemed to exist 
         20   between Judge Lopez and ADA Joseph, whom I 
         21   supervised.  I was hoping to calm things down.
         22       Q.   Did the Judge agree to see you?
         23       A.   All I know is that the court clerk told me 
         24   that the Judge would not see us.
 0048
          1       Q.   Now, turning to Exhibit 17 in the binder --
          2       A.   I see it.
          3       Q.   -- Exhibit 17 is the Commonwealth's motion 
          4   in opposition to a continuance, with the Judge's 
          5   findings on it; is that right?
          6       A.   That's correct.
          7       Q.   Did you play a role in preparing the motion 
          8   in opposition to a continuance?
          9       A.   Yes.  I worked with ADA Joseph to draft it, 
         10   and I actually typed it.
         11       Q.   When did you do that?
         12       A.   During the lunch recess.
         13       Q.   How long did you have to do that?
         14       A.   I don't remember exactly how long the lunch 
         15   recess is.  It's usually an hour.
         16       Q.   Did you go back to your office to prepare 
         17   this?
         18       A.   No.  We went downstairs one floor to the 
         19   grand jury office, which was on the 14th floor.
         20       Q.   What was the basis of your motion to oppose 
         21   the continuance?
         22       A.   The basis for our motion was --
         23            MR. EGBERT:  Objection.  Are we talking 
         24   about the basis that's described in the written 
 0049
          1   document? 
          2            MR. BRACERAS:  No, Your Honor.  I think the 
          3   question stands.  It's what is the DA's basis for 
          4   the motion to continue, not what the exact words 
          5   were in Exhibit 17.
          6            MR. EGBERT:  Judge, by law, the basis 
          7   proposed to the Court is what's contained in the 
          8   document.
          9            HEARING OFFICER DAHER:  Overruled.  Go 
         10   ahead.  If I could just interrupt you for one 
         11   moment.  Now, the first time that you heard of the 
         12   not so angel-like qualities or the noninnocence of 
         13   the victim was by Ms. Goldbach? 
         14            THE WITNESS:  Yes, Ms. Goldbach telling me 
         15   what she said Mr. Greene said.
         16            HEARING OFFICER DAHER:  Did Ms. Joseph ever 
         17   communicate anything like that to you?
         18            THE WITNESS:  No.
         19            HEARING OFFICER DAHER:  It was Ms. Goldbach 
         20   that communicated that?  
         21            THE WITNESS:  That's correct.
         22            HEARING OFFICER DAHER:  That she had 
         23   received some information which wasn't objected to 
         24   by Mr. Egbert that was from Mr. Greene; is that 
 0050
          1   correct?  
          2            THE WITNESS:  She wasn't clear to me.  I 
          3   tried to see if she got it from Jay Greene or some 
          4   intermediate source, but she was representing to me 
          5   what Jay Greene would say and I couldn't get her to 
          6   tell me if she had spoken to him directly.
          7            HEARING OFFICER DAHER:  Go ahead.
          8       BY MR. BRACERAS: 
          9       Q.   Mr. Deakin, what was the basis of your 
         10   office's opposition to the continuance in the Horton 
         11   case?
         12       A.   We -- ADA Joseph and I, that is -- 
         13   couldn't -- I'm sorry.  I couldn't see any reason 
         14   for the continuance -- to continue this case from 
         15   the day that it was being heard.  The victim, as I 
         16   understood it, and his family had been told prior to 
         17   August 4th that the case would result in a plea and 
         18   sentencing on August 4th and it would therefore be 
         19   essentially over from his point of view.  And the 
         20   boy's grandmother had been in the courtroom, I was 
         21   told, since before court convened in the morning, 
         22   waiting to deliver a victim impact statement.  So 
         23   our feeling was, without a legitimate basis for a 
         24   continuance and with concerns for the victim and his 
 0051
          1   family, hoping to see the case resolved and be done 
          2   with it, that there was no grounds for a 
          3   continuance.  And that's why we filed the motion.
          4       Q.   Was there anything else other than the 
          5   inconvenience to the grandmother, who was in the 
          6   courtroom?
          7       A.   Yes.  There was our concern for all 
          8   victims -- with child victims and their families, 
          9   that when they're told a case is going to be over, 
         10   whether it's by plea or by trial, when we call them 
         11   -- which we often have to do -- and tell them 
         12   there's been a continuance, they report to us 
         13   anxiety, upset, it's stressful.  So we were 
         14   concerned that the boy and his family would be put 
         15   through unnecessary stress or trauma by this 
         16   continuance.  And we didn't want it to happen.
         17       Q.   Are all of those concerns written in 
         18   Exhibit 17?
         19       A.   They're not written expressly.  I think 
         20   they're fairly inferable from what is written in 
         21   Exhibit 17.
         22       Q.   Was this a good-faith opposition to the 
         23   continuance?
         24       A.   Absolutely.
 0052
          1       Q.   On August 4th did you have to request that 
          2   the Horton case be called?
          3       A.   I don't recall how the Horton case was 
          4   called.  I don't recall whether we had to request it 
          5   or not.  I know -- I've answered your question.  I 
          6   don't recall. 
          7       Q.   When the case was called, did you appear 
          8   along with Ms. Joseph?
          9       A.   I appeared -- I actually stood at the 
         10   podium.  Ms. Joseph was seated at counsel table next 
         11   to me, and we appeared together, although I was the 
         12   one doing the speaking.
         13       Q.   Was this your first appearance in the 
         14   Horton case?
         15       A.   Yes.
         16       Q.   In appearing in the case, were you 
         17   replacing Ms. Joseph?
         18       A.   No.  I was joining Ms. Joseph.  We were 
         19   now -- in my view, we were now co-counsel.
         20       Q.   Now, when Judge Lopez came on the bench, 
         21   she ordered that the case would be continued, and 
         22   she did that without hearing argument?
         23       A.   I believe that's correct.
         24       Q.   What was your understanding as to why the 
 0053
          1   case was continued?
          2            MR. EGBERT:  Objection. 
          3            HEARING OFFICER DAHER:  Overruled.  Go 
          4   ahead. 
          5       A.   My understanding was that the Judge had 
          6   said that she would continue the case until the 
          7   press went away.
          8       Q.   Now, the Judge never indicated that she was 
          9   continuing the case out of concern that the plea 
         10   would be revoked by the defendant? 
         11            MR. EGBERT:  Respectfully, Judge, he wasn't 
         12   there.  Your Honor, we are reaching the point of --
         13            MR. BRACERAS:  Mr. Deakin is in the August 
         14   4th hearing.
         15            MR. EGBERT:  Well, he wasn't at the lobby 
         16   conference.
         17            MR. BRACERAS:  Your Honor, I'm asking Mr. 
         18   Deakin, when the Judge took the bench, she announced 
         19   that the case was going to be continued.  This is 
         20   while the Commonwealth's motion to oppose a 
         21   continuance was pending.  She announces that it's 
         22   going to be continued, and I'm asking if she ever 
         23   indicated on the record or elsewhere whether she 
         24   said that because the defendant was going to 
 0054
          1   withdraw his plea.
          2            HEARING OFFICER DAHER:  I think previous to 
          3   the last question was the reasons that the case 
          4   would be continued was because the press was there.  
          5   Then you asked him somewhat of a leading question as 
          6   to whether the plea, I suspect, would be revoked or 
          7   not, is that it? 
          8            MR. BRACERAS:  Yes. 
          9       Q.   The question was whether there was any 
         10   indication by the Judge that the continuance was 
         11   based on any reason other than the presence of the 
         12   press. 
         13       A.   On the record?  When the Judge took the 
         14   stand?  I'm sorry; I'm confused myself, I'm afraid.  
         15   If you could repeat the question, that would be 
         16   great. 
         17       Q.   Okay.  Going back, you indicated that the 
         18   Judge -- it was your understanding that the case was 
         19   continued because of the presence of the media?
         20       A.   Correct.
         21       Q.   Did the Judge in open court on August 4th, 
         22   when you appeared, ever indicate that the case was 
         23   being continued because of concern that the 
         24   defendant would not plead guilty?
 0055
          1       A.   No.
          2       Q.   Did the Judge indicate on the record any 
          3   reason other than the presence of the media for 
          4   continuing the case?
          5       A.   Yes.  And for clarity's sake, the Judge 
          6   didn't mention the presence of the media on the 
          7   record.  That's something that I had heard.  The 
          8   Judge, as I recall, explained that the court docket 
          9   was too crowded to reach the case.  I remember the 
         10   Judge mentioning that there were a large number -- I 
         11   don't remember the number -- of bail hearings that 
         12   had to be done in the afternoon.  And she announced 
         13   that there wasn't time to do the plea.
         14       Q.   And at the hearing you pursued your motion 
         15   in opposition to the continuance?
         16       A.   I presented it and informed the Judge that 
         17   it had been filed.
         18       Q.   You had some limited argument on that?
         19       A.   It was a very brief argument, yes.
         20       Q.   Now, if you turn to Exhibit 42, which is 
         21   the transcript of that hearing -- we'll put it up on 
         22   the screen for you as well. 
         23       A.   I've got it.
         24       Q.   And if you turn to Line 16.
 0056
          1       A.   On Page 2?  Which page are we talking 
          2   about? 
          3       Q.   On Page 3.
          4       A.   Line 16? 
          5       Q.   Yes.  You'll see that you requested written 
          6   findings in this case; is that right?
          7       A.   That's correct.
          8       Q.   And the Court's response was on the record?
          9       A.   The highlighted portion says, "Okay.  You 
         10   will get written findings." 
         11       Q.   What was Judge Lopez's tone when she said 
         12   this in court?
         13       A.   Her tone was intense.
         14       Q.   Did the Court, in fact, make the findings 
         15   which are set forth in Exhibit 17 after this 
         16   hearing?
         17       A.   I assume the Court did.  I mean, they were 
         18   faxed to us.  I don't have personal knowledge that 
         19   the Court made these findings, but they seemed to be 
         20   findings of the Court.
         21       Q.   They were faxed to you after the hearing; 
         22   is that right?
         23       A.   That's correct.
         24       Q.   And they were endorsed by Lopez, J?
 0057
          1       A.   Right.
          2       Q.   So it's a fair inference that Judge Lopez 
          3   made these findings?
          4       A.   I inferred that, yes.  I've always assumed 
          5   that the Judge did.
          6       Q.   Now, if you look at Exhibit 17, you'll see 
          7   that Judge Lopez made a finding in the first 
          8   paragraph that "ADA Joseph called the press in."  Do 
          9   you see that?  It's also on the screen. 
         10       A.   Yes, I do.
         11       Q.   Do you agree with that?
         12       A.   No.
         13       Q.   Was that statement accurate?
         14       A.   No.
         15       Q.   Now, the findings also go on to say that, 
         16   "Ms. Joseph has a habit of doing this." 
         17       A.   Right.
         18       Q.   Was that correct?
         19       A.   I'm not aware of Ms. Joseph ever having 
         20   called the press in.  So no, it's not correct. 
         21       Q.   The findings also say -- and this is in 
         22   Exhibit 17, and we'll highlight it on the screen -- 
         23   that "The Court finds that ADA Joseph attempted to 
         24   embarrass and ridicule a defendant suffering from a 
 0058
          1   psychological disorder."  Do you see that?
          2       A.   I do.
          3       Q.   Was that accurate? 
          4            MR. EGBERT:  How would he know? 
          5            HEARING OFFICER DAHER:  Mr. Braceras? 
          6            MR. BRACERAS:  Is that an objection? 
          7            HEARING OFFICER DAHER:  The question is, 
          8   how would he know.
          9            MR. BRACERAS:  Well, Your Honor, perhaps 
         10   the question is how would the Judge know. 
         11            MR. EGBERT:  She testified --
         12            HEARING OFFICER DAHER:  Let him finish, Mr. 
         13   Egbert.
         14            MR. BRACERAS:  Certainly Mr. Deakin is ADA 
         15   Joseph's supervisor.  He was the point person in the 
         16   office.  He was involved in notifying Ms. Keeley 
         17   about the press.  He knew what was going on in that 
         18   case.  Certainly he had a better basis than Judge 
         19   Lopez in assessing whether ADA Joseph attempted to 
         20   embarrass and ridicule a defendant.
         21            HEARING OFFICER DAHER:  Help me, Mr. 
         22   Egbert.  How would Judge Lopez know that?
         23            MR. EGBERT:  Judge Lopez has a right as a 
         24   judge to make inferences and draw inferences from 
 0059
          1   conduct in making her findings.  That was her task, 
          2   as your task is every day, that you take whatever 
          3   facts are before you and you make inferences from 
          4   them. 
          5            By the way, right or wrong, you draw 
          6   inferences.  This witness is not so entitled, nor 
          7   can he testify as to whether or not that is accurate 
          8   or not.  He can't read her mind. 
          9            HEARING OFFICER DAHER:  It would seem that 
         10   this is somewhat of a shorthand opinion in the sense 
         11   that "attempted to" -- that was Judge Lopez's 
         12   opinion.
         13            MR. EGBERT:  Right.
         14            HEARING OFFICER DAHER:  And consequently, 
         15   it would seem that Mr. Deakin would likewise have an 
         16   equally valid opinion.
         17            MR. EGBERT:  His opinion is irrelevant.  
         18   These are a judge's findings.  What his opinion is 
         19   is absolutely irrelevant.  And, quite frankly, if he 
         20   thought they were improper, he had a course of 
         21   conduct and avenue to take.
         22            You should know particularly it says 
         23   specifically, even in the Judicial Conduct 
         24   Commission's legislative statement of their 
 0060
          1   functions, that at no time are they empowered or 
          2   authorized in any way to act as some kind of an 
          3   appellate tribunal of a judge's findings.  And this 
          4   is getting so far -- the issue in this case is what 
          5   Judge Lopez heard and saw and what she found.  His 
          6   opinion is irrelevant as to that.
          7            HEARING OFFICER DAHER:  Mr. Braceras, the 
          8   last word? 
          9            MR. BRACERAS:  Your Honor, I'm not asking 
         10   Mr. Deakin for a legal opinion or an order of the 
         11   Court.  We're asking for his assessment of the 
         12   accuracy of this finding.  The accuracy of this 
         13   finding, and the basis for this finding is plainly 
         14   at issue in this case as to what this finding was 
         15   based on.  
         16            Now we have ADA Joseph's supervisor, the 
         17   co-prosecutor on the case.  We should be able to 
         18   hear from him whether this statement had any basis 
         19   in fact. 
         20            HEARING OFFICER DAHER:  I'm going to 
         21   sustain Mr. Egbert on this one.  Sustained.
         22       BY MR. BRACERAS: 
         23       Q.   Mr. Deakin, did you ever come to learn --
         24            HEARING OFFICER DAHER:  Again, Mr. 
 0061
          1   Braceras, what we have is Judge Lopez working with 
          2   ADA Joseph, and then we have Mr. Deakin's making a 
          3   motion, and Judge Lopez made a finding after 
          4   extensive negotiations with Ms. Joseph.  So I think 
          5   Mr. Egbert --
          6            MR. BRACERAS:  Your Honor, first of all, 
          7   Mr. Deakin prepared the motion.  And the extensive 
          8   negotiation has all been revealed to Mr. Deakin, was 
          9   reported to Mr. Deakin.  And the testimony on this 
         10   point goes back to, again --
         11            HEARING OFFICER DAHER:  I'm going to 
         12   sustain Mr. Egbert on this one.
         13       BY MR. BRACERAS: 
         14       Q.   Mr. Deakin, did you ever learn anything 
         15   about Ms. Joseph or the Horton case that supported 
         16   this statement?
         17            MR. EGBERT:  Objection. 
         18            HEARING OFFICER DAHER:  Same argument? 
         19            MR. EGBERT:  This one's even further off, 
         20   because we know that there are a number of meetings, 
         21   conferences and the like that occurred between ADA 
         22   Joseph and Judge Lopez, which he was not present in.  
         23   And again --
         24            HEARING OFFICER DAHER:  I sustained you on 
 0062
          1   the former motion -- objection, but this one I'm 
          2   going to allow Mr. Braceras to have it.  Overruled. 
          3       A.   I hope I have the question right. 
          4            HEARING OFFICER DAHER:  Do you want it 
          5   played back? 
          6            THE WITNESS:  No.  I think I remember it, 
          7   Your Honor.  Thank you. 
          8       A.   I never learned anything in the entire 
          9   course of this case that would justify -- in my view 
         10   would justify this finding.
         11            MR. EGBERT:  I move to strike that. 
         12            HEARING OFFICER DAHER:  Overruled.
         13       Q.   Mr. Deakin, what was your reaction to this 
         14   statement when you read it?
         15       A.   I was outraged.
         16       Q.   Mr. Deakin, if you turn to the next 
         17   paragraph, Judge Lopez goes on to find that the DA 
         18   -- the Commonwealth sought to turn the court 
         19   proceedings into a circus.  Do you see that?
         20       A.   I do.
         21       Q.   Did you agree with that finding? 
         22            MR. EGBERT:  Objection.
         23       A.   Absolutely not.
         24            HEARING OFFICER DAHER:  What's the 
 0063
          1   objection? 
          2            MR. EGBERT:  My same objection as to what 
          3   he agrees with were the Court's findings.
          4            MR. BRACERAS:  Your Honor, this finding 
          5   goes --
          6            HEARING OFFICER DAHER:  What we have here 
          7   is we have a supervisor who's been working, I take 
          8   it, with Ms. Joseph for some time.  I suspect that 
          9   as a supervisor, he has knowledge coming to him as 
         10   to the operation of the procedure of a trial.  He 
         11   can answer, for example, as to whether Ms. Joseph 
         12   did anything to turn the court proceedings into a 
         13   circus.  If he has any knowledge of that, fine; I'd 
         14   like to hear it.  He's the supervisor.
         15            MR. EGBERT:  He's a supervisor, but these 
         16   are court findings.  These are court findings that 
         17   you're accepting testimony --
         18            HEARING OFFICER DAHER:  I appreciate that.
         19            MR. EGBERT:  -- from one of the parties as 
         20   to whether or not the party who lost thinks the 
         21   findings are right.
         22            HEARING OFFICER DAHER:  But again, what we 
         23   have right here, Judge Lopez made a finding.  And 
         24   now, in rebuttal, Mr. Braceras is trying to show 
 0064
          1   that, you know, whether indeed -- in their view, the 
          2   validity to make such a statement.  Overruled.  Go 
          3   ahead.
          4       BY MR. BRACERAS: 
          5       Q.   Mr. Deakin, did you think that this 
          6   statement was accurate?
          7       A.   I thought it was false.
          8       Q.   Now, you were at the courthouse for the 
          9   majority of that day, August 4th?
         10       A.   I was there for probably about half of the 
         11   court day, so --
         12       Q.   Approximately when did you arrive?
         13       A.   I don't know.  It was before the lunch 
         14   recess, which is usually taken at one.  So sometime 
         15   in the midday.
         16       Q.   And you were there until the end of the 
         17   court day?
         18       A.   I don't believe so.  I think I left just 
         19   before the bail reviews began.
         20       Q.   Well, you were there until after the Horton 
         21   case was called?
         22       A.   Yes.
         23       Q.   Now, did you have an opportunity to observe 
         24   the media present at the courthouse?
 0065
          1       A.   Yes.
          2       Q.   Did you observe any improper conduct by the 
          3   media?
          4       A.   I did not observe any improper conduct by 
          5   the media, no.
          6       Q.   Was there anything at the courthouse that 
          7   day to suggest a circus-like atmosphere?
          8       A.   Not that I observed.
          9       Q.   Now, if you go to the next paragraph, 
         10   there's a finding that, "The Court found that there 
         11   was little, if no, impact on the alleged victim..."  
         12   Do you see that?
         13       A.   Yes.
         14            MR. EGBERT:  "... as this is a plea."  
         15   Let's read the whole statement.
         16            MR. BRACERAS:  Your Honor, I think this is 
         17   my witness.
         18            MR. EGBERT:  You can't read a half a 
         19   finding.
         20            MR. BRACERAS:  Your Honor, Mr. Egbert can 
         21   cross-examine Mr. Deakin --
         22            HEARING OFFICER DAHER:  It's not going to 
         23   hurt you.  If we could just speed it up.  There is a 
         24   little "...as this is a plea."  You've got it, Mr. 
 0066
          1   Egbert.
          2            MR. BRACERAS:  It's the interruption that 
          3   is more disruptive.
          4            HEARING OFFICER DAHER:  Go ahead.
          5       Q.   Mr. Deakin, Judge Lopez finds that, "There 
          6   is little, if no, impact on the alleged victim, as 
          7   this is a plea."  Do you see?
          8       A.   Yes.
          9       Q.   And it's fair to infer that what you meant 
         10   is there is little, if no, impact to the continuance 
         11   of the alleged victim?
