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 0001
                                            Volume X     
                                            Pages 10-1 to 10-219
                                            Exhibits See Index
              
                         COMMISSION ON JUDICIAL CONDUCT
                          Complaint No. 2000-110 et seq
              - - - - - - - - - - - - - - - - - - - x   
                                                    :
              In the Matter of Investigation of:    :
              The Honorable Maria I. Lopez,         :
              Associate Justice, Superior Court     :
              Department                            :
              - - - - - - - - - - - - - - - - - - - x 
              
              BEFORE:  Hearing Officer E. George Daher,
                         Chief Justice (Ret.)
              
                       Harvey Chopp, Clerk
                       
              APPEARANCES:
              
                  Goodwin Procter LLP
                       (by Paul F. Ware, Jr., Esq., Roberto 
                       M. Braceras, Esq., and Cheryl R.
                       Brunetti, Esq.) Exchange Place, Boston, MA  
                       02109, for the Commission on Judicial 
                       Conduct.
                       
              
                  Law Offices of Richard M. Egbert
                       (by Richard M. Egbert, Esq., and
                       Patricia A. DeJuneas, Esq.)
                       99 Summer Street, Suite 1800,
                       Boston, MA  02110, for the Honorable 
                       Maria I. Lopez.
              
              
                                    Held at:
                           Edward W. Brooke Courthouse
                              24 New Chardon Street
                              Boston, Massachusetts
                            Monday, December 16, 2002
                                    9:39 a.m.
              
                 (Jane M. Williamson, Registered Merit Reporter)
                                        
                                     * * * *
              
 0002
          1   
                                    I N D E X
          2   
              WITNESS        DIRECT  CROSS  REDIRECT  RECROSS
          3   
              David Deakin
          4   
              (By Mr. Egbert)        10-3             10-134     
          5   (By Braceras)                 10-126        
              
          6   Joan Kenney
              
          7   (By Mr. Ware)  10-145         10-209, 211
              (By Mr. Egbert)        10-172            10-209
          8   
                                    *  *  * 
          9   
                                 E X H I B I T S
         10   
              EX. NO.                         FOR ID   IN EVID.
         11   
              S   Bail list for Friday,                 10-41
         12       August 4, 2000
         13   
         14   67  Chapter S 66                10-130      
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   
 0003
          1                   P R O C E E D I N G S
          2            HEARING OFFICER DAHER:  Mr. Egbert, do you 
          3   want to pick it up? 
          4            MR. EGBERT:  Thanks, Judge. 
          5                   DAVID DEAKIN, Previously Sworn
          6                    CROSS EXAMINATION, Resumed
          7       BY MR. EGBERT: 
          8       Q.   Good morning, Mr. Deakin. 
          9       A.   Good morning, Mr. Egbert.
         10            MR. EGBERT:  Good morning, Your Honor. 
         11       Q.   Mr. Deakin, after August 1st -- and we've 
         12   discussed at some length the discussions you had 
         13   with Ms. Joseph concerning press releases and the 
         14   like -- what was the next event in which you were 
         15   involved in any way with regard to the Horton case?
         16       A.   It was the hearing regarding change of plea 
         17   on I believe August 4th of that year, three days 
         18   later.
         19       Q.   And I think you testified that you received 
         20   a phone call from Ms. Joseph, correct?
         21       A.   That's correct.
         22       Q.   And you went over to court?
         23       A.   That's correct.
         24       Q.   Now, when you received the phone call from 
 0004
          1   Ms. Joseph, she told you, did she not, that there 
          2   were media at the courtroom or courthouse?
          3       A.   I believe so.  I don't have a specific 
          4   recollection of her saying there was media, but I 
          5   believe that she did.
          6       Q.   She told you that there had been some event 
          7   between the media and Mr. Horton and his mother?
          8       A.   I'm not sure if she ever told me that.  And 
          9   if she did, I'm not certain whether it was in the 
         10   phone call or after I got to court.  I learned that, 
         11   but I'm not sure if she told me that or not.
         12       Q.   Let's combine for a moment the phone call 
         13   and getting to court in terms of the information you 
         14   received, all right?
         15       A.   Yes.
         16       Q.   It's at or about the same period, correct?
         17       A.   Correct.
         18       Q.   And it's fair to say that you have some 
         19   difficulty differentiating what you heard in the 
         20   phone call versus what you may have heard when you 
         21   got to court?
         22       A.   I remember some things clearly from the 
         23   phone call and some things clearly from court.
         24       Q.   In any event, you did learn during that 
 0005
          1   period of the phone call and coming to court that 
          2   there had been some event between the media and Mr. 
          3   Horton to cause some kind of a difficulty, correct?
          4       A.   I heard that, yes.
          5       Q.   You heard it?
          6       A.   Yes.
          7       Q.   Because one thing is clear.  You weren't 
          8   there.  You weren't at court when court began its 
          9   session on August 4th; is that correct?
         10       A.   That's correct.
         11       Q.   And you weren't there when the media 
         12   arrived, correct?
         13       A.   No, I was not.
         14       Q.   You weren't there when Mr. Horton arrived, 
         15   correct?
         16       A.   I don't believe so, no.
         17       Q.   You weren't there when Mr. Horton's mother 
         18   arrived, correct?
         19       A.   Again, I don't believe so.
         20       Q.   You weren't there when Anne Goldbach 
         21   arrived, correct?
         22       A.   No.
         23       Q.   And you weren't there when Ms. Joseph 
         24   arrived.
 0006
          1       A.   No, I was not.
          2       Q.   You weren't there when Ms. Goldbach and Ms. 
          3   Joseph went into Judge Lopez's lobby.
          4       A.   No, I was not.
          5       Q.   You weren't present for any of those 
          6   conversations.
          7       A.   No, I was not.
          8       Q.   So anything you know about that you know 
          9   from what people may have told you.
         10       A.   Correct.
         11       Q.   And you don't know whether what they're 
         12   telling you is truthful, accurate or otherwise, 
         13   correct?
         14       A.   I have an opinion about it, but I don't 
         15   know of my own --
         16       Q.   Typical of not having firsthand knowledge, 
         17   you lack it as to those events, correct?
         18       A.   That's correct.
         19       Q.   And one thing you do now know, however, is 
         20   that Ms. Joseph told you that when she was in Judge 
         21   Lopez's lobby, Judge Lopez told her that she 
         22   belonged prosecuting cases in the suburbs, correct?
         23       A.   What I recall her saying is, "You belong in 
         24   the suburbs."  I didn't know whether that was 
 0007
          1   prosecuting cases or otherwise.
          2       Q.   Do you recall testifying under oath at a 
          3   Commission interview I think we've been calling it 
          4   on or about August 16th of 2001?
          5       A.   Yes.
          6       Q.   And that was your first statement under 
          7   oath at a time close to the event, correct?
          8       A.   Yes.
          9       Q.   And at that time you were doing your best 
         10   to accurately give your best memory while under 
         11   oath, correct?
         12       A.   Yes.
         13       Q.   Now would you turn to Page 35 of what is 
         14   now R-1.
         15            HEARING OFFICER DAHER:  It's on my desk.
         16            MR. EGBERT:  Let's hold on that for a 
         17   moment and I'll come back to it.
         18            HEARING OFFICER DAHER:  Okay. 
         19       Q.   When you arrived at the courthouse, you got 
         20   into a conversation with Anne Goldbach, didn't you?
         21       A.   Yes, I did.
         22       Q.   And Anne Goldbach, by reputation, to you 
         23   was an honest, intelligent attorney with high 
         24   integrity; is that correct?
 0008
          1       A.   Yes.
          2       Q.   And she -- at that time did she seem to you 
          3   to be a bit out of sorts?
          4       A.   She seemed quite upset, yes.
          5       Q.   And when you say "she seemed quite upset," 
          6   can you tell her demeanor?
          7       A.   Her demeanor was very intense.  She was 
          8   obviously -- I'm not sure how to say it other than 
          9   upset, agitated.
         10       Q.   And in that conversation with you, she told 
         11   you that she was upset with the district attorney's 
         12   office press release in the Horton case; is that 
         13   correct?
         14       A.   Yes, she did.
         15       Q.   She told you that she thought that was an 
         16   unfair and inappropriate thing to do; isn't that 
         17   correct?
         18       A.   I'm not sure of the specific words she 
         19   used, whether she used "unfair," "inappropriate."  
         20   Inappropriate was definitely the substance of what 
         21   she was saying.
         22       Q.   It was the message she was delivering, 
         23   right?
         24       A.   Yes.
 0009
          1       Q.   And she indicated to you that as a result 
          2   of that press release, certain things had happened 
          3   in the courthouse before your arrival; is that 
          4   right?
          5       A.   I believe she did, yes.
          6       Q.   She indicated to you that the press had 
          7   come and there had been an event in the hallway 
          8   concerning Mr. Horton, his mother and some press 
          9   camera people; isn't that right?
         10       A.   Yes.
         11       Q.   And that it caused Mr. Horton and his 
         12   mother to leave the 15th floor area -- strike 
         13   that -- the 12th floor area, isn't it?  Let me ask 
         14   you.  What area was it?
         15       A.   I was never exactly clear where in the 
         16   courthouse it was happening.  It was an elevator 
         17   area, but --
         18       Q.   Where was the First Session at the time?
         19       A.   The 15th floor, Courtroom 21.
         20       Q.   So you were aware, were you not, that the 
         21   cameras -- that Mr. Horton had some event on the 
         22   15th floor which caused Mr. Horton to go to some 
         23   other floor with his mother and caused some upset in 
         24   the courthouse.
 0010
          1       A.   With the exception of knowing whether it 
          2   was the 15th floor where that happened, yes, I did 
          3   know that.
          4       Q.   On some floor. 
          5       A.   On some floor, yes, that's what she told 
          6   me.
          7       Q.   And she particularly told you -- she showed 
          8   you the language in the press release that described 
          9   transgendered person who dresses like a female, 
         10   correct?
         11       A.   That's a paraphrase of it.  Yes, she did 
         12   show me that.
         13       Q.   There's an exhibit book in front of you.
         14       A.   Large one or small one? 
         15       Q.   The large one.  Would you turn to Exhibit 
         16   7.  And do you see there where it says, "Charles 
         17   Horton, 31, a transgendered person who appears as a 
         18   woman, is expected to plead guilt"?
         19       A.   Yes.
         20       Q.   And that's the language that Ms. Goldbach 
         21   focused on when she spoke with you concerning the 
         22   inappropriateness of the press release, correct?
         23       A.   That's correct.
         24       Q.   And she indicated to you generally that 
 0011
          1   that press release had caused much press attention 
          2   in which she felt to be an inappropriate way on an 
          3   inappropriate subject matter?
          4       A.   What she expressed to me was she felt that 
          5   the press release was inappropriate and that it had 
          6   caused the press attention that was there.  That's 
          7   what she said to me.
          8       Q.   And there was some discussion, wasn't 
          9   there, to the fact that this basically played to the 
         10   more salacious or prurient interests of the press?
         11       A.   She didn't discuss that with me at the 
         12   time.  She, I think, just felt that it called 
         13   attention to her client.  She didn't discuss the 
         14   salaciousness of the coverage.  She just said she 
         15   didn't feel the issuing of the press release was 
         16   appropriate.
         17       Q.   The language she said it centered upon was 
         18   "transgendered person who appears as a woman," 
         19   correct?
         20       A.   Yes.
         21       Q.   And you understood what she was playing to 
         22   was prurient or salacious interests of the press, 
         23   didn't you?
         24       A.   I'm not sure whether I understood it in 
 0012
          1   exactly those terms.  I'm not sure.  It's a fair -- 
          2   retrospectively, I would say that that's a fair 
          3   reading of what she was saying.  I'm not sure I 
          4   understood it that way at the time.  I think at the 
          5   time I understood it to mean that it was an invasion 
          6   of her client's privacy.
          7       Q.   And you responded to her, didn't you, in 
          8   that conversation that you didn't know why the 
          9   office had done that, but that you regretted that 
         10   the office had done that because you didn't see it 
         11   as relevant to any issue in the case or in 
         12   disposition?  Was that your reply to Anne Goldbach?
         13       A.   I believe that I said that, yes.
         14       Q.   Well, you know you said it, don't you?
         15       A.   To be honest, two years later, I don't 
         16   recall, but I believe that I did.
         17       Q.   Well, would you turn, please, to Page 53 in 
         18   R-1, which is your initial statement to the 
         19   Commission, and go, if you would, to Line 5.
         20       A.   Yes.
         21       Q.   And did you testify as follows under oath:  
         22   "And I recall telling her that.  I didn't know why 
         23   the office had done that, but that I regretted that 
         24   the office had done that because I didn't see it as 
 0013
          1   relevant to any issues in the case or in 
          2   disposition."  Is that how you testified under oath 
          3   on that occasion?
          4       A.   Yes, it is.
          5            MR. EGBERT:  Your Honor, with regard to an 
          6   evidentiary rule of the proceedings, I would ask 
          7   that all matters which have been testified to 
          8   previously under oath and have been presented as 
          9   either prior inconsistent statements or prior 
         10   statements under oath be admitted throughout these 
         11   proceedings, both as impeachment, such as it is, and 
         12   for substantive evidence of the events being 
         13   described under the appropriate rule where 
         14   statements under oath --
         15            HEARING OFFICER DAHER:  I'll hear you, Mr. 
         16   Braceras.
         17            MR. BRACERAS:  Your Honor, we oppose that.  
         18   That is not the law.  We have two cases to hand up 
         19   to Your Honor, the Martin case, an SJC case, and an 
         20   Appeals Court case.  Both of these cases directly 
         21   address this issue.  A failure of recollection is 
         22   not sufficient to cross examine the witness with 
         23   prior inconsistent statements.  If a witness has a 
         24   failure of recollection, Mr. Egbert can refresh his 
 0014
          1   recollection --
          2            HEARING OFFICER DAHER:  Again, why can't 
          3   you ask him to make an election?
          4            MR. EGBERT:  Because I believe this case is 
          5   inapposite.  But if I can take a look at it for a 
          6   minute, because the law is quite clear that prior 
          7   statements under oath are admissible for both 
          8   impeachment and for the substantive -- for 
          9   substantive purposes --
         10            MR. BRACERAS:  Your Honor, that's plainly 
         11   wrong.
         12            MR. EGBERT:  Why don't you give me a 
         13   moment.
         14            MR. BRACERAS:  Your Honor, I would direct 
         15   you to the Martin case at Note 16 and in the Santos 
         16   case at Page 5 to 6.  It directly addressed this 
         17   issue. 
         18            The Court says that it is settled that for 
         19   purposes of impeachment, there is no inconsistency 
         20   between a present failure of memory on the witness 
         21   stand and a past existence of memory.  
         22            This transcript is just hearsay.  Mr. 
         23   Deakin is here to testify.  Mr. Egbert can examine 
         24   Mr. Deakin today.  Unlike the situation with Judge 
 0015
          1   Lopez, where her transcript came in solely because 
          2   there was admission of the party, an admission of 
          3   the defendant in this case, this transcript is 
          4   hearsay and it has no -- there is no grounds for it 
          5   to be admitted.
          6            HEARING OFFICER DAHER:  Go ahead.  I'll 
          7   hear you, Mr. Egbert.
          8            MR. EGBERT:  If I can read the case.
          9            HEARING OFFICER DAHER:  Go ahead.
         10            MR. EGBERT:  Judge, this is plainly 
         11   inapposite.  What they had on a prior statement 
         12   under oath is the witness saying "I'm not sure."  
         13   Prior statements under oath given by this witness on 
         14   the subject matter, if inconsistent, is admissible 
         15   as an inconsistent statement and for its substantive 
         16   purposes.  It was not used to refresh this witness' 
         17   memory, and the fact of the matter is that this is 
         18   testimony which is given under oath on these facts, 
         19   and I suggest it is admissible for those purposes.
         20            HEARING OFFICER DAHER:  Objection 
         21   sustained.
         22       BY MR. EGBERT:
         23       Q.   Was the statement that you just read or had 
         24   read to you true when you made it?
 0016
          1       A.   I believe so.
          2       Q.   And is it true today?
          3       A.   It is true that I said that to Anne 
          4   Goldbach, yes.
          5       Q.   Were you telling the truth to Anne 
          6   Goldbach?  Yes or no?
          7       A.   I was doing my best to tell the truth to 
          8   Anne Goldbach.  And I think I spoke a bit more 
          9   broadly than I actually intended to.
         10       Q.   You said that to Anne Goldbach, right? 
         11       A.   Yes.
         12       Q.   You said that it was true when you said it.
         13       A.   Yes.
         14       Q.   Correct?
         15       A.   I meant it.
         16       Q.   You said it was true now, correct?
         17       A.   It's true that I said it to Anne Goldbach, 
         18   yes.
         19       Q.   And you weren't lying to Anne Goldbach.
         20            HEARING OFFICER DAHER:  This is in regard 
         21   to the testimony, the irrelevancy of the 
         22   transgendered? 
         23            THE WITNESS:  Correct.
         24            HEARING OFFICER DAHER:  It may have been 
 0017
          1   irrelevant to him, but it was relevant to the Judge.  
          2   It meant a lot to her.
          3            MR. EGBERT:  There's a difference, Judge, 
          4   between something being relevant to the Court at 
          5   sentencing and being relevant and appropriate in a 
          6   press release.
          7            HEARING OFFICER DAHER:  Go ahead. 
          8       Q.   Now, getting back to the prior question I 
          9   asked you, I asked you whether or not Ms. Joseph 
         10   told you that Judge Lopez told her that she belonged 
         11   prosecuting cases in the suburbs, correct?  Do you 
         12   remember that question?
         13       A.   I do remember that question.
         14       Q.   And you responded your memory is that she 
         15   said "You belong in the suburbs," correct?
         16       A.   That's my memory.
         17       Q.   Would you turn, please, to Page 35 of the 
         18   R-1 transcript. 
         19       A.   Yes.
         20       Q.   Do you see on Page 35, Line 4 and 5, did 
         21   you testify previously that she told you, "You 
         22   belong prosecuting cases in the suburbs, not in the 
         23   city"?
         24       A.   That's what the transcript says.
 0018
          1       Q.   Do you think the transcript is lying?
          2       A.   No, I have no reason to think it's wrong.
          3       Q.   Are you blaming the court reporter for 
          4   misquoting you?
          5       A.   I'm not saying I was misquoted.  I'm saying 
          6   I don't recall specifically this answer, but this is 
          7   what the transcript says and I have no doubt it's 
          8   what I said.
          9       Q.   Did you testify in that fashion before the 
         10   Commission?
         11       A.   Mr. Egbert, what I can tell you is I don't 
         12   specifically recall, but I have no reason to doubt 
         13   the transcript.
         14            MR. EGBERT:  Your Honor, I offer Lines 4 
         15   and 5 of Page 35 of --
         16            HEARING OFFICER DAHER:  Mr. Braceras? 
         17            MR. BRACERAS:  Objection.
         18            MR. EGBERT:  -- of R-1.
         19            MR. BRACERAS:  Same grounds.  This is not 
         20   inconsistent.  He just doesn't recall.
         21            HEARING OFFICER DAHER:  Sustained.
         22            MR. EGBERT:  Your Honor, it's inconsistent.  
         23   He has said today that all she told him was, "You 
         24   belong in the suburbs." 
 0019
          1            HEARING OFFICER DAHER:  Sustained. 
          2       Q.   Now, did you have a conversation with Mr. 
          3   Borghesani concerning this press release?
          4       A.   After my conversation with Ms. Goldbach, 
          5   yes.
          6       Q.   And did you tell Mr. Borghesani that you 
          7   wished he hadn't used the word "transgendered" in 
          8   the press release?
          9       A.   My memory is --
         10       Q.   Please answer my question.  Did you tell 
         11   him that?
         12       A.   I believe I told him -- I honestly can't 
         13   remember at that moment whether I told him that I 
         14   wished that he hadn't used it at all or that I 
         15   wished that he hadn't used it so prominently, but I 
         16   do recall saying that I wished he hadn't used it.
         17       Q.   I'm sorry? 
         18       A.   I do recall saying that I wished he hadn't 
         19   used it.  Whether I said "I wished you hadn't used 
         20   it so prominently," I'm not sure.
         21       Q.   When you told him that you wished he had 
         22   not used it, what did he say?
         23       A.   I don't remember him saying -- I don't 
         24   remember him saying much of anything about it other 
 0020
          1   than -- I don't remember him saying much at all 
          2   about it actually.
          3       Q.   Now, on August 4th, when you got to court,  
          4   you had your conversations with Ms. Goldbach and 
          5   also Ms. Joseph, didn't you?
          6       A.   Yes, I did.
          7       Q.   And they were involved in some heated 
          8   conversations?
          9       A.   Yes.
         10       Q.   And after those conversations -- strike 
         11   that.  When you went over to court, it was your 
         12   understanding that the case was going to be 
         13   continued; is that correct?
         14       A.   That's correct.
         15       Q.   And who told you that the case was going to 
         16   be continued?
         17       A.   Ms. Joseph told me that the Judge had said 
         18   it would be continued.  That's what she said.
         19       Q.   In the lobby?
         20       A.   I understood it to mean that.  I don't 
         21   remember if she said "in the lobby," but that was my 
         22   understanding.
         23       Q.   You understood that to be the only place 
         24   where Judge Lopez and Ms. Joseph had had any 
 0021
          1   conversations before that.
          2       A.   That's right.
          3       Q.   So it was clear to you when you arrived -- 
          4   by the way, when did you arrive?
          5       A.   I can't recall.  I know it was before the 
          6   lunch recess, which I don't remember exactly when 
          7   the lunch recess was that day.  It was late morning 
          8   or just after noon.
          9       Q.   And so do you know whether it was on the 
         10   phone or in person that Ms. Joseph informed you that 
         11   Judge Lopez indicated she was continuing the case?
         12       A.   I don't recall whether it was on the phone 
         13   or in person.  I believe it was in person, but I'm 
         14   not sure of that.
         15       Q.   It was certainly either around or upon your 
         16   arrival.
         17       A.   Either shortly before or shortly after, 
         18   yes.
         19       Q.   And when you learned the case was going to 
         20   be continued, did you converse with Leora Joseph as 
         21   to whether or not she had made an objection to the 
         22   continuance?
         23       A.   I don't recall whether we talked about that 
         24   or not.
 0022
          1       Q.   Did you decide to make an objection to the 
          2   continuance?
          3       A.   We decided together to make an objection.
          4       Q.   And did you do it pursuant to some 
          5   statutory authority?
          6       A.   Yes, we did.
          7       Q.   And do you know what the statute is 
          8   pursuant to which you did it?
          9       A.   It's in the written objection I made.  It's 
         10   270-something.  I want to say 15F.  I'm bad with 
         11   statutory numbers.  I usually have to look them up, 
         12   which I did in this case.  I think it's 15F.  278, 
         13   15F; something like that.
         14            MR. EGBERT:  Could the witness be shown P 
         15   for identification of which judicial notice has been 
         16   taken.
         17            (Document handed to witness.)
         18       Q.   Now, P for identification is Chapter 278, 
         19   Section 16F; is that correct?
         20       A.   Yes.
         21       Q.   Is that the statute you're referring to?
         22       A.   Could I have just a quick moment to look at 
         23   it? 
         24       Q.   Of course. 
 0023
          1       A.   (Witness reviews document)  Yes, this is 
          2   the statute.
          3       Q.   And is that the statute upon which you 
          4   sought to rely in seeking an opposition to the 
          5   continuance?
          6       A.   Yes, in addition to a general opposition.
          7       Q.   Is that the statute by which you asked the 
          8   Court to make findings?
          9       A.   Yes, it is.
         10       Q.   Now, with regard to that statute, that 
         11   requires, does it not, that the prosecutor first 
         12   inform the Court whether or not the child or the 
         13   child's representative agrees to the request?
         14       A.   Actually, the first requirement is whether 
         15   the Commonwealth agrees to the request.  The second 
         16   requirement is whether the child or the child's 
         17   representative agrees to such a request.
         18       Q.   And did your motion or opposition indicate 
         19   to the Judge whether or not the child or the child's 
         20   representative agreed to the request?
         21       A.   I believe that it did.
         22       Q.   It did?
         23       A.   I believe that it did.
         24       Q.   Turn, please, in your book to Exhibit 17. 
 0024
          1       A.   Yes.
          2       Q.   By the way, let me just stop you for one 
          3   moment before we get to that.  And let me first -- 
          4   you just indicated that there is in your opposition 
          5   some statement which would indicate that the victim 
          6   and/or his representative object, correct?
          7       A.   That's correct.
          8       Q.   Now, you testified exactly to the opposite 
          9   of that when you testified on August 23rd of 2002 
         10   while you were under oath; isn't that correct?
         11       A.   I'd have to see my testimony.
         12       Q.   Why don't you turn to Page 116 of R-2, and 
         13   go down to Line 13. 
         14       A.   Yes.
         15       Q.   Do you see it?
         16       A.   Yes.
         17       Q.   And the following question was asked of 
         18   you:  "And there is nothing in this document which 
         19   indicates that the victim and his family objected to 
         20   the continuance, correct?" And you responded:  
         21   "Answer:  There is nothing in the documents that 
         22   indicates that, no."  Isn't that correct?
         23       A.   Yes, it is.
         24       Q.   Now, that's exactly the opposite of what 
 0025
          1   you just testified to, isn't it?
          2       A.   I don't think it's exactly the opposite.
          3       Q.   Well, it either does have something that 
          4   indicates the objection or it doesn't have something 
          5   that indicates the objection.
          6            MR. BRACERAS:  Objection, Your Honor.  The 
          7   motion is not just the document, Exhibit 17.  So 
          8   it's not directly inconsistent.
          9            HEARING OFFICER DAHER:  I'll give him some 
         10   latitude.  Go ahead.
         11       Q.   Mr. Braceras just said the motion is not 
         12   just the document.  Was there some other document 
         13   attached to that motion? 
         14       A.   No.
         15       Q.   Was there any other place that you told the 
         16   Court that there was an objection?
         17       A.   We discussed it -- there was an oral, brief 
         18   oral hearing on this motion.
         19       Q.   And is that satisfactory under the statute?
         20       A.   I don't know the answer.  It appears that 
         21   it is not.
         22       Q.   I mean, you've been a prosecutor for ten 
         23   years?
         24       A.   Yes.
 0026
          1       Q.   You're head of a unit, correct?
          2       A.   Yes.
          3       Q.   You certainly must be familiar with 
          4   statutes relating to sex crimes.
          5       A.   Yes.
          6       Q.   Correct?
          7       A.   Yes.
          8       Q.   And you don't know whether this statute 
          9   requires the Commonwealth to put in writing for the 
         10   Court the matters covered by the statute?
         11       A.   I believe that it does require it to be put 
         12   in writing.  I believe that the writing -- a fair 
         13   reading of the writing indicates the family's 
         14   position on this.
         15       Q.   So you've changed your mind?
         16       A.   I've thought about it a little bit more 
         17   since you asked me the question --
         18       Q.   You thought about it a little bit more 
         19   since you and Mr. Braceras have had a chance to 
         20   talk; isn't that right?
         21       A.   No.
         22       Q.   How many times since you gave this 
         23   testimony under oath have you talked with Mr. 
         24   Braceras?
 0027
          1       A.   I believe four times.
          2       Q.   And did you discuss this subject in 
          3   particular?
          4       A.   No, we did not.
          5       Q.   Not at all?
          6       A.   No.
          7       Q.   You didn't discuss any of this testimony or 
          8   these motions?
          9       A.   No, we did not.
         10       Q.   So this just came to you in some kind of a 
         11   epiphany, is that it?
         12       A.   No.  It came to me when I was rereading my 
         13   deposition that I gave in your office.
         14       Q.   Point, if you would, in the document as to 
         15   where it says the victim objects.
         16       A.   When I said that the child victim in this 
         17   case and his family was made aware that the case 
         18   would be resolved today, a fair inference from that 
         19   is that they would have objected to continuing the 
         20   case.
         21       Q.   A fair inference?
         22       A.   In my view.
         23       Q.   You think from that statement it's fair for 
         24   the Court to draw an inference that the child is 
 0028
          1   issuing an objection?