         12       A.   That's how I understood the finding.
         13       Q.   Did you agree with that?
         14       A.   No, I did not.
         15       Q.   Why is that?
         16       A.   Well, in my experience it is hard on 
         17   victims to tell them the case is going to be 
         18   resolved and then have to tell them that it's going 
         19   to be continued for a month.  So I surmised that 
         20   there was probably significant impact on the victim.
         21       Q.   Now, to your knowledge, did Judge Lopez 
         22   ever take any evidence as to these findings?
         23       A.   None that I'm aware of, no.
         24       Q.   And you're aware that these findings were 
 0067
          1   made public?
          2       A.   Yes, I am aware of that. 
          3            MR. BRACERAS:  Your Honor, is now a good 
          4   time for the morning break? 
          5            HEARING OFFICER DAHER:  I don't care.  That 
          6   would be fine. 
          7            (Recess.)
          8       BY MR. BRACERAS: 
          9       Q.   Mr. Deakin, on September 6th the parties 
         10   returned to court for the plea and sentencing in 
         11   Horton; is that right?
         12       A.   That's right, in Middlesex Superior Court.
         13       Q.   Who appeared for the Commonwealth on that 
         14   day?
         15       A.   I did, along with ADA Joseph.
         16       Q.   Did you have any contact with Judge Lopez 
         17   between the August 4th hearing and the September 6th 
         18   sentencing?
         19       A.   No, I did not.
         20       Q.   Did you have any contact with defense 
         21   counsel between the August 4th hearing and the 
         22   September 6th sentencing?
         23       A.   No, I did not.
         24       Q.   When you arrived at the courthouse on 
 0068
          1   September 6th, did you observe the defendant and Ms. 
          2   Goldbach enter the courtroom?
          3       A.   Yes, I did.
          4       Q.   And from where did they enter the 
          5   courtroom?
          6       A.   They entered from a door behind the 
          7   Judge's -- not directly behind the Judge's bench, 
          8   but sort of as you're looking at the Judge's bench, 
          9   flanking it on the right, it's -- well, I don't know 
         10   if the record will get this, but it's basically in 
         11   the same position as the door in this courtroom 
         12   except that it's on the right instead of the left.
         13       Q.   Were you ever notified by Judge Lopez that 
         14   special arrangements had been made for the --
         15            MR. EGBERT:  Objection to the 
         16   characterization.
         17            HEARING OFFICER DAHER:  Overruled.  Go 
         18   ahead.
         19       Q.   Were you ever notified by Judge Lopez that 
         20   special arrangements had been made for the defendant 
         21   and defense counsel to enter the courthouse on 
         22   September 6th?
         23       A.   No, I was not.
         24       Q.   Were you ever notified of this by defense 
 0069
          1   counsel?
          2       A.   No, I was not.
          3       Q.   Was the consent of the district attorney 
          4   ever sought for these special arrangements?
          5       A.   No.  To my knowledge, it was not.
          6       Q.   Did defense counsel ever make a request for 
          7   such special arrangements for the defendant to enter 
          8   the courthouse?
          9       A.   Not to my knowledge.
         10       Q.   Was any effort made by the Court to 
         11   accommodate the victim and the grandmother on 
         12   September 6th?
         13       A.   I'm not aware of any effort to accommodate 
         14   either of them, although I would note that the 
         15   victim, as I understand it, was not present on 
         16   September 6th.  It was only his grandmother.
         17       Q.   The grandmother was present?
         18       A.   Yes.
         19       Q.   And you aren't aware of any accommodations 
         20   made for the grandmother on that day?
         21       A.   No.
         22       Q.   And you aren't aware of any efforts to 
         23   accommodate the victim, had he chosen to go?
         24       A.   No efforts made by the Court.  We made 
 0070
          1   efforts, the district attorney's office did, but 
          2   none by the Court that I'm aware of. 
          3       Q.   Now, have you had an opportunity to review 
          4   the videotape of the proceedings on September 6th?
          5       A.   I reviewed that videotape either September 
          6   6th or September 7th, but not since then, so it's 
          7   been a couple of years, but I have seen it.
          8       Q.   Were you aware on September 6th that the 
          9   Court limited the media's ability to photograph the 
         10   defendant?
         11       A.   Yes, I was.
         12       Q.   Do you know if defense counsel had 
         13   requested such limitations of the press's access to 
         14   photograph the defendant?
         15       A.   I don't know.
         16       Q.   So you have no knowledge of any request by 
         17   defense counsel for that type of limited access to 
         18   photograph the defendant?
         19       A.   I'm not aware of any such request, no.
         20       Q.   Now, in the course of a plea hearing, where 
         21   does a defendant -- where is the defendant normally 
         22   located in the courtroom?
         23       A.   Normally, although there is some fairly 
         24   substantial variation in practice, but normally the 
 0071
          1   defendant is seated in the witness box.
          2       Q.   Is the defendant put under oath?
          3       A.   Yes.
          4       Q.   Now, turning to Exhibit 22, which is the 
          5   transcript of the September 6th plea and sentencing?
          6       A.   I see that.
          7       Q.   If you turn to Page 8, Line 7, which is up 
          8   on the screen --
          9       A.   Page 8, Line 7.  Yes, I see that.
         10       Q.   The Court stated that -- the Judge had 
         11   initially indicated that the defendant, Horton, 
         12   would be placed into the community corrections 
         13   program.  Do you see that?
         14       A.   I do.
         15       Q.   And the Court, Judge Lopez, notes that the 
         16   defendant would not be accepted into the community 
         17   corrections program; is that right?
         18       A.   That's correct.
         19       Q.   What was your understanding as to why the 
         20   defendant was not accepted into the community 
         21   corrections program?
         22            MR. EGBERT:  Objection. 
         23            HEARING OFFICER DAHER:  Overruled.
         24       A.   It's my understanding that because he was 
 0072
          1   pleading guilty to violent offenses, he would not be 
          2   admitted to the community corrections program.
          3       Q.   If you turn several pages forward to Page 
          4   12 of the transcript, at Lines 8 to 11. 
          5       A.   Yes.
          6       Q.   Before you gave your recitation of the 
          7   facts, the Judge stated at Line 8 on Page 12, "Now, 
          8   I will hear from the DA's office, and I want to hear 
          9   only the facts that pertain to these indictments.  
         10   Okay?"  Do you see that?
         11       A.   I do.
         12       Q.   What did you understand the Court to mean 
         13   in this regard?
         14       A.   I didn't really understand it, because 
         15   that's all --
         16            MR. EGBERT:  If he didn't understand it, 
         17   that's the end of the answer.
         18            MR. BRACERAS:  He should be allowed to 
         19   finish his answer, Your Honor.  He's on direct.
         20            MR. EGBERT:  On direct or anywhere else, if 
         21   he didn't understand it.  The question is what did 
         22   you understand, and he said he didn't understand it.
         23            HEARING OFFICER DAHER:  Why don't you 
         24   finish, and I'll entertain your motion.
 0073
          1       A.   I didn't understand it because that's all 
          2   we do customarily at plea colloquies is we recite 
          3   the facts that pertain to the indictment.  So I 
          4   didn't understand why the Judge was saying -- it 
          5   essentially goes without saying.
          6            MR. EGBERT:  I'll withdraw my objection.
          7       Q.   Let's watch your recitation of the facts.  
          8            MR. BRACERAS:  And, Your Honor, for your 
          9   assistance we'll play it up on the video, but it 
         10   will be Pages 12 through the first line of Page 16 
         11   of the transcript.  
         12            (Videotape playing)
         13            "THE COURT:  Okay.  Now, I will  hear from 
         14   the DA's office, and I want to hear only the facts 
         15   which pertain to these indictments.  Okay? 
         16            MR. DEAKIN:  Yes, Your Honor.  Your Honor, 
         17   were this matter to go to trial, the Commonwealth 
         18   would prove the following facts.  
         19            On Saturday, November 20th of 1999, a 
         20   12-year-old boy, the victim in this case, was 
         21   walking to his home in Dorchester.  It was just 
         22   after 8 p.m., when the boy was walking home from a 
         23   friend's house.  As he walked along Corona Street, 
         24   heading towards Geneva Avenue, a car pulled up 
 0074
          1   beside him.  In the car was the defendant who 
          2   appeared to the boy to be a woman he did not know.  
          3            The defendant told the boy that the 
          4   defendant was searching for a missing son named 
          5   Michael and that the defendant would pay $100 to 
          6   anyone who found the missing boy.  The defendant 
          7   asked the victim to get into the car, and the boy 
          8   agreed.  
          9            After the boy got in the car, the defendant 
         10   drove around for a time, finally bringing the boy to 
         11   a place he did not know.  It was there that the 
         12   victim reported that the police later found him with 
         13   the defendant.  The defendant told the victim that 
         14   this was where the fictitious missing boy had been 
         15   playing.  Stopping the car, the defendant then asked 
         16   the victim if he wanted to perform oral sex on the 
         17   defendant.  The defendant used a common vulgarity to 
         18   refer to female genitalia.  The boy said that he did 
         19   not want to do that and said that he wanted to go 
         20   home.  
         21            The defendant then put a screwdriver to the 
         22   boy's neck and told him to be quiet.  The defendant, 
         23   whose pants were partially down, then pulled the 
         24   boy's head into the defendant's lap.  The boy then 
 0075
          1   felt what the defendant said was the defendant's 
          2   finger against his mouth.  The defendant told the 
          3   boy to suck the finger, and the defendant took the 
          4   boy's head and moved it up and down.  
          5            The victim reports that he was crying and 
          6   pleading to be allowed to go home.  Using profanity, 
          7   the defendant told the victim to shut up.  The 
          8   defendant told the victim to stop sucking the finger 
          9   and instead to suck the screwdriver.
         10            Shortly thereafter, the defendant saw that 
         11   the police had pulled up behind him.  The defendant 
         12   pulled the boy's head up and gave the boy $50 in 
         13   cash.  The defendant told the boy the defendant was 
         14   a dentist and that the boy should not say anything 
         15   to the police.  
         16            At approximately 8:28 p.m. on Saturday, 
         17   November 20th, Officers Rose and Sweeney of the 
         18   Boston Police Department were on routine patrol in 
         19   their sector of Dorchester.  They saw a 1996 Nissan 
         20   Maxima parked in a dark area of the back lot of 50 
         21   Park Street near a warehouse.  It was not an area in 
         22   which passenger cars typically had business at that 
         23   time of night.  
         24            The officers turned on the cruiser's lights 
 0076
          1   and looked at the car.  In it they saw a person, 
          2   later identified as the defendant, moving up and 
          3   down quickly.  About ten seconds later the officers 
          4   saw the head of a second person, later identified as 
          5   the 12-year-old victim, rise up from the front 
          6   driver's side area of the car.  The officers 
          7   approached the car and saw the defendant in the 
          8   driver's seat with his pants unzipped and down 
          9   around his hips.  
         10            As Officer Sweeney approached the car, he 
         11   heard the defendant say to the victim, 'Tell them 
         12   you were helping me look for my two kids.'  The 
         13   defendant told the officers that the boy was helping 
         14   him search for a missing son, which the defendant 
         15   later acknowledged was not true.  
         16            The officers noted that the victim was 
         17   crying, and when they spoke to him, the boy told the 
         18   officers what had happened.  The officers arrested 
         19   the defendant and found a screwdriver between the 
         20   console and the front passenger seat of the car.
         21            THE COURT:  Thank you.  I believe that 
         22   completes the facts that are relevant for purposes 
         23   of these indictments."  
         24            (Videotape stopped.)
 0077
          1       BY MR. BRACERAS:
          2       Q.   Mr. Deakin, Judge Lopez interrupted you 
          3   here?
          4       A.   Yes.
          5       Q.   What was your understanding as to why she 
          6   interrupted you?
          7            MR. EGBERT:  I'm sorry; I didn't hear that.
          8       Q.   What was your understanding as to why the 
          9   Judge interrupted you at this point in your 
         10   recitation of the facts?
         11            MR. EGBERT:  Objection.
         12            HEARING OFFICER DAHER:  I'll hear you, Mr. 
         13   Braceras, as to his understanding as to why Judge 
         14   Lopez did interrupt him during the proceedings.
         15            MR. BRACERAS:  Your Honor, Mr. Deakin was 
         16   in the middle of his recitation of facts.  It's 
         17   relevant as to why he would have been interrupted.  
         18   Why does he think, out of all the sentencing 
         19   hearings he's done, he would have been interrupted 
         20   in the middle of this recitation.
         21            MR. EGBERT:  I don't know why he thinks is 
         22   relative to anything or what he thinks is relative 
         23   to anything.  The record speaks for itself.  His 
         24   opinions are not appropriate.
 0078
          1            MR. BRACERAS:  Your Honor, the Judge is 
          2   charged, among other things, with bias and the 
          3   appearance of impartiality -- the appearance of 
          4   bias; I'm sorry.  Now, clearly the DA's impression 
          5   as to why he's being interrupted and why he's having 
          6   a limited opportunity to be heard is relevant to 
          7   those charges.
          8            HEARING OFFICER DAHER:  Overruled.
          9       A.   I didn't understand why she was 
         10   interrupting me, why the Judge was interrupting me, 
         11   because I wasn't finished.  It was strange.
         12       Q.   Is it unusual to be interrupted in the 
         13   middle of your recitation of facts?
         14       A.   Very.
         15       Q.   Now, what is the purpose of the recitation 
         16   of facts in a sentencing hearing?
         17       A.   The purpose of the recitation of the facts 
         18   is to apprise the Court -- that is, the Judge -- of 
         19   the facts that the Commonwealth would intend to 
         20   prove to support the indictments were the case to go 
         21   to trial, and also, to make a record for posterity, 
         22   if I can use that term, of what the factual basis 
         23   for the charge was.  And, finally, to give the 
         24   factual basis supporting the Commonwealth's 
 0079
          1   sentencing recommendation.
          2       Q.   Now, it is important to provide a 
          3   recitation of facts, even after a judge has 
          4   indicated or intended sentence at a lobby 
          5   conference?
          6       A.   Absolutely.
          7       Q.   Why?
          8       A.   Well, first and foremost, if you don't make 
          9   a record of the fact, there's no way for a review in 
         10   court, if there were ever to be a review, to 
         11   determine what facts underlie the indictments.  So a 
         12   judge has to make a finding that there is sufficient 
         13   evidence on each element of each offense, and that 
         14   has to be a matter of record. 
         15            Additionally, if the Commonwealth intends 
         16   to argue for a sentence -- intends to advance a 
         17   sentencing recommendation, it needs to have a 
         18   factual basis to make that sentencing recommendation 
         19   so that the Court is clear on why the Commonwealth 
         20   is doing what it's doing, and the record, again, for 
         21   purposes of later review, is also clear.
         22       Q.   In the Horton case, was it possible for 
         23   Judge Lopez on September 6th to revisit or 
         24   reconsider the intended sentence that she announced 
 0080
          1   on August 1st?
          2            MR. EGBERT:  Objection.
          3            HEARING OFFICER DAHER:  What's your 
          4   objection? 
          5            MR. EGBERT:  My objection is to the word 
          6   "possible." 
          7            HEARING OFFICER DAHER:  Overruled.  Go 
          8   ahead. 
          9       A.   Absolutely.
         10       Q.   So September 6th was not a formality?
         11       A.   It was a formal proceeding, but it was not 
         12   a mere formality.  It was part and parcel of the 
         13   plea colloquy.  Without it -- without September 6th, 
         14   no sentence could have been imposed.
         15       Q.   Now, you asked the Judge if you could 
         16   continue your recitation of facts, and she allowed 
         17   you?
         18       A.   That's correct.
         19            MR. BRACERAS:  So why don't we see the rest 
         20   of that.  
         21            (Videotape playing.)
         22            "MR. DEAKIN:  Your Honor, if I may, there 
         23   are additional facts that relate to the defendant's 
         24   statements to the police about his intention at the 
 0081
          1   time, and I think therefore are directly relevant.  
          2            THE COURT:  Okay.  Go ahead.
          3            MR. DEAKIN:  The victim also handed over to 
          4   police the $50 the defendant had given him.  The 
          5   officers advised the defendant of his warnings under 
          6   Miranda, and he denied any wrongdoing.  
          7            At the police station detectives again 
          8   Mirandized the defendant and questioned him again.  
          9   The defendant told the police that the victim was 
         10   named Sean, had a 19-year-old brother who lives on 
         11   Westville Street, all of which were false.  
         12            The defendant said that the victim had 
         13   volunteered to help find Mike and James, two other 
         14   boils.  The defendant said the two drove around 
         15   looking for the teenagers, without success.  The 
         16   defendant told police that he had driven to 50 Park 
         17   Street and parked the car there, which is where the 
         18   police found him.  
         19            There, according to the defendant, the pair 
         20   sat and discussed sexual things that the defendant 
         21   had done.  According to the defendant, the victim 
         22   asked the defendant for oral sex.  The defendant 
         23   then asked the victim to show the defendant his 
         24   penis.  It was then that the police arrived, 
 0082
          1   according to the defendant.  
          2            The defendant conceded in the interview 
          3   that the defendant's pants were unbuttoned in his 
          4   words 'a little bit'.  When asked if the two of them 
          5   had physical contact, the defendant replied that 
          6   they had only kissed.  When asked about oral sex, 
          7   the defendant answered that the 12-year-old victim 
          8   had asked about the defendant's genitalia, and it 
          9   was then that the defendant jokingly asked whether 
         10   the victim wanted to perform oral sex on the 
         11   defendant, who employed a common vulgarity to refer 
         12   to female genitalia. 
         13            When asked by detectives to tell them what 
         14   had really happened, the defendant replied that he 
         15   thought the victim was 14 years old and that he was 
         16   probably going to perform oral sex on the victim.  
         17            That in summary would be the facts the 
         18   Commonwealth would prove if the matter went to 
         19   trial."  
         20            (Videotape stopped.)
         21       BY MR. BRACERAS: 
         22       Q.   Now, Mr. Deakin, during this last part of 
         23   your recitation of facts, was there something 
         24   inaccurate in what you said?
 0083
          1       A.   Yes, there was.
          2       Q.   What was that?
          3       A.   Early in the tape clip that was shown, I 
          4   recited three facts that the defendant had 
          5   purportedly said about the boy:  That he knew him as 
          6   Sean, that he had a 19-year-old brother, and that he 
          7   lived on Westville Street, and I said each of those 
          8   were false.  In fact, the first two were false.  The 
          9   third thing was true, and it was an error on my part 
         10   to represent it as false.
         11       Q.   Was that information that the boy lived on 
         12   Westville Street, was that in the police reports?
         13       A.   It was in the 911 report, the report of the 
         14   initial responding officers.
         15       Q.   Was that information provided to defense 
         16   counsel?
         17       A.   Yes, I believe at arraignment earlier in 
         18   the discovery process all the police reports had 
         19   been turned over to defense counsel.
         20       Q.   When did you become aware of the inaccuracy 
         21   of your recitation on that one point?
         22       A.   Just under a month later I became aware of 
         23   my error.
         24       Q.   What did you do when you became aware of 
 0084
          1   that mistake?
          2       A.   Well, first, I checked to make sure that it 
          3   was in fact an error, and it was.  I prepared a 
          4   notice of disclosure to correct the record.  I filed 
          5   that, and normally by first class mail at the 
          6   clerk's office at Suffolk Superior Court, with 
          7   courtesy copies to Justice Lopez and to defense 
          8   counsel.
          9       Q.   And if you could flip in the smaller 
         10   notebook to Exhibit Q just to identify the notice of 
         11   disclosure that you filed.
         12       A.   (Witness complies.)
         13            MR. BRACERAS:  Your Honor, do you have 
         14   Defense Exhibit 2?
         15            HEARING OFFICER DAHER:  I've got it now. 
         16       A.   Yes.
         17       Q.   Is that the notice of disclosure that you 
         18   just described?
         19       A.   Yes, it is.
         20       Q.   Now, returning to the September 6th plea 
         21   and sentencing hearing, did the defendant disagree 
         22   with any of the facts that you recited in either of 
         23   the two video clips that we saw?
         24       A.   Yes.  Through counsel he disputed three of 
 0085
          1   the facts.
          2       Q.   What were they?
          3       A.   He disputed that his pants were -- 
          4   actually, may I consult the transcript just to 
          5   refresh my memory?  I don't want to be wrong.
          6       Q.   Yes.  Exhibit 22, Page 18?
          7       A.   (Witness reviews document)  Yes.  Through 
          8   counsel, the defendant first disputed that the 
          9   defendant's pants were down at all. 
         10            Second, the defendant disputed that they 
         11   had driven around in the way that I had described 
         12   the boy reporting. 
         13            And third, the defendant disputed the $50 
         14   that the defendant gave the victim to be quiet.  
         15   That's the way it was phrased.  They disputed that.
         16       Q.   Were any of those three items material to 
         17   the charges in the indictments?
         18       A.   Not material.  At least two of them were 
         19   relevant, but none of the three were material.
         20       Q.   In any event, the defendant agreed with all 
         21   of the other facts that you recited on September 
         22   6th; is that right?