          2            MR. BRACERAS:  Objection.  He should at 
          3   least be allowed to look at the transcript where he 
          4   made the argument on the record, Exhibit 42.
          5            MR. EGBERT:  If he wants to ask him about 
          6   the hearing -- 
          7            HEARING OFFICER DAHER:  Overruled.
          8       Q.   Is that your statement?
          9       A.   I believe that is a fair reading of that 
         10   statement, yes.  Let me say it this way.  I believe 
         11   a judge would be justified in concluding from my 
         12   statement that the family was objecting.
         13       Q.   Would a judge be equally justified in 
         14   concluding that they had no objection?
         15       A.   I don't believe so, no.
         16       Q.   So you think that satisfies the statutory 
         17   requirement that the Court must be told by the 
         18   prosecutor whether the child or the child's 
         19   representatives agrees to the request?
         20       A.   I believe so.
         21       Q.   And then it also requires that the 
         22   prosecutor lay out for the judge the effect that any 
         23   continuance will have on the child, correct?
         24       A.   That's correct.
 0029
          1       Q.   And where do you put in your motion the 
          2   effect it will have on the child?
          3       A.   I believe it's implicit in the motion that 
          4   the child would be hoping to see the case end on 
          5   that day and would be upset to see it continued 
          6   without a finding.
          7       Q.   Where does it say that?
          8       A.   It doesn't say that expressly in the 
          9   document.
         10       Q.   There's not a word about it, is there?
         11       A.   I think there is a word about it.
         12       Q.   What is it?
         13       A.   It says, "The child victim in this case and 
         14   his family was made aware that the case would be 
         15   resolved today.  The child's guardian, his maternal 
         16   grandmother, has been present in the courtroom since 
         17   early this morning.  She would like to be present 
         18   when her impact statement is read in court."
         19       Q.   She would like to be present when her 
         20   impact statement is read in, correct?
         21       A.   Correct.
         22       Q.   No indication in there that she couldn't 
         23   come back on another day.
         24       A.   That's true.
 0030
          1       Q.   No indication that she couldn't read her 
          2   impact statement on September 6th when the case came 
          3   to fruition, correct?
          4       A.   That's true.
          5       Q.   No indication that there was any 
          6   inconvenience beyond a coming back to court for a 
          7   particular day, correct?
          8       A.   No; I disagree with that.  I think any time 
          9   someone is asked to sit in court for a substantial 
         10   portion of the day and does nothing, that's an 
         11   inconvenience.
         12       Q.   That's the kind of inconvenience that goes 
         13   on in our courthouses every day all over the 
         14   country, correct?
         15       A.   Unfortunately that's true.
         16       Q.   Nothing special about that.
         17       A.   No, I suppose there's nothing special about 
         18   that, unfortunately.
         19       Q.   And there is nothing in the document that 
         20   would indicate that the family would in any way be 
         21   harmed or prejudiced by a continuance, correct?
         22       A.   I disagree with that.
         23       Q.   You disagree with that?
         24       A.   Yes.
 0031
          1       Q.   Let's go back to your testimony again in 
          2   August of 2002 under oath on Page 116, where you 
          3   were asked the following question and gave the 
          4   following answer.  
          5            "Question:  And there is nothing in the 
          6   document by way of the affidavit or affirmation that 
          7   the family would in any way be harmed or prejudiced 
          8   by a continuance, correct?"  
          9            And your answer:  "There is nothing in the 
         10   motion to that effect, no, or by way of affidavit, 
         11   no."  
         12            Now, another epiphany since then? 
         13       A.   Again, counsel, it's not expressed in the 
         14   motion, but a fair reading of the motion indicates 
         15   the likely disappointment and upset --
         16       Q.   Sir, you weren't asked about anything 
         17   expressed in a deposition.  You were asked a simple 
         18   question:  To give your best answer as to whether or 
         19   not there is anything in the document to indicate 
         20   these matters.  And you answered "no" at the time, 
         21   didn't you?
         22       A.   I was --
         23       Q.   You answered "no" at the time, didn't you?
         24       A.   Yes, I did.
 0032
          1            MR. EGBERT:  Again, Your Honor, I would ask 
          2   that the Court take those statements for substantive 
          3   evidence purposes.
          4            MR. BRACERAS:  Objection.  Your Honor, the 
          5   cross examination is evidence in and of itself.  
          6   That's it.  I don't know what Mr. Egbert intends to 
          7   do with the transcripts.  His examination is already 
          8   in evidence.  It's in the record.  The testimony is 
          9   evidence.  That's it.  That's cross examination.
         10            MR. EGBERT:  Judge, there are two different 
         11   uses for impeachment evidence.  One is to impeach 
         12   the credibility of a witness, and it is solely for 
         13   that purpose. 
         14            HEARING OFFICER DAHER:  Right.
         15            MR. EGBERT:  And can be used by the Court 
         16   only for that purpose.  Prior inconsistent 
         17   statements which are made under oath, however, carry 
         18   with it two abilities for the Court to use.  One, to 
         19   affect the credibility of the witness, and, two, as 
         20   substantive evidence of those statements made under 
         21   oath on a prior occasion.  That is Hornbook law and 
         22   prior inconsistent statements when made under oath.
         23            MR. BRACERAS:  Your Honor, again, to the 
         24   extent that Mr. Deakin's testimony that he said 
 0033
          1   these things previously is already part of the 
          2   record, that's the evidence.  To the extent that Mr. 
          3   Egbert is intending to introduce --
          4            HEARING OFFICER DAHER:  He's introducing 
          5   it, his argument is, for the impeachment and then 
          6   for the truthfulness of the statements that were 
          7   made in re the four grounds for impeachment.  He's 
          8   citing two.  Sustained.  I'm going to sustain Mr. 
          9   Braceras's objection.
         10            MR. EGBERT:  At some point when you have 
         11   time, I'd like to be heard on this issue, and I'll 
         12   provide you some case law.
         13            HEARING OFFICER DAHER:  Sure, absolutely.  
         14   We're on Page 115. 
         15       BY MR. EGBERT: 
         16       Q.   Now, with regard to the findings that were 
         17   ultimately received by you by fax, I believe, later 
         18   on that day, which are part of Exhibit 17 -- do you 
         19   recognize those?
         20       A.   Yes.
         21       Q.   With regard to those, I'd like to ask you 
         22   some questions about your personal knowledge of 
         23   certain events.  Okay? 
         24            No. 1, do you know of your own personal 
 0034
          1   knowledge what Ms. Joseph had done with regard to 
          2   the press in the past in Judge Lopez's cases?
          3       A.   Of my own personal knowledge I don't know 
          4   that she did anything with respect to the press.
          5       Q.   Of your own personal knowledge you don't 
          6   know what she did; is that correct?
          7       A.   No, that's not true.
          8       Q.   You want to say she did nothing, right?
          9       A.   What I know of my own personal knowledge is 
         10   that at some point in the past she had been asked by 
         11   the press office to speak to a reporter, a columnist 
         12   who had contacted our office --
         13       Q.   Let's stop there for a moment.  You say you 
         14   know of your own personal knowledge she was asked to 
         15   do something by the press office?
         16       A.   Right.
         17       Q.   Were you present for that conversation?
         18       A.   No.  ADA Joseph told me that.
         19       Q.   That's what she told you?
         20       A.   Correct.
         21       Q.   That's not personal knowledge, right?
         22       A.   I stand corrected.  You're right.  Of my 
         23   own personal knowledge I don't know that she did 
         24   anything.
 0035
          1       Q.   You don't know either way.
          2       A.   That's correct.
          3       Q.   You don't know what she said to reporters 
          4   because you weren't present.
          5       A.   That's certainly correct, yes.
          6       Q.   And you don't know the tone of what she 
          7   said to reporters because you weren't present.
          8       A.   That's correct.
          9       Q.   And you don't know how many reporters she 
         10   spoke to because you weren't present.
         11       A.   Correct.
         12       Q.   The next finding is, "The defendant suffers 
         13   from a sexual identity disorder.  She looks female 
         14   in all respects."  Do you see that?
         15       A.   Yes.
         16       Q.   Do you have personal knowledge in that 
         17   regard?
         18       A.   I have slight personal knowledge that the 
         19   defendant appears female.  I haven't seen the 
         20   defendant very often, but when I saw the defendant, 
         21   he or she appears female.
         22       Q.   And that's the extent of your personal 
         23   knowledge.
         24       A.   My personal knowledge, yes, that's correct.
 0036
          1       Q.   And then, "When the defendant and her 
          2   mother were getting off the elevator on the 15th 
          3   floor, there was a television camera waiting for her 
          4   in the hallway."  You don't know whether that's true 
          5   or not, correct?
          6       A.   I wasn't present if and when that happened, 
          7   no.
          8       Q.   So all you would rely on is your own 
          9   reports from different parties, and you make your 
         10   own assessments based on hearsay information, 
         11   correct?
         12       A.   To the extent I make assessments, that's 
         13   correct, yes.
         14       Q.   On that issue.
         15       A.   Yes.
         16       Q.   And, "The defendant and her mother refused 
         17   to get off the elevator.  There was an interruption 
         18   in the hallway, with the defendant's mother yelling 
         19   at the press."  You don't know whether that's true 
         20   or not, correct?
         21       A.   Not of my own personal knowledge.
         22       Q.   You have no personal knowledge because you 
         23   weren't there.
         24       A.   Correct.
 0037
          1       Q.   "The Court finds that ADA Joseph attempted 
          2   to embarrass and ridicule the defendant suffering 
          3   from a psychological disorder."  Do you see that 
          4   finding?
          5       A.   I do.
          6       Q.   Again, you have no personal knowledge of 
          7   that either way, do you?
          8       A.   I believe I do have personal knowledge.
          9       Q.   And your personal knowledge would come from 
         10   what source?
         11       A.   Working with Ms. Joseph on the case through 
         12   the 10 or so months that it was in the court.
         13       Q.   So you had formed an opinion.
         14       A.   Yes.
         15       Q.   But you don't know of your own knowledge 
         16   other than you forming an opinion based on past 
         17   behavior, correct?
         18       A.   The classic dilemma in the law:  No one can 
         19   have personal knowledge of another person's 
         20   thoughts.
         21       Q.   And that was my question to you.
         22       A.   If that's your question, then no, of course 
         23   I can't know what was in her heart.
         24       Q.   And, "The Court finds that the Commonwealth 
 0038
          1   caused this continuance because it sought to turn 
          2   the court proceedings into a circus."  Now, again, 
          3   you don't know what was in the mind of Ms. Joseph, 
          4   correct?
          5       A.   Not directly, no.
          6       Q.   And you don't know what was in the mind of 
          7   Mr. Borghesani, correct?
          8       A.   Not directly, no.
          9       Q.   And in fact, Mr. Borghesani never even told 
         10   you what he was putting in this press release, 
         11   correct?
         12       A.   That's correct.
         13       Q.   And you regretted what he put in it.
         14       A.   I regretted one phrase --
         15       Q.   "Transgendered, dresses like a woman."
         16       A.   That phrase I regretted.  The rest of it I 
         17   thought was --
         18       Q.   Well --
         19            MR. BRACERAS:  Your Honor, may the witness 
         20   finish his answer?
         21       A.   I regretted that phrase for personal 
         22   reasons.  I thought the press release was an 
         23   appropriate action to take.
         24       Q.   The comment we're talking about, 
 0039
          1   "Transgendered, dressed like a woman."  You've said 
          2   repeatedly you regretted that comment, correct?
          3       A.   Yes, I did.  I still do. 
          4       Q.   "There is little, if no, impact on the 
          5   alleged victim, as this is a plea." 
          6            Based upon what you provided the Judge in 
          7   the motion or the opposition, let's call it, that's 
          8   a fair statement, isn't it?
          9       A.   No, I don't believe so.
         10       Q.   Well, the victim wasn't there that day on 
         11   August 4th, correct?
         12       A.   That is correct.
         13       Q.   The victim didn't intend to be there on 
         14   September 6th, correct?
         15       A.   As of August 4th I didn't have any 
         16   information of that one way or the other.
         17       Q.   Wasn't the information you had gotten that 
         18   the victim didn't intend to be at the plea 
         19   proceedings?
         20       A.   I'm not sure -- honestly, I'm not sure 
         21   whether I heard that the victim didn't intend to be 
         22   there ever or the victim didn't intend to be there 
         23   on August 4th.  I didn't know that.
         24       Q.   You don't know one way or the other.
 0040
          1       A.   I did not.
          2       Q.   And did you understand that come September 
          3   6th, the victim would be in school.
          4       A.   I didn't have an understanding about that 
          5   one way or the other, other than the sort of 
          6   assumption that one makes that the kid would be in 
          7   school after Labor Day, but...
          8       Q.   And is there anything that you told Judge 
          9   Lopez about the impact on the alleged victim of a 
         10   continuance that we don't know about today?
         11       A.   I'd have to look at the transcript of the 
         12   hearing that we had.  I'm not sure.
         13       Q.   Go to Page -- strike that.  Exhibit 42?
         14       A.   Yes.
         15       Q.   And let's go to where you start talking on 
         16   Page 2.  Do you see that?
         17       A.   Yes.
         18       Q.   Now, that, in fact, is the hearing on the 
         19   continuance, correct?
         20       A.   Yes.
         21       Q.   Now, before that, by the way, the Judge 
         22   came out and said, "This case is going to be 
         23   continued until the week of August 21st.  You can 
         24   come and see me in Middlesex.  I have 16 bails and a 
 0041
          1   lot of other things to take care of," correct?
          2       A.   That's correct.
          3       Q.   Were you aware of the amount of bails that 
          4   the Judge had at that time?
          5       A.   I don't -- I don't think I was.
          6            MR. EGBERT:  May I approach? 
          7            HEARING OFFICER DAHER:  Please. 
          8       Q.   Would you look at that, Mr. Deakin. 
          9       A.   Yes.
         10       Q.   Does that appear to you to be a fair list 
         11   from Friday, August 4th of 2000?
         12       A.   That's what it appears to be, yes.
         13       Q.   And you've seen lists like this before.
         14       A.   Yes.
         15            MR. EGBERT:  I would offer this, Your 
         16   Honor, as Defendant's Exhibit --
         17            MR. BRACERAS:  No objection.
         18            HEARING OFFICER DAHER:  No objections.  
         19   That will be S.
         20                 (Document marked as Hearing
         21                 Exhibit S moved into evidence)
         22       Q.   Now, after the Judge made those remarks, 
         23   you said, "Your Honor, the Commonwealth objects," 
         24   correct?
 0042
          1       A.   Yes.
          2       Q.   And had you previously handed up to her 
          3   your objection?
          4       A.   I don't recall if I had handed it to her or 
          5   to the clerk before the Judge took the bench.  It 
          6   had been filed.  I don't know exactly...
          7       Q.   And then you informed the Judge that you 
          8   had filed the objection on 278, 16F, correct?
          9       A.   Yes.
         10       Q.   And you said that it requires her to make a 
         11   decision regarding a continuance in the best 
         12   interests of the child victim, who at the time of 
         13   the assault was 12 years old, correct?
         14       A.   Yes.
         15       Q.   By the way, that statement you made was 
         16   erroneous, correct?
         17       A.   In what way? 
         18       Q.   The age of the child.
         19       A.   That's correct.
         20       Q.   You had been working under an assumption 
         21   that was wrong concerning the child's age from the 
         22   beginning of the case to the end; isn't that right?
         23       A.   That's correct.
         24       Q.   And the child was actually 11.
 0043
          1       A.   That's correct.
          2       Q.   But in every proceeding before the Court, 
          3   you or your associates informed the Court that he 
          4   was 12; is that correct?
          5       A.   As you pointed out, I can't be sure, not 
          6   having been there when my associates did it, but 
          7   that's my understanding, yes.
          8       Q.   And on the next page you said, "The child's 
          9   guardian, his grandmother, who's been present here 
         10   since the Court convened this morning, has expected 
         11   to be able to see the plea happen today and present 
         12   an impact statement in court"; is that right?
         13       A.   Yes.
         14       Q.   Now, is the child's guardian the victim 
         15   under 278, 16F?
         16       A.   He was the -- she was the child's 
         17   representative.
         18       Q.   Was she the victim?
         19       A.   No.
         20       Q.   And in fact, when we talk about impact 
         21   under this statute, who is the person who's impact 
         22   the statute is directed to?
         23       A.   The victim's.
         24       Q.   The child, right?
 0044
          1       A.   Correct.
          2       Q.   Not the grandmother.
          3       A.   No, although the grandmother's input is 
          4   solicited -- the representative's input is 
          5   solicited.
          6       Q.   But the Judge's concern is the child under 
          7   the statute.
          8       A.   That's correct.
          9       Q.   Correct?
         10       A.   That's correct.
         11       Q.   So then you go on, "That's because the 
         12   child victim and his family were notified after the 
         13   lobby conference two days ago that this matter would 
         14   be marked for a plea today; and that if, in fact, it 
         15   would go forward as a plea, that would happen 
         16   today," right?
         17       A.   That's correct.
         18       Q.   Now, who told the child and the child's 
         19   family that there was going to be a plea that day?
         20       A.   I'm not certain who told.  Someone from our 
         21   office did.  I would assume --
         22       Q.   Well, are you assuming or do you know?
         23       A.   If I knew it -- I may have known it at the 
         24   time.  I don't recall now who did that.
 0045
          1       Q.   And you indicated, I think, that -- strike 
          2   that.  When were they notified of that fact?
          3       A.   It was sometime after the August 1st lobby 
          4   conference.
          5       Q.   And before the press release?
          6       A.   I'm not certain of that.  I don't have a 
          7   recollection of who did it.
          8       Q.   Would it surprise you to know that defense 
          9   counsel and the defendant had not communicated the 
         10   fact that there would definitely be a plea until the 
         11   morning of August 4th?
         12       A.   It would surprise me tremendously, as it 
         13   was marked for a plea on August 1st.
         14       Q.   It was marked for a possible plea, wasn't 
         15   it?
         16       A.   It was marked for a change of plea, is my 
         17   understanding.
         18       Q.   And that's done all the time, isn't it, to 
         19   set up a date for when the defendant may or may not 
         20   enter a plea?
         21       A.   It's done frequently.  Most commonly it's 
         22   when the defendant has decided to enter a plea.
         23       Q.   So it would not surprise you to learn -- 
         24   strike that.  Would it surprise you to learn that 
 0046
          1   the defendant and his counsel, as late as August 3rd 
          2   in the afternoon, were discussing whether or not to 
          3   enter a plea when your representative, Ms. Joseph, 
          4   called that office?  Would that surprise you?
          5       A.   It would surprise me in that Ms. Joseph 
          6   indicated to me that the case was going to proceed 
          7   by way of a plea.
          8       Q.   So you had no idea then that that was a 
          9   matter up in the air right up until the morning of 
         10   the 4th?
         11       A.   I did not have any idea of that.
         12       Q.   Now, is there anything else you said that 
         13   would have been of interest in that regard with 
         14   regard to these proceedings that you want to point 
         15   out?
         16       A.   What I've pointed out is that the family 
         17   had been notified --
         18            MR. BRACERAS:  At what time?  I lost you.
         19            MR. EGBERT:  I wanted to know if there's 
         20   anything he'd like to point out in that transcript 
         21   which would have been of interest to these 
         22   proceedings. 
         23       A.   Yes.  It was that the child and his family 
         24   had been notified that the case would be marked for 
 0047
          1   a plea today and that if in fact the case was going 
          2   forward as a plea, it would happen on that day.
          3       Q.   And was the child and his family not told, 
          4   you know, in this business anything can happen?  It 
          5   might not go that day?
          6       A.   I don't know what the child and his family 
          7   were told.
          8       Q.   Well, in this business, the business of the 
          9   practice of criminal law, will you agree with me 
         10   that it's at least a fair statement that anything 
         11   can happen?
         12       A.   Yes, I would.
         13       Q.   And that if the victim and his family were 
         14   told, "There is definitely going to be a plea 
         15   today," that the people who built the expectations 
         16   that there would be a plea that day was the DA's 
         17   office?
         18       A.   I'm not sure that I would agree with who 
         19   built the expectations.  They were told what the 
         20   case was scheduled for.
         21       Q.   Were they told as a general matter, look, 
         22   things can happen in this business that change 
         23   things?
         24       A.   They were never prepared for the 
 0048
          1   possibility that a case would be continued for what 
          2   we would view as inappropriate reasons.
          3       Q.   What you would view as inappropriate 
          4   reasons?
          5       A.   Correct.
          6       Q.   What the defendant viewed as appropriate 
          7   reasons, right?
          8       A.   As I understand it, what the Judge viewed 
          9   as appropriate reasons.
         10       Q.   Again, so you don't know as you sit here 
         11   today that it was the defendant seeking a 
         12   continuance?
         13       A.   I have never had any indication it was the 
         14   defendant seeking a continuance.
         15       Q.   Not by Ms. Joseph or Ms. Goldbach?
         16       A.   Neither one.
         17       Q.   So that would all be news to you?
         18       A.   That would be news to me.
         19       Q.   And would that be an important fact to 
         20   know?
         21       A.   Not in light of what Ms. Joseph told me the 
         22   Judge said about a continuance, no.
         23       Q.   So -- but you will agree with me -- by the 
         24   way, even though you don't know what was said to the 
 0049
          1   victim and its family, you'll agree with me that if 
          2   there was anyone who built an expectation that the 
          3   case would come and go on the 4th and be
          4   completed, it was the DA's office.
          5       A.   No.  I disagree.  I think the system made 
          6   that expectation.
          7       Q.   The system talked to the victim?
          8       A.   The system scheduled a matter for a plea on 
          9   August 4th and the representative of the 
         10   Commonwealth, who has contact with the victim, 
         11   explained that to them.
         12       Q.   In the criminal justice system in the First 
         13   Session or in any other session, isn't it true that 
         14   cases come and go and get continued and things 
         15   happen and get put off for a few days or a month 
         16   often?
         17       A.   Yes.
         18       Q.   And so to build the expectation of these 
         19   people that it was going to happen on August 4th 
         20   without giving them an understanding of the vague 
         21   reasons of the criminal justice system, that came 
         22   from the DA's office, didn't it?
         23       A.   I don't know whether they were prepared for 
         24   the possibility of a continuance or not, so I can't 
 0050
          1   answer --
          2       Q.   If they were prepared for the possibility 
          3   of a continuance, then all of your motion is a lie.
          4       A.   No, sir.
          5       Q.   If they were told that, look, this might 
          6   not happen today and prepared for that, then all of 
          7   this business about how they expected it to go today 
          8   would not be accurate; isn't that correct?
          9       A.   No, it's not correct.
         10       Q.   Well, you can't have it both ways, can you?  
         11   Either they were prepared for how this system works 
         12   sometimes or they weren't.
         13       A.   Counselor, someone can be prepared for a 
         14   disappointment and still experience that 
         15   disappointment when it eventuates.  So the fact that 
         16   they may have been prepared for the continuance 
         17   doesn't mean that it wasn't hard on them.
         18       Q.   Do you know if the victim was disappointed?  
         19   Did he express that to you?
         20       A.   No, he did not.
         21       Q.   At any time did you talk to the victim 
         22   about whether the victim could care less about 
         23   whether or not this case went on August 4th or 
         24   September 6th?
 0051
          1       A.   No, I did not. 
          2       Q.   Did you receive any victim impact 
          3   statements from the victim which indicated that he 
          4   wanted it to go on August 4th and couldn't wait 
          5   until September 6th?
          6       A.   Not on August 4th.
          7       Q.   At any time. 
          8       A.   We had throughout the case heard from -- 
          9   when I say "we," I had not, but --
         10       Q.   Well, if you did not --
         11            HEARING OFFICER DAHER:  Let him finish.
         12            MR. EGBERT:  If he did not, he's just going 
         13   to give us some hearsay.
         14            HEARING OFFICER DAHER:  Go ahead.  Finish. 
         15       A.   There had been reports throughout the case 
         16   that the pendency of the case was difficult for the 
         17   child, as it is in virtually every child abuse case 
         18   that's prosecuted.  I would think it was a fair 
         19   inference from that, and my general experience 
         20   prosecuting cases is that waiting another 30 days to 
         21   resolve the case would be hard on the child.
         22       Q.   Did you tell the Judge that you had had 
         23   reports during the course of this proceeding that 
         24   the victim was having a difficult time?
 0052
          1       A.   No, I did not.  I'm not saying he was 
          2   having a difficult time.  I'm saying it was 
          3   troubling to him.
          4       Q.   Did you tell the Judge that?
          5       A.   No, I did not.
          6       Q.   In your motion or in your oral statement?
          7       A.   No, I did not.
          8       Q.   Now, after you had the hearing before Judge 
          9   Lopez and received back the findings of fact -- 
         10   strike that. 
         11            After you received the findings of fact, 
         12   you disagreed with those findings, correct?
         13       A.   Yes, I did.
         14       Q.   You testified to that on direct, correct?
         15       A.   Strongly.
         16       Q.   Pardon me?
         17       A.   Strongly.
         18       Q.   Strongly.  So you used the prerogative of 
         19   your strong disagreement to appeal the case, 
         20   correct?
         21       A.   No, I did not.
         22       Q.   Did you seek a motion for reconsideration?
         23       A.   No, we did not.
         24       Q.   Did you seek a rehearing?
 0053
          1       A.   No, we did not.
          2       Q.   Did you seek to have an evidentiary 
          3   hearing?
          4       A.   No, we did not.
          5       Q.   Did you file a written objection in any 
          6   way?
          7       A.   No, we did not.
          8       Q.   Did you appeal under Chapter 211, Section 
          9   3?
         10       A.   No, we did not.
         11       Q.   That was available to you, was it not?
         12       A.   I believe it was, yes.
         13       Q.   So the DA's office, in disagreeing with 
         14   these findings and your strong disagreement, as you 
         15   have indicated, did nothing whatsoever to overturn 
         16   them, have them reheard or have them reviewed by a 
         17   court, correct?
         18       A.   That's correct.
         19       Q.   But instead -- 
         20            MR. EGBERT:  May I have a minute?  
         21            (Discussion off the record)
         22            MR. EGBERT:  May I approach the witness? 
         23            HEARING OFFICER DAHER:  Please. 
         24       Q.   Take a look at Exhibit 15, if you would.  
 0054
          1   And that's a two-page newspaper article -- printout 
          2   of a newspaper article; is that correct?
          3       A.   That's what it appears to be, yes.
          4       Q.   And that newspaper article ran the day 
          5   after these findings were made, correct?
          6       A.   That's what the printout indicates.
          7       Q.   Do you have any reason to doubt that?
          8       A.   No.  I'd have to read it to see whether I 
          9   read it or not.  I have no reason to doubt it.
         10       Q.   Will you accept it for now?
         11       A.   If it seems -- if it will speed things 
         12   along, sure. 
         13       Q.   After not having appealed, asked for 
         14   reconsideration, asked for rehearing, sought an 
         15   evidentiary hearing, the DA's office did, however, 
         16   make public statements concerning Judge Lopez's 
         17   findings, correct?
         18       A.   I don't know of my personal knowledge, as 
         19   you've pointed out, but there does appear to be a 
         20   comment in the article from the press office of the 
         21   district attorney's office.
         22       Q.   When the DA disagrees with findings of a 
         23   court and has appellate rights, do you think it 
         24   appropriate to be commenting on those findings 
 0055
          1   without exercising your rights of appeal?
          2       A.   I'm sorry.  Could you repeat the question?
          3       Q.   Yes.  You are aware of the way or manner in 
          4   which cases are proceeding in the criminal courts, 
          5   correct?
          6       A.   Yes.
          7       Q.   And you're aware of ethical obligations of 
          8   lawyers, correct, with regard to releasing 
          9   information to the public?
         10       A.   Yes.
         11       Q.   And at the time that this was being done, 
         12   this press statement was being made, it was while 
         13   the Horton case was pending and had yet to be 
         14   disposed of; isn't that correct?
         15       A.   That's correct.
         16       Q.   There had been no plea, there had been no 
         17   sentence, correct?
         18       A.   That's correct.
         19       Q.   And so it was just within its proceedings 
         20   in a criminal case.