         23       A.   That's correct.  The transcript and my 
         24   recollection are that the Judge asked him, "Okay.  
 0086
          1   Other than that, do you agree with all the other 
          2   facts?"  And the defendant said, "Yes." 
          3       Q.   Now, following your recitation of the 
          4   facts, if you turn to Page 22 of the transcript, at 
          5   Line 9 --
          6       A.   Yes.
          7       Q.    -- the Judge asked you to be heard on 
          8   sentencing; is that right?
          9       A.   I'm sorry; the page number here? 
         10       Q.   Page 19, Line 9.  Sorry about that. 
         11       A.   Yes.
         12       Q.   So following your recitation, the Court 
         13   asked you to be heard on sentencing?
         14       A.   That's correct.
         15       Q.   And she states that -- Judge Lopez stated 
         16   at Line 9 on Page 19, "I'll hear you on sentencing"; 
         17   is that right?
         18       A.   That's correct.
         19       Q.   You did not begin to speak without an 
         20   invitation to do so?
         21       A.   I began my sentencing recommendation after 
         22   the Judge indicated that she would hear me on 
         23   sentencing.
         24       Q.   So let's see your sentencing 
 0087
          1   recommendation.              
          2       A.   Just if I may, just to clarify.  I 
          3   apologize.  There was a matter at side bar -- after 
          4   the Judge asked to hear me on sentencing and before 
          5   I actually began my sentencing argument, there was a 
          6   matter at side bar.  I don't know whether you're 
          7   playing that.
          8       Q.   No.  So I believe we'll be starting here.  
          9   This is Page 20, Line 13, after the discussion at 
         10   side bar?
         11       A.   Okay.
         12       Q.   So this is your sentencing 
         13   recommendation -- I believe you can tell us what it 
         14   is, but I believe this will be your sentencing 
         15   recommendation after the side-bar conference.  
         16            (Videotape playing.)
         17            "MR. DEAKIN:  Thank you, Your Honor.  As to 
         18   sentencing, the Commonwealth's recommendation is as 
         19   follows.  As to count 002, which charges assault 
         20   with intent to rape a child, the Commonwealth would 
         21   recommend a sentence that is not less than 8 nor 
         22   more than 10 years in state prison.  As to count 
         23   001, which alleges kidnapping, the Commonwealth 
         24   would recommend a period of probation of ten years 
 0088
          1   from and after the committed portion of the 
          2   recommended sentence.  As to counts 003, 004 and 
          3   005, alleging indecent assault and battery on a 
          4   child, assault and battery, and assault and battery 
          5   by means of a dangerous weapon, the Commonwealth 
          6   would recommend that guilty findings be entered and 
          7   that these matters be placed on file.  
          8            Your Honor, I should note, as we've 
          9   discussed very briefly at the side bar, that the 
         10   victim's mother and grandmother are present in the 
         11   court and have asked the Commonwealth to read impact 
         12   statements that they've prepared to the Court for 
         13   its consideration in sentencing.  I would ask the 
         14   Court to consider those, obviously, as part of the 
         15   Commonwealth's sentencing presentation.  
         16            The reason for the Commonwealth's sentence, 
         17   to be brief, Your Honor, is the quite serious nature 
         18   of the facts to which the defendant has now 
         19   admitted.  The Commonwealth believes that those 
         20   facts speak for themselves in terms of the 
         21   seriousness.  
         22            The Commonwealth, in formulating the 
         23   sentencing recommendation has consulted the 
         24   sentencing guidelines grid and found that the 
 0089
          1   assault with intent to rape a child being a category 
          2   7 offense carries a recommended sentence of 
          3   incarceration of not less than five nor more than 
          4   7-1/2 years in state prison.  And kidnapping, which 
          5   I frankly, Your Honor, had some difficulty 
          6   determining whether it was a 6 or a Category 7, but 
          7   either category is recommending a sentence of 3-1/2 
          8   to 5 or 5 to 7-1/2, depending on which category it's 
          9   properly in.  
         10            And the Commonwealth would note that in 
         11   both cases, although the defendant is a Category 8, 
         12   in terms of record; that is, no or a quite minor 
         13   record, it recommends incarceration and not 
         14   alternative sentencing.  
         15            The Commonwealth recommends that as to the 
         16   001 charge and kidnapping and any probationary 
         17   sentence that the Court deemed fit to impose, that 
         18   the following conditions of probation be imposed.  
         19   First, an order to have no contact whatsoever, 
         20   directly or indirectly, with the victim in this case 
         21   or any members of his immediate family.  Second, 
         22   that the defendant submit himself to a sex offender 
         23   evaluation by an evaluator determined by the Suffolk 
         24   County Probation Department and enter and 
 0090
          1   successfully complete whatever treatment it deemed 
          2   necessary as a result of  that evaluation. 
          3            THE COURT:  Do you know that he has already 
          4   been evaluated? 
          5            MR. DEAKIN:  I'm aware that there is a 
          6   psychological profile for the Court that has been 
          7   prepared.  If that report satisfies the Probation 
          8   Department as a sex offender evaluation, the 
          9   Commonwealth would be satisfied with that report.  I 
         10   would ask the Court to defer to probation on whether 
         11   that's a sufficient sex offender evaluation. 
         12            That the defendant be ordered to have no 
         13   contact whatsoever with minor children, that the 
         14   defendant accept no employment or volunteer work 
         15   involving contact with children, that the defendant 
         16   have be ordered to have no residence with minor 
         17   children, excepting his own siblings, if he has any.  
         18   I don't know, frankly, whether he has any.  That his 
         19   compliance with the sex offender registry provision 
         20   be made a condition of his probation as well as an 
         21   independent legal requirement.  And that his 
         22   requirement, whatever requirement is legally in 
         23   place at the time of his probation, to provide a DNA 
         24   sample also be made a condition of probation.  And 
 0091
          1   with the exception the victim impact statement, 
          2   that's the Commonwealth's recommendation."  
          3            (Videotape stopped.)
          4       BY MR. BRACERAS: 
          5       Q.   Mr. Deakin, when you referred to the 
          6   sentencing guidelines in this colloquy at Page 21, 
          7   Line 20 and 21, through Page 22 of the transcript, 
          8   you were referring to what is Exhibit 23 in this 
          9   case?
         10       A.   That's correct.
         11       Q.   Did the Judge at any point in this colloquy 
         12   or elsewhere in the September 6th proceeding 
         13   indicate any confusion as to your reference to 
         14   sentencing guidelines?
         15       A.   No.
         16       Q.   During the course of the sentencing 
         17   colloquy, Judge Lopez asked whether the defendant 
         18   should be sent to a male or female prison.  Do you 
         19   recall that?
         20       A.   I do.
         21       Q.   We can look at that.  
         22            (Videotape playing.)
         23            "THE COURT:  And would the Commonwealth 
         24   requests that this defendant be sent to a male 
 0092
          1   prison or female prison."  
          2            (Videotape stopped.)
          3       Q.   How did you respond to the Judge on this 
          4   point?
          5       A.   I responded that the Commonwealth would 
          6   defer to the Commissioner of Corrections on the 
          7   classification and assignment of prisoners and that 
          8   I said that the Commonwealth understands that this 
          9   is a difficult issue with respect to incarcerated 
         10   individuals who are transgendered, but that the 
         11   Commissioner of Corrections has procedures in place 
         12   designed to accommodate those individuals' needs and 
         13   protect their safety.
         14       Q.   At some point during the September 6th 
         15   proceedings did you seek to introduce the victim 
         16   impact statements?
         17       A.   We sought to read them into the record.
         18       Q.   How did you intend to read them into the 
         19   record?
         20       A.   I intend to have ADA Joseph read the victim 
         21   impact statements into the record.
         22       Q.   Why did you want Ms. Joseph to read the 
         23   victim impact statements?
         24       A.   ADA Joseph and I had discussed this.  She 
 0093
          1   is the person that the victim's guardian knew and 
          2   had worked with throughout this case.  She really 
          3   had no relationship with me.  She was present in the 
          4   courtroom for the reading of her impact statement, 
          5   and her daughter, the victim's mother, had also 
          6   prepared one, although she was not present. 
          7            We felt that out of deference to the 
          8   relationship that had developed between ADA Joseph 
          9   and the victim's grandmother, his guardian, that it 
         10   would be appropriate to have her read the victim 
         11   impact statements.
         12       Q.   What is the importance of involving the 
         13   victim and his family in these proceedings?
         14       A.   Well, in any criminal case, the victim has 
         15   rights under the victim's bill of rights in the 
         16   Commonwealth.  We are particularly sensitive to the 
         17   needs of child victims in these cases.  Because the 
         18   system is that much more imposing, strange, 
         19   frightening to kids, it is vitally important in 
         20   prosecuting child abuse cases that both the child 
         21   and his or her family develop a trusting 
         22   relationship with the victim witness advocate and 
         23   the district attorney as well as the detectives 
         24   working on the case.
 0094
          1       Q.   At some point during the proceedings on 
          2   September 6th did you or Ms. Joseph give an 
          3   indication to the Court that Ms. Joseph would in 
          4   fact be reading the victim impact statements?
          5       A.   I'm sorry.  Ask me the time frame again.
          6       Q.   At some point during the September 6th 
          7   proceedings did you and Ms. Joseph do something to 
          8   indicate to the Judge Ms. Joseph would be reading 
          9   the victim impact statements?
         10       A.   When I said that we wanted to read the 
         11   victim impact statements, I went to sit down and Ms. 
         12   Joseph stood to read them.
         13       Q.   If you turn to Page 25 of the transcript, 
         14   Line 19 --
         15       A.   Yes.
         16       Q.   -- you'll see you state, "And I would just 
         17   ask that the Court hear the victim impact 
         18   statement."  Do you see that?
         19       A.   Yes.
         20       Q.   And do you see how the Court responds?
         21       A.   Yes.
         22       Q.   What did Judge Lopez say?
         23       A.   She said, "Sure.  And would you read them, 
         24   please." 
 0095
          1       Q.   What did you interpret the Court to be 
          2   saying here?
          3       A.   It was very clear in the context that Judge 
          4   Lopez was saying that she would listen to the victim 
          5   impact statements, but that she wanted me to read 
          6   them, not Ms. Joseph.
          7       Q.   You don't believe that the Court was giving 
          8   you a choice here, do you?
          9       A.   Oh, no, there was no choice.  It was very 
         10   clear that she was saying that I should read them 
         11   and not Ms. Joseph.
         12            MR. BRACERAS:  Let's play another excerpt 
         13   here of the video regarding the seriousness of the 
         14   crime, and that's starting at Page 29, Line 16 of 
         15   the transcript.  
         16            (Videotape playing.) 
         17            "THE COURT:  Okay.  Let me just ask you 
         18   something.  How long have you been in charge of the 
         19   sexual assault unit? 
         20            MR. DEAKIN:  Twenty-one months, Your Honor.
         21            THE COURT:  Okay.  How many of these sex 
         22   cases have you seen?
         23            MR. DEAKIN:  I'm not sure that I can answer 
         24   that with an exact figure.  
 0096
          1            THE COURT:  A ballpark figure.
          2            MR. DEAKIN:  We see approximately 500 such 
          3   investigations of sexual assault --
          4            THE COURT:  No, the ones that get indicted.
          5            MR. DEAKIN:  I think, Your Honor, and I'm 
          6   not prepared with the figures, but I expect that we 
          7   indict close to 100 cases a year.
          8            THE COURT:  Okay.  And of those 100 cases, 
          9   in terms of the facts of this case, on a scale of 1 
         10   to 10, where would you put this case? 
         11            MR. DEAKIN:  Depends -- I would say to Your 
         12   Honor that it depends on -- there are several axes 
         13   that one can evaluate a case on.  
         14            In terms of the lack of a relationship 
         15   between the perpetrator and the victim, I would say 
         16   this is a 10, because what is relatively rare in 
         17   fact, but perhaps most frightening, to the general 
         18   population is the case of a person without a 
         19   relationship to a child who abducts the child off 
         20   the street, takes it to a secret location, and 
         21   sexually assaults the child.  In terms of the age of 
         22   the child, I would say it's in the quite serious 
         23   range as well.  The child was twelve years old at 
         24   the time.  
 0097
          1            In terms of the completed sexual assault 
          2   that the child has disclosed, I would say that the 
          3   facts are in the moderately serious range.  I would 
          4   also note, however, Your Honor, that the assault was 
          5   interrupted by police who came to a -- just happened 
          6   upon this on routine patrol.  And as a prosecutor 
          7   who has prosecuted a number of these cases, I would 
          8   remain concerned that this assault might have been 
          9   quite a bit worse had they not quite -- had they not 
         10   quite fortuitously come upon what they came upon.
         11            THE COURT:  Well, let me just say that I've 
         12   been a judge now since 1988, and I have seen many of 
         13   these cases.  And in the scale of cases that charge 
         14   sexual assault of children, this is on a very low 
         15   level.  Okay?  And so I really think it's 
         16   disingenuous for you to tell me that this is a 10.  
         17            I'll hear from the defense attorney.
         18            MR. DEAKIN:  Your Honor, if I may --
         19            THE COURT:  No, you may not.  You may sit 
         20   down.
         21            MR. DEAKIN:  I --
         22            THE COURT:  You may sit down now or I'll 
         23   get a court officer to make you sit down.  And I'll 
         24   hear from the defense attorney.
 0098
          1            MR. DEAKIN:  I object to being charged with 
          2   being disingenuous.  
          3            THE COURT:  I find it was disingenuous, and 
          4   I know better than that.  Go ahead."  
          5            (Videotape stopped.)
          6            HEARING OFFICER DAHER:  Could I get a cite 
          7   on that victim impact statute, please?
          8            MR. BRACERAS:  The statute or in the 
          9   transcript? 
         10            HEARING OFFICER DAHER:  The statute.  
         11   What's the cite on it? 
         12            THE WITNESS:  It's the victim's bill of 
         13   rights.  I can certainly provide it to the Court.  I 
         14   don't know the cite offhand. 
         15            HEARING OFFICER DAHER:  Mr. Egbert, would 
         16   you have it? 
         17            MR. EGBERT:  Yes, Your Honor.  Chapter 
         18   258B, Section 3.
         19            HEARING OFFICER DAHER:  Thank you.
         20       BY MR. BRACERAS: 
         21       Q.   Mr. Deakin, during this colloquy, the 
         22   Court, Judge Lopez, asked you to scale this case on 
         23   a scale from 1 to 10; is that right?
         24       A.   That's correct.
 0099
          1       Q.   You did not give the case an overall rating 
          2   of 10, did you?
          3       A.   No, I did not.
          4       Q.   How did you rate the case?
          5       A.   I rated -- I explained that there were 
          6   several axes that one would evaluate a case on in 
          7   terms of its seriousness.  As the clip shows -- I 
          8   don't want to belabor a point that the Court just 
          9   saw, but I said that in terms of this 
         10   stranger/danger element of the case, it was a 10, 
         11   because people are most frightened of people they 
         12   don't know, those of whom they have no control, 
         13   they're not aware of. 
         14            I said based on the age of the child, it 
         15   was in the quite serious range, by which I meant it 
         16   was not a 10, but it was quite serious.  And then I 
         17   explained, in terms of the completed sexual assault, 
         18   what was actually disclosed by the child as a sexual 
         19   assault, it was moderately serious. 
         20            My point was only in some respects it was 
         21   quite serious; in some respects it was moderately 
         22   serious.  That's what I was trying to convey.
         23       Q.   Were you in any sense in these proceedings 
         24   being disingenuous with the Judge?
 0100
          1       A.   Absolutely not.
          2       Q.   You were not playing to the cameras?
          3       A.   No.  I was deliberately trying not to do 
          4   that.
          5       Q.   Now, at the end of this last clip you were 
          6   asked by the Judge to sit down; is that right? 
          7       A.   I'd say I was told by the Judge to sit 
          8   down.
          9       Q.   You were told by the Judge to sit down?
         10       A.   That's correct.
         11       Q.   Probably a fairer characterization. 
         12            But you didn't sit down immediately, did 
         13   you?
         14       A.   No, I did not.
         15       Q.   Why not?
         16       A.   I wanted to voice my objection to the Judge 
         17   calling my actions disingenuous.  I felt that I had 
         18   a right, as an advocate on behalf of the 
         19   Commonwealth and as a lawyer, to put on the record 
         20   my objection to her characterization of me as 
         21   disingenuous.  In fact, I felt, as a lawyer for the 
         22   Commonwealth, I had an obligation to do that.
         23            MR. BRACERAS:  Your Honor, now I'd like to 
         24   mark and offer into evidence as Exhibit 1 Judge 
 0101
          1   Lopez's response to the charges in this case.
          2            MR. EGBERT:  I think these are a matter --
          3            HEARING OFFICER DAHER:  Are they not part 
          4   of the case already? 
          5            MR. BRACERAS:  I think they're a matter of 
          6   the case, but because they have statements made on 
          7   behalf of the Judge, they are also admissions and 
          8   they can be evidence.
          9            HEARING OFFICER DAHER:  I get the point.
         10            MR. EGBERT:  No objection.
         11            HEARING OFFICER DAHER:  Go ahead.
         12            MR. BRACERAS:  Exhibit 1.  And these are 
         13   admitted.
         14                 (Document marked as Exhibit 1 moved 
         15                 into evidence)
         16            HEARING OFFICER DAHER:  Mr. Braceras, now 
         17   could Mr. Egbert, if he still wants it, could we get 
         18   a complete manual of the district attorney's 
         19   procedures?  Do you have it? 
         20            MR. BRACERAS:  We don't have it.  I don't 
         21   think it's possible --
         22            MR. EGBERT:  Judge, it's very interesting 
         23   to me that Mr. Braceras said to you, in the midst of 
         24   the argument on that objection, that they had given 
 0102
          1   me a copy -- a full copy of the district attorney's 
          2   manual and now they tell you, when you ask them for 
          3   it, that they don't have it.  I don't know how they 
          4   could have done both.  We constantly get these 
          5   responses from the Commission as it relates to these 
          6   kinds of matters.
          7            MR. WARE:  Perhaps I should speak to this.  
          8   This issue, of course, has been on the table for 
          9   seven or eight months, and Mr. Egbert well knows 
         10   that.  The whole sentencing guidelines issue is not 
         11   a stranger to the case.  The DA's manual is not a 
         12   stranger to the case.  We're happy to provide it.  
         13   We'll get it from the district attorney's office and 
         14   give Mr. Egbert a copy.  He's got a week to look it 
         15   over. 
         16            MR. EGBERT:  May I approach? 
         17            HEARING OFFICER DAHER:  Yes.  You're going 
         18   to get it. 
         19            MR. EGBERT:  I'm assuming that we're not 
         20   going to be in cross before I get it.
         21            MR. WARE:  There's plenty of cross 
         22   examination to do other than a DA's manual, and I 
         23   think you can struggle along without it for an hour 
         24   here.
 0103
          1            MR. EGBERT:  Judge, I'll do my own 
          2   struggling.  I've watched Mr. Ware struggle enough 
          3   and I don't intend to do it myself, but we might as 
          4   well proceed.
          5            MR. BRACERAS:  Your Honor, may I approach? 
          6       Q.   I'm showing you what's been admitted now 
          7   as --
          8            HEARING OFFICER DAHER:  Mr. Ware, if you 
          9   don't have a copy of that manual, I can make a call 
         10   and probably get one delivered to Mr. Egbert.  Do 
         11   you have one? 
         12            MR. WARE:  We'll take care of that.  I'm 
         13   sure Mr. Egbert and I can work that out.
         14            HEARING OFFICER DAHER:  That's great.
         15            MR. EGBERT:  There's nothing to work out.  
         16   It's going to be delivered to me. 
         17            HEARING OFFICER DAHER:  We'll make sure you 
         18   get it.  Let's go.
         19       BY MR. BRACERAS: 
         20       Q.   Mr. Deakin, I'm showing you what's been 
         21   admitted as Exhibit 1, Judge Lopez's response to the 
         22   Commission on Judicial Conduct's charges.  Do you 
         23   see that?
         24       A.   Yes, I do.
 0104
          1       Q.   Have you had an opportunity to review these 
          2   before?
          3       A.   Yes, I have.
          4       Q.   In fact, these were made public when they 
          5   were filed?
          6       A.   That's my understanding, yes.  And I was 
          7   delivered a copy.
          8       Q.   Now, if you turn to Page 8, Paragraph 15 -- 
          9   Paragraph 15 of Judge Lopez's response is on Page 7, 
         10   but if you turn to Paragraph 15A on Page 8 --
         11       A.   Yes.
         12       Q.   -- you'll see that Judge Lopez lists the 
         13   basis for her calling you disingenuous.  Do you see 
         14   that?
         15       A.   Yes, I do.
         16       Q.   Now, taking these one at a time, in 
         17   Paragraph A, Judge Lopez asserts that you were being 
         18   disingenuous because the adolescent victim in this 
         19   case was almost certainly not prepubescent, was 
         20   believed by the defendant to be 14 years old, and 
         21   the offense here did not involve pedophilia.  Do you 
         22   see that?
         23       A.   I do.
         24       Q.   Is there any legal relevance to whether the 
 0105
          1   victim in this case was or was not prepubescent?
          2            MR. EGBERT:  Objection.
          3            HEARING OFFICER DAHER:  What's your 
          4   objection?
          5            MR. EGBERT:  Well, for this assistant 
          6   district attorney to decide what is legally 
          7   relevant --
          8            HEARING OFFICER DAHER:  It goes to the 
          9   element of whether he could put in a prima facie 
         10   case pursuant to the statute.
         11            MR. EGBERT:  Relevance has nothing to do 
         12   with the prima facie case.
         13            HEARING OFFICER DAHER:  I appreciate that.  
         14   Overruled.
         15       Q.   Mr. Deakin, was there any legal relevance 
         16   to whether the adolescent victim was or was not 
         17   prepubescent in this case?
         18       A.   Not to the elements of any offense, no.
         19       Q.   Was there ever any evidence or argument 
         20   offered during any of the proceedings in the Horton 
         21   case to go to show whether the victim was or was not 
         22   prepubescent?
         23            MR. EGBERT:  Judge, he wouldn't know that.  
         24   He wasn't at all the proceedings.
 0106
          1            MR. BRACERAS:  He was the supervisor 
          2   supervising the case.
          3            HEARING OFFICER DAHER:  Overruled.  He 
          4   should know it.
          5       A.   Not to my knowledge, no.  I believe there 
          6   was not.
          7       Q.   Now, was there any legal relevance in any 
          8   of the charges against Mr. Horton as to whether he 
          9   was or was not a pedophile?
         10       A.   No.
         11       Q.   Was there ever any evidence or argument 
         12   offered at any time in the proceedings going to 
         13   whether the defendant was a pedophile?
         14            MR. EGBERT:  Objection.
         15       A.   No.
         16            MR. EGBERT:  Judge, if you're insistent on 
         17   letting this line of questioning in, I have to put 
         18   on the record, and I think it's important to note, 
         19   that this witness was not present when the arguments 
         20   were made by the district attorney's office and the 
         21   defense counsel as to various facts which went into 
         22   the issue of the sentence in this case. 
         23            HEARING OFFICER DAHER:  But the evidence 
         24   is, Mr. Egbert, that he's a supervisor and 
 0107
          1   intimately involved with the workings of this case 
          2   by the ADA and the office and the district 
          3   attorney's office.  So as a supervisor, I'm going to 
          4   believe, and the Court's going to infer, that he 
          5   knows as to what was taking place in this case.
          6            MR. EGBERT:  But wouldn't it be best, so 
          7   that we don't embark --
          8            HEARING OFFICER DAHER:  Go ahead.
          9            MR. EGBERT:  -- to ask him the question 
         10   whether or not he knows everything that was said at 
         11   the August 1st sentencing?
         12            HEARING OFFICER DAHER:  I have no doubt 
         13   that's going to be part of your cross examination, 
         14   Mr. Egbert.
         15            MR. EGBERT:  Why don't we find out first --
         16            HEARING OFFICER DAHER:  I'm not going to 
         17   try Mr. Braceras' case, and I'm going to allow you, 
         18   as I have in the past, extensive opportunity to 
         19   cross-examine. 
         20            Go ahead, Mr. Braceras.
         21            MR. BRACERAS:  Thank you, Your Honor.
         22       BY MR. BRACERAS:
         23       Q.   Mr. Deakin, did you review the file in this 
         24   case before the September 6th plea?
 0108
          1       A.   Yes.
          2       Q.   Did you review all the materials in that 
          3   file?
          4       A.   Yes.
          5       Q.   Did you consult with ADA Joseph?
          6       A.   Yes.
          7       Q.   Now, to your knowledge, was there ever any 
          8   evidence presented into this case that the defendant 
          9   was or was not a pedophile?
         10       A.   To my knowledge, there was not.
         11       Q.   Did the defense ever argue at September 6th 
         12   or any other time to your knowledge that the 
         13   defendant was not a pedophile?
         14            MR. EGBERT:  May I have a continuing 
         15   objection to this line? 
         16            HEARING OFFICER DAHER:  It's been noted.
         17       Q.   Your answer, Mr. Deakin?
         18       A.   Not to my knowledge, no. 
         19       Q.   Turning back to Judge Lopez's response 
         20   here, you'll see in the next paragraph Judge Lopez 
         21   contends that you were being disingenuous because 
         22   this crime did not involve abuse or betrayal of a 
         23   family member.  Do you see that?
         24       A.   Yes.
 0109
          1       Q.   Now, was that a factor in your assessment 
          2   of the seriousness of this case?
          3       A.   Not really, no.  It's something that the 
          4   case was not.  It had no relevance to what the case 
          5   was.
          6       Q.   But certainly you took into account the 
          7   circumstances of the case?
          8       A.   Of course.  Of course.
          9       Q.   Now, Judge Lopez, in her response, also 
         10   says that you were being disingenuous because, in 
         11   Paragraph C on Page 8, the adolescent had not been 
         12   physically or repeatedly brutalized either by sexual 
         13   penetration or otherwise, and then in Paragraph D it 
         14   states the adolescent had suffered no physical 
         15   injury.  Do you see that?
         16       A.   Yes.
         17       Q.   Now, did you agree with those responses?
         18       A.   I certainly did not agree that the facts to 
         19   which the defendant admitted did not involve 
         20   physical and repeated -- did not involve brutal 
         21   assault and repeated assault.  As to D, it does 
         22   appear that the adolescent suffered no physical 
         23   injury, but I think that's a -- limiting injury to 
         24   physical injury in a case like this is missing the 
 0110
          1   point.  I think there's psychic injury that equally 
          2   if not more significant.
          3       Q.   And when you were assessing the seriousness 
          4   of the case during the September 6th proceedings, 
          5   you relayed to the Court the nature of the injuries; 
          6   isn't that right?
          7       A.   That's correct.
          8       Q.   Now, toward the end of the hearing on 
          9   September 6th, you sought to be heard on the terms 
         10   of probation --
         11       A.   Actually, if I may add something to that 
         12   answer?
         13       Q.   Sure. 
         14       A.   I did -- that is, I did convey the nature 
         15   of that injury schematically and quickly because 
         16   it's necessarily a somewhat abbreviated process.  
         17   Part of the purpose of the victim impact statements 
         18   is also to convey the impact more precisely by 
         19   people more familiar with it.
         20       Q.   Well, when you were rating this case on a 
         21   scale of 1 to 10, you did not give it a 10 in terms 
         22   of physical --
         23       A.   Oh, I did not, no.  That's right.
         24       Q.   Towards the end of the hearing you sought 
 0111
          1   to be heard on the terms of probation; is that 
          2   right?
          3       A.   Yes.
          4            MR. BRACERAS:  Let's play that portion of 
          5   the video.  And that's Page 32 of the transcript.  
          6            (Videotape playing.)
          7            "THE COURT:  I don't want to hear from you 
          8   anymore.  Do you understand? 
          9            MR. DEAKIN:  Your Honor, if I may be heard.
         10            THE COURT:  No.  You will not be heard.  I 
         11   said I've heard enough.
         12            MR. DEAKIN:  I'm only inquiring as to one 
         13   of the conditions of the electronic monitor.  It's 
         14   not clear to me that the Probation Department will 
         15   know the conditions of the electronic monitoring; 
         16   that is, what is being monitored."
         17            (Videotape stopped.)
         18       BY MR. BRACERAS:
         19       Q.   Now, in this section of the hearing you 
         20   were not trying to be heard on the issue of you 
         21   being disingenuous, were you?
         22       A.   No.
         23       Q.   You were just trying to clarify the terms 
         24   of probation?
 0112
          1       A.   That's right.  The Judge had ordered 
          2   electronic monitoring of the defendant, but had not 
          3   up to that point set out what the conditions to be 
          4   monitored were going to be.  And what I anticipated, 
          5   and I laid out after the part that you've seen, is 
          6   that the Probation Department would have to come 
          7   back to the Court and say what are we monitoring.  
          8   We can monitor him with a bracelet, but what are the 
          9   conditions?  Does he get to leave his house?  If so, 
         10   when?  That kind of thing.  So I was trying to bring 
         11   to the Court's attention that there needed to be 
         12   conditions that could be monitored electronically so 
         13   that we wouldn't have to all come back a day or two 
         14   later to have Probation address that issue.
         15       Q.   Mr. Deakin, turning to Exhibit 4 in this 
         16   case -- and we'll put it up on the screen, and you 
         17   also have it in your notebook here.  This is a 
         18   statement that says, "In the Matter of Charles 
         19   Horton in Response to Media Reports by Judge Maria 
         20   Lopez."  Do you see that?
         21       A.   Yes.
         22       Q.   Have you seen this statement before?
         23       A.   Yes.
         24       Q.   What did you understand this statement to 
 0113
          1   be?
          2       A.   I understood it to be a statement, a public 
          3   statement by Judge Lopez in reference to the Charles 
          4   Horton case and media reports about it.
          5       Q.   When was the first time that you saw 
          6   Exhibit 4?
          7       A.   I don't remember exactly.  It was a day or 
          8   two after the plea hearing.  It was faxed to our 
          9   office.
         10       Q.   Now, if you look at the last sentence in 
         11   the first paragraph -- and we'll pull that out on 
         12   the screen.
         13       A.   Yes.
         14       Q.   The statement says, "In this case there 
         15   were certain facts before me, known by both the 
         16   prosecutor and defense attorney, that were part of 
         17   the plea conference and cannot be revealed by me, 
         18   but which would undoubtedly change the 
         19   characterization of this case as currently reported 
         20   by some media outlets."  Do you see that?
         21       A.   Yes, I do.
         22       Q.   Are you aware of any relevant facts known 
         23   to you, the Judge and defense counsel that could not 
         24   be revealed to the public in the Horton case?
 0114
          1       A.   Essentially, no.  The name of the victim 
          2   perhaps, but no.  I was unaware of any relevant 
          3   facts known by both the prosecutor and the defense 
          4   attorney that were part of the plea conference 
          5   and that could not be made part of the public 
          6   record.
          7       Q.   Now, when you saw this press release and 
          8   this statement in particular referring to other 
          9   facts, what did you understand it to mean? 
         10            MR. EGBERT:  Objection.  His understanding 
         11   of a press release is irrelevant. 
         12            HEARING OFFICER DAHER:  Overruled.  Go 
         13   head. 
         14       A.   I really couldn't understand it because I 
         15   wasn't aware of any such facts that fit that 
         16   definition.  I didn't know what the Judge was 
         17   referring to at all.
         18       Q.   Now, if you look above -- and we'll pull 
         19   this out -- in the first paragraph -- the press 
         20   statement also says, "My statement in open court 
         21   that it was a 'low-scale' matter pertained solely to 
         22   the appropriate level of the sentencing 
         23   guidelines..."  Do you see that?
         24       A.   Yes.
 0115
          1       Q.   Now, at the time that you were in court in 
          2   this last piece, when Judge Lopez said "low level," 
          3   did you understand her to be referring to the 
          4   sentencing guidelines?
          5       A.   No.  It wasn't mentioned in any kind of 
          6   context of the sentencing guidelines.
          7       Q.   And under the sentencing guidelines would 
          8   this, the Horton case, be low level?
          9       A.   No.  The lead charges are Category 7 and 
         10   Category 6, which is the third- and fourth-highest 
         11   category.  The highest category was Category 9 and 
         12   is reserved for first-degree murder.  Category 8 is 
         13   reserved for second-degree murder, and I think rape 
         14   of a child by force, a few other very serious 
         15   crimes.  A Category 7, the assault on a child with 
         16   intent to commit rape.  I think it occupies, but I'm 
         17   not exactly sure, the same grid as manslaughter and 
         18   some other quite serious charges.  So those are on 
         19   the very high end of the offense seriousness grid.  
         20   So that even somebody with no record or a minor 
         21   record, the presumptive sentence is quite a bit of 
         22   state prison incarceration.
         23            MR. BRACERAS:  Thank you, Mr. Deakin.  
         24   That's it, Your Honor.  
 0116
          1                    CROSS EXAMINATION 
          2       BY MR. EGBERT: 
          3       Q.   Mr. Deakin, do you have Exhibit 23 up 
          4   there, the sentencing guidelines?
          5       A.   Yes, I do.
          6       Q.   I'd like to start there, if I may?
          7       A.   Certainly.
          8       Q.   So the record is crystal clear, are these 
          9   sentencing guidelines the law of the Commonwealth of 
         10   Massachusetts?
         11       A.   No, they do not have the binding force of 
         12   law.
         13       Q.   Forget binding force of law.  Are they the 
         14   law in the Commonwealth of Massachusetts?
         15       A.   I don't see a distinction, but no, they are 
         16   not the law in the Commonwealth of Massachusetts.
         17       Q.   Have they been adopted by the legislature 
         18   in the Commonwealth of Massachusetts?
         19       A.   No, they have not.
         20       Q.   And have they been rejected by the 
         21   legislature in the Commonwealth of Massachusetts?
         22       A.   I don't know that.  I don't dispute it, but 
         23   I don't know it for certain.
         24       Q.   You simply don't know.
 0117
          1       A.   I don't know.
          2       Q.   Do you know the status of these proposed 
          3   guidelines as it relates to their being enacted into 
          4   law in the Commonwealth?
          5       A.   They have not been enacted in the law of 
          6   the Commonwealth.
          7       Q.   And so would you agree with me that they 
          8   are not binding upon any court in the Commonwealth?
          9       A.   I would agree.
         10       Q.   And they are not the force of law in any 
         11   court in the Commonwealth?
         12       A.   I would agree.
         13       Q.   And in fact, do you know whether or not 
         14   there was debate in the legislature as to whether or 
         15   not these guidelines are overly severe and should 
         16   not be adopted?
         17       A.   I believe there was debate on both sides of 
         18   that question, that they were overly severe and that 
         19   they were not severe enough.
         20       Q.   And do you know whether or not in committee 
         21   meetings, for example, and in hearings before the 
         22   legislator, both the House and Senate, whether or 
         23   not there was evidence taken concerning these 
         24   guidelines?
 0118
          1       A.   I don't know.
          2       Q.   Do you know, for example, what the 
          3   statements of the Speaker of the House were with 
          4   regard to these guidelines?
          5       A.   No, I don't.
          6       Q.   Do you know what the statements or 
          7   recommendation of the Judiciary Committee was with 
          8   regard to these guidelines?
          9       A.   I don't.
         10       Q.   You will agree with me, won't you, that 
         11   district attorneys don't enact laws?
         12       A.   I agree with that, yes.
         13       Q.   And you and your office are not empowered 
         14   to make laws on your own, correct?
         15       A.   That's correct.
         16       Q.   And you are bound by the laws that are 
         17   passed by our legislature, correct?
         18       A.   Absolutely.
         19       Q.   And when the legislature sees fit not to 
         20   pass a law, do you take a message from that?
         21       A.   I'm not sure I understand that question.
         22       Q.   Well, you've been a lawyer for some time, 
         23   correct?
         24       A.   Yes.
 0119
          1       Q.   And you've been a DA for how many years?
          2       A.   Ten years.
          3       Q.   So when, for example, the district attorney 
          4   proposes a bill in the legislature -- which is done 
          5   quite often; isn't that right?
          6       A.   I don't know that it's done quite often.  
          7   It's regularly done.
          8       Q.   And when it's regularly done, if the 
          9   legislator does not pass that bill which is 
         10   recommended by the district attorney's office, what 
         11   does that mean to you?  What do you understand that 
         12   to mean?
         13       A.   I understand that to mean that the 
         14   legislature doesn't feel that that bill should have 
         15   the force of law.
         16       Q.   And the legislature, the body which is 
         17   empowered to create such things as sentencing 
         18   guidelines in this format, has determined that it is 
         19   not an appropriate bill or set of guidelines to 
         20   enact into law, correct?
         21       A.   That's my understanding.
         22       Q.   And that's the status of the sentencing 
         23   guidelines which you've been referring to here 
         24   today, correct?
 0120
          1       A.   That's true.
          2       Q.   Now, you also testified that you know 
          3   nothing about any other kinds of guidelines, 
          4   correct?
          5       A.   I don't think I testified about that.  At 
          6   the time in 2000, at the time of the Horton case, 
          7   these are the only guidelines I was aware of being 
          8   in existence.
          9       Q.   How about now?
         10       A.   Now I think -- I believe there's at least 
         11   one and maybe two other sets of guidelines that have 
         12   been presented -- I shouldn't say presented.  That 
         13   have been developed for either presentation or a 
         14   possible presentation to the legislature.
         15       Q.   Are you aware of any Superior Court 
         16   sentencing guidelines?
         17       A.   I'm not sure I understand.  Exhibit 25 are 
         18   Superior Court sentencing guidelines.
         19       Q.   Pardon me? 
         20       A.   They're used often in Superior Court.
         21       Q.   These are proposed sentencing guidelines 
         22   which have been rejected by the legislature, 
         23   correct, Exhibit 23?
         24       A.   As I said, I don't know that they've been 
 0121
          1   rejected by the legislature, although I don't 
          2   dispute that.
          3       Q.   Have they been passed?
          4       A.   No.
          5       Q.   Have they been presented to the 
          6   legislature?
          7       A.   I believe so.
          8       Q.   Have they been passed?
          9       A.   No.
         10       Q.   Do you know of any guidelines entitled 
         11   "Sentencing Guidelines of the Superior Court"?
         12       A.   I'm not familiar with those.
         13       Q.   And you've been an assistant DA for ten 
         14   years?
         15       A.   Yes.
         16       Q.   Take a look at what I've just handed up to 
         17   you, please. 
         18       A.   Yes.
         19       Q.   Do you know what those are?
         20       A.   They appear to be -- it appears to be an 
         21   appendix to -- it's an appendix to something that's 
         22   headed "Sentencing Guidelines of the Superior 
         23   Court."
         24       Q.   And are you familiar with the existence of 
 0122
          1   these guidelines?
          2       A.   Not specifically, no.
          3       Q.   How about unspecifically? 
          4       A.   No, I'm not familiar with that.
          5       Q.   So in your ten years of experience as a 
          6   district attorney in your statement that there are 
          7   no other guidelines relevant to sentencing in the 
          8   Superior Court, you simply had no knowledge that 
          9   there were in fact a set of guidelines passed by the 
         10   Committee on Probation and Parole --
         11            MR. BRACERAS:  Objection, Your Honor.  Mr. 
         12   Deakin testified that there were none others that 
         13   were in use at the time.
         14            MR. EGBERT:  It existed in the Year 2000.
         15            HEARING OFFICER DAHER:  Let him finish.
         16            MR. BRACERAS:  These appear to be old.  We 
         17   can't tell where they come from.  It's an Appendix 
         18   D.  We don't have the entirety of it.  We don't see 
         19   the year.  Most of these judges are retired.  So 
         20   when Mr. Deakin testified that there was one set in 
         21   use at the time, I think that Mr. Egbert is being 
         22   inaccurate here.
         23            HEARING OFFICER DAHER:  I'll hear you.
         24            MR. EGBERT:  The record speaks for itself 
 0123
          1   as to what he said about the existence of other sets 
          2   of guidelines.  I make an offer to the Court and I 
          3   will prove to the Court.  What I've provided to the 
          4   Court is the sentencing guidelines of the Superior 
          5   Court which were adopted as a part of the Superior 
          6   Court rules and part of the Superior Court 
          7   procedures in approximately 1982 pursuant to a 
          8   committee headed by the Honorable John Ronan and are 
          9   in existence today.  Superior Court judges who will 
         10   appear before this Court will indicate the existence 
         11   of these guidelines, their knowledge of them and 
         12   their use in these proceedings.
         13            HEARING OFFICER DAHER:  Mr. Braceras, last 
         14   word? 
         15            MR. BRACERAS:  Your Honor, I'd object to 
         16   these as being irrelevant.  There's no evidence that 
         17   Judge Lopez was aware of these or relied on these in 
         18   any way.  Further, I further object to these on 
         19   grounds of completeness.
         20            HEARING OFFICER DAHER:  Overruled.  Go 
         21   ahead.
         22            MR. EGBERT:  But if there's something 
         23   that's incomplete, I want to make sure --
         24            MR. BRACERAS:  Perhaps this is Appendix D.  
 0124
          1   Where does this come from?  You have testified for 
          2   us that these are from 1982.  Perhaps we could have 
          3   some actual evidence as to --
          4            MR. EGBERT:  I'm going to tell you, if you 
          5   want to know where to find them --
          6            HEARING OFFICER DAHER:  Let's go.  
          7   Overruled. 
          8            MR. EGBERT:  I'd offer them as the next 
          9   defense exhibit. 