         21       A.   That's correct.
         22       Q.   And the DA's office, in dissatisfaction 
         23   with the Judge's rulings, said what?  Can you read 
         24   that to us?
 0056
          1       A.   Which portion are you asking me to read? 
          2       Q.   Read, if you would, the first lines 
          3   attributed to Ralph Martin, the district attorney.  
          4       A.   Which page am I looking at? 
          5       Q.   Page 2.  Do you want me to read them? 
          6       A.   It's up to you, obviously, but I just want 
          7   to make sure I'm reading the part you're asking me 
          8   to read.
          9       Q.   Why don't I mark it for you. 
         10       A.   It appears to me to start at Page 1.
         11       Q.   It does start at Page 1, but I'm going to 
         12   go to Page 2. 
         13       A.   Okay.
         14       Q.   If you would, read for me what Ralph 
         15   Martin, the district attorney, said during the time 
         16   that this case was pending. 
         17       A.   It appears that, according to this, he 
         18   said, "The unfounded accusations contained in Judge 
         19   Lopez's decision speak more to the Judge's state of 
         20   mind than they do about the merits of the case.  
         21   This case was handled no different than others." 
         22       Q.   And that's clearly talking about Judge 
         23   Lopez's findings, correct?
         24       A.   I think you'd have to ask the district 
 0057
          1   attorney what he's talking about.
          2            MR. BRACERAS:  Your Honor, objection.  This 
          3   witness has no basis whether Martin is talking about 
          4   the findings or what Judge Lopez issued as a press 
          5   release earlier --
          6            MR. EGBERT:  Just so it's crystal clear, 
          7   you have no evidence that there was a press release.  
          8   All the evidence is that the findings were given to 
          9   the press.  So let's not confuse the issues, Mr. 
         10   Braceras.
         11            MR. BRACERAS:  With a cover letter that 
         12   said "Press Release" to various Boston television 
         13   stations. 
         14            HEARING OFFICER DAHER:  Well, again, if 
         15   we're dealing with the state of mind of the Judge, 
         16   the findings -- how would he know what Ralph Martin 
         17   was making reference to?  Because right here we're 
         18   not talking about Mr. Borghesani.  We're talking 
         19   about Ralph Martin.
         20            MR. EGBERT:  Right, the district attorney.
         21            HEARING OFFICER DAHER:  Sustained
         22   BY MR. EGBERT: 
         23       Q.   And Mr. Martin's responses, were they not, 
         24   were to what was contained in Judge Lopez's 
 0058
          1   findings?
          2       A.   You would have to ask the district 
          3   attorney.  I didn't discuss it with him.
          4       Q.   Do you know from the context of this 
          5   article?
          6            MR. BRACERAS:  Objection.
          7       A.   I could make assumptions from the context 
          8   of this article.
          9            HEARING OFFICER DAHER:  Sustained. 
         10            MR. EGBERT:  Judge, respectfully, we've 
         11   had, pursuant to the Commission's request to the 
         12   Court, newspaper article upon newspaper article upon 
         13   newspaper article introduced --
         14            HEARING OFFICER DAHER:  But you're asking 
         15   for Mr. Deakin to delve into the mind of Judge 
         16   Lopez --
         17            MR. EGBERT:  As Judge Lopez was asked to do 
         18   with regard to every one of these articles.
         19            HEARING OFFICER DAHER:  Sustained. 
         20       Q.   Mr. Borghesani went on to say, "No one 
         21   should be deceived by this smoke screen.  Judge 
         22   Lopez was prepared to hand down an extremely lenient 
         23   sentence and she balked when the media was present 
         24   to witness it."  Do you see that?
 0059
          1       A.   I do.
          2       Q.   Is that an appropriate response by a 
          3   district attorney's office, in your opinion, when 
          4   you did not exercise your rights of appeal, 
          5   rehearing or reconsideration?
          6            MR. BRACERAS:  Objection, Your Honor.
          7            HEARING OFFICER DAHER:  What's the 
          8   objection? 
          9            MR. BRACERAS:  Your Honor, he is not an 
         10   expert as to press issues.  It's Martin's statement; 
         11   it's Mr. Borghesani's statement.  Mr. Egbert can ask 
         12   Mr. Borghesani and mr. Martin about their 
         13   statements.
         14            HEARING OFFICER DAHER:  The testimony that 
         15   we have is that he's a supervisor.  What happens is 
         16   Ms. Joseph contacted him then they contacted a press 
         17   office. 
         18            MR. EGBERT:  Judge, these DAs cannot 
         19   ethically hide behind the press office.  Their 
         20   ethical responsibilities require them to in fact 
         21   take reasonable and appropriate steps to control the 
         22   press in a pending criminal prosecution.  You've 
         23   taken judicial notice of Rule 3.6 and 3.8.
         24            HEARING OFFICER DAHER:  Again, we've 
 0060
          1   already heard Mr. Deakin state that the question of 
          2   transgender was something that he probably would not 
          3   have used, but to ask him now the question you put 
          4   before him, I think I'm going to sustain the 
          5   objection.  You're going to have Mr. Borghesani, I 
          6   think -- someone's going to call him.  You'll 
          7   certainly be able to ask him.
          8            MR. EGBERT:  I think it goes to this 
          9   particular witness' bias, Your Honor, and I'll leave 
         10   it at that.
         11            MR. BRACERAS:  Well --
         12            HEARING OFFICER DAHER:  What's your 
         13   position?  I've sustained your objection.  Let's go.  
         14       BY MR. EGBERT:
         15       Q.   Did you see this newspaper article on or 
         16   about the time it was printed?
         17       A.   I don't specifically remember.  I would 
         18   guess that I did --
         19       Q.   Were you paying attention to the case in 
         20   the press at the time?
         21       A.   Yes.
         22       Q.   And so it would be fair to say that you 
         23   probably saw it?
         24       A.   I would guess that I probably did, but that 
 0061
          1   would be, as best I can say, a guess.  I don't 
          2   specifically remember.
          3       Q.   And would you agree with me that the 
          4   following statement, "No one should be deceived by 
          5   this smoke screen," talking about the Judge's 
          6   findings, was likely to raise the ire of the Court?
          7            MR. BRACERAS:  Objection.  This objection 
          8   has been sustained twice, and this is completely 
          9   irrelevant to the pending charges.
         10            MR. EGBERT:  It's not irrelevant, Your 
         11   Honor.
         12            HEARING OFFICER DAHER:  Show me the 
         13   relevancy.
         14            MR. EGBERT:  The relevance is, Your Honor, 
         15   that part of what led us here -- and, for example, 
         16   the taped September 6th hearing, one cannot simply 
         17   exclude everything that happened before that to make 
         18   a determination both as to mitigation and as to fact 
         19   as to what the Judge's state of mind was at the time 
         20   she came to court on September 6th.  And I suggest 
         21   to the Court that although it may not make it 
         22   appropriate -- nor have I ever argued it was 
         23   appropriate for her to raise her voice and yell, it 
         24   may make it a little more understandable as to what 
 0062
          1   her state of mind was and mitigate in those records 
          2   that when you find out that from one hearing to the 
          3   next in a consistent pattern the DA's office, rather 
          4   than taking the legal steps appropriate for appeals 
          5   or reconsiderations, simply blast her in the press 
          6   with this kind of language.
          7            HEARING OFFICER DAHER:  Mr. Braceras? 
          8            MR. BRACERAS:  Your Honor, a couple of 
          9   things.  First, we had Judge Lopez on the stand 
         10   nearly for a week.  I mean, there's no evidence that 
         11   she ever saw this.  It's completely irrelevant.  The 
         12   Judge herself could have testified to this.  
         13            Second, the Judge made the findings public.  
         14   She's the one who circulated them to the media on 
         15   the 4th.
         16            MR. EGBERT:  Findings of the court are 
         17   public.  You don't make them public.  Findings of 
         18   the court are public.  These were a public record.  
         19   Whether or not they were sent to people that they 
         20   request is another thing.  They were a public 
         21   record.  And the fact of the matter is that the 
         22   things that the DA's office did to try to get her  
         23   -- or to try to jack her up --
         24            HEARING OFFICER DAHER:  Help me out for a 
 0063
          1   moment.  If I allow it, it's going to be relevant 
          2   against Judge Lopez.  It's going to be relevant 
          3   against her.  You want it?  Overruled.  Go ahead.  
          4   You have it.  Go ahead. 
          5            MR. EGBERT:  May I have the question 
          6   repeated?
          7            HEARING OFFICER DAHER:  The question, would 
          8   it increase the ire, sure.  You can have it. 
          9      *Q.   Would you think that that would be likely 
         10   to increase the ire of the Judge, reading that in 
         11   the paper?
         12       A.   Much in the same way that Judge Lopez's 
         13   findings raised the ire --
         14       Q.   Answer my question. 
         15            HEARING OFFICER DAHER:  Just answer the 
         16   question.
         17            MR. EGBERT:  Judge, he's not.  He wants to 
         18   play some game.  The question was very simple.  He 
         19   can on redirect be asked anything he wants. 
         20            MR. EGBERT:  What was the last question? 
         21            *(Question read)
         22            MR. BRACERAS:  Objection. 
         23            HEARING OFFICER DAHER:  You're objecting to 
         24   that?  Overruled.  You want it?  Go ahead. 
 0064
          1       A.   I obviously can't -- as you pointed out 
          2   earlier, I can't get inside the Judge's head.  It 
          3   certainly might. 
          4       Q.   And do you know whether or not Mr. 
          5   Borghesani designed it for that fashion?
          6       A.   I have no idea.
          7       Q.   Mr. Borghesani, to your understanding, was 
          8   a pretty adept press person?
          9       A.   I'm not sure how to evaluate adeptness.  He 
         10   had done his job for a period of time.  He was 
         11   experienced.
         12       Q.   Now, the next event -- by the way, do you 
         13   know whether or not -- did you ever talk to the 
         14   victim or his family concerning the notification to 
         15   the press on August 3rd?
         16       A.   No, I did not.
         17       Q.   So you don't know, as a matter of your own 
         18   personal knowledge, whether or not the victim or his 
         19   family ever wanted to have the press attention that 
         20   this case got.
         21       A.   No, I do not.
         22       Q.   Prior to September 6th you had decided to 
         23   be the spokesperson for the district attorney's 
         24   office in the case of Commonwealth versus Horton for 
 0065
          1   the hearing on September 6th; is that correct?
          2       A.   That's correct.
          3       Q.   And had you made that known to any court 
          4   personnel?
          5       A.   Other than appearing on August 4th at the 
          6   hearing on the opposition of the motion to continue, 
          7   no.
          8       Q.   So at any time between August 4th and 
          9   September 6th did you make known to Judge Lopez or 
         10   any court personnel that you would now be lead 
         11   counsel basically in the Horton case?
         12       A.   No; I didn't see that as necessary.
         13       Q.   Necessary or not, did you do it?
         14       A.   I did not, no.
         15       Q.   And in fact, you were now lead counsel in 
         16   the Horton case, correct?
         17       A.   That's correct.
         18       Q.   And you were going to be the spokesperson 
         19   in the Horton case.
         20       A.   That's correct.
         21       Q.   Would you agree with me that there are many 
         22   times in the Superior Court system where issues of 
         23   the press and its interrelation or interaction with 
         24   parties comes to be an issue in our courts?
 0066
          1       A.   Yes.
          2       Q.   And that during those -- strike that.  That 
          3   it is in the interest of justice not to have 
          4   eruptions between participants and the press in the 
          5   hallways outside of proceedings?
          6       A.   Yes.
          7       Q.   That's a good thing, isn't it?
          8       A.   I think indisputably, sure.
          9       Q.   And one of the ways to prepare for 
         10   incidents of eruptions between participants and the 
         11   press is to look at the history of the case and see 
         12   if there have been prior problems, correct?
         13       A.   Yes.
         14       Q.   And you will agree with me that with regard 
         15   to the Horton case, there had been a prior problem, 
         16   at least as reported to the Court.
         17       A.   Yes.
         18       Q.   And that there was then a matter of concern 
         19   for -- rightfully a matter of concern between the 
         20   interaction of the participants and the press.
         21       A.   Yes.
         22       Q.   And that it is the duty of the Court and 
         23   the court system that if rational steps can be taken 
         24   to avoid such eruptions, they should be taken.
 0067
          1       A.   Yes.
          2       Q.   And that one of the ways to keep two 
          3   parties apart in those circumstances is to have the 
          4   defendant come in a separate door.
          5       A.   Yes.
          6       Q.   And that you accept, do you not, that it is 
          7   a rational security concern in a courthouse under 
          8   the circumstances I have just described?
          9       A.   Yes.
         10       Q.   You have in the DA's office victim witness 
         11   advocates, correct?
         12       A.   Yes.
         13       Q.   Victim witness people, correct?
         14       A.   Victim witness advocates, that's what we 
         15   have.
         16       Q.   And they're there to help victims and 
         17   witnesses get from courthouse to courtroom and DA's 
         18   office to courtroom and the like, correct?
         19       A.   That's part of their function, yes.
         20       Q.   And part of their function also is to find 
         21   rooms for them to be in to avoid interaction if they 
         22   so desire, correct?
         23       A.   When we can, yes.
         24       Q.   And there are occasions where you have made 
 0068
          1   arrangements like that in the past, correct?
          2       A.   Yes.
          3       Q.   And those arrangements that you have made, 
          4   you have made with the court officers and the 
          5   clerks, correct?
          6       A.   No.  We usually make them on our own.
          7       Q.   On your own?
          8       A.   On our own.
          9       Q.   And how do you do that on your own?
         10       A.   We usually, when we have rooms available -- 
         11   which we sometimes do, sometimes don't -- we simply 
         12   make use of those rooms and we ask the victim 
         13   advocates to communicate between the assistant 
         14   district attorney who's in court and understands 
         15   what the schedule requires and has them come when 
         16   it's time for them to come.
         17       Q.   And other than the Horton case, have you 
         18   ever had any proceeding in the Middlesex County 
         19   Superior Court?
         20       A.   Are you asking as of the time of the Horton 
         21   case? 
         22       Q.   Correct. 
         23       A.   Only -- I'm sorry.  Middlesex Superior 
         24   Court? 
 0069
          1       Q.   That's correct. 
          2       A.   I think I may have had a routine hearing or 
          3   two, but I'm not positive of that.  I think so.
          4       Q.   Is it fair to say that you were not 
          5   intimately familiar with the workings of the 
          6   Middlesex Superior Courthouse?
          7       A.   Yes.
          8       Q.   And it's court officers, personnel and the 
          9   like?
         10       A.   Yes.
         11       Q.   And you were not familiar with any prior 
         12   problems that had been had at the Middlesex Superior 
         13   Court with regard to high-profile cases and the 
         14   press?
         15       A.   Only maybe occasionally what I've read in 
         16   the paper.  But other than --
         17       Q.   No personal involvement.
         18       A.   No.
         19       Q.   So you weren't aware of the custom and 
         20   practice, let's say, of the Superior Court court 
         21   officers in Middlesex County as it related to 
         22   controlling the press vis-a-vis the participants in 
         23   criminal cases.
         24       A.   No, I was not.
 0070
          1       Q.   Now, the press in the Lopez case, I've 
          2   shown you some of it; is that correct?
          3       A.   Yes.
          4       Q.   Now, you, Mr. Deakin, have also in the past 
          5   tried to use the press as a muscle against judges, 
          6   have you not?
          7       A.   No, I have not.
          8            MR. BRACERAS:  Relevance.  No relevance to 
          9   this.  No relevance that Judge Lopez --
         10            HEARING OFFICER DAHER:  He's already 
         11   answered.  The answer is no.  Overruled.  Go ahead.
         12       Q.   Sir, you were before Judge Dominic Russo on 
         13   a case approximately two years ago, were you not, in 
         14   East Boston Court? 
         15            MR. BRACERAS:  I object, Your Honor.
         16            HEARING OFFICER DAHER:  What's the 
         17   objection? 
         18            MR. BRACERAS:  The same basis.  I don't 
         19   know what character assassination Mr. Egbert is 
         20   trying here, but this is completely irrelevant to 
         21   this case.  Mr. Deakin is not on trial here.  
         22   There's no testimony that Judge Lopez is aware of 
         23   any other prior conduct on the part of Mr. Deakin.
         24            HEARING OFFICER DAHER:  What does this have 
 0071
          1   to do with Judge Russo? 
          2            MR. EGBERT:  I'll give you an offer of 
          3   proof at the side bar.
          4            HEARING OFFICER DAHER:  I think he's on the 
          5   witness list.
          6            MR. EGBERT:  Yes, he is.
          7            HEARING OFFICER DAHER:   Is that your 
          8   objection?  Relevancy? 
          9            MR. BRACERAS:  Yes.  This type of character 
         10   testimony --
         11            MR. EGBERT:  Judge, this isn't character 
         12   testimony.  This goes to whether or not this DA and 
         13   this office were consistently attempting to jack up 
         14   judges --
         15            MR. BRACERAS:  Can we have a side bar? 
         16            HEARING OFFICER DAHER:  Yes.  Let him 
         17   finish. 
         18            MR. EGBERT:  -- to use the press to push 
         19   judges around, to use the press to try to embarrass 
         20   judges or get judges to do things they didn't want.  
         21   And this witness has, as Ms. Joseph has, have tried 
         22   to run from the fact that what this press release 
         23   was on August 3rd and the statements thereafter were 
         24   geared to do nothing more than to try to jack up 
 0072
          1   this case and jack up this Judge. 
          2            Now, this witness has done it before.  And 
          3   this witness was involved in a proceeding where he 
          4   told a judge, when the judge said that he was going 
          5   to issue a particular ruling --
          6            MR. WARE:  Your Honor --
          7            HEARING OFFICER DAHER:  Again, I'm going to 
          8   sustain the objection.
          9            MR. EGBERT:  And I want to be heard at side 
         10   bar.  
         11            (At side bar.)
         12            MR. EGBERT:  In Commonwealth versus Kelly 
         13   Angell, which was tried in the trial court of the 
         14   East Boston District, in a plea conference before 
         15   Judge Russo, asked for by both the parties, which 
         16   Mr. Deakin was the prosecutor, Judge Russo indicated 
         17   that under certain circumstances, he would consider 
         18   continuing that particular case without a finding.  
         19   Mr. Deakin turned to Judge Russo and told him and 
         20   said, "If you do that, I'll go public with it," 
         21   clearly meaning to Judge Russo to the press.  
         22            Judge Russo was sufficiently upset that he 
         23   called the district attorney's office, spoke to Mr. 
         24   Borghesani, and complained of their attempts to use 
 0073
          1   the press to influence his decisions and to 
          2   influence his ability to issue a decision.  
          3            I suggest that it is part and parcel of 
          4   their conduct in this case.  And the fact that they 
          5   did it on other occasions would go to the 
          6   credibility of his statements that he never does 
          7   such a thing, that this was all on the up and up, 
          8   and at no time were they attempting to pressure 
          9   Judge Lopez in any way.  It is conduct which is 
         10   inconsistent with his present testimony, it is 
         11   inconsistent with what the theory has been within 
         12   this case.  It goes to his bias, it goes to his 
         13   prejudice, it goes to the manner in which Judge 
         14   Lopez was treated, and the ultimate result.  And all 
         15   of that goes into what is both sanctioned, if 
         16   anything, and what the sanction --
         17            HEARING OFFICER DAHER:  I take it you've 
         18   made an election as to who's going to address the 
         19   Court? 
         20            MR. WARE:  Yes.  First of all, under no 
         21   circumstance would it be relevant, unless there were 
         22   testimony that Judge Lopez knew about it, and, of 
         23   course, after five days, she's said nothing about 
         24   her knowing about it and therefore, it could not 
 0074
          1   have impacted any attitude she brought to sentencing 
          2   on September 6th.
          3            HEARING OFFICER DAHER:  Would it give 
          4   predicate? 
          5            MR. EGBERT:  No.  It goes to explaining his 
          6   conduct.  Judge Lopez --
          7            MR. WARE:  No.
          8            HEARING OFFICER DAHER:  Let him finish.
          9            MR. WARE:  I thought it was my turn.
         10            HEARING OFFICER DAHER:  But you hesitated.
         11            MR. EGBERT:  I thought you asked me a 
         12   question.
         13            HEARING OFFICER DAHER:  Go ahead.
         14            MR. EGBERT:  It goes to his conduct, the 
         15   conduct of the DA's office.  It's the very essence 
         16   of what Judge Lopez found in her findings.  The DA's 
         17   office was using the press to create a circus, to do 
         18   this, to do the other thing.  It goes to the whole 
         19   issue of what she testified to about the prior 
         20   statements to the press by Ms. Joseph concerning the 
         21   Estrada case and Calixte case, the running to the 
         22   press after cases.  
         23            Judge Lopez testified that she believed 
         24   that this press release that was issued on the 3rd 
 0075
          1   of the transgendered and the like was an attempt to 
          2   affect her, to influence her, because she was giving 
          3   an opinion that was different than what the 
          4   Commonwealth wanted.  And, quite frankly, that seems 
          5   to me to be the centerpiece to this case.  She 
          6   didn't have to know about this event.  This is an 
          7   event consistent in conduct with what was going on 
          8   here and explains for the Court, so you can 
          9   understand what was going on.  
         10            And I can tell you that I have interviewed 
         11   Judge Russo.  What I've proffered to you as his 
         12   testimony is his testimony.  I made it quite 
         13   clear -- I have the court file with the appearances 
         14   and the like in it.  For that purpose, it seems to 
         15   me to be relevant to these issues.  This is not 
         16   character assassination.  This is fact.  And the 
         17   fact of the matter is that these DAs -- and there 
         18   will be more testimony with regard to this -- the 
         19   DAs have come to use it in the press and the threat 
         20   of press as some kind of a wedge against judges, and 
         21   that all of that impacts the way she was treated -- 
         22   I don't condone the way she was treated -- and what 
         23   led up to these kinds of events.
         24            HEARING OFFICER DAHER:  Go ahead.
 0076
          1            MR. WARE:  Your Honor, I understand that 
          2   the defense in this case is everybody's at fault, 
          3   except the Judge.  I understand that.  And I 
          4   understand we're going to blame victims, we're going 
          5   to blame assistant DAs, we're going to blame 
          6   lawyers, we're going to blame the press, we're going 
          7   to blame Mr. Borghesani.  But the relevant point 
          8   here is there's no evidence in this case that the 
          9   Judge knew of any such incident.  Therefore, it 
         10   couldn't affect her on September 6th, No. 1.  
         11            No. 2, this is a collateral issue.  What 
         12   are we then going to do?  Have a trial on what was 
         13   said to Judge Russo?
         14            HEARING OFFICER DAHER:  It's relevant to 
         15   her frame of mind.  If she thought that she was 
         16   being set up by the press --
         17            MR. WARE:  That isn't what she has said.  
         18   Her testimony over five days is what it is.  I'm not 
         19   going to characterize it.  But I think an incident 
         20   wholly out of the blue involving the assistant 
         21   district attorney and another judge in a District 
         22   Court in East Boston has nothing to do with what 
         23   Judge Lopez did on September 6th, and we're going to 
         24   go down another collateral road and extend this case 
 0077
          1   another few days for more assassination of the 
          2   district attorney's office.  
          3            Mr. Egbert has Mr. Borghesani on his 
          4   witness list.  He can get all he wants about press 
          5   relations from Mr. Borghesani.
          6            MR. EGBERT:  Mr. Borghesani is one of them 
          7   and is taking the party line with them.  Let's not 
          8   kid anybody here.  I don't have to be left only to 
          9   take people who are adverse in interest.  I've got 
         10   an independent judge who's telling what happened 
         11   here.  And, Judge, they can put all this blather 
         12   about assassination and the like.  This is about 
         13   people's conduct.  The Judge made findings here.  
         14   The Judge made findings that this office was engaged 
         15   in using the press, in shorthand, as a bludgeon.  
         16   And this is conduct that is consistent with that.
         17            MR. WARE:  Those findings have nothing to 
         18   do with Judge Russo.
         19            HEARING OFFICER DAHER:  Let him finish.
         20            MR. EGBERT:  These people have all 
         21   claimed -- whether it be Joseph or Deakin -- have 
         22   all claimed that they're the angels of mercy and 
         23   would never do such a thing, that this was all on 
         24   the up and up, perfectly appropriate, and that the 
 0078
          1   findings of Judge Lopez were outrageous, terrible; 
          2   yet, they never appealed, they never did anything 
          3   about it.  And I suggest to you that part of the 
          4   answer to that, part of the reason to that is 
          5   because that's what they do.  And they do it in 
          6   cases when they don't like the judge's findings.  
          7   There are other judges who will so testify as to 
          8   this particular office --
          9            HEARING OFFICER DAHER:  My findings will 
         10   certainly weigh all the evidence and take care of 
         11   that. 
         12            MR. EGBERT:  Because you'll be better 
         13   off -- you'll be better able to make a finding as to 
         14   what -- to the extent you think it's relevant -- to 
         15   what these people were up to by hearing what they do 
         16   in criminal cases and what they've done in criminal 
         17   cases in this regard.  This isn't appropriate 
         18   conduct.  You don't threaten judges with going to 
         19   the press. 
         20            HEARING OFFICER DAHER:  But again, it lends 
         21   credence to Mr. Ware's argument.  This is somewhat 
         22   collateral to the issue as to her demeanor, her 
         23   behavior -- you're trying to say that their getting 
         24   information about Mr. Russo would justify anything 
 0079
          1   that she did or didn't do? 
          2            MR. EGBERT:  It certainly would go to this 
          3   witness' utter --
          4            HEARING OFFICER DAHER:  Credibility? 
          5            MR. EGBERT:  -- utter shock that anybody 
          6   would make a finding that him and his office would 
          7   use the press --
          8            HEARING OFFICER DAHER:  I can assess his 
          9   testimony.
         10            MR. EGBERT:  Except you'd have clear 
         11   evidence of it here.  You'd have clear, unequivocal 
         12   evidence of it here from a person who's not a party 
         13   to these proceedings and may be biased in any way.  
         14   And these are findings you have to make, No. 1.  
         15            No. 2, I believe it goes to why they didn't 
         16   do anything, like appeal or seek reconsideration, 
         17   because these facts would have come out in a hearing 
         18   or could have come out in a hearing as to their 
         19   conduct.  So they can't simply back here --
         20            HEARING OFFICER DAHER:  Your turn, Mr. 
         21   Ware. 
         22            MR. WARE:  This is my last shot.  This is 
         23   my coming to the Bench and arguing that we should be 
         24   able to present ten other instances of Judge Lopez 
 0080
          1   acting out of order, and it's simply not the case.  
          2   We're here with respect to one incident based on 
          3   September 6th.  Even Calixte and Estrada are in this 
          4   case only because the Judge put them in her 
          5   response.  They're in her formal response.  We're 
          6   not entitled to proffer to this Court a host of 
          7   other incidents that the Judge has been involved in.  
          8   And by the same token, we shouldn't be trying the 
          9   district attorney's office.
         10            MR. EGBERT:  By the way, this host of other 
         11   incidents, there's never been a mention of one.
         12            MR. WARE:  I'll give you an example --
         13            MR. EGBERT:  And, No. 2, that's because the 
         14   rules with regards to JCC are very clear.  The 
         15   charge is the charge that you brought, not ones you 
         16   want to make up.
         17            HEARING OFFICER DAHER:  We'll break here.  
         18   I'll take it under advisement.  I'll make a ruling 
         19   after we take a break.  
         20            (End of side bar.) 
         21            (Recess.)
         22            HEARING OFFICER DAHER:  Two issues in 
         23   regards to this:  If I allow Mr. Deakin's testimony 
         24   in regards to this issue, you're going to put on 
 0081
          1   Judge Russo; is that correct? 
          2            MR. EGBERT:  Correct.
          3            HEARING OFFICER DAHER:  Secondly, it does 
          4   goes to the issue of credibility.  And it also goes 
          5   to show that Judge Russo followed scheduled 
          6   procedure when he notified the district attorney's 
          7   office, and your client did not.  So if you want to 
          8   put that in on these two issues, credibility and the 
          9   fact that Judge Russo did call up the district 
         10   attorney's office and complain, go ahead.
         11            MR. WARE:  Note our objection to that, and 
         12   we will file a memorandum after court today.
         13            HEARING OFFICER DAHER:  On what issue? 
         14            MR. WARE:  On the whole Russo issue, a 
         15   parade of witnesses coming in here to bring up 
         16   third-party incidents, this list of judges -- we're 
         17   going to be here until February on a tangent, and 
         18   this is one of them.
         19            MR. EGBERT:  We won't be here until 
         20   February.  We're going to be done this week.
         21            MR. WARE:  Furthermore, it's my 
         22   understanding that this particular case happened 
         23   after September 6th, 2000, anyway, so it's 
         24   impossible that Judge Lopez could have had it in 
 0082
          1   mind.  It is by definition irrelevant here.
          2            MR. EGBERT:  Judge, the assigning of it has 
          3   nothing to do with it.
          4            MR. WARE:  It has a lot to do with it.  
          5   We're talking about the Judge's conduct.
          6            MR. EGBERT:  I have never argued to the 
          7   Court, nor am I arguing now, that Judge Lopez knew 
          8   of this incident.  I'm not arguing that at all.  
          9   What I've indicated is it goes to the credibility of 
         10   this witness and their procedure and their conduct 
         11   in using the press or threats of the press --
         12            HEARING OFFICER DAHER:  But by the same 
         13   token, Mr. Egbert, if I recall correctly, Judge 
         14   Russo, taken aback by what had happened in the 
         15   press, followed an established procedure:  Called 
         16   the district attorney's office and complained.  The 
         17   testimony is that your client did not do that.  She 
         18   said, I think on examination by Mr. Ware, that would 
         19   be an ex parte communication.  
         20            But there was an established procedure if 
         21   there is a complaint -- if you have a complaint, 
         22   call the district attorney's office in regard to 
         23   that.  She didn't do that.
         24            MR. EGBERT:  Nor is she required to.  She's 
 0083
          1   not required to make such a complaint, No. 1, nor is 
          2   that a subject of this proceeding.  What is at issue 
          3   is on this particular piece of evidence -- you can 
          4   use it for whatever you care to -- but what is at 
          5   issue is the fact that this witness and Ms. Joseph 
          6   have consistently said that they have --
          7            HEARING OFFICER DAHER:  I'll allow you some 
          8   latitude on a very short leash.  Go ahead in regard 
          9   to that question.  Do you want to play back the last 
         10   question, please, prior to the side bar and my 
         11   comments.
         12            MR. EGBERT:  Judge, I can start over. 
         13   That's a long way.
         14            HEARING OFFICER DAHER:  If you're prepared 
         15   to pick it up, let's go.
         16            MR. EGBERT:  I am.
         17   BY MR. EGBERT: 
         18       Q.   Mr. Deakin, did you represent the 
         19   Commonwealth of Massachusetts in the case of 
         20   Commonwealth versus Kelly Angell, A-n-g-e-l-l?
         21       A.   Yes, I did.
         22       Q.   And was that a case that took place in the 
         23   East Boston District Court?
         24       A.   Yes, it was.
 0084
          1            MR. WARE:  Objection.  This whole line of 
          2   questioning is irrelevant.
          3            HEARING OFFICER DAHER:  You've already made 
          4   that objection.
          5            MR. WARE:  It happened after September 6th, 
          6   2000.  It can't possibly bear on this case.
          7            HEARING OFFICER DAHER:  Overruled.  Go 
          8   ahead.
          9       Q.   And were you engaged in a plea conference 
         10   with regard to the case of Commonwealth versus 
         11   Angell with defense counsel?
         12            MR. WARE:  Same objection.
         13            HEARING OFFICER DAHER:  No need to keep on 
         14   jumping up.  It's a continuing objection and I 
         15   recognize that.  Go ahead.
         16       Q.   Were you involved in a plea conference in 
         17   the case of Commonwealth versus Kelly Angell with 
         18   Judge Russo, Dominic Russo, and defense counsel?
         19       A.   Yes.  Anthony Lochiatto was the defense 
         20   counsel.
         21       Q.   And during that plea conference did Judge 
         22   Russo express an opinion that he may consider a 
         23   continuance without a finding in that case?
         24       A.   I don't remember specifically.  He may 
 0085
          1   have.  I don't remember that, but it's certainly 
          2   possible.
          3       Q.   And did you respond to Judge Russo in that 
          4   regard that if he did that, you would, quote, go 
          5   public?
          6       A.   No, I did not.
          7       Q.   And so you swear, as you sit here today, 
          8   that that never occurred?
          9       A.   That never occurred.
         10       Q.   And are you aware of whether or not Judge 
         11   Russo was in communication with your office after 
         12   this plea conference?
         13       A.   Yes.  He called the first assistant 
         14   district attorney, Elizabeth Keeley.
         15       Q.   And did he speak with Ms. Keeley?
         16       A.   She told me that he did.
         17       Q.   Did he speak with Mr. Borghesani?
         18       A.   I've never heard that he spoke to Mr. 
         19   Borghesani.
         20       Q.   And you weren't present for the 
         21   conversation between Ms. Keeley and Judge Russo or 
         22   Mr. Borghesani and Judge Russo; is that correct?
         23       A.   No, I was not, although I subsequently had 
         24   a conversation with Judge Russo.
 0086
          1       Q.   You did?
          2       A.   Yes.
          3       Q.   And when was that conversation?
          4       A.   He apparently had asked the first -- I'm 
          5   not sure.  The first assistant district attorney 
          6   suggested that I call Judge Russo.
          7       Q.   And what was the purpose of your being 
          8   asked to call Judge Russo?
          9       A.   She informed me that he had a concern about 
         10   my -- an area of my presentation of the case and she 
         11   thought it would be a good idea -- I don't know 
         12   whether it was his suggestion to her or her 
         13   suggestion that I call.
         14       Q.   And did you call Judge Russo?
         15       A.   I did.
         16       Q.   About that case?
         17       A.   I did.
         18       Q.   And when you called Judge Russo about that 
         19   case, how long after the case was pled did you do 
         20   that?
         21       A.   I don't recall.
         22       Q.   Approximately.
         23       A.   A few days.
         24       Q.   And in fact, is that a time while the 
 0087
          1   defendant in that case was on probation?
          2       A.   Yes.
          3       Q.   And so you called Judge Russo directly 
          4   while the case that you had been involved in was on 
          5   probation; is that correct?
          6       A.   Yes.
          7       Q.   And you had a conversation with Judge 
          8   Russo?
          9       A.   I did.
         10       Q.   And did Judge Russo tell you that he didn't 
         11   appreciate you threatening to go, quote, go public?
         12       A.   Absolutely not.  What Judge Russo said to 
         13   me was -- that I had said to him on the record, I 
         14   believe, something to the effect is, "Judge, you 
         15   can't do that."  What I meant by that was -- and I 
         16   explained this to Judge Russo -- that something he 
         17   was doing -- and, frankly, I didn't know I was going 
         18   to be asked this question -- but something that he 
         19   was doing was not authorized by statute; that he 
         20   didn't have the authority to do it.  And he said to 
         21   me that he thought the way I phrased that, "Judge, 
         22   you can't do that," had the effect of showing him 
         23   up.  That he thought I meant you can't do that, like 
         24   it's wrong to do that.  And I said, "Judge, I 
 0088
          1   apologize.  That wasn't my intention.  My intention 
          2   was to explain that the Court lacked the authority 
          3   to do that."  So it was an amicable conversation, 
          4   and he never suggested that I said I would go 
          5   public.
          6       Q.   And just so I'm crystal clear and the 
          7   record is crystal clear, you never said to Judge 
          8   Russo in a plea conference words to the effect, "If 
          9   you do that" --
         10            MR. WARE:  Objection to "words to the 
         11   effect."  That wasn't your question.
         12            MR. EGBERT:  I'm asking the question.
         13            MR. WARE:  I object to "words to the 
         14   effect." 
         15            HEARING OFFICER DAHER:  Sustained.  Ask the 
         16   question.
         17       Q.   Did you ever say to Judge Russo in a plea 
         18   conference, while discussing the possibility of a 
         19   continuance without a finding, that you would go 
         20   public?
         21       A.   No, counsel.
         22       Q.   The answer is no, right?
         23            HEARING OFFICER DAHER:  Finish.  You asked 
         24   him a question.
 0089
          1            MR. EGBERT:  The question is a yes or no 
          2   question:  Did you say it.
          3            HEARING OFFICER DAHER:  That's all it calls 
          4   for.  You're right.  Go ahead.
          5       A.   Counsel, every single hearing -- the Kelly 
          6   Angell case was widely publicized from the moment of 
          7   the defendant's arrest.  It was an extraordinarily 
          8   high-profile case.  Every single hearing in that 
          9   case was attended by tons of media that had nothing 
         10   to do with our office bringing them there.  They 
         11   followed it extremely closely.  Everything I did, 
         12   everything the defense attorney did, everything the 
         13   Judge did in that case was public by definition.  
         14   There was no way for me to go public in that case.  
         15   Everything was public.
         16       Q.   Mr. Deakin, the conference that I'm 
         17   describing is a conference that took place outside 
         18   of the press.
         19       A.   Understood.
         20       Q.   It was a private plea conference.
         21       A.   Understood.
         22       Q.   Not on the record, correct? 
         23       A.   No, it was not on the record.
         24       Q.   Just so it's clear, did you say those words 
 0090
          1   or words to that effect in that plea conference?
          2       A.   No, I did not.
          3            HEARING OFFICER DAHER:  Did you at any time 
          4   threaten -- if it is indeed to be considered a 
          5   threat -- that you would go public to Judge Russo in 
          6   re that particular matter?
          7            THE WITNESS:  No, Judge.
          8            HEARING OFFICER DAHER:  The answer is no.  
          9   Let's go. 
         10       Q.   Now, on September 6th, when you appeared 
         11   for the plea conference -- strike that -- for the 
         12   plea and sentencing at the Middlesex Superior Court, 
         13   you appeared there with Ms. Joseph, correct?
         14       A.   That's correct.  I mean, I arrived there by 
         15   myself.  But we appeared together, yes.
         16       Q.   You appeared in court with Ms. Joseph?
         17       A.   Yes, correct.
         18       Q.   And when you appeared in court with Ms. 
         19   Joseph, counsel was asked to introduce themselves, 
         20   correct?
         21       A.   Honestly, I don't specifically recall, but 
         22   I'm sure we were.
         23       Q.   And you introduced yourself?
         24       A.   Yes.
 0091
          1       Q.   And you introduced Ms. Joseph, correct?
          2       A.   I believe that's right.
          3       Q.   And you stood and she didn't.  Do you 
          4   recall that?
          5       A.   I think that's right, too, yes.  I wasn't 
          6   paying attention, really.
          7       Q.   And you indicated to the Court at that 
          8   time, both through your conduct and your statements, 
          9   that you would be speaking on behalf of the 
         10   Commonwealth, correct?
         11       A.   Through my conduct I did.  I'm not sure 
         12   that I made any specific statements that I would be 
         13   speaking instead of Joseph or not, but through my 
         14   conduct, yes.
         15       Q.   And at no time did you seek from the Court 
         16   permission or authority to have some other lawyer, 
         17   including Ms. Joseph, participate in the proceedings 
         18   orally?
         19       A.   No, I did not.
         20       Q.   Now, when you presented the facts of the 
         21   case at the plea hearing -- let me step back a 
         22   minute. 
         23            The facts at a plea hearing -- let me 
         24   withdraw that, because it gets confusing. 
 0092
          1            Part of a plea hearing is a requirement 
          2   that the defendant listen to what facts the 
          3   Commonwealth could prove at trial, correct?
          4       A.   Yes.
          5       Q.   And for the defendant to acknowledge those 
          6   facts, correct?
          7       A.   Acknowledge that those facts are true, 
          8   that's right.
          9       Q.   And that forms what's called a factual 
         10   basis for a plea.
         11       A.   Correct.
         12       Q.   And that's not a time to argue sentencing; 
         13   am I correct?
         14       A.   It's not a time to argue sentencing.  It is 
         15   a time to lay out those facts that you intend to 
         16   refer to in your sentencing argument. 
         17       Q.   Well, if that is the time where the Judge 
         18   said to you, for example, just put the facts on the 
         19   record, you were not to argue at that point.
         20       A.   There's no argument, no.  There's just a 
         21   recitation of facts.
         22       Q.   And during that time you know that the 
         23   purpose for that part of the proceedings is to show 
         24   that there is sufficient facts for entry of the 
 0093
          1   plea.
          2       A.   Correct.
          3       Q.   And at one point in time you indicated the 
          4   Judge stopped you in your recitation of facts, 
          5   correct?
          6       A.   That's correct.
          7       Q.   And you'll agree with me that the time she 
          8   stopped you -- and the words "stopped you" -- in the 
          9   transcript I think she said, "I think I've heard 
         10   sufficient facts."  What did she say?  Do you 
         11   recall?
         12       A.   I don't recall her exact words.  It was 
         13   something along those lines.  I'd have to look at 
         14   the transcript to be sure.
         15       Q.   Let's look at it so we're accurate.  Let me 
         16   get it for you. 
         17            Turn to Exhibit 22 in your book.
         18       A.   Yes.
         19       Q.   Page 15, to acclimate you. 
         20       A.   Yes.
         21       Q.   Do you have it?
         22       A.   Yes.
         23       Q.   Now, you gave the facts -- or were giving 
         24   the facts, correct?
 0094
          1       A.   Yes.
          2       Q.   And you reached the point where the police 
          3   arrived, correct?
          4       A.   Yes.
          5       Q.   And the Judge said, "Thank you.  I think 
          6   that completes the facts that are relevant for 
          7   purposes of these indictments," correct?
          8       A.   Correct.
          9       Q.   Now, you may quarrel with the word 
         10   "relevant," but certainly you had reached the point 
         11   where you had delivered sufficient facts for the 
         12   Judge to rely on that phase of the proceedings; am I 
         13   correct?
         14       A.   I think I had at that point recounted 
         15   sufficient facts for the Judge to make a factual 
         16   finding that there was a basis for the plea.  I had 
         17   not, however, recited sufficient facts for me to 
         18   base a sentencing argument.
         19       Q.   And we're going to get to that in a minute.  
         20   You recognize that what's important at that stage of 
         21   the proceeding is sufficient facts for the plea.
         22       A.   That's -- when you say, "what's important," 
         23   no.  That's one of the things that's important.  
         24   It's not the only thing that's important.
 0095
          1       Q.   You can add whatever facts you want in your 
          2   sentencing argument, can't you?
          3       A.   No, because in order for the facts to be 
          4   admitted to, the defendant has to hear them and 
          5   acknowledge them.  If I put them in later in my 
          6   sentencing argument, the Judge could look at me and 
          7   say the defendant didn't admit to those facts.
          8       Q.   The defendant isn't required to admit 
          9   anything more than a factual basis under the law of 
         10   this Commonwealth? 
         11       A.   The Commonwealth is entitled to present --
         12       Q.   You can answer your question in a minute.  
         13   But answer mine.
         14            MR. WARE:  Objection, Your Honor.
         15            HEARING OFFICER DAHER:  What is your 
         16   objection? 
         17            MR. WARE:  The witness is trying to answer 
         18   that question.  It is responsive.
         19            MR. EGBERT:  It's not, Judge.
         20            MR. WARE:  It is.
         21            HEARING OFFICER DAHER:  Sustained.  Go 
         22   ahead. 
         23       A.   The Commonwealth has a right to present 
         24   those facts that it believes it would establish at 
 0096
          1   trial and it would justify as sentencing 
          2   recommendation.  The defendant is only legally 
          3   required to admit to those facts that are true.  But 
          4   the Judge has wide discretion to allow the 
          5   Commonwealth to present those facts which will 
          6   support its sentencing recommendation and ask the 
          7   defendant whether those facts are true.
          8       Q.   And that's the words "wide discretion"?
          9       A.   Yes.
         10       Q.   And you'll agree with me that the Judge had 
         11   heard sufficient facts for the plea by the time you 
         12   reached the end of your colloquy on Page 15.
         13       A.   No, I would not agree with you.  I would 
         14   agree that she had heard sufficient facts to find a 
         15   factual basis for the crimes alleged.
         16       Q.   You're arguing with my words.
         17       A.   No, I'm not.
         18            MR. WARE:  Objection, Your Honor.
         19       Q.   Go ahead.  Finish.
         20       A.   The plea, however -- part of the plea is 
         21   for the Commonwealth to make a sentencing 
         22   recommendation.  And the Commonwealth should be 
         23   allowed to present those facts that are relevant to 
         24   its sentencing recommendation and allow the 
 0097
          1   defendant the opportunity to either admit to the 
          2   truth of those facts or to deny the truth of those 
          3   facts.
          4       Q.   Do you agree with me that you had reached 
          5   the point in your recitation where the Judge had 
          6   sufficient facts before her to accept the plea and 
          7   find a factual basis for the plea?
          8       A.   Yes.
          9       Q.   And it was within her discretion to stop it 
         10   there.
         11       A.   I don't believe it was within her 
         12   discretion to stop it there when the Commonwealth 
         13   made a good-faith representation that there were 
         14   additional facts that would support our sentencing 
         15   recommendation that it was necessary for the 
         16   defendant to either admit to or not admit to.
         17       Q.   And indeed, when the Commonwealth made that 
         18   representation, she exercised her discretion by 
         19   telling you to continue.
         20       A.   Correct.
         21       Q.   Isn't that correct?
         22       A.   That is correct.
         23       Q.   So we have reached a point in time where 
         24   sufficient facts had been made, correct?
 0098
          1       A.   Sufficient facts for the Judge to find a 
          2   factual basis --
          3       Q.   Which is exactly what you were doing at the 
          4   time, weren't you, when the Judge said -- asked the 
          5   defendant to listen up to the facts, because she was 
          6   basically at that point finding a factual basis, 
          7   correct?
          8       A.   That was part of what I was doing, yes.
          9       Q.   And in any event, when you asked her to 
         10   exercise her discretion basically to let you go on, 
         11   she did so.
         12       A.   That's correct.
         13       Q.   Because you explained to her that you had 
         14   more you had to say.
         15       A.   That's correct.
         16       Q.   Now, I saw on the tape -- and we don't have 
         17   to look at it again, unless you wish to -- that you 
         18   were reading from a statement of facts.
         19       A.   That's correct.
         20       Q.   Did you write those up?
         21       A.   Yes, I did.
         22       Q.   And where did you get the information to 
         23   develop those facts?
         24       A.   I got them from a variety of sources.  I 
 0099
          1   got them from my own review of police reports when 
          2   the case had originally came in, I got them from 
          3   ongoing discussions with ADA Joseph, I got them 
          4   from -- well, I had reviewed the tape of the boy's 
          5   statement, I got them from supplemental reports of 
          6   the detectives -- Detectives Hargrove and Keeley -- 
          7   I believe -- I'm not positive, but I believe that's 
          8   my sources of the information.
          9       Q.   Now, on the taped statement, the boy made 
         10   clear, did he not, that he was pulled into the car 
         11   by force by Mr. Horton?
         12       A.   My review of that tape, it was an issue 
         13   that was raised initially when the taped interview 
         14   was done, when I didn't see it.
         15       Q.   I'm sorry.  I just missed your answer.
         16       A.   This issue that was raised with me was 
         17   about what he had said on the tape while I had seen 
         18   the tape in discussions with ADA Joseph. 
         19            When I reviewed the tape, it wasn't 
         20   entirely clear to me whether he had been pulled in 
         21   forcefully or whether he had been lured in and the 
         22   defendant had sort of assisted him or encouraged him 
         23   to come into the car by pulling on his arm.
         24            MR. EGBERT:  Can we play the tape, please.
 0100
          1            HEARING OFFICER DAHER:  Sure.
          2            MR. WARE:  Your Honor, would it be possible 
          3   to move on and do this after lunch? 
          4            HEARING OFFICER DAHER:  Is that a problem?  
          5   Can we do it after lunch?  Is that possible or do 
          6   you need it right now? 
          7            MR. EGBERT:  I don't think it is. 
          8            HEARING OFFICER DAHER:  You need it right 
          9   now?
         10            MR. EGBERT:  Yes.  We're coming towards the 
         11   conclusion. 
         12            HEARING OFFICER DAHER:  Okay.
         13       Q.   You saw me fiddling with that.  Does that 
         14   appear to you to be the tape of the alleged victim 
         15   in this case?  The victim in this case?
         16       A.   Yes, that is.
         17       Q.   And that's the tape you had reviewed 
         18   before?
         19       A.   Correct.  
         20            (Videotape playing.)
         21      "Q.   ... from the beginning to the end of what 
         22   had happened.
         23       A.   Yeah.  I was walking from my friend's 
         24   house, because I just got dropped off from UMass.  
 0101
          1   And I seen -- I was like at the corner of the second 
          2   street from my house.  Then this lady said, Oh, I 
          3   know you from somewhere.  Will you help me look for 
          4   my son?  I was like, What?  I ignored her.  I kept 
          5   walking.  The second time she was like, Oh, I know 
          6   you.  Can you help me find my son?  I was like, I 
          7   don't even know you.
          8       Q.   Where was the lady?
          9       A.   She was at the corner of the same street I 
         10   was at.
         11       Q.   Was she standing on the street?
         12       A.   Hum-um, a car.
         13       Q.   She was in a car.  And then what happened?
         14       A.   Then after that she said, I offered 
         15   somebody $100 to whoever helps me find my son.  So I 
         16   was like, I know where he was, but -- she's like, 
         17   Oh, can you show me?  I was like -- at first I 
         18   started walking, and then she was like, Oh, come in.  
         19   And then she like grabbed my hand and sort of pulled 
         20   me in."  
         21            (Videotape stopped.)
         22       Q.   She said, "She grabbed my hand and pulled 
         23   me in."
         24       A.   "Sort of pulled me in."
 0102
          1       Q.   "Grabbed my hand and sort of pulled me in" 
          2   while she was in the car and he was on the sidewalk, 
          3   right?
          4       A.   It's not clear to me that he was on the 
          5   sidewalk.
          6       Q.   Well, where was he?
          7       A.   It wasn't clear to me whether he was on the 
          8   sidewalk or whether he was in the doorway to her car 
          9   or whether he was getting into the car.
         10       Q.   So that lack of clarity to you meant that 
         11   you didn't know whether he was pulled in the car or 
         12   not, right?
         13       A.   Counselor, what I knew was --
         14       Q.   Is that right? 
         15            MR. WARE:  Objection.
         16       A.   No, that's not right.
         17            HEARING OFFICER DAHER:  Go ahead.
         18       Q.   So you did have the statement that the boy 
         19   was pulled into the car by his hand, right?
         20       A.   I'm sorry.  He was sort of pulled into the 
         21   car --
         22       Q.   "Grabbed my hand and sort of pulled me into 
         23   the car," right?
         24       A.   That's correct, yes.
 0103
          1       Q.   Did you talk to the victim?
          2       A.   Did I speak to the victim? 
          3       Q.   Yes. 
          4       A.   No, I did not.
          5       Q.   Did you seek to ask whether or not that was 
          6   in fact true, that there was a forceful pulling into 
          7   the car?
          8       A.   No, I did not.
          9       Q.   Never sought to get that fact one way or 
         10   the other?
         11       A.   No, I did not.
         12       Q.   Would that be an important fact?
         13       A.   In light of the violence of the defendant's 
         14   subsequent actions, it did not seem to me to be 
         15   worth revisiting for this trial the issue of the 
         16   victim saying --
         17       Q.   Well, the child was willing and anxious to 
         18   testify, right?
         19       A.   As I said --
         20       Q.   Right?  The child was willing and anxious 
         21   to testify.  Wasn't that your testimony? 
         22       A.   No, it was not. 
         23       Q.   If it was not your testimony --
         24            MR. WARE:  Objection, Your Honor.  May the 
 0104
          1   witness finish?
          2       A.   My recollection of my testimony was that he 
          3   was willing, and I've never heard him described as 
          4   anxious.
          5       Q.   Willing to testify?
          6       A.   Correct.
          7       Q.   And had no troubles with it.
          8       A.   I'm not sure I'd say that.  No, I would not 
          9   say that.  "Willing" is what I used.
         10       Q.   And you didn't think it was worthwhile to 
         11   send one of your officers down, because you couldn't 
         12   figure out if that really meant he was being pulled 
         13   in, right?
         14       A.   In light of the actions that were 
         15   unambiguous and the defendant subsequently admitted 
         16   to, no, I did not.
         17       Q.   You've been a prosecutor of the sexual 
         18   assault unit for some time?
         19       A.   Child abuse unit.
         20       Q.   Do you think there's a difference in terms 
         21   of impulse when someone is snatched off the street 
         22   forcefully versus when someone is rused into a car?
         23       A.   I don't understand your question.
         24       Q.   Do you know anything about impulse control 
 0105
          1   as it relates to child sexual abuse?
          2       A.   I know some things about it, yes.
          3       Q.   Have you read on the subject?
          4       A.   Some.
          5       Q.   You've studied it a bit?
          6       A.   A bit.
          7       Q.   And is it fair to say that you, in 
          8   fashioning your arguments to judges or sentences to 
          9   judges, have in mind whether a particular defendant 
         10   is unable to control their impulses in such a way as 
         11   they would be a repeat offender, for example?
         12       A.   We certainly have that in mind.  It's 
         13   certainly difficult --
         14       Q.   But it's something you consider.
         15       A.   Certainly.
         16       Q.   And do you know from your studies and 
         17   readings whether or not, when someone forcibly 
         18   removes somebody off the street, that that is of a 
         19   different impulse type than a ruse, so to speak?
         20       A.   I don't know the answer to that.
         21       Q.   Simply don't know.
         22       A.   I don't know.
         23       Q.   Let me ask you the next question. 
         24            Did you tell the Judge at that time 
 0106
          1   anything about this defendant -- this victim saying 
          2   anything about being pulled into the car?
          3       A.   No, I did not.
          4       Q.   And did you tell the Judge anything about 
          5   the victim claiming or indicating that the 
          6   defendant, Ebony Horton, had threatened to kill the 
          7   victim if he said a word?
          8       A.   I don't believe the defendant -- I don't 
          9   believe anyone has ever said that the defendant 
         10   threatened to kill the victim.
         11       Q.   Threatened to have him killed?
         12       A.   I did not say that to the Judge.
         13       Q.   You knew that the victim had claimed that 
         14   the defendant had threatened to have her husband 
         15   kill the victim if he talked, right?
         16       A.   At the time that I --
         17       Q.   Please; can you answer my question?
         18       A.   I'm trying to answer it.
         19       Q.   Well, did you know that or didn't you? 
         20            HEARING OFFICER DAHER:  He's not being 
         21   responsive.
         22       Q.   Did you know that or didn't you?
         23       A.   When are you asking me about? 
         24       Q.   Did you know it on the date of September 
 0107
          1   6th, when you had this plea hearing?
          2       A.   I do not believe that I recalled it as of 
          3   September 6th.
          4       Q.   You forgot it?
          5       A.   I believe that's correct.
          6       Q.   So the first one you weren't sure of, the 
          7   second one you forgot.  Now, threats to kill are an 
          8   important part of a factual presentation in a 
          9   criminal case, wouldn't you agree?
         10       A.   Yes.
         11       Q.   But you forgot it.
         12       A.   Working from the --
         13       Q.   You forgot it.
         14       A.   It had been some time since I had seen the 
         15   tape.  I did not recall that fact.
         16       Q.   You forgot it.
         17       A.   Correct.
         18       Q.   And then you didn't tell the Judge that the 
         19   victim claimed that Ebony Horton got on the 
         20   passenger side seat with his pants unbuttoned and 
         21   laid on the victim belly to belly, correct?
         22       A.   I did not tell the Judge that, no.
         23       Q.   Did you forget that one, too?  Did you 
         24   forget that one?
 0108
          1       A.   I think that I recalled it in the context 
          2   of the defendant reclining the boy's seat.  I did 
          3   not recall the specifics of getting on top of him.
          4       Q.   So you forgot that.
          5       A.   It had been some time since I reviewed the 
          6   tape.
          7       Q.   So you forgot it.
          8       A.   Yes.
          9       Q.   Now, as this conference or plea went on --
         10       A.   I'm sorry.  Which exhibit? 
         11       Q.   I'm not there yet.  I'll get you to it if 
         12   you need it. 