         10            THE CLERK:  We have a gap.  E.
         11            HEARING OFFICER DAHER:  We'll take a gap.
         12            THE CLERK:  It will be Exhibit E. 
         13                 (Document marked as Exhibit E 
         14                 moved into evidence)
         15       Q.   Now, Mr. Deakin, take a look at Exhibit E, 
         16   if you would.
         17       A.   Yes.
         18       Q.   And thumb through them for a minute because 
         19   I want to be sure that you've been given every 
         20   opportunity to take a look at them.
         21       A.   (Witness reviews document)  Okay.
         22       Q.   Having looked carefully now through them, 
         23   is it your testimony that you had in the Year 2000, 
         24   when you were before Judge Lopez, you had no idea or 
 0125
          1   understanding that these guidelines even existed?
          2       A.   That's correct.
          3       Q.   You can put them down.  We'll come back to 
          4   them later on. 
          5            Now, let's talk about the Horton case, if 
          6   we could, and the conduct of the case both from the 
          7   Commonwealth and defense side. 
          8            You were the supervisor of the case, 
          9   correct?
         10       A.   That's correct.
         11       Q.   As a beginning point, as you sit here 
         12   today, are you telling us that you think you know 
         13   everything that was said to Judge Lopez in all of 
         14   the proceedings that occurred outside of your 
         15   presence?
         16       A.   Absolutely not.
         17       Q.   Do you know what defense counsel argued to 
         18   Judge Lopez on August 1st of the Year 2000?
         19       A.   In a schematic form, I think I know some of 
         20   it.  I don't know all of it, no.
         21       Q.   Do you know the details of the argument?
         22       A.   I don't believe I do, no.
         23       Q.   Do you know the details of the argument 
         24   that Leora Joseph made?
 0126
          1       A.   I think I have a better sense of them, 
          2   having discussed them with her in advance to some 
          3   extent, but no, I don't know all the details.
          4       Q.   So when you were asked all these questions 
          5   about whether or not certain things were said to 
          6   Judge Lopez in prior proceedings, the answer really 
          7   is you don't know; isn't that right?
          8       A.   I can't say that I know with certainty in 
          9   proceedings that I wasn't present for.
         10       Q.   Not only with certainty.  Do you know at 
         11   all, for example, what Anne Goldbach said to Judge 
         12   Lopez about pedophilia?
         13            MR. BRACERAS:  Objection, Your Honor.  At 
         14   what point?  During the December 6th proceeding? 
         15       Q.   At any point in the proceedings where you 
         16   weren't present?
         17       A.   No, I don't.
         18       Q.   Do you know at all what Anne Goldbach told 
         19   Judge Lopez concerning psychosocial issues with 
         20   regard to Mr. Horton?
         21       A.   I know some about that, yes.
         22       Q.   Do you know all of it?
         23       A.   I doubt it.  I can't know what I don't 
         24   know, so I don't know all of it.
 0127
          1       Q.   So in that whole series of questions we 
          2   heard a few minutes ago about whether or not any of 
          3   these matters were presented to Judge Lopez in 
          4   proceedings that you weren't at, the answer is you 
          5   don't know.
          6       A.   In most cases I think that's right.
          7       Q.   You started off your testimony on direct by 
          8   indicating that a dangerousness hearing was not 
          9   sought in the Horton case, correct?
         10       A.   That's correct.
         11       Q.   And there's some question of whether it 
         12   should be sought in the District Court or the 
         13   Superior Court, correct?
         14       A.   I'm not sure there was a question as to 
         15   whether it should be.  There were questions as to 
         16   whether it can be.
         17       Q.   The DA's office, your office, of which you 
         18   are the head of the sexual assault unit or whatever 
         19   you want to call it --
         20       A.   That's not what I want to call it.  The 
         21   child abuse unit is the name.
         22       Q.   The child abuse unit.  The DA's office in 
         23   the Dorchester District Court is the same DA's 
         24   office that you're in; is that correct?
 0128
          1       A.   Absolutely.
          2       Q.   Called the Suffolk County District 
          3   Attorney'S Office?
          4       A.   Correct.
          5       Q.   Run by at the time Ralph Martin?
          6       A.   Correct.
          7       Q.   Now, when the defendant Horton was 
          8   arraigned in the Dorchester District Court, did the 
          9   Commonwealth seek a dangerousness hearing?
         10       A.   I believe the Commonwealth did not seek a 
         11   dangerousness hearing.
         12       Q.   And that would be the decision of the 
         13   Suffolk County District Attorney'S Office, correct?
         14       A.   In the sense that all decisions of all ADAs 
         15   are ultimately presented as the decision of the 
         16   district attorney's office, yes.
         17       Q.   Well, are the ADAs that handled the 
         18   Dorchester District Court, are they given the 
         19   discretion to determine whether or not a 
         20   dangerousness hearing should be obtained?
         21       A.   In the first instance, yes, it's generally 
         22   a decision that is generally reviewed either with 
         23   their supervisor in the District Court or with a 
         24   relevant supervisor in the Superior Court staff if 
 0129
          1   there is a relevant supervisor who's available.
          2       Q.   Do you have any reason to believe that the 
          3   decision to not seek a dangerousness hearing in the 
          4   Horton case was made in the normal course of affairs 
          5   and business of the Suffolk County District 
          6   Attorney's Office?
          7       A.   I would assume that it was.
          8       Q.   There was nothing unusual that you know 
          9   about it in terms of its handling; is that correct?
         10       A.   Nothing that I know of, no.
         11       Q.   So at the outset it is a correct statement 
         12   to say that the Suffolk County District Attorney'S 
         13   Office never sought a dangerousness hearing with 
         14   regard to Mr. Horton?
         15       A.   That's correct.
         16       Q.   And that wasn't some fluke or aberration.  
         17   It was a conscious decision of the office.
         18       A.   As far as I know, yes.
         19       Q.   You have no reason to believe otherwise.
         20       A.   No, I don't.
         21       Q.   And you testified that you don't like to 
         22   seek dangerousness hearings in child victim cases 
         23   because it calls on the victim to testify, right?
         24       A.   It calls on the victim to testify very soon 
 0130
          1   after the incident of alleged abuse.
          2       Q.   In the event the person charged was 
          3   believed by the Commonwealth of Massachusetts 
          4   through the district attorney's office to be a 
          5   predatory pedophile, subject to repeatedly offending 
          6   against child victims, would that decision change?
          7       A.   It would be a factor in the decision.  I'm 
          8   not sure whether it would change.  Each case depends 
          9   upon a balancing of the risk posed by the 
         10   perpetrator against the impact on the child victim 
         11   or victims of having to go through a dangerousness 
         12   hearing.
         13       Q.   So one of the factors which would be 
         14   relevant to you would be whether or not the alleged 
         15   perpetrator was someone who would go out and 
         16   continuously or repeatedly reoffend?
         17       A.   To the extent that we can hazard a guess on 
         18   that subject, yes, that is a factor that is 
         19   involved.
         20       Q.   Was that considered in the Horton case?
         21       A.   Are you asking was that considered in the 
         22   initial decision --
         23       Q.   We're on the stage of a dangerousness 
         24   hearing.
 0131
          1       A.   So we're asking about the initial 
          2   arraignment at District Court? 
          3       Q.   Yes. 
          4       A.   I don't obviously know for certain.  I 
          5   wasn't involved in the decision.  I would assume 
          6   that to the extent it was -- let me rephrase that.  
          7   I wasn't involved in the decision.  I don't know.  I 
          8   would assume that it was.
          9       Q.   Well, you're the supervisor of the unit.
         10       A.   Right, but I'm not the supervisor of the 
         11   Dorchester District Court.
         12       Q.   No, but you're the supervisor of the child 
         13   abuse unit, right?
         14       A.   Yes.
         15       Q.   And we heard on direct that you know all 
         16   and understand all as to everything that went on in 
         17   the DA's office about this case.  Do you have any 
         18   reason to believe that the people in Dorchester 
         19   Court didn't take the appropriate matters into 
         20   consideration in deciding not to have a 
         21   dangerousness hearing?
         22       A.   Let me start by saying I don't believe I 
         23   ever testified on direct that I know all and see 
         24   all.
 0132
          1       Q.   Maybe that was Mr. Braceras. 
          2       A.   I have no reason to think that the staff in 
          3   Dorchester District Court didn't take into account 
          4   all the relevant factors in deciding whether to seek 
          5   a dangerousness hearing.  That factor is one of 
          6   them, though it's a difficult factor to evaluate at 
          7   a very, very early stage in the case.
          8       Q.   Are you aware of any publicity with regard 
          9   to the Horton case before August 4th of the Year 
         10   2000?
         11       A.   Of my own personal knowledge? 
         12       Q.   Right. 
         13       A.   No, I'm not. 
         14       Q.   On August 1st or before August 1st, you 
         15   said that you met with Ms. Joseph and decided what 
         16   the Commonwealth's recommendation would be in the 
         17   case.
         18       A.   That's correct.
         19       Q.   Now, it's fair to say, isn't it, that when 
         20   you make a Commonwealth recommendation -- let's 
         21   stick to this case.  You did not consider any of the 
         22   factors related to the defendant when determining 
         23   your recommendation.
         24       A.   I'm not sure I understand what you mean.
 0133
          1       Q.   You realize that there are a number of 
          2   factors that go into sentencing.
          3       A.   Of course.
          4       Q.   And many of them relate to, for example, 
          5   the status of the defendant, mentally, physically, 
          6   rehabilitation-wise and the like --
          7       A.   Yes.
          8       Q.   -- that the Judge considers, right?
          9       A.   Yes.
         10       Q.   Did you consider those items when reaching 
         11   your recommendation?
         12       A.   Yes.
         13       Q.   And what items did you consider before 
         14   August 1st in making -- of the defendant's 
         15   characteristics, let's call it for a moment, in your 
         16   decision making?
         17       A.   We assessed the defendant's age. 
         18       Q.   Let's stop there.  What was his age?
         19       A.   I think it was 20 or 21.  I'd have to 
         20   refresh my memory, though, for sure.
         21       Q.   And how did that impact you?
         22       A.   I'm not sure I understand.
         23       Q.   You say you considered it in determining 
         24   the appropriate recommendation.  So was his age an 
 0134
          1   aggravating or a mitigating circumstance or none at 
          2   all?
          3       A.   It sort of wound up being a wash.  He was 
          4   old enough, in our view, that his victimization of a 
          5   boy was quite serious, as distinguished from, say, a 
          6   13-year-old who abused a child a year or two younger 
          7   than he.  On the other hand, his age was not such 
          8   that we didn't consider that he was still a 
          9   relatively young person.
         10       Q.   So the answer is you considered his age and 
         11   it didn't affect your recommendation at all.
         12       A.   It affected us in sort of both directions, 
         13   which wound up being something of sort of a wash.
         14       Q.   So it didn't affect it at all.
         15            MR. BRACERAS:  Objection, Your Honor.
         16            HEARING OFFICER DAHER:  I want to hear it.
         17       A.   It didn't push us up or down.  It affected 
         18   it, but ...
         19       Q.   It had no impact on your ultimate 
         20   recommendation.
         21       A.   I'm not sure I'd agree with that 
         22   characterization of it.  It did have an impact, but 
         23   the impact was about equivalent in both directions, 
         24   meaning the ultimate effect was neutral.
 0135
          1            HEARING OFFICER DAHER:  Your recollection 
          2   is he was about 20 or 21?
          3            THE WITNESS:  I think so.
          4       Q.   And what was the next factor or 
          5   characteristic as to the defendant that you 
          6   considered?
          7       A.   We considered the defendant's criminal 
          8   history, which we had both reviewed his juvenile and 
          9   adult probation records.
         10       Q.   And what did you find there?
         11       A.   We found a criminal -- a series of charges 
         12   which was indicative of someone who seemed to 
         13   encounter law enforcement fairly frequently over a 
         14   short life.  However, most of those charges did not 
         15   result in convictions.
         16       Q.   Did any of the charges result in 
         17   convictions?
         18       A.   In the sense that a continuance without a 
         19   finding is the legal equivalent of a conviction, but 
         20   it doesn't carry all of the same consequences as a 
         21   continuance without a finding.  There's no guilty 
         22   finding entered. 
         23       Q.   There were no prior convictions; am I 
         24   correct?
 0136
          1       A.   That's correct, assuming you're defining 
          2   continuances without finding as non-convictions.
          3       Q.   Do you know what a conviction is under 
          4   Massachusetts law?
          5       A.   Yes, I do.
          6       Q.   Did he have any prior convictions?
          7       A.   No, although for some purposes, a 
          8   continuance without a finding is the legal 
          9   equivalent of a conviction.
         10       Q.   For some purposes, an arrest can be taken 
         11   into consideration. 
         12            My question is, do you know what a 
         13   conviction is under the law?
         14       A.   Yes, I do.
         15       Q.   Did he have any prior convictions?
         16       A.   He was never previously adjudicated guilty.
         17       Q.   Did he have any prior convictions under the 
         18   law?
         19       A.   It depends on what law you're talking 
         20   about.  I'm willing to say no --
         21       Q.   Well, you know what the law is?
         22       A.   I do, and I'm also aware that for some 
         23   purposes, a continued without a finding is the 
         24   equivalent of a conviction.
 0137
          1       Q.   And when is that?
          2       A.   For the purposes of -- I'm trying to think.  
          3   For the purposes of things like collateral estoppel.  
          4   So whether a person committed an offense in the past 
          5   is an issue at a subsequent case, his admission to 
          6   sufficient facts that triggers the guilty finding is 
          7   the legal equivalent of a conviction.
          8       Q.   Equivalent for a conviction --
          9       A.   For collateral estoppel.
         10       Q.   -- or admission?
         11       A.   I believe it's the legal equivalent for a 
         12   conviction.
         13       Q.   And that's your testimony?
         14       A.   Yes.  But your overall point that he had 
         15   never been adjudicated guilty is correct.
         16       Q.   And how did that effect your 
         17   recommendation?
         18       A.   It meant to us that we would not give this 
         19   defendant the same benefit of the doubt as someone 
         20   who had no prior contact with criminal -- with law 
         21   enforcement, who had never been arrested, admitted 
         22   to sufficient facts before.
         23       Q.   And what were the charges for which it was 
         24   continued without a finding?
 0138
          1       A.   I would have to consult the record.  I 
          2   think there was a shoplifting charge -- I'd want to 
          3   be careful, because I'm remembering some charges 
          4   that I think he wasn't -- where the charges were 
          5   dismissed.
          6       Q.   Do you want to take a look at his record?
          7       A.   Yes.
          8       Q.   I think it's Exhibit 18.
          9       A.   I don't have an Exhibit 18.
         10            THE CLERK:  There it is. 
         11       A.   There were two counts of shoplifting 
         12   separated by about a month in 1997, two counts of -- 
         13   well, there was a disorderly conduct case in 1995, 
         14   two counts of -- one count of disorderly conduct and 
         15   one count of trespassing, which appear to have been 
         16   connected with the same incident about five days 
         17   earlier in 1995.
         18       Q.   And were those juvenile or adult records?
         19       A.   It says, adult record information.  It 
         20   looks like, as he was born in '77, these were adult 
         21   convictions.
         22       Q.   So you considered the fact that he had two 
         23   counts of shoplifting and two disorderlies basically 
         24   that were continued without a finding as meaning 
 0139
          1   that he should not be considered a person with no 
          2   contacts or no encounters with the law?
          3       A.   That's right.
          4            MR. BRACERAS:  Objection.  Can we just have 
          5   a time frame?  As of August 1st or as of September 
          6   6th?
          7            MR. EGBERT:  I think the questions have all 
          8   been related to the time you were formulating your 
          9   recommendation, just before August 1st. 
         10       Q.   Did you understand that to be case?
         11       A.   That's how I understood the question.
         12      *Q.   And so that didn't affect you in any way up 
         13   or down, I take it?
         14       A.   It affected us in the sense that if the 
         15   same defendant had come before us --
         16       Q.   Mr. Deakin --
         17       A.   I'm trying to answer.
         18       Q.   Did it bring --
         19            MR. BRACERAS:  Your Honor, may the witness 
         20   answer the question?
         21            MR. EGBERT:  I'd just like an answer to my 
         22   question, and then he can explain it if he wants.
         23            MR. BRACERAS:  It was perfectly responsive.
         24            HEARING OFFICER DAHER:  Go ahead.  Why 
 0140
          1   don't you finish up.
          2       Q.   Did it bring your recommendation up or 
          3   down?  I think that can take a "yes" or "no" answer.
          4            HEARING OFFICER DAHER:  Can you read the 
          5   last question, please.
          6            *(Question read)
          7            HEARING OFFICER DAHER:  Mr. Braceras? 
          8            MR. BRACERAS:  I think that Mr. Deakin 
          9   should be allowed to finish his answer to the 
         10   question.
         11            HEARING OFFICER DAHER:  It's a very simple 
         12   question.  Go ahead, Mr. Deakin, if you will. 
         13       A.   It affected us up, in the sense that where 
         14   we might be inclined to give more benefit of the 
         15   doubt to someone with no criminal history 
         16   whatsoever, we did not give that benefit of the 
         17   doubt to this defendant.
         18       Q.   So that affected you up?
         19       A.   Slightly, very, very slightly.
         20       Q.   What other factors did you consider?
         21       A.   We considered the defendant's transgendered 
         22   status.
         23       Q.   And how did you figure that?
         24       A.   Well, both of us -- neither of us had 
 0141
          1   extensive experience with transgendered individuals, 
          2   but both of us had a sort of background sense that 
          3   transgendered individuals often have gone through 
          4   unusually difficult experiences in childhood or in 
          5   early adulthood.  And to that extent, it affected us 
          6   a little bit down.  Not a lot; a little bit.
          7       Q.   A little bit down.  Okay.  What else? 
          8       A.   We took into account the defendant's 
          9   statements to police.
         10       Q.   That's part of the facts of the case, 
         11   right?
         12       A.   Right, but his statements to the police 
         13   revealed some things about himself.
         14       Q.   Okay.  And did that bring you up or down?
         15       A.   It brought us up.
         16       Q.   What else?
         17       A.   As I sit here, I can't think of any other 
         18   factors that we took into account about the 
         19   defendant specifically.
         20       Q.   So did you -- let's leave it at that.  
         21   That's what you considered?
         22       A.   About the defendant himself.
         23       Q.   Right.
         24       A.   There are other factors we considered in 
 0142
          1   sentencing; but about the defendant himself, that's  
          2   what we considered.
          3       Q.   Now, your recommendation for sentence was 8 
          4   to 12 years?  That's what you and Leora Joseph --
          5       A.   No.
          6       Q.   8 to 10?
          7       A.   8 to 10.
          8       Q.   Now, you've told us about these proposed 
          9   guidelines, right?
         10       A.   Yes.
         11       Q.   Was that within the proposed guidelines?
         12       A.   It was above the proposed guidelines for 
         13   any single offense that he was charged with.  But it 
         14   was below the proposed guidelines if you aggregated 
         15   all the offenses with which he was charged.
         16       Q.   You know how the guidelines are made to 
         17   work, don't you?
         18       A.   The question of whether to aggregate 
         19   offenses for the guidelines is explicitly left for 
         20   the Judge, so...
         21       Q.   And most circumstances in dealing with a 
         22   singular event, how does it suggest that the 
         23   guidelines are applied?
         24       A.   It sounds like you're familiar with the 
 0143
          1   guidelines.
          2       Q.   You're right.  And I was at the legislature 
          3   when they tried to push them through upon an 
          4   unknowing --
          5            MR. BRACERAS:  Objection, Your Honor.  
          6   Could we have a question here.
          7            HEARING OFFICER DAHER:  It's an interesting 
          8   dialogue.  Go ahead.  Finish up. 
          9       A.   I think different judges take different 
         10   views about how to aggregate offenses during the 
         11   guidelines.
         12       Q.   In any event, you decided to aggregate them 
         13   up?
         14       A.   We didn't aggregate them up completely.  We 
         15   deviated upward slightly from the guidelines to 
         16   reflect the number of offenses committed.
         17       Q.   You took -- in going to make your 
         18   recommendation, you took the guidelines, right?
         19       A.   Yes.
         20       Q.   You went above the 60 to 90, correct?
         21       A.   Yes.
         22       Q.   And reached a conclusion of 8 to 10?
         23       A.   That's correct.
         24       Q.   That was a point of advocacy, wasn't it?
 0144
          1       A.   Yes.
          2       Q.   That wasn't really what you wanted, was it?
          3       A.   No, that is what we wanted.
          4       Q.   Wasn't that prepared as an attempt to be up 
          5   a certain amount, so you could somehow get something 
          6   a little less than that?
          7       A.   No.
          8       Q.   So that was where you wanted to be?  8 to 
          9   10?
         10       A.   That's correct.  That would have been our 
         11   recommendation after trial.
         12       Q.   Pardon me? 
         13       A.   That would have been our recommendation 
         14   after trial.