         13       A.   I'll just close it. 
         14       Q.   As this plea went on, there came a time 
         15   where the Judge indicated to you that she thought it 
         16   was disingenuous for you to tell her it was a 10, 
         17   right?
         18       A.   Yes.
         19       Q.   And what she was talking about, as you saw 
         20   at the time, was that she thought -- strike that.  
         21   You understood that to be her saying that it was her 
         22   opinion that you were disingenuous, correct?
         23       A.   Yes.
         24       Q.   In calling this crime a 10 or this set of 
 0109
          1   facts a 10.
          2       A.   Yes, that was my understanding.
          3       Q.   Is that correct?
          4       A.   I mean, I didn't feel I had called it a 10, 
          5   but my understanding was that the Judge was 
          6   expressing her opinion that I was disingenuous for 
          7   calling it a 10.
          8       Q.   And then at that time -- after she made 
          9   that statement, she said, "I'll hear from the 
         10   defense attorney," correct?
         11       A.   I believe -- I'd have to look at the 
         12   transcript to be sure.
         13       Q.   Go to Page 31 of the transcript.
         14       A.   Which exhibit? 
         15       Q.   Exhibit 22?
         16       A.   I lost my place. 
         17       Q.   Exhibit 22.
         18       A.   Exhibit 22, Page? 
         19       Q.   Page 31?
         20       A.   Yes.
         21       Q.   That transcript is accurate?
         22       A.   As best I can remember, yes, it is.
         23       Q.   And she said, "I'll hear from the defense 
         24   attorney," correct?
 0110
          1       A.   Correct.
          2       Q.   And you understood that as the Judge's 
          3   invitation for the defense attorney to speak and you 
          4   to sit?
          5       A.   Correct.
          6       Q.   And you did not.
          7       A.   Correct.
          8       Q.   And you continued to speak.
          9       A.   I said, "Your Honor, if I may."
         10       Q.   You continued to speak.
         11       A.   Yes.  And that's what I said.
         12       Q.   And when you continued to speak and asked 
         13   to be heard, she said, "No, you may not.  You may 
         14   sit down." 
         15       A.   That's correct.
         16       Q.   Did you sit down?
         17       A.   No, I did not.
         18       Q.   Did you continue to speak?
         19       A.   I tried to.  I got out one word.  I said 
         20   "I." 
         21       Q.   Did you do as the Court had ordered you to?
         22       A.   No, I did not.
         23       Q.   And that was intentional, wasn't it?
         24       A.   Yes, it was.
 0111
          1       Q.   And so at least on two occasions -- whether 
          2   you were right or wrong, on two occasions you 
          3   intentionally disobeyed the Court's directive.
          4       A.   That's correct.
          5       Q.   Isn't that right?
          6       A.   That's correct.
          7       Q.   And then on a third occasion you did it 
          8   again, correct?
          9       A.   In this exchange here? 
         10       Q.   Yes. 
         11       A.   I don't think so.
         12       Q.   She said, "I'll hear from the defense 
         13   attorney," and you start to speak.
         14       A.   Correct.
         15       Q.   That's one.  Then she said, "No, you may 
         16   not.  You may sit down," and you started to speak 
         17   again, correct?
         18       A.   Correct.
         19       Q.   That's two, right?
         20       A.   Correct.
         21       Q.   And then she told you, "No.  You may sit 
         22   down now," correct?
         23       A.   Correct.
         24       Q.   And then again you spoke.
 0112
          1       A.   Actually, although the transcript doesn't 
          2   reflect it, I think -- no; I take that back.  That's 
          3   correct.
          4       Q.   Assuredly it was in a mix of words, so if 
          5   it wasn't three, it was two.  But in any event, it 
          6   was clear to you that you were intentionally 
          7   disobeying a Court order.
          8       A.   Yes.
          9       Q.   Now--  and it's fair to say that the Judge 
         10   raised her voice and yelled at you.
         11       A.   Yes.
         12       Q.   Correct?
         13       A.   Yes.
         14       Q.   And then after that, there was some 
         15   discussion that went on, and you sought to be heard 
         16   again, correct?
         17       A.   That's correct.
         18       Q.   And that was after the Court had indicated 
         19   that she would deliver the sentence, basically?  And 
         20   that's on Page 32, if you want to look. 
         21       A.   That's correct.
         22       Q.   And you asked to be heard, and she said, "I 
         23   don't want to hear from you anymore.  Do you 
         24   understand," correct?
 0113
          1       A.   That's correct.
          2       Q.   And then ultimately, after the next 
          3   exchange where she said, "You won't be heard," you 
          4   indicated you wanted to be heard on a matter 
          5   different than what you had been asking to be heard 
          6   before, correct?
          7       A.   Well, basically what I said -- I explained 
          8   to her what I wanted to be heard on.  I didn't say 
          9   it was different from what it was before --
         10       Q.   The content of what you said made it clear 
         11   you wanted to be heard on a different matter than 
         12   her opinion of you being disingenuous.
         13       A.   That's correct.
         14       Q.   And at that time you were in fact heard, 
         15   correct?
         16       A.   Yes.
         17       Q.   And your arguments were made, correct?
         18       A.   Yes.
         19       Q.   And she found in your favor; isn't that 
         20   correct?
         21       A.   Yes.
         22       Q.   In other words, she adopted the 
         23   recommendations you had made, in large part?
         24       A.   Well, I didn't really make recommendations.  
 0114
          1   What I said was there need to be conditions for 
          2   electronic monitoring, and the Judge then imposed 
          3   such conditions.  So I guess if you call that -- I 
          4   didn't make specific recommendations.  I just 
          5   suggested that there ought to be conditions.
          6       Q.   Didn't you ask whether or not the curfew 
          7   would be imposed?
          8       A.   I'd have to look at the transcript.  Off 
          9   the top of my head I don't recall.
         10       Q.   Page 34. 
         11       A.   Yes, I did.
         12       Q.   And didn't you at some point seek to have 
         13   no contact orders, which you were concerned had not 
         14   been entered?
         15       A.   Yes.
         16       Q.   And that was on Page 36?
         17       A.   I'm not --
         18       Q.   Page 36, "MR. DEAKIN:  I apologize to the 
         19   Court.  It may have been writing.  I didn't hear if 
         20   there was a no contact order," correct?
         21       A.   Yes.
         22       Q.   And she listened to you there.
         23       A.   Yes.
         24       Q.   And in fact adopted your implied 
 0115
          1   recommendation there be a no contact order.
          2       A.   Yes.
          3       Q.   And in fact, she then sought from you an 
          4   understanding as to what that no contact order ought 
          5   to be:  just children under 16 or specific 
          6   individuals, correct?
          7       A.   Yes -- I'm sorry.  I may have misunderstood 
          8   your question.
          9       Q.   I said, And therefore, she indicated to you 
         10   she was seeking your opinion as to whether or not 
         11   the no contact order should be just to children 
         12   under 16 and if that would apply to the victim.  Do 
         13   you recall that?
         14       A.   Well, actually I think what I asked is that 
         15   it be a blanket no contact with the victim at all, 
         16   even after she turned 16, and she agreed with that.
         17       Q.   I want to take it in sequence.
         18       A.   I'm sorry.  It's probably my fault, but I'm 
         19   not following.
         20       Q.   Why don't you take a look at Page 36 and 
         21   familiarize yourself with it. 
         22       A.   (Witness reviews document)  Yes.
         23       Q.   So the sequence basically was that after 
         24   you indicated the matter upon which you were heard 
 0116
          1   in a number of instances, you were in fact heard 
          2   without interruption, correct?
          3       A.   Correct.
          4       Q.   And in fact your recommendations were 
          5   adopted in most instances.
          6       A.   Correct.
          7       Q.   And your concerns were dealt with by the 
          8   Court to your satisfaction.
          9       A.   Those concerns, yes.
         10       Q.   Is that correct?
         11       A.   Those concerns, yes.
         12       Q.   Well, were there any other concerns 
         13   regarding the sentence that weren't dealt with?
         14       A.   It depends -- I suppose it depends what you 
         15   mean by "dealt with."  We had concerns about the 
         16   sentence that was imposed.
         17       Q.   It was dealt with.  You didn't get what you 
         18   wanted?
         19       A.   That's correct.  Yes, it was dealt with.
         20       Q.   Now, Mr. Deakin, you indicated that after 
         21   this proceeding, that you had opportunity to read a 
         22   press statement from Judge Lopez, correct?
         23       A.   That's correct.
         24       Q.   And in that press statement there was some 
 0117
          1   reference -- in fact, let me pull it out for you.  
          2            Take a look at Exhibit 4 in your book.  You 
          3   were asked during your direct testimony, I think, 
          4   about the sentence which says, "In this case there 
          5   were certain facts before me known by both the 
          6   prosecutor and the defense attorney that were part 
          7   of the plea conference and cannot be revealed by 
          8   me."  Do you see that?
          9       A.   Yes.
         10       Q.   And I'll read the rest of it in a moment, 
         11   but let's stick with that, if we can. 
         12       A.   I see that.
         13       Q.   You weren't at the plea conference, were 
         14   you?
         15       A.   The one on August 1st? 
         16       Q.   Wasn't that the only plea conference?
         17       A.   Well, I gather there was one on August 4th 
         18   that I suppose I wasn't at either.  But if you're 
         19   talking about the lobby conference on August 1st or 
         20   the bench conference, whatever it was, I was not 
         21   there.
         22       Q.   You understood that the plea conference on 
         23   August 1st was the one where both the prosecution 
         24   and the defense put together all of the information 
 0118
          1   they wanted the Judge to absorb in order to 
          2   determine what her sentence would be, correct?
          3       A.   Yes.
          4       Q.   And you weren't there?
          5       A.   No, I was not.
          6       Q.   Correct?
          7       A.   That's correct.
          8       Q.   And you've already indicated that any 
          9   reports that you have of what occurred on that would 
         10   have come from Ms. Joseph, correct?
         11       A.   That's correct.
         12       Q.   And in fact, you had by that point in time 
         13   not heard Ms. Goldbach's presentation, correct?
         14       A.   Only somewhat sketchily secondhand --
         15       Q.   Sketchily secondhand --
         16       A.   Not from Anne Goldbach, no.
         17       Q.   Nor did you have the facts and details 
         18   contained in what's now become known as Exhibit 3, 
         19   the psychosocial report.
         20       A.   Not the details, no.
         21       Q.   Correct?  The facts underlying those 
         22   things.
         23       A.   That's correct.
         24       Q.   So when you testified on direct that you 
 0119
          1   knew of no such facts, it was before the prosecutor 
          2   and the defense at the plea conference --
          3       A.   Correct.
          4       Q.   -- you weren't even at the plea conference?
          5       A.   That's correct.
          6       Q.   So you wouldn't have any ability to know 
          7   that in any event.
          8       A.   That's not correct.
          9       Q.   Okay.  So you can opine on what facts were 
         10   known to the Judge that came at a plea conference 
         11   where you were not present, correct?
         12       A.   Because I discussed it with ADA Joseph 
         13   after that.
         14       Q.   Sketchily, you said.
         15       A.   No, no.  I discussed it sketchily in terms 
         16   of what Anne Goldbach presented as a defense case.
         17       Q.   Sir, isn't that part of the problem?  That 
         18   you only look at what the prosecution has as facts.  
         19   What the defense presented to the Court were also 
         20   facts, weren't they?
         21       A.   I can't comment on that.  I don't know if 
         22   they were true facts or not.  They were presented as 
         23   facts.
         24       Q.   They were presented as facts, correct?
 0120
          1       A.   Correct.
          2       Q.   They were unrefuted by the DA's office, 
          3   correct?
          4       A.   Yes.
          5       Q.   And they were undisputed by the DA's office 
          6   in Judge Lopez's presence.
          7       A.   They were disputed -- the ultimate 
          8   conclusion was disputed.
          9       Q.   You know the difference between a 
         10   conclusion and the facts.
         11       A.   No, they were not disputed.
         12       Q.   The facts were not disputed or refuted.
         13       A.   That's correct.
         14       Q.   And you don't even know what they are.
         15       A.   I know more of them now.
         16       Q.   You certainly didn't know then.
         17       A.   Not most of them, no.
         18       Q.   And then what Judge Lopez says in this 
         19   press statement is -- and I'll read the whole 
         20   sentence so I don't take it out of context -- "In 
         21   this case there were certain facts before me known 
         22   by both the prosecutor and the defense attorney that 
         23   were part of the plea conference and cannot be 
         24   revealed by me, but which would undoubtedly change 
 0121
          1   the characterization of this case as currently 
          2   reported by some media outlets."  Do you understand 
          3   that?
          4       A.   That's what it says.
          5       Q.   Now, "undoubtedly change the 
          6   characterization of the case."  You understood that 
          7   to be Judge Lopez's opinion.
          8       A.   Yes.
          9       Q.   That's not a factual statement.
         10       A.   It seems to me to be a statement of opinion 
         11   about facts.
         12       Q.   Right.  "Change the characterization" is an 
         13   opinion, correct?
         14       A.   Right.
         15       Q.   About the facts which she's talking about.
         16       A.   That's how I took it, yes.
         17       Q.   And you agree with me, don't you, that the 
         18   matters which were presented to Judge Lopez at the 
         19   lobby conference, which were not made a part of any 
         20   public record thereafter, would not have been -- 
         21   could not have been revealed by her in a press 
         22   release?
         23       A.   I don't agree with that.
         24       Q.   You think they could have in a press 
 0122
          1   release?
          2       A.   In the same point that --
          3       Q.   Just --
          4            MR. WARE:  Your Honor --
          5            HEARING OFFICER DAHER:  I want to hear it. 
          6       A.   Counselor, in the same way that you noted 
          7   previously when you were asking me questions that 
          8   the findings that were sent to the press on August 
          9   4th or 5th were public record, I think the Judge 
         10   could have, had she chosen to, stated -- if we're 
         11   talking about the report, the psychosocial report -- 
         12   could have stated in a press release, in a 
         13   sentencing memorandum, in any fashion that she 
         14   wanted, that she had reviewed -- that she had 
         15   reviewed a psychosocial report and that its contents 
         16   influenced her decision in terms of sentencing.  I 
         17   absolutely think she could have done that.
         18       Q.   The facts -- the facts in that report --
         19       A.   I think --
         20       Q.   Please address my question and then I'll 
         21   let you answer anything you want.  I'll in fact let 
         22   you have an open-ended question, but I'd like to get 
         23   to my questions first.
         24            The facts in that report, do you think she 
 0123
          1   could have put those in a press release?
          2       A.   Yes.
          3       Q.   And under what authority do you say that?
          4       A.   Under the authority that the only 
          5   prohibition, it would seem to me, on publishing the 
          6   facts in that report would be a 
          7   psychotherapist/patient privilege, which I can't 
          8   cite you the cite, but I think it's Chapter 123 
          9   somewhere.  The psychotherapist/patient privilege is 
         10   precisely breached when the defense attorney 
         11   submitted that report prepared by Joan Katz to the 
         12   Judge for her consideration.  There is no longer a 
         13   privilege there. 
         14            As of that point, the Judge could lawfully 
         15   have disclosed those details.  Whether she would 
         16   choose to or not is a different question.
         17       Q.   Under what canon of ethics, judicial canon 
         18   of ethics, do you rely? 
         19            MR. WARE:  Objection.
         20            HEARING OFFICER DAHER:  Sustained.
         21            MR. EGBERT:  He said she could ethically do 
         22   that.  So I'm asking --
         23            HEARING OFFICER DAHER:  He said under the 
         24   statute that had been waived or breached by Attorney 
 0124
          1   Goldbach, and she could have.  And in regards to the 
          2   canons, I'm going to sustain the objection.  Let's 
          3   move on. 
          4       Q.   Are you familiar with the canons of 
          5   judicial ethics?
          6            MR. WARE:  Objection.
          7            HEARING OFFICER DAHER:  Same objection.  
          8   Sustained.
          9       Q.   When the Judge wrote in her press statement 
         10   "under the applicable law," do you know what she was 
         11   talking about?
         12       A.   If you would, I'm sorry, direct me to 
         13   the -- you mean in the second-to-the-last line?
         14       Q.   Yes. 
         15       A.   I understand her to be talking there about 
         16   the penalty -- the statutes that prohibits certain 
         17   criminal offenses and provide punishments for them.
         18       Q.   And the plea conference attended by the 
         19   prosecutor and the defense attorney, what was she 
         20   talking about?
         21       A.   I think you're right when you suggested 
         22   that was the August 1st conference.
         23       Q.   And the sentencing guidelines, what was she 
         24   talking about?
 0125
          1       A.   I believe she was speaking about the 
          2   Commission on sentencing guidelines promulgated in 
          3   1998.
          4       Q.   And you base that on the fact that you know 
          5   of no others?
          6       A.   I base that on the fact that that's what 
          7   virtually every judge in the Commonwealth uses.
          8       Q.   You know of no other guidelines, right?
          9            HEARING OFFICER DAHER:  Finish that. 
         10       A.   My answer was I'm basing that on the fact 
         11   that that's what virtually every judge in the 
         12   Commonwealth uses in sentencing.
         13       Q.   Have you appeared before Judge DelVecchio 
         14   at all?
         15       A.   I'm not sure.  Not often, if I have.  I 
         16   don't know that I have.
         17       Q.   She's the Chief Justice of the Superior 
         18   Court.  Do you know that?
         19       A.   You didn't ask me if I knew her  --
         20       Q.   I'm asking, she's --
         21            MR. WARE:  Objection.
         22            HEARING OFFICER DAHER:  Have you ever 
         23   appeared before her?  Do you have any memory of it? 
         24            THE WITNESS:  I think I have, but only in 
 0126
          1   the First Session on relatively routine matters. 
          2       Q.   And she is the Chief Justice of the 
          3   Superior Court?
          4       A.   Yes, she is.
          5            MR. EGBERT:  May I have a moment, please? 
          6            HEARING OFFICER DAHER:  Sure.  
          7            (Pause.)
          8            MR. EGBERT:  No further questions, Your 
          9   Honor.
         10            HEARING OFFICER DAHER:  Mr. Braceras, you 
         11   may pick it up.  
         12                    REDIRECT EXAMINATION
         13       BY MR. BRACERAS: 
         14       Q.   Mr. Deakin, since September 6th, 2000, have 
         15   you had an opportunity to review Exhibit 3, the 
         16   psychosocial report?
         17       A.   Yes, I have.
         18       Q.   After reviewing it, do you see any facts 
         19   which would change the characterization of the case? 
         20            MR. EGBERT:  Objection. 
         21            HEARING OFFICER DAHER:  What's the 
         22   objection?
         23            MR. EGBERT:  The relevance as to what he 
         24   now knows after some time --
 0127
          1            HEARING OFFICER DAHER:  You asked about the 
          2   characterization.  Overruled.  Go ahead.  You have 
          3   it. 
          4       A.   I'm sorry.  When you're asking me about 
          5   change of characterization of the case, what aspect 
          6   of the case do you mean?  The facts of the case or 
          7   the sentencing?  I'm sorry. 
          8       Q.   After reviewing Exhibit 3, would you have 
          9   changed your sentencing recommendation in any way? 
         10       A.   No.
         11       Q.   You were also asked about in Exhibit E, 
         12   certain set of sentencing guidelines that Mr. Egbert 
         13   represented were drafted in 1981 or 1982?
         14       A.   Yes.
         15       Q.   You've been practicing in Superior Court 
         16   approximately five years?  Six years?
         17       A.   Six and a half years.
         18       Q.   In all of your sentencing hearings, has any 
         19   Superior Court judge ever referred to Exhibit E, the 
         20   1981 guidelines?
         21       A.   No.
         22       Q.   Are you familiar with the Truth in 
         23   Sentencing Act?
         24       A.   Yes, I am.
 0128
          1       Q.   Briefly, what is the Truth in Sentencing 
          2   Act?
          3       A.   It's legislation that was passed I believe 
          4   in 1994 -- I'm pretty certain of that.  It 
          5   restructured the Superior Court sentencing -- the 
          6   sentencing -- actually, what it basically 
          7   restructured was parole eligibility on all felony 
          8   offenses.  I take that back -- for state prison 
          9   sentences. 
         10            What it provided was it eliminated the old 
         11   one-third/two-third eligibility system under which 
         12   defendants were eligible for parole at one-third of 
         13   their sentence -- typically violent offenses at 
         14   two-thirds of their sentence -- and it eliminated 
         15   statutory good time, which was time taken off a 
         16   person's sentence by statute.  It attempted -- I 
         17   shouldn't say attempted.  Its effect was to make 
         18   sentencing ranges -- for example, if you use a -- 
         19   say a sentence of three to five years in state 
         20   prison, it attempted to ensure that prisoners would 
         21   serve closer to the full three years before they 
         22   were parole eligible.  There's still some earned 
         23   good time, but it completely restructured the way 
         24   parole was applied to Superior Court sentences.
 0129
          1       Q.   How did the Truth in Sentencing Act affect 
          2   any guidelines, sentencing guidelines, that were in 
          3   existence before then? 
          4            MR. EGBERT:  Objection, since he didn't 
          5   know there were any guidelines in existence.
          6            MR. BRACERAS:  Your Honor, he's now seen 
          7   these guidelines which are in existence.  He 
          8   certainly can testify in his practice as to how 
          9   Exhibit E, which has been introduced into evidence 
         10   by Mr. Egbert, would be effective.
         11            HEARING OFFICER DAHER:  Overruled.  Go 
         12   ahead. 
         13       A.   I would expect that sentencing guidelines 
         14   that describe specific ranges of sentences that were 
         15   promulgated before Truth in Sentencing would have to 
         16   be revised significantly after Truth in Sentencing 
         17   because they reflect a whole different parole 
         18   landscape. 
         19            MR. BRACERAS:  Your Honor, I would just 
         20   like to mark for identification -- I think we're at 
         21   67 -- Chapter S 66.  May I approach? 
         22            HEARING OFFICER DAHER:  Please.
         23       Q.   I'm showing you what's been marked for ID 
         24   as Exhibit 66, a chapter --
 0130
          1            THE CLERK:  67 -- I'm sorry.  66.  You're 
          2   right.  I apologize.
          3            MR. BRACERAS:  67.
          4            THE CLERK:  Yes, 67.
          5            MR. BRACERAS:  My mistake.  It's been 
          6   marked for ID as Exhibit 67, Chapter S 66.
          7                 (Document marked as Hearing
          8                 Exhibit 67 for identification)
          9       Q.   Which codifies the Truth in Sentencing Act.  
         10   Do you see that, Mr. Deakin? 
         11       A.   I do.
         12       Q.   Which is the codification of the Truth in 
         13   Sentencing Act?
         14            MR. EGBERT:  Is that his testimony?
         15       A.   Just that I see it.  He asked me if I see 
         16   it. 
         17            MR. EGBERT:  The question was -- the 
         18   statement was that this codifies the Truth in 
         19   Sentencing.
         20       A.   The question I understood to be before me 
         21   is do I see it.  I've just started to review it.
         22       Q.   Why don't you spend a moment or so just to 
         23   review Exhibit 67.
         24       A.   Thank you.  (Witness reviews document)  
 0131
          1   This may take me a couple of minutes.
          2            HEARING OFFICER DAHER:  Take your time.
          3       A.   Counsel, I think that this is the -- and I 
          4   don't believe I've read this since it was enacted -- 
          5   or when it was promulgated -- but this is the 
          6   legislation that established the Massachusetts 
          7   Sentencing Commission that ultimately produced the 
          8   sentencing guidelines that are in wide use.  I don't 
          9   think that this is the enactment of the Truth in 
         10   Sentencing law that changed parole statutes.
         11       Q.   You understand that Exhibit 23, which is 
         12   before you, the sentencing guidelines, was a result 
         13   of this enactment?
         14       A.   Yes, it clearly was.  But that's different 
         15   from -- and it references Truth in Sentencing in 
         16   here as a value, that there should be Truth in 
         17   Sentencing.  But the legislation that established 
         18   Truth in Sentencing law that is separate legislation 
         19   from this.  This is the enabling legislation that 
         20   created the Massachusetts Sentencing Commission that 
         21   -- I think most recently then Chief Justice Mulligan 
         22   was the chairman of that -- promulgated Exhibit 23.
         23       Q.   When Mr. Egbert was asking you about your 
         24   September 6th appearance before Judge Lopez, he 
 0132
          1   pointed out that you did not sit down when she asked 
          2   you to.  Do you recall that?
          3       A.   I do.
          4       Q.   Why didn't you sit down when Judge Lopez 
          5   asked you to?
          6       A.   I felt at that time that the Judge had 
          7   charged me with being disingenuous and I felt that I 
          8   had a right and a responsibility on behalf of the 
          9   Commonwealth and on my own behalf to correct the 
         10   record and to object.  And when the Judge had me sit 
         11   down, I felt that -- I thought that she was 
         12   improperly limiting my ability to note on the record 
         13   an objection to that characterization.  I didn't 
         14   think the record should be allowed to stand with 
         15   that unobjected-to characterization.
         16       Q.   Mr. Egbert also asked you a little bit 
         17   about the recitation of facts.  Do you recall that?
         18       A.   Yes.
         19       Q.   In particular, he revisited the victim's 
         20   videotaped interview and questioned why certain 
         21   facts were not included.  Do you recall that?
         22       A.   Yes, I do.
         23       Q.   Now, in preparing your recitation of facts, 
         24   in providing your recitation of facts to Judge 
 0133
          1   Lopez, how did you decide what facts to include?
          2       A.   I primarily relied upon the report of 
          3   Detective Thomas Keeley of his interview with the 
          4   child in the hospital immediately after the assault, 
          5   and I used those facts.  I had much earlier reviewed 
          6   the tape.  But as I was drafting -- I was drafting 
          7   from that report.
          8       Q.   And how did you choose which facts to 
          9   include and not to include?
         10       A.   I tried to include those facts that would 
         11   give a picture of a -- an unambiguous picture of the 
         12   nature of the assault and the level of violence 
         13   involved in it.
         14            MR. BRACERAS:  Thank you, Your Honor.  
         15   That's all. 
         16            HEARING OFFICER DAHER:  Mr. Egbert?  
         17            MR. EGBERT:  May I have a moment? 
         18            HEARING OFFICER DAHER:  Sure.  Mr. Braceras 
         19   or Mr. Ware, who follows Mr. Deakin? 
         20            MR. WARE:  Joan Kenney, Your Honor.
         21            HEARING OFFICER DAHER:  She's on call? 
         22            MR. WARE:  She'll be here at 1:15.  
         23            MR. EGBERT:  Judge, did they offer Exhibit 
         24   67? 
 0134
          1            HEARING OFFICER DAHER:  It's only for ID. 
          2                     RECROSS EXAMINATION
          3       BY MR. EGBERT: 
          4       Q.   But so that it's clear, Exhibit 67 has 
          5   nothing to do with Truth in Sentencing; isn't that 
          6   right?
          7       A.   Well, it has nothing to do with the 
          8   legislation called Truth in Sentencing.  It actually 
          9   cites as a goal in here Truth in Sentencing -- it's 
         10   a quote, so it has something to do with it, but 
         11   nothing to do with the law that --
         12       Q.   The law that made Truth in Sentencing into 
         13   law was a totally different law and enactment than 
         14   what the Commission's lawyers just showed you, 
         15   correct?
         16       A.   That's true.
         17       Q.   In fact, the law that they just showed you 
         18   and handed up to you as Exhibit 67 is a law that is 
         19   not in effect; isn't that correct?
         20       A.   I think this law creating the sentencing 
         21   Commission is in effect.
         22       Q.   But the guidelines are not.
         23       A.   The guidelines that it promulgated pursuant 
         24   to this law have never been adopted. 
 0135
          1       Q.   And in fact, it reads in Section 5 of this 
          2   submission, doesn't it, "The Massachusetts 
          3   Sentencing Commission shall submit the initial 
          4   sentencing guidelines promulgated under this Act to 
          5   the General Court within 12 months after the 
          6   effective date of this Act, unless the date for 
          7   submission is extended by law.  The guidelines shall 
          8   take effect only if enacted into law."  Right?
          9       A.   That's correct.
         10       Q.   Now, the guidelines have never been enacted 
         11   into law, correct?
         12       A.   Correct.
         13       Q.   The guidelines have never taken effect 
         14   under the law, correct?
         15       A.   Correct.
         16            MR. BRACERAS:  Mr. Deakin --
         17            HEARING OFFICER DAHER:  One second.  He's 
         18   not done yet. 
         19       Q.   And you were asked about whether or not 
         20   anything in the report that -- Exhibit 3, the 
         21   psychosocial report that we've been talking about.  
         22   Do you understand what I'm talking about?
         23       A.   Yes.
         24       Q.   You were asked whether or not anything in 
 0136
          1   that report would change your recommendation as a 
          2   district attorney, correct?
          3       A.   That's correct.
          4       Q.   Will you agree with me, however, that much 
          5   that is in that report is relevant to sentencing?
          6       A.   If one accepts this report as 
          7   authoritative, then, yes, there is much in it that 
          8   is relevant to sentencing.
          9       Q.   And relevant for a judge to consider at 
         10   sentencing?
         11       A.   If the judge gives -- acknowledges it is 
         12   authoritative, yes.
         13       Q.   In other words, if the judge relied on it, 
         14   then there is a lot of information there that's 
         15   clearly relevant to the sentence to be imposed, 
         16   correct?
         17       A.   I would agree with that.
         18       Q.   And you understand, do you not, that no one 
         19   in the district attorney's office ever asked Judge 
         20   Lopez not to rely on that report?  You understand 
         21   that, don't you?
         22       A.   My understanding is that ADA Joseph's 
         23   interpretation of what happened at the plea colloquy 
         24   made that unnecessary.
 0137
          1       Q.   Made it unnecessary?
          2       A.   Correct.
          3       Q.   Answer my question first and then we'll 
          4   talk about necessities. 
          5            Do you agree with me that no one in the 
          6   DA's office ever sought to have the Judge -- strike 
          7   that.  No one in the DA's office ever argued to the 
          8   Judge that she should not rely on the contents of 
          9   that report?
         10       A.   My understanding from ADA Joseph was that 
         11   she had made it known to the Judge that she did not 
         12   think that the report ought to be relied on.  That's 
         13   my understanding from her.
         14       Q.   That is your understanding from her?
         15       A.   Yes.
         16       Q.   When did you gain that understanding?
         17       A.   It would have been either -- it happened in 
         18   our meeting shortly after the lobby conference.
         19       Q.   Would it surprise you to know that she has 
         20   testified consistently that no such objection was 
         21   ever made?
         22       A.   That would surprise me.
         23       Q.   That she never asked the Judge not to rely 
         24   on it?  Would that surprise you?  Strike that. 
 0138
          1            Would that be inconsistent with what she 
          2   reported to you?
          3       A.   No, it wouldn't.
          4       Q.   Would it be inconsistent --
          5            HEARING OFFICER DAHER:  Mr. Egbert, if I 
          6   recall correctly, the report was viewed by Judge 
          7   Lopez ever so briefly, with Ms. Joseph looking over 
          8   her shoulder.  Judge Lopez didn't retain a report.  
          9   I think it was handed back to Ms. Goldbach.  So that 
         10   report, that psychosomatic report, was not in the 
         11   record.  The district attorney didn't have a copy of 
         12   it.  Nobody had a copy of it.  Judge Lopez didn't 
         13   have a copy of it. 
         14            MR. EGBERT:  Judge, again, with all due 
         15   respect, you couldn't be more wrong.
         16            HEARING OFFICER DAHER:  Tell me.  I want to 
         17   know.  I appreciate your candor.  Go ahead.
         18            MR. EGBERT:  And there are going to be 
         19   judges who come in here who practice in the criminal 
         20   courts who are going to unfortunately tell you that.
         21            HEARING OFFICER DAHER:  What happened to 
         22   this report? 
         23            MR. EGBERT:  The report was taken back 
         24   after it was read by the Judge and relied on at the 
 0139
          1   plea conference, at which time a decision was made 
          2   as to what sentence would be imposed.  It was 
          3   returned to the parties.  It was then later on given 
          4   to Probation after the sentence and put as part of 
          5   their file.  And that is done every day in a plea 
          6   conference in the courts of the Commonwealth in 
          7   criminal cases.  And you will hear from Judge 
          8   DelVecchio in that regard, from Judge Spurlock in 
          9   that regard, from Judge Quinlan -- the fact of the 
         10   matter is, with all due respect, this Court has 
         11   never sat criminal.  And that is done every single 
         12   day.  And that's the facts that judges in the 
         13   criminal sessions rely on.
         14            HEARING OFFICER DAHER:  It would appear, 
         15   Mr. Egbert -- and obviously a man with your vast 
         16   experience -- if we're dealing with the charges of 
         17   kidnapping, et cetera, and the government is seeking 
         18   a rather stringent punishment, a report like that -- 
         19   the judge would at least have kept a copy, the 
         20   district attorney should have been given a copy.
         21            MR. EGBERT:  The district attorney didn't 
         22   ask for one, didn't want one, and rejected one when 
         23   it was given.
         24            HEARING OFFICER DAHER:  Judge Lopez didn't 
 0140
          1   even retain a copy of it.
          2            MR. EGBERT:  That's No. 1.  The Judge 
          3   doesn't have to retain a copy of it.  This is trying 
          4   to make rules and regulations in the conduct of 
          5   criminal trials which do not exist and have never 
          6   existed in the Commonwealth.  And that's what the 
          7   fact of the matter is.  And the issue of what goes 
          8   on daily in lobby conferences on pleas throughout 
          9   this Commonwealth have occurred just like that four 
         10   years.  And to now try to run away -- have the DA's 
         11   office --
         12            MR. WARE:  I hate to interrupt --
         13            MR. EGBERT:  Well, don't.  I'm speaking.
         14            MR. WARE:  Could you save the closing for a 
         15   week from now? 
         16            MR. EGBERT:  Are you done? 
         17            MR. WARE:  Not quite.
         18            HEARING OFFICER DAHER:  Go ahead.
         19            MR. EGBERT:  I am a bit tired of being 
         20   interrupted from behind, so to speak, by Mr. Ware 
         21   and his colleagues.
         22            HEARING OFFICER DAHER:  Sure. 
         23            MR. EGBERT:  Your Honor, I suggest -- and 
         24   I'm saddened to say that even after the amount of 
 0141
          1   time that has gone on in these proceedings to 
          2   describe criminal events, that we haven't obviously 
          3   made our point to you.  But these are conferences 
          4   that go on in criminal cases every day throughout 
          5   the Commonwealth where people put forward matters to 
          6   the judge, both orally and in documents, that the 
          7   judge reviews them all, and then indicates what 
          8   their sentence is going to be.  And that's it.  And 
          9   matters are not put on the record at that time.  
         10   Matters are not made a part of the record at that 
         11   time.  There is no record at that time.  And what 
         12   judges do consistently is then either that day, if 
         13   the occasion arises, because everybody is in 
         14   agreement --
         15            HEARING OFFICER DAHER:  I understand that 
         16   totally.  And in the hurried nature of the session, 
         17   I can understand that.  But then when a judge looks 
         18   at a report, it's not from a board-certified 
         19   clinical psychologist or psychiatrist.  It's from a 
         20   social worker out of Ms. Goldbach's office.  She 
         21   reviews it for a few minutes and gives it back and 
         22   there's no copy to the ADA.
         23            MR. EGBERT:  The ADA didn't ask for a copy, 
         24   nor would she take a copy when offered to her.
 0142
          1            MR. WARE:  Well, are we going to argue this 
          2   endlessly? 
          3            HEARING OFFICER DAHER:  Go ahead.  Why 
          4   don't you finish your examination of Mr. Deakin.  Go 
          5   ahead. 
          6       BY MR. EGBERT: 
          7       Q.   Mr. Deakin, the facts and circumstances in 
          8   the report you've indicated would be relevant to 
          9   sentencing?
         10       A.   If they were viewed as authoritative --
         11       Q.   If they were viewed as authoritative?
         12       A.   Yes.
         13       Q.   Which is a judge's right to do, correct?
         14       A.   Yes.
         15       Q.   And in this particular case, they were 
         16   presented to Judge Lopez, correct?
         17       A.   Again, I don't know of my own knowledge. 
         18       Q.   Can you take that as a given by now?
         19       A.   I've been told that, yes.
         20       Q.   And when you read those facts and 
         21   circumstances regarding the defendant Ebony Horton, 
         22   it didn't change your characterization of the case, 
         23   did it?
         24       A.   Counsel --
 0143
          1       Q.   Please, just answer my question.  Did it? 
          2            HEARING OFFICER DAHER:  Yes or no. 
          3       A.   No, but --
          4       Q.   "No, but."  It didn't, did it?
          5       A.   No, it did not.
          6       Q.   Thank you.  But it may well have changed 
          7   Judge Lopez's characterization of the case; isn't 
          8   that correct?
          9            MR. WARE:  Objection.  She's testified --
         10            HEARING OFFICER DAHER:  Sustained.
         11       Q.   That's exactly what the press release says, 
         12   doesn't it?
         13            MR. WARE:  Objection.
         14            HEARING OFFICER DAHER:  Sustained. 
         15      *Q.   That it is her opinion that the 
         16   characterization would change --
         17            MR. WARE:  Objection.
         18            HEARING OFFICER DAHER:  That's not a 
         19   question.  That's a declaration.  Next question.
         20       Q.   Do you understand the meaning of that?
         21            HEARING OFFICER DAHER:  What is the 
         22   question?
         23       Q.   Isn't that your understanding of that 
         24   statement in the press release?
 0144
          1            MR. WARE:  Objection.  What is the 
          2   question?  Whether he understands --
          3            HEARING OFFICER DAHER:  His understanding. 
          4   Play back the question, please.
          5            *(Question read)
          6            HEARING OFFICER DAHER:  Are you objecting 
          7   to it?
          8            MR. WARE:  Yes.
          9            HEARING OFFICER DAHER:  Sustained. 
         10            MR. EGBERT:  No further questions.
         11            HEARING OFFICER DAHER:  Anything on --
         12            MR. BRACERAS:  No questions, Your Honor.
         13            HEARING OFFICER DAHER:  We'll break here 
         14   and get back at --
         15            MR. WARE:  1:30? 
         16            HEARING OFFICER DAHER:  We'll make it 
         17   quarter of.
         18            MR. WARE:  Yes, Your Honor.
         19            HEARING OFFICER DAHER:  Quarter of two.  
         20   We'll break now.  
         21            (Luncheon recess taken from
         22            12:36 p.m. to 1:53 p.m.)
         23   
         24   
 0145
          1                     AFTERNOON SESSION
          2                    JOAN KENNEY, Sworn
          3                    DIRECT EXAMINATION
          4       BY MR. WARE: 
          5       Q.   Could you state your name, please, for the 
          6   Court.
          7       A.   My name is Joan Kenney.
          8       Q.   And what is your current position, Ms. 
          9   Kenney?
         10       A.   Public information officer at the Supreme 
         11   Judicial Court.
         12       Q.   I'm going to ask you to bend that 
         13   microphone a little bit closer to you.
         14            And when you say public information 
         15   officer, tell us what the Public Information Office 
         16   is. 
         17       A.   Public Information Office is the central 
         18   communications office for the court system.  It's 
         19   responsible for responding to media and public 
         20   inquiries, issuing press releases and the media 
         21   relations as well as community outreach, development 
         22   of publications, and special events.
         23       Q.   And does the Public Information Office and 
         24   you, as a public information officer, deal with 
 0146
          1   judges in all courts of the Commonwealth?
          2       A.   Yes, the duties extend to all of the 
          3   courts.
          4       Q.   Including Superior Court judges?
          5       A.   Yes.
          6       Q.   Tell us for what period of time you've been 
          7   the Public Information Officer for the Supreme 
          8   Judicial Court.
          9       A.   Since 1988.
         10       Q.   In the course of your duties, have you had 
         11   occasion in the past to respond to inquiries from 
         12   the press and work with individual judges in the 
         13   Commonwealth?
         14       A.   Yes, I have.
         15       Q.   Directing your attention to August of 2000, 
         16   in the summer of 2000, mainly early August, did you 
         17   receive a call from Judge Lopez regarding what you 
         18   learned was the Horton case?
         19       A.   Yes, I did.
         20       Q.   And would you tell us what occurred. 
         21       A.   Judge Lopez called my office and said that 
         22   she was concerned about cameras present at a 
         23   proceeding she was holding involving Charles Horton.
         24       Q.   And did she say anything else at that time?
 0147
          1       A.   She was upset that the cameras were near -- 
          2   filming him in or near the elevators.
          3       Q.   Did she tell you what proceedings were on 
          4   for that day or whether the case was going to go 
          5   forward?
          6       A.   She said she was going to continue the 
          7   case.
          8       Q.   And did she tell you why she was going to 
          9   continue it?
         10       A.   Well, she was upset at the media being 
         11   present that day, particularly filming Charles 
         12   Horton.
         13       Q.   At that time did she ask you to become 
         14   involved in any way in the Horton case or in the 
         15   press relations?
         16       A.   Yes.  She had asked me to fax her findings 
         17   and order to the media that same day.
         18       Q.   Let me direct your attention to what's been 
         19   marked Exhibit 49 in the book before you.  And I put 
         20   that also on the monitor for you. 
         21            Do you recognize Exhibit 49?
         22       A.   I do.
         23       Q.   Will you tell us what it is. 
         24       A.   That is a fax cover sheet that was sent to 
 0148
          1   my office with Judge Lopez's order and findings from 
          2   August 4th.
          3       Q.   And when you received the document or 
          4   documents included within Exhibit 49, did you 
          5   receive all three of these documents?
          6       A.   Yes.
          7       Q.   And what did you understand them to be?
          8       A.   I considered that to be the press release 
          9   to send to Channels 4, 5, 7, and 56.
         10       Q.   Did you have conversation with Judge Lopez 
         11   regarding your sending this as a press release to 
         12   Channels 4, 5, 7, and 56?
         13       A.   I believe I did, but I don't have a 
         14   specific recollection of what we said.
         15       Q.   Can you tell from the document 
         16   approximately when you received it?  Directing you 
         17   specifically to the upper left-hand corner.  It may 
         18   be easier to see on the hard copy. 
         19       A.   Well, it was sent on August 4th in the 
         20   afternoon. 
         21       Q.   Do you see the notation that says "16:07"?
         22       A.   Yes.
         23       Q.   Do you remember whether or not you received 
         24   it around four o'clock in the afternoon?
 0149
          1       A.   I don't remember, but it probably was.
          2       Q.   What did you do with the documents after 
          3   you received them?
          4       A.   I sent it out to the stations that she 
          5   listed, and I also sent it to some other media 
          6   outlets; namely, the Globe, the Herald, AP, perhaps 
          7   others who might have been interested in this case.
          8       Q.   Was that consistent with your practice?
          9       A.   Yes, it was.
         10       Q.   Now, you know that the document attached to 
         11   Exhibit 49 or as part of Exhibit 49 was a set of 
         12   findings by the Judge; is that correct?
         13       A.   Yes, that's correct.
         14       Q.   Did you ever send findings out to the media 
         15   without being directed to do so by the judge who 
         16   entered the findings?
         17       A.   No, I wouldn't do it without being directed 
         18   to do that.
         19       Q.   Will you tell us what are the rules that 
         20   you play by in your office with respect to sending 
         21   statements out or information out under the name of 
         22   a judge?
         23       A.   Well, I would always check with the judge 
         24   first to make sure it is a public document, make 
 0150
          1   sure something's been docketed in the clerk's office 
          2   to make sure the judge would be in agreement that 
          3   something could be released to the public or the 
          4   press.
          5       Q.   And do you have any reason to believe you 
          6   did not follow that procedure on this occasion?
          7       A.   No.
          8       Q.   Following August 4th, did you have further 
          9   contact with Judge Lopez at some time?
         10       A.   Yes.  On or about the time that she was to 
         11   hold the next hearing on the matter.
         12       Q.   And do you recall approximately when you 
         13   heard from Judge Lopez again?
         14       A.   That was in September.  The hearing I 
         15   believe was September 6th, so it was on or about 
         16   that time or before.
         17       Q.   Between August 4th and September 6th, did 
         18   you and Judge Lopez discuss the Horton case or did 
         19   you have any role in press relations with the Horton 
         20   case?
         21       A.   No, not between that time.
         22       Q.   So during that month you had nothing to do 
         23   with the case?
         24       A.   Not that I recall.
 0151
          1       Q.   And then tell us what happened on September 
          2   6th. 
          3       A.   The Judge and I talked before the hearing 
          4   began, and she told me that she was going to allow 
          5   to have a camera in the courtroom for the 
          6   proceeding.  I had suggested to her that she hold a 
          7   meeting with the press beforehand to go over any 
          8   ground rules that she wanted.
          9       Q.   Did you have any further conversation that 
         10   you recall?
         11       A.   Not before the hearing.
         12       Q.   Actually, let me ask you to back up.  After 
         13   you sent out the release or the document marked 
         14   Exhibit 49, you indicated you sent that to a number 
         15   of media outlets, including the channels listed on 
         16   the document.  Did there in fact appear newspaper 
         17   articles the following day quoting from the order?
         18       A.   I believe so.
         19       Q.   And let me direct you just quickly, if I 
         20   may, to Exhibits 15 and 19, and tell me whether or 
         21   not those were articles in response to the press 
         22   release.  I think 15 is an article from the Globe.  
         23   And 19. 
         24       A.   Yes, they look like they are.
 0152
          1            MR. EGBERT:  Judge, I'm sorry; I didn't 
          2   hear the answer.  I'm not sure if she's talking 
          3   about what she remembers or what she looked at.
          4       Q.   I'll ask a question. 
          5            You understand Exhibits 15 and 19 to have 
          6   been articles which came out following the issuance 
          7   of the press release or order marked Exhibit 49?
          8            MR. EGBERT:  Judge, again, my quarrel is 
          9   with the word "understand."  If she saw them, that's 
         10   fine.  If she didn't, that's fine, but I'd like to 
         11   know which it is.  
         12            HEARING OFFICER DAHER:  Sustained.  Go 
         13   ahead. 
         14       A.   I saw them at the time.
         15       Q.   And did you understand them to be a 
         16   response to the press release you had sent out on 
         17   August 4th?
         18       A.   Yes, to the order and findings.
         19            MR. EGBERT:  I'm sorry, Your Honor; I 
         20   couldn't hear the answer. 
         21       A.   To the order and findings.
         22       Q.   Let's go back to September 6th.  You 
         23   indicated you had some conversation with the Judge 
         24   with respect to the press and how the press would be 
 0153
          1   handled on that day; is that correct?
          2       A.   That's right.
          3       Q.   Other than what you've told us --
          4            HEARING OFFICER DAHER:  Could you speak up 
          5   a little louder?
          6            THE WITNESS:  Sure.
          7       Q.   Do you remember any other conversation with 
          8   the Judge about that?
          9       A.   Prior to the hearing? 
         10       Q.   Yes. 
         11       A.   No, I don't. 
         12       Q.   And what happened after that initial 
         13   conversation with Judge Lopez on September 6th?  
         14   What was your next contact with the case?
         15       A.   My next contact was after the hearing was 
         16   over, Judge Lopez called me.  She was upset because 
         17   -- I think it may have been in response to a media 
         18   inquiry that either she received or I received.  
         19   There was a remark made in the courtroom about a 
         20   low-scale matter or low-level matter.  She was 
         21   concerned that that would be misinterpreted, and she 
         22   told me what she meant by that was that she was 
         23   referring to the sentencing guidelines.
         24       Q.   And on September 6th, after the earlier 
 0154
          1   conversation about the press and locating the press, 
          2   did you call Judge Lopez or did she make the initial 
          3   call to you? 
          4       A.   I remember her calling me.
          5       Q.   Were you at the time in your office?
          6       A.   Yes.
          7       Q.   And will you do your best to repeat for us 
          8   the conversation as you recall it. 
          9       A.   What I remember her saying was that she was 
         10   concerned that she was going to be misinterpreted by 
         11   a remark she made in the courtroom referring to a 
         12   low-level or low-scale matter and that what she 
         13   meant by that was sentencing guidelines.  She was 
         14   referring to sentencing guidelines.
         15       Q.   Did you have any further conversation with 
         16   her that day about the case or about what to do 
         17   about the press release?
         18       A.   I don't remember how many conversations we 
         19   had that day, but I had said if she wanted to send 
         20   any media calls to my office that she was getting, 
         21   that I would take them for her.
         22       Q.   Did you have any conversation with the 
         23   Judge about any facts of the case as she was 
         24   relating them to you?
 0155
          1       A.   She was telling me bits and pieces about 
          2   the case.  I don't know exactly what she told me on 
          3   that day, how much she told me that day.
          4       Q.   Will you tell us what you do remember her 
          5   saying to you that day, other than the "low-scale" 
          6   comment. 
          7       A.   I can't recall what she said on that 
          8   particular day.  We had many conversations in the 
          9   following days about the case, but...
         10       Q.   On September 6th, the date of the 
         11   sentencing, after you spoke with Judge Lopez, did 
         12   you do anything?  Did you take any steps with the 
         13   press at that time?
         14       A.   Well, I think it was the next day we 
         15   discussed it, and I suggested that we draft a 
         16   statement to go out to the press.
         17       Q.   Before you drafted that statement, did you 
         18   learn from Judge Lopez additional facts about the 
         19   case, specifically about a weapon or about the 
         20   kidnapping?
         21       A.   I did learn a couple of facts from Judge 
         22   Lopez.  I can't remember which day it was, but she 
         23   did tell me that she did not believe it was a 
         24   kidnapping and that the screwdriver was not used as 
 0156
          1   a weapon.
          2       Q.   Do you believe the Judge told you those 
          3   pieces of information prior to the time that you 
          4   initially drafted the statement?
          5       A.   I can't recall if I knew that before I 
          6   drafted the statement or afterwards.
          7       Q.   Were there any other facts you learned from 
          8   Judge Lopez or statements you heard Judge Lopez give 
          9   you by way of description of the case that you 
         10   remember?
         11       A.   Those are the two that stand out in my 
         12   mind.  I'm sure she told me other parts about the 
         13   case, but I don't remember specifically any other 
         14   items.
         15       Q.   Following that, what did you do?
         16       A.   I drafted a statement based on the 
         17   information that she was giving me and said, "Let's 
         18   take a look at this and decide whether we want to 
         19   put this out or not."
         20       Q.   And I've placed on the monitor what's been 
         21   marked in this case as Exhibit -- part of Exhibit 
         22   24.  And you have the entire exhibit in the book 
         23   before you.  Let me just ask you to describe what's 
         24   contained in Exhibit 24 as you understand it. 
 0157
          1       A.   The top page is a draft of the release with 
          2   changes -- with my original draft and changes that 
          3   had been made by Chief Justice DelVecchio.  
          4   Underneath that page is the first draft that I had 
          5   written and then the final version that was sent out 
          6   to the press, the final version containing some 
          7   revisions that Chief Justice DelVecchio and Judge 
          8   Lopez had made.
          9       Q.   So let me direct you to the second page, 
         10   the one marked "First Draft."  Is that a document 
         11   which you prepared with Judge Lopez?
         12       A.   Yes, it is.
         13       Q.   You actually wrote the words, as I 
         14   understand you; is that correct?
         15       A.   That's correct.
         16       Q.   And what conversation did you have with 
         17   Judge Lopez about the content of this proposed 
         18   statement?
         19       A.   This was the information that I had at the 
         20   time, and it was my suggestion to draft a press 
         21   release based on what she was telling me.
         22       Q.   Other than the information you got from 
         23   Judge Lopez, did you have any other sources of 
         24   information at that time?
 0158
          1       A.   No.
          2       Q.   Following your preparation of what's marked 
          3   "First Draft," what did you do with the first draft?
          4       A.   Discussed it with Judge Lopez.  And then 
          5   either she or I thought it would be a good idea if 
          6   Chief Justice DelVecchio took a look at it.
          7       Q.   Now, I'd like to take a look at the 
          8   document as it was drafted, and direct you 
          9   specifically to the first sentence of this 
         10   statement.  And I've highlighted a portion of that 
         11   or the first sentence on the monitor.  The first 
         12   sentence says, "The judicial canons prohibit judges 
         13   from commenting on pending and impending cases."  
         14   Can you tell us why you included that in this 
         15   initial draft?
         16       A.   Yes.  I considered this a pending case 
         17   because Charles Horton was on probation, and it was 
         18   an attempt to explain to the press why the Judge 
         19   couldn't comment about the case.  There were many 
         20   inquiries coming in and requests for her to comment. 
         21       Q.   Did Judge Lopez at any time take issue with 
         22   your characterization of the cases pending?
         23       A.   No.
         24       Q.   Further down the paragraph there's 
 0159
          1   reference to "low scale," I believe.  Do you see 
          2   that?
          3       A.   Yes.
          4       Q.   And it says in part, "My statement in open 
          5   court that it was a low-scale matter pertained 
          6   solely to the appropriate level of the sentencing 
          7   guidelines..."
          8            Why did you include that language?
          9       A.   Because that's what Judge Lopez had told 
         10   me, that it was a low-scale matter, and that that's 
         11   what she was referring to.
         12       Q.   What did she say to you in that regard?
         13       A.   Just that -- that it was -- that she had 
         14   said in open court that it was a low-scale matter 
         15   and that she was referring to the sentencing 
         16   guidelines.
         17       Q.   When the Judge referred to the sentencing 
         18   guidelines, did you have an understanding -- 
         19   although you're not a lawyer -- in your official 
         20   capacity of what she was referring to?
         21       A.   Yes, I did.
         22       Q.   And what did you understand the Judge to be 
         23   referring to?
         24       A.   These are guidelines that judges use to 
 0160
          1   determine what kind of sentence to give a defendant.
          2       Q.   And have you had other occasion to work 
          3   with other judges in issuing statements or referring 
          4   to the sentencing guidelines?
          5       A.   I've worked with other judges issuing 
          6   statements, and I'm familiar in general with what 
          7   the sentencing guidelines are.
          8       Q.   And were you familiar as of September 2000 
          9   with the fact that sentencing guidelines were out 
         10   there?  Whether enacted or not enacted, they were 
         11   out there?
         12       A.   Yes.
         13       Q.   The statement goes on to refer to "certain 
         14   facts," and I've highlighted a portion of that on 
         15   the monitor as well. 
         16            Other than the facts -- well, what are the 
         17   facts which you understood to be referred to here?
         18       A.   These were facts that the Judge had told me 
         19   about the case.  Again, I don't specifically 
         20   remember what I knew on that particular day, but I 
         21   do remember her talking about the kidnapping and the 
         22   screwdriver as two facts.
         23       Q.   And what is it that the Judge told you 
         24   about the screwdriver and the kidnapping, as you 
 0161
          1   best recall?
          2       A.   She didn't think this was a real 
          3   kidnapping, and the screwdriver was not used as a 
          4   weapon. 
          5       Q.   Was that part of the basis for this 
          6   reference to "certain facts"?
          7       A.   Yes.
          8       Q.   Did you believe that the information 
          9   regarding the kidnapping and the screwdriver were 
         10   mentioned by the Judge in conjunction with 
         11   preparation of this statement or before?
         12       A.   Yes, and I think there were other facts 
         13   that I may not have known at the time, but that I 
         14   knew she couldn't reveal them.
         15       Q.   What other facts did you understand -- if 
         16   you didn't know the facts, what kind of facts did 
         17   you understand were being referred to here?
         18       A.   I'm not sure I know what you mean.
         19       Q.   I'm not sure I do either.  Let me try it 
         20   again. 
         21            You've mentioned a couple of facts about 
         22   which the Judge informed you at the time of this 
         23   statement having to do with the screwdriver and the 
         24   kidnapping, correct?
 0162
          1       A.   Yes.
          2       Q.   Do you remember any other pieces of 
          3   information given to you by the Judge, with the 
          4   exception of the "low-scale" comment, on the basis 
          5   of which the statement was drafted?
          6       A.   I don't recall any others.
          7       Q.   Now, later you had many, many, many 
          8   conversations with Judge Lopez, did you not?