         15       Q.   After trial?
         16       A.   Yes.
         17       Q.   How about on a plea?
         18       A.   If the defendant had agreed to some 
         19   sentence of incarceration, we might have considered 
         20   reducing our recommendation to meet that on an 
         21   agreed-upon plea, it's possible.
         22       Q.   How about an unagreed plea?  Is that just 
         23   the same as after trial?
         24       A.   Yes.
 0145
          1       Q.   And is that the policy of your office?
          2       A.   Our office policy is to recommend the 
          3   sentence that we believe is just and fair at every 
          4   stage of the proceedings.  There are times when 
          5   considerations of -- practical considerations, such 
          6   as problem of proof; humane consideration, such as 
          7   sparing children having to testify at trial, and a 
          8   whole range of others that I can't list, lead us to 
          9   be willing to negotiate somewhat with defense 
         10   counsel on a plea.
         11       Q.   Now, when Ms. Joseph went over to the 
         12   conference on August 1st, did she talk to you first 
         13   about how to handle it?
         14       A.   I don't specifically remember discussing 
         15   with her how to handle the plea conference.  My 
         16   practice is that I usually have -- usually it's a 
         17   fairly brief discussion with the lawyers who are 
         18   going to plea conferences, although it's not always 
         19   possible.  So I don't know whether we did 
         20   specifically in this case, although I would gather 
         21   that we did.
         22       Q.   And did you consider at the time the child 
         23   victim's desire or lack of desire to testify?
         24       A.   Yes.
 0146
          1       Q.   And had you had reported to you whether or 
          2   not the child victim was interested in testifying?
          3       A.   Our understanding from the outset of the 
          4   case was that the child never wavered in the view 
          5   that although he wasn't eager to testify, he was 
          6   willing to do so.
          7       Q.   Wasn't he anxious to testify?
          8       A.   I didn't know that he was ever described as 
          9   anxious to testify.
         10       Q.   Did somebody tell you he was described as 
         11   that?
         12       A.   I'm sorry? 
         13       Q.   You said "I didn't know" -- what did you 
         14   just say?  "I didn't know" what?
         15       A.   That he was described as anxious to 
         16   testify.
         17       Q.   Well, who told you he was described as 
         18   anxious to testify?
         19       A.   I'm not sure that anyone told me that.
         20       Q.   Well, then why did you respond like that?  
         21   I simply asked you if he was anxious to testify.
         22       A.   And I said I had not heard him described 
         23   that way. 
         24       Q.   So now Ms. Joseph goes over on August 1st 
 0147
          1   to this sentencing hearing, correct?
          2       A.   Yes.
          3       Q.   And you don't know what went on there?
          4       A.   I know some of what went on there.  I know 
          5   what ADA Joseph told me what went on there.
          6       Q.   You know what she told you when she came 
          7   back, right?
          8       A.   I think -- I know what she told me when she 
          9   called me and then what she told me when she came 
         10   back.
         11       Q.   So you know what she told you from calling 
         12   you and talking with you in person, correct?
         13       A.   Correct.
         14       Q.   And from all of that information, tell us 
         15   what you know happened at the August 1st sentencing 
         16   conference with Judge Lopez.
         17       A.   I know that there was a sentencing lobby 
         18   conference.  I know that ADA Joseph presented the 
         19   Commonwealth's sentencing recommendation.  And I'm 
         20   frankly presuming -- though I don't know 
         21   specifically --
         22       Q.   I don't want you to presume anything. 
         23       A.   I know that she presented the 
         24   Commonwealth's sentencing recommendation.  I know 
 0148
          1   that Anne Goldbach from the Committee for Public 
          2   Counsel Services, who represented the defendant, 
          3   presented the defendant's sentencing recommendation.  
          4   I know that Anne Goldbach presented a what I now 
          5   know is labeled "Psychosocial Report" about the 
          6   defendant --
          7       Q.   Wait a minute.  What you now know?
          8       A.   Correct.
          9       Q.   You've been testifying on direct that you 
         10   knew it at the time?
         11       A.   At the time I knew it was a psychological 
         12   report of some kind.  I didn't know the caption --
         13       Q.   Please refer only to what you knew during 
         14   that conversation. 
         15       A.   Okay.  I knew that the defense had 
         16   presented to the Court a psychological report of 
         17   some kind.  And I knew a few things about that 
         18   report. 
         19       Q.   What did you know?
         20       A.   I knew that it was prepared by someone who 
         21   worked for the Committee for Public Counsel 
         22   Services.  I knew that it did not call into question 
         23   the defendant's competency to stand trial.  I knew 
         24   that it did not call into question the defendant's 
 0149
          1   criminal responsibility.  And I knew that it in 
          2   general had information about the defendant's 
          3   psychological background. 
          4       Q.   And Ms. Joseph told you that?
          5       A.   Yes.
          6       Q.   She also told you, didn't she, that the 
          7   report contained a statement that the defendant was 
          8   unlikely to reoffend?
          9       A.   I don't know if she told me that.  She may 
         10   have.  I don't know.  I don't remember her telling 
         11   me that.
         12       Q.   So is that all you knew at the time?
         13       A.   What I don't know is whether I knew the 
         14   woman's name who had done it.  I honestly don't 
         15   recall if I knew that then or if I learned it 
         16   subsequently.  I think that's all I knew at the 
         17   time.  And I knew that Judge Lopez had indicated her 
         18   intention to impose a sentence and what that 
         19   sentence was.
         20            MR. EGBERT:  May I approach, Your Honor? 
         21            HEARING OFFICER DAHER:  Sure. 
         22       Q.   Mr. Deakin, I'm going to hand up to you, 
         23   which we'll be referring to from time to time, two 
         24   documents, one of which is before the Commission's 
 0150
          1   counsel.  And the other is a deposition which 
          2   occurred in my office. 
          3            Do you recall being there at those times?
          4       A.   Yes, I do.
          5       Q.   Do you want to check them to see that 
          6   they're correct?
          7       A.   I'll take a quick look and make sure they 
          8   are.  (Witness reviews document) 
          9            THE CLERK:  Do you want to mark them as I 
         10   did? 
         11            MR. EGBERT:  Once he identifies them.
         12       A.   It would take me a long time to go through 
         13   these and say whether they're accurate transcripts.
         14       Q.   Do they appear to be the documents?
         15       A.   They are captioned that way.  I have no 
         16   doubt that they're the documents.
         17            MR. EGBERT:  I would ask that they be 
         18   marked for identification.
         19            MR. BRACERAS:  Your Honor, I don't think 
         20   they should be marked for identification.  They are 
         21   transcripts of depositions.  They're hearsay.  They 
         22   are completely inadmissible.
         23            MR. EGBERT:  I haven't sought for  their 
         24   admission.
 0151
          1            HEARING OFFICER DAHER:  I can mark them for 
          2   I.D.
          3            MR. EGBERT:  I want to make the interview 
          4   R-1 and the deposition R-2.
          5                 (Documents marked as Exhibits R-1 and 
          6                 R-2 for identification)
          7            HEARING OFFICER DAHER:  Mr. Braceras, 
          8   you've seen this, I take it, prior to coming in 
          9   today? 
         10            MR. BRACERAS:  Yes.
         11            HEARING OFFICER DAHER:  Okay, good.
         12       BY MR. EGBERT:
         13       Q.   Turn to Page 44 of R-2, if you would.
         14       A.   R-2 is the deposition? 
         15       Q.   And I'll make your life easier and give you 
         16   a pen to mark the interview R-1?
         17       A.   (Witness complies)  Okay.
         18       Q.   And the deposition as R-2. 
         19       A.   (Witness complies)  Thank you. 
         20       Q.   Would you turn to Page 44 of R-2, which is 
         21   a deposition you gave in my office; is that correct?
         22       A.   It appears to be, yes.
         23       Q.   Have you seen this deposition before?
         24       A.   Yes.  In a different format.  I got it in 
 0152
          1   micro form.
          2       Q.   Whatever form you've gotten it in, have you 
          3   seen it?
          4       A.   Yes.  I can't tell you -- I'd have to read 
          5   it through to be sure it's the same thing I've seen, 
          6   but I assume it is.  And I've seen the copy of my 
          7   deposition that your office sent to me.
          8       Q.   Now, would you turn to Page 44 and line 3, 
          9   and do you see you were asked what were you told 
         10   about that --
         11            MR. BRACERAS:  Objection, Your Honor.  Is 
         12   Mr. Egbert impeaching the witness here --
         13            MR. EGBERT:  Yes.
         14            MR. BRACERAS:  -- or refreshing his 
         15   recollection?
         16            MR. EGBERT:  I'm impeaching him.
         17            HEARING OFFICER DAHER:  Overruled.
         18            MR. BRACERAS:  You can't just read the 
         19   transcripts --
         20       Q.   Do you see the question that reads what 
         21   were you told about that by Ms. Joseph?
         22       A.   Yes.
         23       Q.   You responded, "I was told that it was a 
         24   psychological report prepared by a clinician 
 0153
          1   employed by the Committee for Public Counsel 
          2   Services to evaluate the defendant and provide a 
          3   social history and a recommendation on disposition." 
          4            Do you see that?
          5       A.   Yes.
          6       Q.   "I learned that the report described the 
          7   defendant's background in some detail, that it 
          8   predicted there would be no repeat offense by the 
          9   defendant..." Do you see that?
         10       A.   Yes.
         11       Q.   So let's stop there for a minute. 
         12            You knew on August 1st that there was a 
         13   report presented to Judge Lopez that predicted that 
         14   the defendant would not reoffend?
         15       A.   I must have.  I didn't recall it when you 
         16   were asking me there.  But reading the transcript, I 
         17   believe that I did.
         18       Q.   And that is, you'll agree with me, a factor 
         19   that is important in sentencing?
         20       A.   Whether there will be a repeat offense? 
         21       Q.   Whether it's likely the defendant will 
         22   reoffend.
         23       A.   To the extent anyone has the qualifications 
         24   to say that --
 0154
          1       Q.   Those kinds of arguments and decisions are 
          2   made by judges every day, aren't they?
          3       A.   Yes, they are.
          4       Q.   And they rely on experienced background 
          5   records and the like, correct?
          6       A.   Yes.
          7       Q.   And also recommendations of professionals 
          8   or information by professionals, correct?
          9       A.   Usually by independent professionals, yes.
         10       Q.   You threw that in, "usually by independent 
         11   professionals," right?  Before if someone thought 
         12   that the use of the CPCS professional was 
         13   inappropriate or shouldn't be relied upon, what 
         14   would a good lawyer do who represented the people of 
         15   the Commonwealth of Massachusetts?
         16       A.   I would suggest that the lawyer would 
         17   suggest to the Court that it shouldn't be relied 
         18   upon.
         19       Q.   The lawyer in the first instance would say, 
         20   "Judge, you shouldn't rely on that," right?
         21       A.   I think so.
         22       Q.   Because it's prepared by the CPCS person?
         23       A.   Right.
         24       Q.   And therefore, you ought to get an 
 0155
          1   independent review, correct?
          2       A.   It depends on whether an independent review 
          3   is indicated.
          4       Q.   Let's stop there.  You shouldn't rely on 
          5   it?
          6       A.   Correct.
          7       Q.   Do you know whether or not Ms. Joseph ever 
          8   made that argument to Judge Lopez?
          9       A.   I don't.
         10       Q.   In your supervisory capacity, when she told 
         11   you that Judge Lopez was presented with a report 
         12   that the defendant was unlikely to reoffend, didn't 
         13   you check with her or ask her what she said to 
         14   refute that information?
         15       A.   I made the assumption from the way she 
         16   described it that she conveyed to the Court that she 
         17   didn't think the report was worthy of consideration.
         18       Q.   Would it surprise you to say that she has 
         19   never testified to that in any proceeding anywhere 
         20   in the world?
         21       A.   I don't know if that would surprise me or 
         22   not.
         23       Q.   But you were making assumptions rather than 
         24   asking?
 0156
          1       A.   I made an assumption.
          2       Q.   Is that right?
          3       A.   Yes.
          4       Q.   And you would agree with me that competent 
          5   counsel for the Commonwealth, if they thought that 
          6   this was not a valid report, would indicate that to 
          7   the Court?
          8       A.   I would expect that, yes.
          9       Q.   And would you think it competent to sit 
         10   there silently and say nothing about the reliability 
         11   of the report under those circumstances?
         12       A.   I would not expect an attorney to remain 
         13   silent, no.
         14       Q.   And wouldn't you at least -- if a judge was 
         15   going to rely on such a report, wouldn't you seek to 
         16   have an independent examination, so that you could 
         17   refute the report?
         18       A.   It would depend on the circumstances.  Not 
         19   always, no.
         20       Q.   Well, on a circumstance where you realized 
         21   that a judge was relying heavily on a report to 
         22   impose a sentence which you substantially disagreed 
         23   with.
         24       A.   I don't know -- in this case your question 
 0157
          1   is based on an assumption that the Judge was relying 
          2   heavily on that report.  I don't know if we ever 
          3   knew that.
          4       Q.   You don't?
          5       A.   No.
          6       Q.   Did Leora Joseph tell you during your 
          7   conversation on August 1st that she thought Judge 
          8   Lopez was looking at this as a serious case that 
          9   couldn't be given probation; but when she started to 
         10   review the report, she became swayed?  Did Leora 
         11   Joseph tell you that?
         12       A.   She did not tell me that.
         13       Q.   Had you known that, would that be an 
         14   interesting fact for you, as a supervisor?
         15       A.   Having reviewed the report subsequently, I 
         16   would be surprised by that.
         17       Q.   You want to take issue whether or not the 
         18   Judge should have relied on it, right?  But let's 
         19   get back to my question for a minute. 
         20            My question is, you're the supervisor of 
         21   this attorney, Leora Joseph, correct?
         22       A.   Yes.
         23       Q.   Now I'm asking you whether or not she told 
         24   you that Judge Lopez seemed to be swayed by the 
 0158
          1   report?
          2            MR. BRACERAS:  Objection, Your Honor.  
          3   That's not the testimony.
          4            HEARING OFFICER DAHER:  Overruled. 
          5       A.   She did not tell me that Judge Lopez seemed 
          6   to be swayed by the report, no.
          7       Q.   Did she tell you that Judge Lopez was 
          8   reading the report in her presence?
          9       A.   Yes.
         10       Q.   And did she tell you --
         11       A.   She indicated -- I'm not sure she told me 
         12   specifically.  That was the impression that I got 
         13   yes.
         14       Q.   Did she tell you that she never objected to 
         15   Judge Lopez or anyone else to not having a copy of 
         16   the report?
         17       A.   She didn't tell me that.  I knew that she 
         18   didn't have a copy.  I assumed that one was not 
         19   provided to her.
         20       Q.   Do you know that she never asked for one?
         21       A.   I did not know that.
         22       Q.   Wouldn't a competent counsel -- if a report 
         23   for which she was not familiar was being given to a 
         24   judge at a sentencing hearing -- ask for a copy?
 0159
          1       A.   I think that would depend in part, at 
          2   least, on whether that report was going to be made 
          3   part of the record and what the Judge indicated her 
          4   response to the report was.
          5       Q.   Mr. Deakin, you're sitting here under oath, 
          6   a ten-year supervisor at the DA's office.  Do you 
          7   teach your prosecutors that if there is a matter 
          8   handed up to the Judge for her consideration and 
          9   they don't have a copy, not to ask for a copy?
         10       A.   No, I do not teach them that.
         11       Q.   That's just bad lawyering, isn't it?
         12       A.   I'm not sure I'd describe it as "bad 
         13   lawyering."  I think the best practice would be to 
         14   do it.  Not doing it; I'm not sure that that would 
         15   be characterized as "bad lawyering."
         16       Q.   To permit a judge to consider matters that 
         17   you don't even know what they are is not bad 
         18   lawyering?
         19       A.   I'm not certain --
         20            HEARING OFFICER DAHER:  What's the 
         21   objection? 
         22            MR. BRACERAS:  That's not the testimony. 
         23            MR. EGBERT:  It's his testimony.
         24            MR. BRACERAS:  He has testified --
 0160
          1            HEARING OFFICER DAHER:  I don't find it 
          2   relevant.  Let's move on.  Let's move on.  Whether 
          3   it's good lawyering, bad lawyering, I can make my 
          4   own findings on that.
          5            MR. EGBERT:  Judge, let me just go on a bit 
          6   and stop me, if you will.
          7            HEARING OFFICER DAHER:  Good.
          8       Q.   You agree with me that competent lawyering 
          9   is important to advocate the position of the 
         10   Commonwealth?
         11       A.   I'm sorry, competent lawyering is 
         12   important  --
         13       Q.   Competent lawyering is important to 
         14   advocate the position of the Commonwealth?
         15       A.   As it is to advocate any position, yes.
         16       Q.   I agree.  But if you can answer my 
         17   question, really, it will go faster, and I have some 
         18   experience with the fact that we can do it 20 times.
         19            Would you agree with me that competent 
         20   lawyering is important in advocating the positions 
         21   of the Commonwealth?
         22       A.   Of course.
         23       Q.   And that's because, isn't it, it's because 
         24   you want the Judge to hear both sides of the 
 0161
          1   equation?
          2       A.   Correct.
          3       Q.   And you don't want the Judge to be 
          4   influenced by matters which you could argue against 
          5   if you had the information, correct?
          6       A.   I'm not sure I understand the question.  I 
          7   don't really understand the question.
          8       Q.   In other words, when a defense counsel is 
          9   advocating a position to a judge through the use of 
         10   reports, for example, it's important for the 
         11   Commonwealth to be able to put its best position in 
         12   regard to those reports before the Court to 
         13   influence the Court to go by the Commonwealth's 
         14   recommendation?
         15       A.   Certainly.
         16       Q.   Right?
         17       A.   Certainly.
         18       Q.   And judges rely on that, don't they? 
         19       A.   I assume -- I don't know.  I assume they 
         20   do.
         21       Q.   In your experience, hasn't it been that 
         22   judges rely on the Commonwealth's attorneys to put 
         23   the Commonwealth's position forward?
         24       A.   Yes.
 0162
          1       Q.   And they don't do it by themselves, do 
          2   they?
          3       A.   Of course not.
          4       Q.   Judges don't go telling you, "Boy, I'd like 
          5   to go see your file" or things like that?
          6       A.   No.
          7       Q.   They expect that the Commonwealth lawyers 
          8   will put before them all the information necessary 
          9   and appropriate for them to make a decision?
         10       A.   Yes.
         11       Q.   And it will advocate in the Commonwealth's 
         12   best interest?
         13       A.   Yes.
         14       Q.   Did you know that the report in question 
         15   provided to the Judge information that the defendant 
         16   suffered from chronic depression?
         17       A.   I don't believe I knew that specifically, 
         18   no.
         19       Q.   You've had experience in the criminal law, 
         20   correct?
         21       A.   Yes.
         22       Q.   And part of your experience tells you that 
         23   there are some issues with mental health and mental 
         24   illness that judges consider during sentencing?
 0163
          1       A.   Of course.
          2       Q.   And it's important to know whether or not 
          3   those conditions are real or not?
          4       A.   Yes.
          5       Q.   For example, if someone is posed or 
          6   proposed as having some mental disorder or illness 
          7   to a judge, that's something a judge might consider 
          8   during sentencing, correct?
          9       A.   Yes.
         10            MR. BRACERAS:  Objection, Your Honor.  It's 
         11   irrelevant whether it goes to mental illness or 
         12   mental disorder.
         13            HEARING OFFICER DAHER:  Overruled.
         14       Q.   What is chronic depression to you?
         15       A.   I'm a little outside my area of expertise.  
         16   What it means to me is it's a condition called 
         17   clinical depression, which has to do with the 
         18   suppression of emotional processes.  It basically 
         19   means sort of an inability --
         20            HEARING OFFICER DAHER:  You're struggling.  
         21   Do you know what chronic depression versus --
         22            THE WITNESS:  I do.  It means clinical 
         23   depression that's ongoing.
         24            HEARING OFFICER DAHER:  Ongoing.  His 
 0164
          1   definition of chronic depression is it's ongoing.
          2       Q.   Do you consider that in the vernacular a 
          3   psychological disorder or issue?
          4       A.   I'm careful not to offer opinions of that 
          5   without doing some research.
          6            HEARING OFFICER DAHER:  He doesn't know.
          7       Q.   Did you do any research on chronic 
          8   depression during the Horton sentencing phase?
          9       A.   No, I did not.
         10       Q.   Did Ms. Joseph tell you anything about 
         11   allegations of chronic depression?
         12       A.   I don't believe that she did.
         13       Q.   Did she tell you that there was information 
         14   provided to the Judge that Mr. Horton had suicidal 
         15   thoughts?
         16       A.   I don't believe that she did.  I don't 
         17   remember it.
         18       Q.   And would that have been something you 
         19   would have wanted to know?
         20       A.   It certainly couldn't hurt to know that.  
         21   I'm not sure that any of the things that you're 
         22   mentioning, like clinical depression or suicidal 
         23   thoughts, are relevant really to the question of 
         24   whether the defendant is likely to reoffend and what 
 0165
          1   the appropriate sentence is.
          2       Q.   You don't think in your experience that 
          3   issues of chronic depression and suicidal ideations 
          4   are relevant to the sentencing consideration that 
          5   judges make -- not your recommendation, but the 
          6   sentencing consideration that judges make?
          7       A.   Certainly.
          8       Q.   And you were unaware of the fact that that 
          9   information had been provided to the Judge through 
         10   this report of Ms. Katz; is that correct?
         11       A.   I was unaware of the specifics, yes, those 
         12   particular specifics, yes.
         13       Q.   Would you turn to Exhibit 3, please, in the 
         14   book. 
         15       A.   (Witness complies).
         16       Q.   Have you seen that document before?
         17       A.   Yes.
         18       Q.   When is the first time you saw it, if you 
         19   can tell us?
         20       A.   I'm not certain.  I believe it was sometime 
         21   in the spring or summer of this year.
         22       Q.   Certainly you didn't see it at the time of 
         23   August 1st of 2000 through September 6th of 2000?
         24       A.   No, I did not.
 0166
          1       Q.   You've since read it, however; is that 
          2   correct?
          3       A.   Yes.  It's been some time, but I have read 
          4   it.
          5       Q.   Why don't you take a brief look at it.
          6       A.   (Witness reviews document) 
          7            HEARING OFFICER DAHER:  Mr. Egbert, Mr. 
          8   Ware, any idea how long you want to go today? 
          9            MR. EGBERT:  I thought we made it known to 
         10   the Judge that we can't go past 1:30.
         11            HEARING OFFICER DAHER:  Okay. 
         12            And secondly, do I have an expense as to 
         13   how much for the rewiring?
         14            MR. BERRIMAN:  We are actually trying to 
         15   get a reduced rate, based on the fact that it's 
         16   going to be longer, which could actually make it 
         17   less expensive.
         18            HEARING OFFICER DAHER:  I'm going to expect 
         19   the defense to pay for it. 
         20            MR. EGBERT:  If I have any objections, I'll 
         21   let you know. 
         22            HEARING OFFICER DAHER:  The Court did grant 
         23   the continuance; I expect it to be paid for.  Okay.  
         24   Continue reviewing. 
 0167
          1       A.   I've had a chance to review it.  Thank you.
          2       Q.   With regard to that report -- let me step 
          3   back a minute. 
          4            There are a number of factors which you 
          5   know judges consider during sentencing phases of 
          6   criminal proceedings, correct?
          7       A.   Yes.
          8       Q.   One of them is the serious nature of the 
          9   crime or the seriousness of the crime, correct?
         10       A.   Yes.
         11       Q.   Others relate to deterrence?
         12       A.   Yes.
         13       Q.   Rehabilitation?
         14       A.   Yes.
         15       Q.   Suitability of incarceration versus 
         16   alternative sentencing?
         17       A.   Yes.
         18       Q.   Those kinds of things?
         19       A.   Yes.
         20       Q.   Now, would you agree with me that the 
         21   report which you looked at, Exhibit 3, addresses 
         22   itself to all of those factors other than the 
         23   seriousness of the offense?
         24       A.   Remind me of the other factors that you 
 0168
          1   listed.
          2       Q.   Rehabilitation. 
          3       A.   Yes.
          4       Q.   Deterrence. 
          5       A.   Specific deterrence; that is, deterrence of 
          6   this perpetrator, yes, not general deterrence.
          7       Q.   Specific deterrence?
          8       A.   Specific deterrence, yes.
          9       Q.   It also addresses itself to reoffending?
         10       A.   Yes.
         11       Q.   It addresses itself to appropriateness of 
         12   alternative sentencing?
         13       A.   Yes.
         14       Q.   And the factors going into that?
         15       A.   Yes.
         16       Q.   So it addresses each and every one of those 
         17   factors which you know a judge considers?
         18       A.   The ones that you've listed.
         19       Q.   Right. 
         20       A.   Yes.
         21       Q.   Did your office do anything to refute the 
         22   report that was provided to Judge Lopez on August 
         23   1st, which is Exhibit 3?
         24       A.   No.  In my view, we addressed --
 0169
          1       Q.   The answer is "no," isn't it?
          2            MR. BRACERAS:  Your Honor, may he answer 
          3   the question?
          4            HEARING OFFICER DAHER:  I think he did.  
          5   Overruled.  Go ahead. 
          6       Q.   After Ms. Joseph returned on August 1st or 
          7   during the phone calls, but at least that 
          8   information stage between the phone call and your 
          9   in-person discussions, she was upset with the 
         10   sentence the Judge indicated she would deliver, 
         11   correct?
         12       A.   Yes.
         13       Q.   She was, I think you testified once before, 
         14   she was shocked?
         15       A.   I'm not sure if I testified "shocked."  It 
         16   may be --
         17       Q.   "Stupefied" were your words?
         18       A.   I may have said that.  It's accurate.  I'd 
         19   have to look it up to see if I said that, but I 
         20   don't doubt I did.
         21       Q.   And did you talk with her about the level 
         22   of her advocacy during the particular sentencing 
         23   proceeding?
         24       A.   Not specifically, no.
 0170
          1       Q.   Did you ask her whether or not she had a 
          2   full and fair opportunity to present the 
          3   Commonwealth's position?
          4       A.   No.  I expect she would have told me if she 
          5   didn't.
          6       Q.   Did she tell you that she did not?
          7       A.   No.
          8       Q.   Did you ask her or did she tell you whether 
          9   or not she was able to give all of the facts and 
         10   information she thought relevant to sentencing on 
         11   August 1st of 2000?
         12       A.   Again, we didn't discuss that specifically.  
         13   I would have expected her to tell me if she hadn't.
         14       Q.   She did not tell you anything like that?
         15       A.   No.
         16       Q.   So as far as you understood it, it was a 
         17   sentencing conference or a plea conference like all 
         18   others in the way it was conducted?
         19       A.   In general terms, yes.  I don't know 
         20   specifically how it's conducted, but yes, in general 
         21   terms.
         22       Q.   In other words, there was nothing 
         23   remarkable to you about the manner or procedure in 
         24   which the plea conference was conducted?
 0171
          1       A.   Not at that time, no.
          2       Q.   When you say, "Not at that time," did you 
          3   receive information at another time?
          4       A.   Yes.
          5       Q.   And when did you receive more information 
          6   or other information regarding the plea conference?
          7       A.   Much later after the plea had been done, I 
          8   learned --
          9       Q.   Not what you learned.  Who did you speak 
         10   with?  Who did you speak with to get this learning?
         11       A.   What I learned -- I guess I spoke to --
         12            HEARING OFFICER DAHER:  What's your 
         13   objection? 
         14            MR. BRACERAS:  Mr. Egbert asked a question.  
         15   He interrupted him in the middle of Mr. Deakin's 
         16   answer.
         17            HEARING OFFICER DAHER:  Help me out if you 
         18   can.  Was the psychosocial assessment, was that ever 
         19   made part of the record?  And if not, how can Judge 
         20   Lopez rely on it?  I'm trying to put it all into 
         21   perspective.
         22            MR. EGBERT:  She can rely on any 
         23   information provided to her at the plea conference, 
         24   and you'll hear a number of judges who testify to 
 0172
          1   that.  Plea conferences are often held, information 
          2   is provided to the Court, sometimes given back to 
          3   counsel, sometimes made a part of the probation 
          4   record.  And this fact was ultimately made a part of 
          5   the probation file.
          6            MR. BRACERAS:  Your Honor, the short answer 
          7   to your question is that the report was never filed.  
          8   Judge Lopez did not retain a copy of the report, and 
          9   it was only made a part of the probation file after 
         10   the September 6th sentencing.
         11            MR. EGBERT:  After the sentencing, she gave 
         12   it to probation.  The fact of the matter is, Your 
         13   Honor, these -- and I'll take it with Mr. Deakin 
         14   also -- these are off-the-record plea conferences 
         15   which happen every day in the Superior Court, where 
         16   information is provided to the judges.  And after 
         17   the Judge has made their determination of sentence, 
         18   various documents and the like are oftentimes 
         19   returned to the parties.
         20            MR. BRACERAS:  Your Honor, it was only 
         21   given to the press after the September 6th --
         22            MR. EGBERT:  Probation, not "press."
         23            MR. BRACERAS:  It was only given to 
         24   probation after the September 6th conference, after 
 0173
          1   there had been this media firestorm that we've heard 
          2   about.
          3            HEARING OFFICER DAHER:  Go ahead.
          4       BY MR. EGBERT:
          5       Q.   Let's take this up right now.  You've been 
          6   in a number of plea conferences?
          7       A.   Yes.
          8       Q.   Are there matters put before the Court that 
          9   are not a matter of record?
         10       A.   It happens.  In my experience, it's 
         11   relatively unusual.
         12       Q.   Aren't there plea conferences that are held 
         13   off the record?
         14       A.   Often they are held off the record, yes.
         15       Q.   So everything that's said to the Judge in 
         16   the plea conference is off the record?
         17       A.   That's correct.  Most of it then becomes 
         18   part of the record if there is, in fact, a plea.
         19       Q.   It does?
         20       A.   Most of it.
         21       Q.   Everything that the lawyers say to the 
         22   Judge --
         23       A.   Not everything.  Most.
         24       Q.   And in fact, there was reference in your 
 0174
          1   discussion with Judge Lopez on September 6th to the 
          2   existence of the psychological evaluation, correct?
          3       A.   That's correct.
          4       Q.   And you knew that to mean this Exhibit 3, 
          5   the report?
          6       A.   Right.  As I said, I hadn't seen it, but I 
          7   knew that there was a report.
          8       Q.   But you knew that's what she was talking 
          9   about?
         10       A.   Yes.
         11       Q.   And that's what you were both referring to 
         12   on September 6th?
         13       A.   Yes.
         14       Q.   So the existence of this report was known 
         15   to you at the time?
         16       A.   Yes.
         17       Q.   Now, you indicated a moment ago -- you were 
         18   about to say that you learned something about the 
         19   plea conference sometime after the plea conference, 
         20   right?
         21       A.   Right.
         22       Q.   Who did you learn that from?
         23       A.   From Judge Lopez's public statement.
         24       Q.   Pardon me? 
 0175
          1       A.   From the public statement that Judge Lopez 
          2   issued.
          3       Q.   From the public statement?
          4       A.   Yes.
          5       Q.   And does that discuss the plea conference?
          6       A.   Yes.  It said, There are matters known to 
          7   the Court, defense counsel and the prosecutor that 
          8   can't be made part of the public record that would 
          9   change the media reporting the case, something to 
         10   that effect.
         11       Q.   You made the assumption she was talking 
         12   about something that happened at the plea 
         13   conference, correct?
         14       A.   I went over with ADA Joseph what was she 
         15   referring to in the statement.  I sat down with her 
         16   and said, "What is the Judge writing about here? 
         17   What is her reference?"  And the only thing that 
         18   either of us could think of that could arguably fit 
         19   that definition was the psychological report.
         20       Q.   When you say "arguably," certainly 
         21   everything in the psychological report, except for 
         22   that statement of "transgendered," which had been 
         23   made public in another forum, that information was 
         24   not releasable by the Judge, was it?
 0176
          1       A.   I think it could have been released.  I can 
          2   understand why a judge might not want to.
          3       Q.   In a press release?
          4       A.   No.  It could have been made part of the 
          5   public record at the hearing.
          6       Q.   Could, but that's not what was done?
          7       A.   Right.
          8       Q.   You're talking about something that was 
          9   issued after all the hearings, correct, that press 
         10   statement?
         11       A.   Right.  I think --
         12       Q.   Well --
         13            MR. BRACERAS:  Your Honor, could the 
         14   witness finish? 
         15            MR. EGBERT:  It was a very simple question.
         16            HEARING OFFICER DAHER:  Go ahead.
         17       A.   All I was going to say is I think the Judge 
         18   could have in a press statement referred in general 
         19   terms to psychological issues that confronted the 
         20   defendant that formed part of her sentence.
         21       Q.   We're going to come to this later; but 
         22   since you brought it up, what the Judge could have 
         23   done is said in some general statement there was a 
         24   psychosocial report, correct?
 0177
          1       A.   Right.
          2       Q.   The Judge certainly couldn't have put the 
          3   fact of that report in a press statement when they 
          4   weren't on a public record; isn't that right?
          5       A.   I think the Judge could have created a 
          6   sentencing memorandum --
          7       Q.   Answer my question.  We're talking about a 
          8   press release and you know it. 
          9            Now, I asked you simply, in your opinion, 
         10   sir, under the Code of ethics and the like, could 
         11   she have put those facts in a press release on the 
         12   present state of the record?
         13       A.   I'm not certain of the answer to that.
         14       Q.   You know the answer is "no," don't you?
         15       A.   I don't know the answer is "no."  It may be 
         16   "no."
         17            MR. BRACERAS:  Objection.
         18       Q.   Pardon me?
         19       A.   I don't know that the answer is "no."  It 
         20   may well be "no."
         21       Q.   Now, when Ms. Joseph came back on August 
         22   1st, the first thing you all talked about was 
         23   contacting the press, right?
         24       A.   No, that was not the first thing that we 
 0178
          1   talked about.
          2       Q.   Well, did you talk about contacting the 
          3   press?
          4       A.   Yes, we did -- not contacting the press, 
          5   contacting our press office.
          6       Q.   When you contact your press office, it's 
          7   for the purposes of them informing the press, 
          8   correct?
          9       A.   It's for the purposes of them evaluating 
         10   whether the press should be contacted.
         11       Q.   When she came back to your office, did she 
         12   tell you that Judge Lopez had said, "You belong 
         13   prosecuting cases in the suburbs, not in the city"?
         14       A.   I'm not sure.  I think that's something 
         15   that was said -- she told me that was said at the 
         16   August 4th hearing, although I'm not positive of 
         17   that. 
         18       Q.   Do you have a memory which day that was?
         19       A.   I believe it was the August 4th hearing, 
         20   but I'm not positive of that.
         21       Q.   So when she came back and you had the 
         22   discussion and the like, did you talk about 
         23   contacting the press office?
         24       A.   Yes.
 0179
          1       Q.   And did Ms. Joseph ask you whether it would 
          2   be appropriate to notify the press in any fashion?
          3       A.   I don't know whether she said "press" or 
          4   "press office."  It was in the context of 
          5   discussing --
          6       Q.   Have you testified about that in the past?
          7       A.   I'm sure I have.  I don't recall it 
          8   specifically.
          9       Q.   When is the last time you reviewed your 
         10   interview with the Commission?
         11       A.   My interview with the Commission?  A couple 
         12   of days ago.
         13       Q.   And where were you when you reviewed it?
         14       A.   In my home.
         15       Q.   Have you reviewed it with Mr. Braceras?
         16       A.   I don't believe so.
         17       Q.   Do you recall at Page 48 -- and that was a 
         18   statement you gave under oath back in August of 
         19   2001, correct?
         20       A.   That's right.
         21       Q.   Would you agree with me that your memory of 
         22   events was better then of things that occurred in 
         23   the Year 2000 than it is today?
         24       A.   In many respects, yes.
 0180
          1       Q.   Let's get to this particular item.  
          2   "Question:  How did she contact your press office or 
          3   contact the media in this case"?
          4       A.   Yes.
          5       Q.   And that was asked of you by counsel for 
          6   the Commission, correct, Mr. Braceras?
          7       A.   Yes.
          8       Q.   And you responded, "She contacted me to let 
          9   me know -- this is immediately after the first 
         10   conference -- to let me know that the defendant was 
         11   going to enter a guilty plea, what the likely 
         12   disposition was going to be and asked me whether it 
         13   would be appropriate to notify the press in any 
         14   fashion.  That's how she did it"?
         15       A.   Right.
         16       Q.   Was that your testimony then?
         17       A.   Yes.
         18       Q.   Was it a truthful statement?
         19       A.   Yes.
         20       Q.   So it's true that one of the things that 
         21   she talked about with you on August 1st when she 
         22   came back to the office was whether it would be 
         23   appropriate to notify the press in any fashion, 
         24   right?
 0181
          1       A.   Yes, referring to the press office.  We 
          2   don't notify the press --
          3       Q.   Sir, did you say "press office" here?
          4       A.   No, I did not.  I left the word "office" 
          5   off that.
          6       Q.   You left the word "office" out?
          7       A.   Correct.
          8            MR. BRACERAS:  Objection, Your Honor.  
          9   Perhaps Mr. Egbert wants to read two lines down, 
         10   where it discusses --
         11            MR. EGBERT:  I'll read anything you want. 
         12   I'll read the whole thing if you want.
         13            MR. BRACERAS:  Perhaps you could read the 
         14   next answer, Lines 21 through 23 and 24.
         15            MR. EGBERT:  You read it.
         16            MR. BRACERAS:  It says, "I told her that I 
         17   thought it was something that ought to be discussed 
         18   with the first assistant and that it was a decision 
         19   that ought to be made by the executive staff..." 
         20       BY MR. EGBERT:
         21       Q.   Now, my question to you is -- that's you 
         22   talking what you said back to her?
         23       A.   Right.
         24       Q.   What she said to you is, Would it be 
 0182
          1   appropriate to notify the press?
          2       A.   I don't recall if she said "press" or 
          3   "press office."  They are synonymous in our office.
          4       Q.   Your testimony on that was clear in 2001, 
          5   wasn't it, when you said "press"?
          6       A.   Yes.  It was clear.  But in our office, 
          7   notifying the press and notifying the press office 
          8   are the same thing.
          9       Q.   Exactly, because you know that that's how 
         10   you get to the press, through your press office, 
         11   correct?
         12       A.   Our press office --
         13      *Q.   Sir, do you know that's how you get 
         14   information --
         15            MR. BRACERAS:  Objection.
         16            HEARING OFFICER DAHER:  Let him finish.    
         17   Go ahead, Mr. Deakin.
         18            THE WITNESS:  I'm sorry, I don't know if 
         19   Mr. Egbert had completed his question.
         20            HEARING OFFICER DAHER:  Read the last 
         21   question.
         22            *(Question read)
         23       A.   I think I understand the question.  If 
         24   there's a question of press notification, that 
 0183
          1   decision is referred to the press office and the 
          2   executive staff.  That's what I meant then.  That's 
          3   what I mean now.
          4       Q.   And you know that the press office is the 
          5   beginning of the ball rolling, getting information 
          6   to the press?
          7       A.   It can be.
          8       Q.   Right? 
          9       A.   Or it can be the end of not getting 
         10   information to the press.
         11       Q.   But it's the beginning of it?
         12       A.   It can be.
         13       Q.   And in this particular instance, you were 
         14   clear, were you not, that both you and Ms. Joseph 
         15   agreed in each other's presence that the press 
         16   office should be notified?
         17       A.   Yes, subject to running that by Elizabeth 
         18   Keeley first.  We both thought so, but at least I 
         19   wanted to run it by her, by Elizabeth Keeley.
         20       Q.   My question -- and again, qualify if you 
         21   will -- did you both agree that the press office 
         22   should be notified?
         23       A.   Yes, subject to approval by Elizabeth 
         24   Keeley.
 0184
          1       Q.   So it's clear to you, isn't it, from your 
          2   conversation with Ms. Joseph, that she knew the 
          3   press office was being notified, correct?
          4       A.   Yes.
          5       Q.   No question about that?
          6       A.   I don't have any question in my mind, no.
          7       Q.   And in fact, you are the person who told 
          8   Ms. Joseph to provide all appropriate information to 
          9   Mr. Borghesani in the press office; isn't that 
         10   correct?
         11       A.   I honestly don't recall today whether I did 
         12   that or whether Elizabeth Keeley did that.  I 
         13   believe that is what happened.  Who instructed her 
         14   to do it, I'm not positive.
         15       Q.   Let's go to the transcript of the 
         16   deposition at Page 59 through 60. 
         17            HEARING OFFICER DAHER:  Are you objecting? 
         18            MR. BRACERAS:  Your Honor, Mr. Egbert can 
         19   refresh the witness' recollection.  He cannot just 
         20   read this hearsay into the record.  He can refresh 
         21   his recollection.  Mr. Deakin has testified he 
         22   doesn't have a recollection on this point.
         23            MR. EGBERT:  These are statements under 
         24   oath previously given.
 0185
          1            MR. BRACERAS:  They're not admissible.  
          2   It's hearsay, and there's nothing to impeach him on 
          3   here.  If this is refreshing recollection, that's 
          4   fine.  He can't just read prior testimony into the 
          5   record.
          6            HEARING OFFICER DAHER:  Why don't you look 
          7   at it. 
          8            MR. EGBERT:  Judge, I have a right to 
          9   impeach this witness' credibility with prior sworn 
         10   statements.  And I have a right to ask him whether 
         11   or not he said it, to read it to him, and ask him 
         12   whether or not that's his answer.
         13            HEARING OFFICER DAHER:  Mr. Braceras, if 
         14   there are prior inconsistent statements -- Mr. Ware, 
         15   what do you want to say?