          9       A.   That's right.
         10       Q.   After this statement was issued, correct?
         11       A.   Yes, right.
         12       Q.   And to some extent these conversations run 
         13   together in your mind, I take it, correct?
         14       A.   Yes, they do.
         15       Q.   At any time to your knowledge did Judge 
         16   Lopez mention to you the existence of a social 
         17   worker's report or a psychological report on which 
         18   she was relying?
         19       A.   I don't recall a social worker's report.
         20       Q.   Do you ever remember referring in any way 
         21   to a psychological profile or social worker's 
         22   report?
         23       A.   I don't recall that.
         24       Q.   After the statement was drafted, you said 
 0163
          1   that Judge DelVecchio commented about it or made 
          2   some changes to it, correct?
          3       A.   Yes.
          4       Q.   Tell us what you did with the first draft 
          5   statement. 
          6       A.   I faxed the first draft to Chief Justice 
          7   DelVecchio's office so she could review it. 
          8       Q.   Did you give it to anybody else?
          9       A.   No; just Chief Justice DelVecchio, and 
         10   Judge Lopez also had it.
         11       Q.   And so when you had the initial draft, it 
         12   went to Judge Lopez and it went to Justice 
         13   DelVecchio, correct?
         14       A.   Yes, that's right.
         15       Q.   At some time did you receive something back 
         16   from Justice DelVecchio?
         17       A.   Yes.  Chief Justice DelVecchio faxed a 
         18   version back to me.  She had made some minor 
         19   revisions to my original draft. 
         20       Q.   And let me direct you to the monitor to the 
         21   fax cover sheet.  And in hard copy it is Exhibit 51.  
         22   Is that the fax cover sheet you received back from 
         23   Justice DelVecchio's office?
         24       A.   Yes, it is.
 0164
          1       Q.   In fact, did Justice DelVecchio make a 
          2   couple of changes to the proposed statement which 
          3   you had sent out?
          4       A.   She did.
          5       Q.   And those are the changes you earlier 
          6   referred to on the first page of Exhibit 24; is that 
          7   correct?
          8       A.   That's right, yes.
          9       Q.   Let's go back to Exhibit 24 just quickly.  
         10   The final version -- do you have that in front of 
         11   you?
         12       A.   Yes.
         13       Q.   The final version which went out to the 
         14   public or to the media is the third page marked 
         15   "Final Version"; is that correct?
         16       A.   That's correct.
         17       Q.   And the changes made by Justice DelVecchio 
         18   appear on the first page of those three in Exhibit 
         19   24; is that correct?
         20       A.   That's correct.
         21       Q.   Other than those changes, were any other 
         22   changes made to the initial draft?
         23       A.   No.
         24       Q.   Did you at some time have conversation with 
 0165
          1   Judge Lopez regarding the statements in the release?
          2       A.   Yes.  She saw the first draft.  I had read 
          3   it to her and would have faxed it to her.  I'm 
          4   pretty sure I did.  And then I called her again 
          5   after Chief Justice DelVecchio made her revisions, 
          6   to make sure that Judge Lopez was comfortable with 
          7   it and it should go out.
          8       Q.   And what was the conversation with Judge 
          9   Lopez on those two occasions?
         10       A.   When I talked with her after Chief Justice 
         11   DelVecchio had reviewed it, I was under the 
         12   impression that they had had a conversation about 
         13   it, the two of them, and that she was in full 
         14   agreement that this should go out, and in fact, 
         15   directed me to do so.
         16       Q.   When you say directed you to do so, did 
         17   Judge Lopez tell you to send the statement out?
         18       A.   Yes.  She said you can send it out -- that 
         19   I could send it out.
         20       Q.   At any time did Judge Lopez indicate to you 
         21   that she disagreed with any aspect of the release?
         22       A.   No.
         23       Q.   And did she in any way indicate to you that 
         24   she thought changes should be made in that statement 
 0166
          1   because the statements were inaccurate in any way?
          2       A.   No.
          3       Q.   Did she at any time come back to you and 
          4   say, "This sentencing guidelines thing isn't right.  
          5   Don't send it out.  It will mislead someone"?
          6       A.   No.
          7       Q.   What did you then do after the Judge 
          8   instructed you to send out the statement?
          9       A.   I faxed it to all of the media who had 
         10   expressed an interest in it. 
         11       Q.   And when you talk about "all the media," 
         12   are you talking about print media as well as 
         13   television stations?
         14       A.   Print and broadcast.
         15       Q.   Following the statement, did you receive 
         16   additional information from Judge Lopez after the 
         17   statement went out?
         18       A.   We had many conversations over the course 
         19   of the week, and weeks, really, while this stayed in 
         20   the news.
         21       Q.   I think I neglected to ask you, what was 
         22   the date on which the statement, Exhibit 24, was 
         23   actually sent to the public media?
         24       A.   I believe it was September 7th that the 
 0167
          1   statement went out.
          2       Q.   The day after the sentencing?
          3       A.   The day after.
          4       Q.   And in the subsequent days over the next 
          5   couple of weeks after September 7th, how often did 
          6   you speak with Judge Lopez?
          7       A.   I think every day, sometimes several times 
          8   a day.  I was keeping her informed of every media 
          9   call that came in, you know, people who wanted 
         10   interviews or requests for comments.  So I was 
         11   keeping her informed on a daily basis.
         12       Q.   At any point in time during those next 
         13   several weeks or even up until today, has the Judge 
         14   ever indicated to you in any way that there was any 
         15   inaccuracy in the statement that you sent out at her 
         16   direction?
         17       A.   No.
         18       Q.   Did you learn some additional information 
         19   which Judge Lopez gave to you after the statement 
         20   went out?
         21       A.   Yes.  Each time I talked to her there was 
         22   more information that she gave me.  She asked me 
         23   specifically to call a police detective.
         24       Q.   And do you recall that detective's name?
 0168
          1       A.   Jay Greene.
          2       Q.   What did Judge Lopez tell you to do and 
          3   what did you in fact do?
          4       A.   She gave me the name of Jay Greene and said 
          5   he would have information pertaining to this case, 
          6   and I called him at her suggestion.
          7       Q.   Did you speak with Greene at that time?
          8       A.   I did.
          9       Q.   As a result of the conversation with 
         10   Detective Greene, what did you do?
         11       A.   I then called the Boston Police Department, 
         12   talked to the spokesperson there, and asked what 
         13   their procedures were about releasing information.
         14       Q.   And what were you told?
         15       A.   That this was a case involving a child, 
         16   sexual assault case, and that they would not release 
         17   information.  I explained that I was concerned 
         18   because the detective had given me information that 
         19   was not being reported in the press or it was 
         20   conflicting with press reports.
         21       Q.   And at some time did you talk to the 
         22   detective about going on record and saying what he 
         23   was telling you?
         24       A.   I asked if he would talk to the press, if 
 0169
          1   this was information that he was comfortable in 
          2   talking to the press about.
          3       Q.   And what did he tell you? 
          4            MR. EGBERT:  Objection. 
          5            HEARING OFFICER DAHER:  I beg your pardon? 
          6            MR. EGBERT:  Objection as hearsay:  "What 
          7   did he tell you?"
          8            HEARING OFFICER DAHER:  Overruled.  I want 
          9   to hear it.
         10       Q.   What did Greene tell you?
         11       A.   He could not speak to the press.
         12       Q.   Was he at any time willing to verify any of 
         13   this alleged information?
         14       A.   Was he willing to verify it? 
         15       Q.   Yes, go on record and substantiate what he 
         16   was telling you. 
         17       A.   No.  He said he was not part of the child 
         18   assault unit, and he could not comment on it.
         19       Q.   Did he indicate to you whether or not he 
         20   was one of the investigating officers?
         21       A.   I don't think he told me he was.
         22       Q.   Did you at any time disclose to the media 
         23   anything which Greene had said to you, given that 
         24   you could not verify any of it?
 0170
          1       A.   No, I did not.
          2       Q.   Subsequently, during what period of time 
          3   did you continue to deal day to day with Judge 
          4   Lopez?
          5       A.   Well, we spoke almost every day during that 
          6   period of time.
          7       Q.   And once again, at any time did the Judge 
          8   indicate to you that there was any mistake or error 
          9   in the statement that had been sent out as her 
         10   statement and under her instruction?
         11       A.   No.
         12            MR. WARE:  I have no further questions.  
         13   Thank you, Ms. Kenney.
         14            HEARING OFFICER DAHER:  Again, Ms. Kenney, 
         15   help me out.  Did Judge Lopez ever talk to you about 
         16   the victim?  Did you have any conversations about 
         17   the alleged victim?
         18            THE WITNESS:  She told me that she did not 
         19   think it had been a kidnapping, that he perhaps went 
         20   willingly into the car.
         21            MR. EGBERT:  I didn't hear the answer.
         22            THE WITNESS:  That he went willingly into 
         23   the car.
         24            HEARING OFFICER DAHER:  And how about the 
 0171
          1   victim itself?  Did she tell you anything about the 
          2   victim, other than the fact that he may have 
          3   willingly gotten into the vehicle?
          4            THE WITNESS:  That's all I can remember 
          5   about that.
          6            HEARING OFFICER DAHER:  Okay.  Go ahead.   
          7            Also, you talked to Judge Lopez, and Judge 
          8   Lopez told you to contact Detective Greene; is that 
          9   correct? 
         10            THE WITNESS:  That's correct.
         11            HEARING OFFICER DAHER:  Did she intimate to 
         12   you what Detective Greene was going to say?  Did she 
         13   tell you?
         14            THE WITNESS:  She didn't tell me 
         15   specifically, but I had the impression that it was 
         16   going to be --
         17            MR. EGBERT:  I object to her impression.
         18            HEARING OFFICER DAHER:  I understand.  It's 
         19   on the record.  Your objection noted.  Go ahead.
         20            THE WITNESS:  That it was going to be 
         21   supportive of what she had told me already.
         22            HEARING OFFICER DAHER:  Namely, that he got 
         23   into the vehicle willingly?
         24            THE WITNESS:  I think so, yes. 
 0172
          1            HEARING OFFICER DAHER:  Okay.  Go ahead.  
          2            THE WITNESS:  Can I just amend that?  I 
          3   just want to make sure you understand what I was 
          4   saying.
          5            HEARING OFFICER DAHER:  To a degree.  Go 
          6   ahead. 
          7            THE WITNESS:  I just want to explain that 
          8   Detective Greene didn't say that he got into the car 
          9   willingly. 
         10            HEARING OFFICER DAHER:  Did Judge Lopez 
         11   tell you -- it was the purpose, I take it, for Judge 
         12   Lopez wanting you to talk to Detective Greene.
         13            THE WITNESS:  Right.
         14            HEARING OFFICER DAHER:  Did she tell you 
         15   what Detective Greene could testify to or would tell 
         16   you or would bring to your attention?
         17            THE WITNESS:  She said he would have some 
         18   important information, but she didn't say exactly 
         19   what he was going to tell me.
         20            HEARING OFFICER DAHER:  Okay.  
         21                    CROSS EXAMINATION
         22       BY MR. EGBERT: 
         23       Q.   Good afternoon, Ms. Kenney. 
         24       A.   Good afternoon. 
 0173
          1       Q.   Let's actually start where you just 
          2   stopped, so it's fresh in your mind. 
          3            What Judge Lopez told you, isn't it, that 
          4   this wasn't a kidnapping, quote, in the usual sense; 
          5   isn't that right?
          6       A.   She told me it wasn't a kidnapping. 
          7       Q.   Didn't she use the words "in the usual 
          8   sense"?
          9       A.   I don't remember if those were her words.
         10       Q.   Pardon me? 
         11       A.   I don't remember if those were her words.
         12       Q.   Well, were those your words at one time?
         13       A.   I think I said that.
         14       Q.   So, in fact, when you were first 
         15   interviewed on these events some -- and you were 
         16   interviewed in August of 2001 by the Commission's 
         17   counsel, were you not?
         18       A.   I was.
         19       Q.   And have you had an opportunity to review 
         20   that statement?
         21       A.   I have had an opportunity to review it.
         22       Q.   And when did you obtain a copy of that 
         23   statement?
         24       A.   Sometime ago.
 0174
          1       Q.   Do you recall how long ago?
          2       A.   Several months ago, maybe.
          3       Q.   Can you be more specific than that?  Was it 
          4   before these proceedings started? 
          5       A.   Before which proceedings? 
          6       Q.   The proceedings here in court. 
          7       A.   Oh, yes.
          8       Q.   And do you recall that in the first 
          9   instance you were given a copy of that statement to 
         10   look at sometime well before Judge Daher was 
         11   appointed to this proceeding?
         12       A.   Yes.
         13       Q.   In other words, you were provided with a 
         14   copy of a confidential Commission document prior to 
         15   anybody authorizing its release; isn't that true?
         16       A.   I don't know when it was authorized for 
         17   release, but I've looked at the testimony that I 
         18   gave.
         19       Q.   And that was provided to you by Commission 
         20   counsel, was it not?
         21       A.   Yes.
         22       Q.   And that was not -- you weren't given any 
         23   kind of protective order or nondisclosure order with 
         24   regard to that, were you?
 0175
          1       A.   Protective order?  No.
          2       Q.   Or a nondisclosure order?
          3       A.   I don't think so.
          4       Q.   You would remember something like that, 
          5   wouldn't you?
          6       A.   I would think so.
          7       Q.   And so you're aware that Commission 
          8   proceedings are confidential?
          9       A.   Yes.
         10       Q.   And the document you were given was a copy 
         11   of your interview before Paul Ware and Cheryl 
         12   Rainville?
         13       A.   Yes.
         14       Q.   Conducted at their office, at Goodwin 
         15   Procter, on August 16th, 2001, correct?
         16       A.   That's correct.
         17       Q.   Now, in regard to that, since that time, 
         18   have you had occasion to be -- to have your 
         19   testimony prepared by lawyers at Goodwin Procter?
         20       A.   I'm sorry; I didn't hear you.
         21       Q.   Have you had occasion to have your 
         22   testimony prepared by lawyers at Goodwin Procter?
         23       A.   My testimony prepared?  No.
         24       Q.   Have you talked with them about your 
 0176
          1   testimony?
          2       A.   Yes.
          3       Q.   Have you prepared for your testimony?
          4       A.   I don't know what you mean by "prepared." 
          5       Q.   Have you met with them?
          6       A.   I've met with them.
          7       Q.   And talked with them about what you're 
          8   going to testify to?
          9       A.   Generally, yes.
         10       Q.   The kinds of questions you would be asked?
         11       A.   Yes.
         12       Q.   The kinds of answers you would give?
         13       A.   They told me to tell the truth.
         14       Q.   And the kinds of answers you would give?  
         15   You went over that, right?
         16       A.   We went over some questions and answers.
         17       Q.   Right.  And during that, did you go over 
         18   some of your prior testimony?
         19       A.   I looked at my testimony.
         20       Q.   Now, would you agree with me that, first of 
         21   all, in the first instance, the information which 
         22   you were getting from Judge Lopez was not being 
         23   given to you in any coherent, organized fashion?
         24       A.   Yes.
 0177
          1       Q.   It was being provided to you in a -- on the 
          2   run basically?
          3       A.   Each time I talked to her, you know, I 
          4   learned something new.
          5       Q.   And this was during a time period -- at 
          6   least for purposes of what went into the press 
          7   release, this was during a time period of basically 
          8   24 hours; is that correct?
          9       A.   The hearing was on the 6th, and I prepared 
         10   the statement -- the statement was prepared on the 
         11   7th.
         12       Q.   And released on the 7th, correct?
         13       A.   Yes.
         14       Q.   So we're talking about somewhere in about a 
         15   24-hour period, correct?
         16       A.   Yes.
         17       Q.   Plus or minus an hour?
         18       A.   Sure, yeah.
         19       Q.   And approximately how many phone calls went 
         20   on during that particular period between you and 
         21   Judge Lopez?
         22       A.   Well, I'm not sure, but I know I talked 
         23   with her on the 6th a few times and on the 7th 
         24   several times.
 0178
          1       Q.   And during that time, were you trying to 
          2   get some of the facts of the case?
          3       A.   I wasn't asking her specifically.  I was 
          4   letting her tell me what she wanted me to know.
          5       Q.   Were you seeking to get an understanding of 
          6   what the case was about, for example?
          7       A.   Yes.
          8       Q.   And she told you, didn't she, that there 
          9   were disputed facts in regard to the various 
         10   parties' positions?
         11       A.   Yes.  I didn't understand enough about the 
         12   case to understand what was disputed or not disputed 
         13   at the time.
         14       Q.   What she was giving you was facts that 
         15   were, at least you perceived to be, relevant to your 
         16   inquiry.  You didn't know whether some of them were 
         17   disputed or not disputed, correct?
         18       A.   That's correct; I did not know.
         19       Q.   Pardon me? 
         20       A.   I did not know.
         21       Q.   And during the course of that, Judge Lopez 
         22   told you, didn't she, that -- she explained that she 
         23   did not feel that he, the victim, had been kidnapped 
         24   in the traditional sense; that he went willingly 
 0179
          1   with the defendant?  Isn't that what she told you?
          2       A.   I think those were my words.
          3       Q.   Well --
          4       A.   But I'd like to see that testimony.
          5       Q.   I'm sorry? 
          6       A.   I'd like to see that testimony.
          7       Q.   Did counsel give you a copy of your 
          8   statement to have up there?
          9       A.   I don't know.
         10            MR. EGBERT:  May I approach the witness? 
         11            HEARING OFFICER DAHER:  Of course. 
         12       Q.   What I'm showing you, first of all, is 
         13   something entitled, "Interview of Joan Kenney,"  
         14   correct?
         15       A.   Yes.
         16       Q.   And that's, in fact, the interview which 
         17   was provided to you by Mr. Ware sometime ago?
         18       A.   That's right.
         19       Q.   And would you turn, please, to Page 20.  Do 
         20   you have that?
         21       A.   I do.
         22       Q.   In it you were asked the following question 
         23   and give the following answer:  "Question:  Did 
         24   she" -- and I take it that's Judge Lopez, the "she" 
 0180
          1   being referred to; is that right?
          2       A.   I'm trying to find where you are.  Okay, 
          3   yeah.
          4       Q.   Go to Line 19. 
          5       A.   Okay.
          6       Q.   Have you read that?
          7       A.   Yes.
          8       Q.   And the question is, "Did she" -- and 
          9   that's Judge Lopez you're referring to, correct?
         10       A.   Right.
         11       Q.   "Did she say anything else regarding the 
         12   victim or the victim's character that you recall in 
         13   the course of these many conversations?" And you 
         14   respond, "I think she had doubts as to whether the 
         15   victim was actually kidnapped or not," correct?
         16       A.   That's right.
         17       Q.   "I mean, she explained" -- and "she" is 
         18   Judge Lopez, right?
         19       A.   That's right.
         20       Q.   -- "explained that she did not feel he had 
         21   been kidnapped in the traditional sense; that he 
         22   went willingly with the defendant," correct?
         23       A.   Yes.
         24       Q.   Isn't that what she told you?
 0181
          1       A.   Yes, that it was not a real kidnapping.
          2       Q.   Because he went willingly with the 
          3   defendant?  That was a fact she gave you, right?
          4       A.   Yes.
          5       Q.   That's what you understood, right?
          6       A.   That's what I understood.
          7       Q.   And you also understood, didn't you, that 
          8   the Commonwealth was telling Judge Lopez at the time 
          9   that in fact the victim willingly got into the 
         10   defendant's car.  Did you understand that?
         11       A.   No, I don't -- I didn't. 
         12       Q.   Would you turn to Exhibit -- do you see 
         13   that exhibit book you have in front of you, that big 
         14   book?
         15       A.   Yes.
         16       Q.   Would you turn to Exhibit 22 --
         17            MR. WARE:  Your Honor, I object to this. 
         18            HEARING OFFICER DAHER:  What's your 
         19   objection? 
         20            MR. WARE:  She's now going to be cross 
         21   examined by the transcript of the hearing at which 
         22   she was not present and of which she had no 
         23   knowledge.
         24            HEARING OFFICER DAHER:  Overruled.  Go 
 0182
          1   ahead, Mr. Egbert.
          2       Q.   Do you have Exhibit 22 in front of you?
          3       A.   Yes.
          4       Q.   Turn, if you would, to Page 13 of that 
          5   exhibit and go down to about Line 4.  Do you see 
          6   that there?
          7       A.   Line 4?  Yes.
          8       Q.   I just want to back you up, if I can, so 
          9   you can acclimate yourself.  Go to Page 12.  It's 
         10   the page right behind it.  And you see on Line 11 
         11   Mr. Deakin starts talking?
         12       A.   Yes.
         13       Q.   And you recognize Mr. Deakin as the 
         14   prosecutor, correct?
         15       A.   Yes.
         16       Q.   Now let's go back to Line 13 -- sorry -- 
         17   Page 13, Line 4.  And do you see the statement by 
         18   Mr. Deakin, "The defendant asked the victim to get 
         19   into the car, and the boy agreed"? 
         20       A.   Yes, I see that.
         21       Q.   Do you see that?
         22       A.   Yes.
         23       Q.   Is that about what Judge Lopez was telling 
         24   you? 
 0183
          1            MR. WARE:  Objection. 
          2            HEARING OFFICER DAHER:  Sustained. 
          3       Q.   Did Judge Lopez tell you that the boy 
          4   willingly got in the car? 
          5            MR. WARE:  Objection. 
          6            HEARING OFFICER DAHER:  No.  He can have 
          7   that one. 
          8       A.   Yes.  I understood it that the Judge was 
          9   telling me --
         10            HEARING OFFICER DAHER:  That's what she 
         11   told you; is that correct?
         12            THE WITNESS:  That's correct.
         13            HEARING OFFICER DAHER:  Right.  You went 
         14   over that three times.  Go ahead. 
         15       Q.   Let's go back to the August 2000 findings 
         16   which you say that you sent to the press, correct?
         17       A.   Yes.
         18       Q.   Did you send a press release that day?
         19       A.   No.  I considered that to be the press 
         20   release.
         21       Q.   Those were findings made in court and filed 
         22   in court, correct?
         23       A.   Findings made in court, yes.
         24       Q.   And filed in court, correct?
 0184
          1       A.   And filed, yes.
          2       Q.   They were public documents.
          3       A.   Once they are docketed, yes.
          4       Q.   And you understood that that's what this 
          5   was:  publicly-docketed findings of the Court, 
          6   correct?
          7       A.   Yes.
          8       Q.   And nothing was attached to it, except for 
          9   the -- strike that. 
         10            You attached nothing to it when you sent it 
         11   out, other than this is the findings of the Court.
         12       A.   Just a fax cover sheet that would have gone 
         13   out to each of the media outlets.
         14       Q.   And did the fax cover sheet say anything on 
         15   it?
         16       A.   No.
         17       Q.   So it was simply publishing, so to speak, 
         18   the findings of the Court which were already 
         19   docketed in the court file, correct?
         20       A.   Yes.
         21       Q.   And you knew, from your discussions with 
         22   Judge Lopez that day, that there had been 
         23   extraordinary or large press interest on August 4th, 
         24   2000, concerning this case.
 0185
          1       A.   She said there had been cameras present.
          2       Q.   And you would consider that press interest, 
          3   wouldn't you?
          4       A.   There was press interest, definitely.
          5       Q.   And also that Judge Lopez, in conversation 
          6   with you on August 4th of 2000, indicated to you 
          7   that she had been concerned with the conduct of the 
          8   press and the manner in which it affected the day's 
          9   proceedings; isn't that correct?  I'm talking about 
         10   August 4th now. 
         11       A.   I'm sorry; could you just repeat that 
         12   again?
         13       Q.   Certainly.  And I'll take it in steps.  I 
         14   think you said that Judge Lopez called you and told 
         15   you that there had been an incident with the press 
         16   on August 4th of 2000, correct?
         17       A.   That's correct.
         18       Q.   And she told you that that incident had, to 
         19   some extent, disrupted court proceedings, correct?
         20       A.   She said that there were cameras present 
         21   near the elevator where Charles Horton was getting 
         22   on or off.
         23       Q.   And didn't she indicate to you that that 
         24   had a disruptive effect on the proceedings?
 0186
          1       A.   I don't know whether it disrupted her 
          2   proceedings or whether this occurred before or 
          3   afterwards, but...
          4       Q.   Did you recognize the purpose -- strike 
          5   that. 
          6            What did she tell you the purpose of her 
          7   call was to you?
          8       A.   Well, she was concerned.  I mean, it was a 
          9   media relations issue, so that's why she called my 
         10   office.
         11       Q.   What did she tell you that she was 
         12   concerned about?
         13       A.   That Charles Horton was being photographed.  
         14   He was a transgendered person, and this was a 
         15   concern to her.
         16       Q.   And did she tell you that she had to 
         17   continue the case that day?
         18       A.   Yes, she did tell me that.
         19       Q.   And that it was as a result of what had 
         20   gone on with the press and Mr. Horton.
         21       A.   Yes.
         22       Q.   And that that -- so when I asked you before 
         23   whether or not it had affected or disrupted the 
         24   court proceedings, in fact you did know that, didn't 
 0187
          1   you?
          2       A.   Well, I knew she continued it, yes.  I 
          3   didn't know if that was the only reason.
          4       Q.   But certainly you got from your 
          5   conversation with her the understanding that the 
          6   case was being continued -- at least in some part, 
          7   it had to do with the interplay of the press and the 
          8   defendant, correct?
          9       A.   I just knew it was being continued.
         10       Q.   Did you draw some conclusion that the 
         11   continuance was somehow in relation to the press?
         12       A.   Yes, it could have been.  I wasn't certain, 
         13   but...
         14       Q.   Let me try to phrase it another way. 
         15            Is it fair to say that the following 
         16   statements and words were used in the same train of 
         17   thought, that the press had confronted Mr. Horton, 
         18   that he was transgendered, it happened out in the 
         19   hallway, and the case was being continued? 
         20            MR. WARE:  Objection to "trains of 
         21   thought."  I don't even understand the question.
         22       Q.   Do you understand the question?
         23            HEARING OFFICER DAHER:  I take it the 
         24   question is that predicated on the three elements 
 0188
          1   that you just introduced, that was the reason for 
          2   Judge Lopez seeking a continuance; is that correct? 
          3            MR. EGBERT:  It wasn't quite that, but for, 
          4   Your Honor.  Let me see if I can rephrase it.
          5       Q.   Because you're having some difficulty 
          6   remembering the exact conversations two years ago; 
          7   is that fair to say?
          8       A.   I can't remember exact conversations.
          9       Q.   But you do remember in the conversation 
         10   that -- strike that. 
         11            Judge Lopez didn't have a habit of calling 
         12   you, did she, before August of 2000?
         13       A.   She had called me on other occasions 
         14   involving press issues.
         15       Q.   Regularly?
         16       A.   When she had press issues, yes.
         17       Q.   And you considered this -- strike that. 
         18            You considered this, when she called you, a 
         19   press issue, correct?
         20       A.   Yes, because she said she was concerned 
         21   about the cameras being there.
         22       Q.   And her expression of concern to you was 
         23   that there had been something that happened in the 
         24   hallway, correct?
 0189
          1       A.   That's right.
          2       Q.   That the case was being continued.
          3       A.   That's right.
          4       Q.   And that the hallway issue involved the 
          5   press and Mr. Horton.
          6       A.   Yes.
          7       Q.   And that those were all interrelated.
          8       A.   Well, I didn't know if that was the reason 
          9   the case was being continued.  There could have been 
         10   things that happened in that proceeding that made 
         11   her want to continue the case.
         12       Q.   Well, you read the findings when she sent 
         13   them to you, didn't you?
         14       A.   Yes, when she sent them to me.
         15       Q.   And when you read the findings, you knew 
         16   exactly what she was saying the case was continued 
         17   for, didn't you?
         18       A.   Yes.
         19       Q.   Right?
         20       A.   Yes.
         21       Q.   That was clear, wasn't it?
         22       A.   I'd have to review them again.  I haven't 
         23   looked at them --
         24       Q.   Would you like to take a look at them?
 0190
          1       A.   Sure.
          2       Q.   I think it's Exhibit 17, but let me make 
          3   sure.  Yes, turn to Exhibit 17. 