         16            MR. WARE:  We are getting two concepts of 
         17   evidence confused here.  This witness is a nonparty.  
         18   It is not like my cross examination of Judge Lopez.  
         19   She's a party.  Her whole transcript is in as 
         20   Exhibit 32. 
         21            As to third-party witnesses, if the witness 
         22   says, "I don't remember," counsel is not entitled 
         23   then to offer his transcript.  He's entitled to show 
         24   it to him and say, "Does this refresh your 
 0186
          1   recollection?"  It doesn't make the transcript 
          2   admissible.
          3            HEARING OFFICER DAHER:  That's what I just 
          4   asked Mr. Deakin to do.
          5            MR. EGBERT:  Judge, respectfully, I believe 
          6   Mr. Ware is absolutely wrong on the rule.  That is 
          7   not the rule at all.  I have the right -- since this 
          8   information was sworn --
          9            HEARING OFFICER DAHER:  Why doesn't he look 
         10   at it and see if he can testify from his own memory.  
         11   If he can't, then I'll make a ruling on it.  Go 
         12   ahead.  Take a look at it. 
         13       A.   (Witness reviews document)  Mr. Egbert, 
         14   where am I reading?  I think I know, but I want to 
         15   be sure.
         16       Q.   Let's start with the question that says, 
         17   "You knew the press was going to be notified in some 
         18   form?"  And you answered, "Correct." 
         19            MR. BRACERAS:  Objection, Your Honor, Mr. 
         20   Egbert now has ruled on this issue. 
         21            HEARING OFFICER DAHER:  He's responding to 
         22   Mr. Deakin for a starting point.  Now, what page are 
         23   we on again?  59? 
         24            MR. EGBERT:  I'm on Page 59.
 0187
          1       Q.   Did you testify under oath --
          2            MR. BRACERAS:  Objection, Your Honor.  I 
          3   think the proper procedure here is to refresh his 
          4   recollection. 
          5            HEARING OFFICER DAHER:  One second.  What 
          6   page are we on?  Page 59.
          7            MR. EGBERT:  I'd like to be heard.
          8            HEARING OFFICER DAHER:  Go ahead.
          9            MR. EGBERT:  He can whine all he wants back 
         10   there about refreshing his memory, but the fact of 
         11   the matter is he didn't testify that the press was 
         12   going to be notified.  The question is very simple:  
         13   "You knew that the press was going to be notified in 
         14   some form?"  Answer:  Correct."  59, Line 2.
         15            HEARING OFFICER DAHER:  What page are we 
         16   on? 
         17            MR. EGBERT:  59 of R-2.
         18            HEARING OFFICER DAHER:  You can take a look 
         19   at it.
         20            THE WITNESS:  What lines? 
         21            MR. WARE:  It's apparently the deposition, 
         22   not the statement
         23       BY MR. EGBERT:
         24       Q.   You understand R-2 is the deposition?
 0188
          1       A.   I'm on the right page.  Should I read the 
          2   whole page?
          3            HEARING OFFICER DAHER:  Read it.  Take your 
          4   time.  Read it. 
          5       A.   (Witness reviews document)  Okay.  I've 
          6   read that page.
          7       Q.   Did you testify on that occasion --
          8            MR. BRACERAS:  Objection, Your Honor.
          9            HEARING OFFICER DAHER:  And the objection 
         10   being? 
         11            MR. BRACERAS:  He can ask him what his 
         12   current recollection is now.  He cannot impeach him 
         13   when he lacks memory.
         14            MR. EGBERT:  It's a prior inconsistent 
         15   statement.
         16            MR. WARE:  He says he doesn't remember.  
         17   There are rules of evidence. 
         18            MR. EGBERT:  Are we going to have them all 
         19   jumping up? 
         20            Ms. Brunetti, do you want to say anything? 
         21            MS. BRUNETTI:  No. 
         22            HEARING OFFICER DAHER:  Do you want to make 
         23   an argument, Mr. Egbert? 
         24            MR. EGBERT:  These are prior inconsistent 
 0189
          1   statements of the witness, which go to the 
          2   credibility of the witness.  Prior inconsistent 
          3   statements of a witness which were made under oath 
          4   are not only in as impeachment evidence, but they 
          5   come in as substantive evidence of the matters 
          6   testified to.  That's classic evidence in the 
          7   Commonwealth of Massachusetts.
          8            HEARING OFFICER DAHER:  Mr. Braceras? 
          9            MR. BRACERAS:  Well, Mr. Egbert is 
         10   referring to inconsistent statements.  There's 
         11   nothing inconsistent here.  If a witness says, "I 
         12   don't have a recollection," that's not inconsistent 
         13   with something said a year previous. 
         14            MR. EGBERT:  Let's go back and take it step 
         15   by step.
         16       BY MR. EGBERT:
         17       Q.   I'm going to ask you a simple question. 
         18            Did you know the press was going to be 
         19   notified in some form?
         20            MR. BRACERAS:  At what point? 
         21       Q.   On August 1st or thereabouts of the Year 
         22   2000. 
         23       A.   My recollection is that I knew that that's 
         24   the direction that Elizabeth Keeley was intending to 
 0190
          1   go.  I'm not sure that I knew it as a final matter, 
          2   but I understood that's what she was inclined to do.
          3       Q.   So you knew the press was going to be 
          4   notified?  That was your understanding, as we've 
          5   used here so much, right?
          6       A.   That's what I said, yes.
          7       Q.   And you conveyed that understanding to Ms. 
          8   Joseph, correct?
          9       A.   I believe I did.  I don't have a specific 
         10   memory of doing so.
         11       Q.   And in fact, didn't you talk to ADA Joseph 
         12   about making sure that Jim Borghesani had the 
         13   information necessary to notify the press?
         14       A.   I believe that I did.  I'm not certain, 
         15   however, whether I did that or Elizabeth Keeley did 
         16   that.
         17       Q.   Did you testify under oath on Page 59, Line 
         18   19 of Exhibit R-2 as follows:  "I know that I" --
         19            MR. BRACERAS:  Objection, Your Honor.
         20            HEARING OFFICER DAHER:  Overruled.
         21       Q.   "I know that I talked to ADA Joseph about 
         22   making sure that Jim Borghesani had the information 
         23   necessary to notify the press"?
         24       A.   I assume that I did testify that way.
 0191
          1       Q.   No.  Did you? 
          2       A.   I don't remember how --
          3       Q.   Look at it, Page 59. 
          4       A.   I am looking at it.  I assume it's a 
          5   correct transcription.  I reviewed the deposition at 
          6   the time.  Yes, I must have testified that way.
          7            MR. EGBERT:  Your Honor, I offer into 
          8   evidence Line 17 through 23 of Page 59 of the 
          9   deposition.
         10            MR. BRACERAS:  Objection, Your Honor.
         11            HEARING OFFICER DAHER:  Overruled.
         12       Q.   Now, was Ms. Joseph tasked with the 
         13   function of providing Mr. Borghesani with the 
         14   necessary information?
         15       A.   I believe so.
         16       Q.   Do you know?
         17       A.   I testified here today I don't know --
         18       Q.   Did you testify under oath on August 23 of 
         19   the Year 2002 to the following question and give the 
         20   following answer:  "Was Ms. Joseph tasked with the 
         21   function of providing Mr. Borghesani with the 
         22   necessary information?  Answer:  I believe so"?
         23       A.   That's what I testified to today:  "I 
         24   believe so."
 0192
          1       Q.   Do you have any memory different than that?
          2       A.   No.
          3       Q.   And it's your understanding, isn't it, that 
          4   Ms. Joseph provided the information to Mr. 
          5   Borghesani, which ultimately was used in the press 
          6   release, isn't it?
          7       A.   I believe so.
          8       Q.   That's your memory, isn't it?
          9       A.   I don't have a firm memory of it.  It's my 
         10   best belief that she did, yes.
         11       Q.   Well, did you testify under oath on Page 60 
         12   to this question and give the following answer:  
         13   "And so it's your understanding that she provided," 
         14   meaning Ms. Joseph, "the information to Mr. 
         15   Borghesani which ultimately was used in the press 
         16   release?  Answer:  That's my memory." 
         17       A.   Yes.
         18       Q.   And, sir, didn't you testify before the 
         19   Commission at an interview with -- before Mr. 
         20   Braceras, that you were pretty sure that you recall 
         21   that he, meaning Mr. Borghesani, and Leora Joseph 
         22   discussed it so that he could get the basic facts of 
         23   the case to present to put in the press release?
         24            MR. BRACERAS:  Objection, Your Honor.
 0193
          1            HEARING OFFICER DAHER:  Overruled.  Go 
          2   ahead.
          3       A.   I don't know what page --
          4       Q.   I'm asking you if you said that.
          5       A.   I don't recall whether I said that.  I'd 
          6   have to --
          7       Q.   Do you have any memory as you sit here 
          8   today -- do you have any memory as you sit here 
          9   today of Ms. Joseph talking with Mr. Borghesani to 
         10   provide him information to put in the press release?
         11       A.   I think I assumed that she had.  I don't 
         12   know that I -- I wasn't present for a discussion.  I 
         13   assumed that she had.
         14            MR. EGBERT:  May I have a minute, Your 
         15   Honor? 
         16            HEARING OFFICER DAHER:  Yes.  
         17            (Pause)
         18       BY MR. EGBERT:
         19       Q.   Did you do anything to assure that the 
         20   information that got to the press release or the 
         21   press office was such that complied with the ethical 
         22   obligations of lawyers and prosecutors on the 
         23   release of information to the press?
         24       A.   I relied on the press office and the 
 0194
          1   executive staff supervisory structure to see that 
          2   that was done.
          3       Q.   Is the press office, to your knowledge -- 
          4   are the people in the press office lawyers?
          5       A.   As I understand it, I don't believe either 
          6   of the people in the press office at that time was a 
          7   lawyer.
          8       Q.   And did you have any established practice 
          9   to review press releases before they went out?
         10       A.   In the time that I had been supervisor, my 
         11   memory is that most, if not all, of the press 
         12   releases that went out -- and there weren't many -- 
         13   I would have looked at, yes.
         14       Q.   Mr. Deakin, how many hours did you spend 
         15   preparing for your testimony here with Mr. Braceras 
         16   or other members of the Commission staff?
         17       A.   Are you asking in total? 
         18       Q.   Yes.  I'm asking total. 
         19       A.   Excluding the interview and the deposition 
         20   that you conducted? 
         21       Q.   No, not matters of record.  Meetings, 
         22   preparing for them. 
         23       A.   12 or 15.
         24       Q.   And during those meetings and preparation 
 0195
          1   sessions, it's true, is it not, that Mr. Braceras, 
          2   for example, would tell you about what other 
          3   witnesses testified to?
          4       A.   Not once.
          5       Q.   Not once?
          6       A.   Not once.
          7       Q.   Did he tell you what questions I would ask 
          8   of other witnesses?
          9       A.   He told me topic areas that you had asked 
         10   of other witnesses.  He never told me a question 
         11   that you had asked other witnesses.
         12       Q.   Has he gone over with you your prior 
         13   testimony?
         14       A.   In maybe one or two instances.  But in 
         15   general, no.  We may have discussed it in one or two 
         16   instances.  I don't want to say "never," but it was 
         17   rarely, if ever. 
         18       Q.   Haven't you testified in the past that you 
         19   had a practice with Mr. Borghesani where you were to 
         20   see all press releases before they went out?  Have 
         21   you not testified to that in the past?
         22       A.   I think I testified that there was a custom 
         23   that I would review press releases.
         24       Q.   What did you mean by "custom"?
 0196
          1       A.   That's that sort of habit that we had 
          2   gotten in in the relatively short time that we had 
          3   been working together.
          4       Q.   And you testified previously that you 
          5   relied on that custom to comply with the rules of 
          6   ethics?
          7       A.   That's true.
          8       Q.   So you relied on the custom of Mr. 
          9   Borghesani showing you the press releases, so that 
         10   you could comply with your canons of ethics, 
         11   correct?
         12       A.   Correct.
         13       Q.   And then you testified in the past that Mr. 
         14   Borghesani didn't show you this press release, 
         15   correct?
         16       A.   That's also correct.
         17       Q.   Never discussed it with you, correct?
         18       A.   No, he did not.
         19       Q.   And didn't provide you the information that 
         20   would be going into the press release?
         21       A.   No, he did not.
         22       Q.   Correct?
         23       A.   That's correct.
         24       Q.   And all of that basically gets you off the 
 0197
          1   hook for its content, correct?
          2       A.   Actually, no, I don't think it gets me off 
          3   the hook.
          4       Q.   Has anybody told you what Mr. Borghesani 
          5   testified to in deposition?
          6       A.   No.
          7       Q.   Not a word?
          8       A.   Not a word.
          9       Q.   You have not discussed it with anyone?
         10       A.   No.
         11       Q.   Including Mr. Braceras?
         12       A.   Including Mr. Braceras or anyone else from 
         13   the Commission.
         14       Q.   Did you or did you not discuss with Mr. 
         15   Borghesani using the words "transgendered person"?
         16       A.   After --
         17       Q.   Before the press release was issued. 
         18       A.   No, I did not.
         19       Q.   And you have a clear memory on that?
         20       A.   Yes, I do.
         21       Q.   Now, as I understand it now, based on this 
         22   testimony, you, Ms. Joseph, and Ms. Keeley all knew 
         23   that this information was going to the press office, 
         24   correct?
 0198
          1       A.   That's correct.
          2       Q.   And that it was being put into a press 
          3   release, correct?
          4       A.   That was my understanding, yes.  I didn't 
          5   know it for a fact, but that was the direction it 
          6   was going.
          7       Q.   And that was the understanding amongst you 
          8   all generally, wasn't it? 
          9            MR. BRACERAS:  Objection, Your Honor.  How 
         10   could he testify to the understanding of Ms. 
         11   Keeley --
         12            MR. EGBERT:  Certainly he's been testifying 
         13   to their understandings about everything else in 
         14   this case. 
         15            HEARING OFFICER DAHER:  Sustained. 
         16       Q.   Well, did you understand that Ms. Joseph 
         17   knew that, too?
         18       A.   Yes.
         19       Q.   And that Ms. Keeley knew that, too?
         20       A.   Yes.
         21       Q.   And from your observations of facts and 
         22   circumstances that went on in your presence?
         23       A.   I'm sorry, I don't understand that 
         24   question.
 0199
          1       Q.   From your observation of facts and 
          2   circumstances that went on in your presence, that's 
          3   how you came to those understandings?
          4       A.   It was actually through conversations.
          5       Q.   Conversations with Ms. Joseph?
          6       A.   And Ms. Keeley.
          7       Q.   And your conversations with Ms. Joseph made 
          8   it clear to you that she knew this was going in a 
          9   press release?
         10       A.   I think like me, she knew that's the 
         11   direction it was going.  I don't think she knew that 
         12   a final decision had been made.
         13       Q.   So you agree with me that basically you and 
         14   Ms. Joseph and Ms. Keeley, if you add her to the 
         15   loop, initiated the process of ultimately issuing a 
         16   press release?
         17       A.   Yes.
         18       Q.   And you knew that?
         19       A.   Yes.
         20       Q.   And Ms. Joseph knew that?
         21       A.   I believe she did, yes.
         22       Q.   And when your office issues a press 
         23   release, is it fair to say that if it's in a case of 
         24   yours, that you issued the press release?
 0200
          1       A.   No.  The office issued the press release.
          2       Q.   And do you consider yourself a part of the 
          3   office?
          4       A.   Yes.
          5       Q.   And in charge of a particular case, you 
          6   take responsibility for what goes on in a particular 
          7   case?
          8       A.   Yes.
          9       Q.   And that basically is your obligation, 
         10   correct?
         11       A.   Yes.
         12       Q.   And so if a press release is issued, it's 
         13   issued under your authority?
         14       A.   No, it's issued under the authority of the 
         15   executive staff.  I have a role in this, but the 
         16   executive staff makes the decision.
         17       Q.   Is it issued with your permission?
         18       A.   I don't have -- as a line ADA or even as a 
         19   unit supervisor, I don't have the ultimate say -- in 
         20   fact, I don't have the say in whether a press 
         21   release is issued.  I can suggest that one be issued 
         22   or suggest that one not be issued.  I can discuss 
         23   it, but ultimately the executive staff makes that 
         24   decision.
 0201
          1       Q.   In this particular case, was it your 
          2   understanding that Ms. Joseph would be shocked that 
          3   the press was notified in the Horton case?
          4            MR. BRACERAS:  Objection.
          5            HEARING OFFICER DAHER:  Sustained.
          6       Q.   Well, did you have conversations with her 
          7   about whether or not she was shocked that the press 
          8   was notified?
          9       A.   I did not have conversations with her about 
         10   that.
         11       Q.   Did she tell you that she was shocked about 
         12   the press being notified?
         13       A.   I don't remember her ever saying that she 
         14   was shocked.
         15       Q.   Did she tell you that she knew the press 
         16   was going to be notified?
         17       A.   I don't think we ever had a discussion 
         18   about that.  As I said, there was an understanding 
         19   that that was the direction it was going.
         20       Q.   Well, one of the conversations that you had 
         21   with her was about her conversations with Judge 
         22   Lopez on August 4th, correct?
         23       A.   On August 4th? 
         24       Q.   Right. 
 0202
          1       A.   Yes.
          2       Q.   And she reported to you then, didn't she, 
          3   that Judge Lopez basically indicated that Ms. Joseph 
          4   had been responsible for notifying the press?
          5       A.   Yes, she did indicate that.
          6       Q.   And did Ms. Joseph tell you that she had 
          7   nothing to do with it?
          8       A.   No.
          9       Q.   Did she tell you that she didn't know the 
         10   press was going to be notified?
         11       A.   No.
         12       Q.   It was clear to you that she knew the press 
         13   was going to be notified, right?
         14       A.   It was clear to me that she knew that was 
         15   the direction the decision was going.
         16       Q.   That was where this was headed?
         17       A.   Yes.
         18       Q.   And that she was the person that initiated 
         19   it, correct?
         20       A.   I'm not sure -- I guess it depends on what 
         21   you mean by "initiated."  She asked me whether it 
         22   would be appropriate under the press policy to 
         23   notify the press office.  If that's "initiating it," 
         24   then yes.
 0203
          1       Q.   And then she participated in informing the 
          2   press office of the information necessary to include 
          3   in a press release?
          4       A.   I believe so.
          5       Q.   You say you believe so.  You know that's 
          6   the case, don't you?
          7       A.   As I'm testifying today, I believe so.  I'm 
          8   not positive of that.
          9       Q.   You've testified to it on a number of 
         10   occasions in the past under oath, correct?
         11            MR. BRACERAS:  Objection.
         12            HEARING OFFICER DAHER:  Sustained.  Let's 
         13   move on. 
         14            MR. EGBERT:  Judge, is this a good time to 
         15   recess? 
         16            HEARING OFFICER DAHER:  Okay.  We'll pick 
         17   it up on Monday.  If you want to work out a doubling 
         18   up of the time, I'll be delighted to accommodate 
         19   you.  Mr. Ware, I know what your problem is. 
         20            Thursdays are out of the question.  But if 
         21   you want to have an extended hours, I would be 
         22   delighted to do that.
         23            MR. EGBERT:  I've cleared my schedule.  
         24   What hours? 
 0204
          1            MR. WARE:  I'd like to have as full a day 
          2   as the Court can accommodate, and I'd like to 
          3   understand when the lunch break is and that kind of 
          4   thing.
          5            HEARING OFFICER DAHER:  We'll start at 9:30 
          6   and go until 3:00.  And if you're a witness --
          7            MR. WARE:  With no break, you're saying? 
          8            HEARING OFFICER DAHER:  No, of course a 
          9   lunch.
         10            MR. WARE:  Why don't we go from 9:30 to 
         11   4:30.
         12            HEARING OFFICER DAHER:  That would be fine. 
         13            MR. EGBERT:  I can tell you that we have to 
         14   have some break for lunch and rest.
         15            MR. WARE:  I don't have a problem with the 
         16   lunch break, as long as we're going to get an 
         17   extended day.
         18            HEARING OFFICER DAHER:  We can't get a 
         19   transcript to review if we break at 4:30; is that 
         20   correct?
         21            THE COURT REPORTER:  You can get it emailed 
         22   late in the evening, but the transcript itself will 
         23   be delivered the following day.
         24            HEARING OFFICER DAHER:  We can live with 
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          1   that.  We'll go from 9:30 to 4:30.
          2                 (Whereupon, the hearing was
          3                 adjourned at 1:35 p.m.)
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          1                   C E R T I F I C A T E
          2            I, Jane M. Williamson, Registered 
          3   Professional Reporter, do hereby certify that the 
          4   foregoing transcript, Volume IX, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on Friday, December 6, 2002.
          7   
          8   
          9                  _____________________________
         10                            Jane M. Williamson
         11                  Registered Merit Reporter
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