          4       A.   (Witness reviews document.) 
          5       Q.   Have you looked at them?
          6       A.   Yes, uh-hum.
          7       Q.   Are those the findings that were in fact 
          8   faxed to you?
          9       A.   Yes, they are.
         10       Q.   And you had read them at the time?
         11       A.   Yes.
         12       Q.   And in fact, these findings talk about some 
         13   of the things Judge Lopez talked with you about; is 
         14   that right?
         15       A.   I don't remember if we talked about them.
         16       Q.   "Some of the things," I said. 
         17       A.   In August? 
         18       Q.   Right. 
         19       A.   Yes.  I don't remember if we did discuss 
         20   those things.
         21       Q.   I said the findings address some of the 
         22   things that you and Judge Lopez talked about on 
         23   August 4th of 2000, right?
         24       A.   Yes, regarding the camera and the 
 0191
          1   defendant.
          2       Q.   They addressed the cameras, the elevator, 
          3   the, for lack of a better word, event concerning Mr. 
          4   Horton and the press, correct?
          5       A.   The cameras and the defendant, yes.
          6       Q.   And the need for a continuance?
          7       A.   Yes.
          8       Q.   Now, Judge Lopez talked to you about the 
          9   press on a number of occasions, and one in 
         10   particular involving a request by Eileen McNamara to 
         11   talk to her; isn't that right?
         12       A.   Yes.
         13       Q.   And Eileen McNamara -- who is a reporter 
         14   for the Globe, correct?
         15       A.   Yes, she is.
         16       Q.   And Ms. McNamara, am I correct, had 
         17   contacted you as press officer -- I may be using the 
         18   wrong term.  Is that a fair term?  Press officer?
         19       A.   Yes, that's fine.
         20       Q.    -- contacted you to see if you could 
         21   arrange an interview between Ms. McNamara and Judge 
         22   Lopez, correct?
         23       A.   Not about this case.  A different case.
         24       Q.   I know it's not about this case.  It's 
 0192
          1   about another case?
          2       A.   Yes.
          3       Q.   About Calixte and Estrada, right?  Do you 
          4   remember those names?
          5       A.   Yes.  I don't remember the particulars, but 
          6   I do remember Eileen McNamara requesting an 
          7   interview.
          8       Q.   And you at that time called Judge Lopez and 
          9   told her about the McNamara request for an 
         10   interview; isn't that right?
         11       A.   Yes.
         12       Q.   And in fact, you encouraged her to give 
         13   that interview, didn't you?
         14       A.   I believe so.
         15       Q.   You encouraged her to give the interview on 
         16   Calixte and Estrada some days or, at most, weeks 
         17   after the Calixte and Estrada sentencing, correct?
         18       A.   I can't remember what the specifics were of 
         19   that case or what the...
         20       Q.   Okay.  Would you take a look at your 
         21   exhibit book and go to Exhibit 33, please.  And for 
         22   your ease, there should be both a copy of the real 
         23   article and an Internet-typed copy, which may be 
         24   easier to read. 
 0193
          1       A.   I see the article. 
          2       Q.   Well, maybe not.  I thought there was.  Can 
          3   you follow that pretty well in the format that it's 
          4   in?
          5       A.   Yes.
          6       Q.   Take a look at it and familiarize yourself 
          7   with it for a moment. 
          8       A.   (Witness reviews document.) 
          9       Q.   I may have given you the wrong exhibit 
         10   number.  Hold on. 
         11            MR. EGBERT:  May I approach the Bench? 
         12            HEARING OFFICER DAHER:  Please. 
         13       Q.   I did give you the wrong number.  Exhibit 
         14   43.  I apologize.  Is that article entitled 
         15   "Two-Tier Justice Hurts Children"?
         16       A.   Yes, it is.
         17       Q.   Why don't you take a look at that. 
         18       A.   (Witness reviews document.) 
         19       Q.   Have you read it?
         20       A.   Quickly, yes.
         21       Q.   Does that refresh your memory as to the -- 
         22   strike that. 
         23            That is the interview that you encouraged 
         24   Judge Lopez to give to Eileen McNamara, isn't it?
 0194
          1       A.   I think so.  It's been a while.  I don't 
          2   recall exactly, but I do remember Eileen calling.
          3       Q.   Do you recall it being more than one 
          4   occasion where you encouraged this interview between 
          5   Judge Lopez and Ms. McNamara?
          6       A.   I don't recall another one, no.
          7       Q.   And when Ms. McNamara called you and 
          8   asked -- told you she wanted to interview Judge 
          9   Lopez, did she tell you what the subject matter of 
         10   the interview would be?
         11       A.   I really can't recall the specifics of what 
         12   she asked.
         13       Q.   Would it be fair to say you wouldn't have 
         14   done it in the blind?  You would have asked her what 
         15   it was about?
         16       A.   I would have asked her what it was about.
         17       Q.   And it's fair, having read this article, at 
         18   least briefly, that what she was talking to her 
         19   about was her sentencing in the Calixte and Estrada 
         20   case, correct?
         21       A.   Yes.
         22            MR. WARE:  Objection.  She said she doesn't 
         23   remember.
         24            HEARING OFFICER DAHER:  I'm going to 
 0195
          1   overrule it.  Go ahead.  If you remember, you can 
          2   respond.
          3       A.   This was in February of '99.  I don't 
          4   remember the specifics.
          5            HEARING OFFICER DAHER:  Next question.  
          6   Let's go.
          7       Q.   But you do recall there was only one 
          8   occasion that you encouraged Judge Lopez to speak 
          9   with Ms. McNamara, correct?
         10       A.   I think so.
         11       Q.   Now, on that occasion where Judge Lopez 
         12   spoke to Miss McNamara regarding the Calixte and 
         13   Estrada cases, both Ms. Calixte and Mr. Estrada were 
         14   on probation at the time, weren't they?
         15       A.   I'm not sure.
         16       Q.   And did you check to determine that?
         17       A.   I don't remember the specifics.  It was in 
         18   '99.
         19       Q.   Well, but you encouraged Judge Lopez to 
         20   speak on that occasion, correct?
         21       A.   I did, but we had discussed it.
         22       Q.   And you encouraged her to speak.
         23       A.   I perhaps did, but we had discussed it.  
         24   And if you are on probation and she couldn't, she 
 0196
          1   would have told me that.
          2       Q.   And you're not an attorney, right?
          3       A.   No.
          4       Q.   And on what basis are you making the 
          5   judgment that when probation is handed down, it's a 
          6   pending case?
          7       A.   Well, that's my view that it's a pending 
          8   case.
          9       Q.   That's your view?
         10       A.   Yes.
         11       Q.   And you're not a lawyer.
         12       A.   I'm not a lawyer.
         13       Q.   And you're not a judge.
         14       A.   I'm not a judge.
         15       Q.   And have you canvassed the Court to 
         16   determine whether there's a contrary view to yours?
         17       A.   I'm sorry, could you repeat that? 
         18       Q.   Have you canvassed the Court to determine 
         19   whether or not there's a contrary view to yourself?
         20       A.   A contrary view to what a pending case is? 
         21       Q.   Right. 
         22       A.   No, I haven't canvassed anyone.
         23       Q.   Pardon me?
         24       A.   I haven't asked -- canvassed anyone.
 0197
          1       Q.   By the way, are you part of the Court?
          2       A.   I don't know what you mean.
          3       Q.   Well, are you considered part of the Court?  
          4   Are you an officer of the Court?
          5       A.   Public Information Officer.
          6       Q.   And do you limit your comments to cases 
          7   where someone is not on probation?
          8       A.   I don't know what you mean, my comments.
          9       Q.   Have you commented on cases or given out 
         10   information on cases where a person is on probation?
         11            MR. WARE:  Objection.
         12            HEARING OFFICER DAHER:  Again, Mr. Egbert, 
         13   help me out.  The nature of this interrogation would 
         14   indicate that Judge Lopez was seeking authorization 
         15   from Ms. Kenney.  She's not a lawyer, she's not a 
         16   judge, but Judge Lopez is a judge and she knows 
         17   whether she should talk to the media or not.  I 
         18   don't know where we're going with this line of 
         19   questioning.
         20            MR. EGBERT:  Let me tell you where we're 
         21   going.  Mr. Ware asked this witness for her opinion 
         22   of whether or not something was a pending case.  He 
         23   did it to someone who's not a lawyer, who's not a 
         24   judge, and it was over my objection.
 0198
          1            MR. WARE:  That's not correct.
          2            MR. EGBERT:  Let me finish.  You've taken 
          3   that evidence.  I have the right to seek to 
          4   determine her ability and understanding and level of 
          5   education and level of teaching on the issue of what 
          6   is or is not a pending case.
          7            HEARING OFFICER DAHER:  Mr. Ware, do you 
          8   want to respond? 
          9            MR. WARE:  Yes, Your Honor.  I did not ask 
         10   the witness' opinion, legal or otherwise, on what a 
         11   pending case is.  The first sentence of the 
         12   statement refers to the fact that the Judge can't 
         13   make a comment because of a pending or impending 
         14   cases. 
         15            HEARING OFFICER DAHER:  I'm going to 
         16   sustain that objection.  Go ahead. 
         17       BY MR. EGBERT: 
         18       Q.   When Judge Lopez was talking to you about 
         19   the number of things that weren't in the media that 
         20   she was concerned about with regard to the Horton 
         21   case, many of those were about the defendant 
         22   himself; isn't that right?
         23       A.   I'm not sure I know what you mean, "about 
         24   the defendant." 
 0199
          1       Q.   Well, was Judge Lopez concerned about how 
          2   the defendant was being portrayed in the media?
          3            MR. WARE:  Objection to what Judge Lopez 
          4   was concerned about.
          5       Q.   By way of her statements to you?
          6            HEARING OFFICER DAHER:  Overruled.
          7       A.   She expressed a concern about the 
          8   defendant.
          9       Q.   About what? 
         10       A.   About the defendant.
         11       Q.   About what about the defendant?
         12       A.   He was a transgendered person dressed as a 
         13   woman.
         14       Q.   And is that it?
         15       A.   Yes.
         16       Q.   Well, did she indicate to you that there 
         17   were matters relating to the defendant's background, 
         18   for example, that were not being portrayed in the 
         19   media?
         20       A.   I don't recall that.
         21       Q.   Do you recall whether or not there was a 
         22   discussion of whether or not the defendant was a 
         23   pedophile?
         24       A.   I don't recall that.
 0200
          1       Q.   And when you say you don't recall, does 
          2   that mean it didn't happen or you just don't have a 
          3   memory?
          4       A.   I don't have any memory of discussing that 
          5   with her.
          6       Q.   One way or the other.
          7       A.   One way or the other.
          8       Q.   And did you discuss with Judge Lopez the 
          9   fact that she believed that the press interest in 
         10   this case was prurient?
         11       A.   I think she thought there was press 
         12   interest because he was a transgendered defendant. 
         13       Q.   And with regard to her statements to you at 
         14   that time -- give me a second. 
         15            HEARING OFFICER DAHER:  Take your time.  
         16            (Pause.)
         17       Q.   Do you recall any discussion with Judge 
         18   Lopez at the time of the kind of factors she had in 
         19   mind when she made the remark "low scale" or "low 
         20   level"?
         21       A.   I don't know what factors -- she did not 
         22   think it was a kidnapping.  So that would mean 
         23   probably a lower scale.
         24       Q.   And when you say "didn't think it was a 
 0201
          1   kidnapping," it was because the victim, quote, went 
          2   willingly, correct?
          3       A.   Yes.
          4       Q.   And did she talk to you about the other 
          5   factors that she considered in her sentence?
          6       A.   Well, the screwdriver.  She did say that 
          7   she did not think that was used as a weapon.
          8       Q.   And any other factors?
          9       A.   There may have been.  Those are the two 
         10   that I recall.
         11       Q.   Well, for example, did she talk to you 
         12   about the factors in various sentencing guidelines 
         13   concerning characteristics of the defendant?
         14       A.   We didn't discuss the sentencing guidelines 
         15   in any detail.
         16       Q.   Did you discuss -- by the way, are you 
         17   familiar with those Ronan guidelines?
         18       A.   Ronan? 
         19       Q.   The Superior Court sentencing guidelines. 
         20       A.   No, I'm not familiar with.
         21       Q.   And when she said to you "low scale," she 
         22   said to you that she was talking about an 
         23   appropriate level of sentencing guidelines, right?
         24       A.   That's what she was referring to, yes.
 0202
          1       Q.   "Appropriate level" was your words, 
          2   correct?
          3       A.   She said she was referring to the 
          4   sentencing guidelines, yes.
          5       Q.   Doesn't the press statement say 
          6   "appropriate level"?
          7       A.   I'd have to look at it.  I'd have to look 
          8   at it.  I don't remember. 
          9       Q.   Well, turn to Exhibit 4 -- I'm sorry.  
         10   There's two different ones.  Let me give you this 
         11   one. 
         12            Do you have the final in front of you? 
         13       A.   Okay.  I think it's the same.  Yes, it 
         14   looks the same. 
         15       Q.   "Appropriate level"?
         16       A.   "My statement in open court that it was a 
         17   low-scale matter pertains solely to the appropriate 
         18   level of the sentencing guidelines."
         19       Q.   "The appropriate level," correct?
         20       A.   Yes.
         21       Q.   Now, by the way, the press release starts 
         22   out by saying that the canons prohibit judges from 
         23   commenting on pending and impending cases, correct?
         24       A.   Yes.
 0203
          1       Q.   Now, of course, the canons don't prohibit 
          2   the judge from commenting on pending and impending 
          3   cases in a sentencing memorandum or while in court; 
          4   is that correct?
          5       A.   A sentencing memorandum is different.
          6       Q.   A sentencing memorandum is different or 
          7   being in court and actually making findings in court 
          8   is different, right?
          9       A.   Right.  Those are remarks made on the 
         10   record.
         11       Q.   What you understood this to mean was that 
         12   judicial canons prohibit judges from commenting on 
         13   pending and impending cases in a press release.
         14       A.   Or outside of court.  It doesn't have to be 
         15   just in a press release.
         16       Q.   So "outside of court" would be the more 
         17   complete statement, correct?
         18       A.   Not part of the court record.
         19       Q.   Correct?
         20       A.   Yes.
         21       Q.   So this really isn't a complete statement 
         22   of the laws in that regard, is it?
         23       A.   It's not a complete statement --
         24       Q.   Of the canons in that regard, is it? 
 0204
          1       A.   Well, there's more to the canon than just 
          2   that sentence.
          3       Q.   Right.  In other words, to be complete, it 
          4   should say, "The judicial canons prohibit judges 
          5   from commenting on pending and impending cases 
          6   except in some circumstances"?
          7       A.   It does allow a judge to explain public 
          8   information procedures and things of that nature.  
          9   There's a subsection of the provision that does 
         10   allow a judge to make certain comments to explain 
         11   procedures of the Court.
         12       Q.   And so this is not a complete statement of 
         13   the canon.
         14       A.   No.  It wasn't meant to be a complete 
         15   statement.
         16       Q.   It was meant to be a shorthand version for 
         17   a press release, correct?
         18       A.   To explain to the press why the Judge 
         19   couldn't comment.
         20       Q.   But then the Judge went on and commented 
         21   and gave a press release.
         22       A.   But the rest of the press release had 
         23   nothing to do with the merits of the case.  The rest 
         24   of it was explaining public information procedures.
 0205
          1       Q.   It had nothing -- it had to do with what 
          2   she was thinking, correct?
          3       A.   It had to do with the procedures.  The 
          4   sentencing guidelines being one procedure --
          5       Q.   Ma'am, did it have to do with what she was 
          6   thinking at the time of the sentencing?
          7       A.   I don't think it had to do with what she 
          8   was thinking.
          9       Q.   When she equated "low scale" to sentencing 
         10   guidelines --
         11       A.   That was explaining her comment in court.
         12       Q.   And when she further went on to say that 
         13   the defendant was given a fair sentence, that's not 
         14   a comment on the proceedings -- in those 
         15   proceedings.
         16       A.   It's not about the merits of the case.
         17       Q.   It's about the merits of the sentence, 
         18   right?
         19       A.   I didn't consider this a comment on a case, 
         20   and neither did the Judge, or she wouldn't have 
         21   allowed me to put it out there.
         22       Q.   It's about the merits of the sentence, 
         23   correct?
         24       A.   I wouldn't call it that.
 0206
          1       Q.   What would you call it?
          2       A.   Explaining procedures for public 
          3   information, not commenting on the merit of the 
          4   case.  And I would rely on the Judge to tell me if 
          5   that were not the case.
          6       Q.   Including relying on the Judge to determine 
          7   whether or not this was a pending or impending case.
          8       A.   Right.  If she didn't approve of this, I 
          9   would have relied on her to tell me that.
         10       Q.   Now, when Judge Lopez told you or asked you 
         11   to call Jay Greene, you also asked her, didn't you, 
         12   if she had any lawyers that she could give you to go 
         13   and speak out on her behalf?
         14       A.   She gave me the names of lawyers and judges 
         15   that I could call.
         16       Q.   Don't you do that regularly in your job?  
         17   When a judge may be under some fire by the press, 
         18   you seek to have that judge give you the names of 
         19   surrogates that can speak on her behalf or his 
         20   behalf.
         21       A.   Yes.  And we look for supporting people.
         22       Q.   But you do that regularly, don't you?
         23       A.   Sometimes I call the bar associations.
         24       Q.   When you say "we," you mean you, don't you?
 0207
          1       A.   Myself and the judge who it's about, yes.
          2       Q.   But as the press officer, you encourage 
          3   judges to give you the names of surrogates to speak 
          4   on their behalf in circumstances such as this, 
          5   correct?
          6       A.   Sometimes.  I mean, it's something we 
          7   discuss together.  Are there people who could say 
          8   supportive comments.  We often use the bar 
          9   associations, for example.
         10       Q.   Supportive comments about the judge or 
         11   about the procedure or about the sentence, for 
         12   example?
         13       A.   Someone who could explain the procedure, 
         14   someone who could say something supportive of the 
         15   judge, yes.
         16       Q.   And that's something you regularly do or at 
         17   least have done in the past with judges, correct?
         18       A.   I have, yes.
         19       Q.   And then you have gone and called on behalf 
         20   of the Court those particular people and asked them 
         21   to give a statement in support of the Judge to the 
         22   press, correct?
         23       A.   It's not on behalf of the Court.  I'm 
         24   calling on behalf of that judge to make a statement, 
 0208
          1   if they choose to do so.
          2       Q.   And you have oftentimes asked them to do 
          3   so, correct?
          4       A.   I have.
          5       Q.   And given them that opportunity?
          6       A.   Yes.
          7       Q.   And you don't see anything wrong with that, 
          8   do you?
          9       A.   No.
         10       Q.   And you're calling on behalf of the judge.
         11       A.   Excuse me? 
         12       Q.   And you're calling on behalf of the judge.
         13       A.   And I'm called on --
         14       Q.   And you're calling on those occasions on 
         15   behalf of the judge, correct?
         16       A.   Yes, to help the judge, yes.
         17       Q.   And you tell the people that you're calling 
         18   you're calling on behalf of a particular judge to 
         19   help that particular judge, correct?
         20       A.   To help that judge, yes.
         21            MR. EGBERT:  May I have one minute, Judge? 
         22            HEARING OFFICER DAHER:  You may.  
         23            (Pause.)
         24            MR. EGBERT:  Nothing further, Your Honor.
 0209
          1            HEARING OFFICER DAHER:  Thank you.  
          2                    REDIRECT EXAMINATION
          3       BY MR. WARE:
          4       Q.   Ms. Kenney, your best recollection is that 
          5   Judge Lopez told you on or before September 7th that 
          6   this was not a kidnapping; is that correct?
          7       A.   That's correct.
          8       Q.   And Judge Lopez told you on or before 
          9   September 7th that the screwdriver was not used as a 
         10   weapon; isn't that correct?
         11       A.   That's correct.
         12       Q.   Now, when you call lawyers for statements, 
         13   you don't call those lawyers and ask them to comment 
         14   on the merits of a case, do you?
         15       A.   No, no, not about that.
         16            MR. WARE:  I have nothing further.  
         17                    RECROSS EXAMINATION
         18       BY MR. EGBERT: 
         19       Q.   She didn't use half a sentence; she didn't 
         20   say this wasn't a kidnap, correct?
         21       A.   Excuse me? 
         22       Q.   Judge Lopez didn't use half a sentence; she 
         23   didn't say this wasn't a kidnap.  You've testified 
         24   continuously what she told you is, "It wasn't the 
 0210
          1   traditional kidnap.  The boy got into the car 
          2   willingly," correct?
          3       A.   Yes.
          4       Q.   That's what she said, correct?
          5       A.   Yes.  The implication was he wasn't 
          6   snatched off the street and kidnapped.  He got into 
          7   the car willingly.
          8       Q.   He got in willingly.  He was not snatched 
          9   off the street by the arm or something, correct?
         10       A.   That's correct.
         11       Q.   Or by gun point, whatever the case may be.
         12       A.   That's correct.
         13       Q.   As to other facts in the case, what she 
         14   told you at times were facts which were disputed and 
         15   facts which had been given to her in various 
         16   contexts throughout the proceeding; is that correct?
         17       A.   I'm sorry, state that again.
         18       Q.   She provided to you a number of facts which 
         19   were disputed?
         20       A.   I don't know.  I don't know whether they 
         21   were disputed facts.
         22       Q.   You don't know which facts, for example -- 
         23   strike that. 
         24            When you were talking to her in this, 
 0211
          1   quote, as you've described it, incoherent, 
          2   disorganized fashion over a period of days, getting 
          3   bits and pieces of information, the bits and pieces 
          4   of information you were getting was information that 
          5   had been provided to Judge Lopez; is that correct?
          6       A.   Yes.  What I meant was she didn't tell me 
          7   from beginning to end what happened in this case.
          8       Q.   She would give you bits and pieces of 
          9   information which had been provided to her during 
         10   the course of the proceedings, correct?
         11       A.   I believe that's where she would have 
         12   gotten that information, correct.
         13       Q.   From one side or the other.
         14       A.   Yes.
         15            MR. EGBERT:  No further questions.
         16            HEARING OFFICER DAHER:  Mr. Ware, anything 
         17   else?
         18            MR. WARE:  May I have just a moment, Your 
         19   Honor? 
         20            HEARING OFFICER DAHER:  Take your time.  
         21            (Pause)
         22                  FURTHER REDIRECT EXAMINATION
         23       BY MR. WARE: 
         24       Q.   Could you turn to Exhibit 22, please, which 
 0212
          1   is the transcript of the change of plea. 
          2            Now, obviously Judge Lopez did not make 
          3   this available to you on September 6th or 7th, 
          4   because it didn't exist, right?
          5       A.   Right. 
          6       Q.   Did the Judge tell you that she had 
          7   accepted pleas of guilty to kidnapping, assault with 
          8   intent to rape, assault on a child under 14, assault 
          9   and battery with a dangerous weapon?
         10            MR. EGBERT:  I just don't think this has 
         11   anything to do with the cross.
         12            HEARING OFFICER DAHER:  I understand, but 
         13   I'm going to allow it.  Go ahead.
         14       A.   I had asked her what charges the defendant 
         15   had agreed to, and she did tell me.
         16       Q.   Did she indicate in any way that the 
         17   defendant had taken issue with the fact of there 
         18   being a kidnapping or using the screwdriver as a 
         19   weapon?  In other words -- let me rephrase it. 
         20            Did she tell you that during the course of 
         21   the guilty plea the defendant admitted the 
         22   kidnapping and admitted using the screwdriver as a 
         23   weapon?
         24       A.   Yes, I did know that. 
 0213
          1       Q.   Did you know that from the course of your 
          2   discussion with the Judge or did you know it from 
          3   the fact of there being a guilty plea?
          4       A.   Well, when I asked the Judge what the 
          5   defendant had agreed to, she told me those charges, 
          6   and those were the things that he had agreed to.  So 
          7   I knew it from that.
          8            MR. WARE:  I have nothing further.
          9            MR. EGBERT:  Nothing further.
         10            HEARING OFFICER DAHER:  Thank you very 
         11   much, Ms. Kenney. 
         12            Mr. Ware, do you want to recess until 
         13   tomorrow morning? 
         14            MR. WARE:  I would like to recess until 
         15   tomorrow morning.  I have only one more witness who 
         16   will be about ten minutes on direct.  And I can't 
         17   get that witness here this afternoon because of 
         18   weather conditions.  So with the Court's permission, 
         19   I would like to call that one witness in the 
         20   morning, and that will be the last witness for the 
         21   Commission.
         22            HEARING OFFICER DAHER:  Okay. 
         23            MR. EGBERT:  Maybe we can have a 
         24   conference.  
 0214
          1            (At side bar.)
          2            MR. EGBERT:  I had anticipated there were 
          3   three other witnesses.  I don't know that I'm going 
          4   to have witnesses available for tomorrow. 
          5            MR. WARE:  Who are the three witnesses? 
          6            MR. EGBERT:  I thought you were going to 
          7   call Beaucage and Goldbach and the Herald guy.  
          8   That's what you told me.
          9            MR. WARE:  I'm not. 
         10            MR. EGBERT:  So you're calling just who? 
         11            MR. WARE:  Beaucage.
         12            MR. EGBERT:  I've told all my witnesses to 
         13   probably be ready for Wednesday.  I obviously don't 
         14   want to put you through a ten-minute proceeding 
         15   tomorrow.
         16            HEARING OFFICER DAHER:  You're not going to 
         17   call Wedge? 
         18            MR. WARE:  No.
         19            MR. EGBERT:  Are we going Thursday? 
         20            HEARING OFFICER DAHER:  I can't.  Mr. 
         21   Egbert has a good point.  He isn't going to be ready 
         22   for tomorrow, because he anticipated your case was 
         23   going to take much longer.  So to just have you for 
         24   ten minutes, it's really --
 0215
          1            MR. WARE:  Your Honor, I would like to 
          2   finish our witnesses and then understand who's next 
          3   going to be called.  If Wedge is available, I'll put 
          4   him on.  I think there's an issue of his 
          5   availability.
          6            MR. EGBERT:  You don't have to put him 
          7   on --
          8            MR. WARE:  I don't want to waste another 
          9   day.  I want to finish the case, and surely counsel 
         10   can put on some witness.  Do we only have judges?  
         11   Who are the witnesses at this point? 
         12            MR. EGBERT:  Please.  I've tried to be as 
         13   decent as I can, but you won't talk to me like that.  
         14   I'm tired from in back of me being cross-examined by 
         15   him.
         16            MR. WARE:  I would like to know who the 
         17   witnesses are.
         18            HEARING OFFICER DAHER:  How many witnesses 
         19   do you intend to call? 
         20            MR. EGBERT:  At this point I would say 
         21   probably 14 or 15.  Most of them are very quick, as 
         22   you know.  The lengthiest of them I expect will be 
         23   Judge DelVecchio, who has more factual knowledge of 
         24   these events.
 0216
          1            HEARING OFFICER DAHER:  And how about 
          2   Attorney Goldbach? 
          3            MR. EGBERT:  I intend to call her.  I have 
          4   to get a hold of her now, because I thought they 
          5   were going to call her.  And then I'd say --
          6            HEARING OFFICER DAHER:  Can you have 
          7   anybody here tomorrow? 
          8            MR. EGBERT:  I don't know the answer to 
          9   that question.  I just don't want to put everybody 
         10   in a pickle.  That's all.
         11            HEARING OFFICER DAHER:  I understand.  I 
         12   appreciate that.  How do you want to handle it?  We 
         13   can start tomorrow; and if he can't get his 
         14   witnesses --
         15            HEARING OFFICER DAHER:  That's fine.  If we 
         16   can't, we can't. 
         17            MR. EGBERT:  I just wanted to forewarn you, 
         18   because I don't want everybody to run around for 
         19   nothing.
         20            HEARING OFFICER DAHER:  I appreciate that. 
         21            MR. EGBERT:  So I'll call around today.
         22            MR. BRACERAS:  Your Honor, could we know 
         23   who those 14 witnesses are?
         24            HEARING OFFICER DAHER:  He gave you a list.
 0217
          1            MR. WARE:  We have 33 witnesses on the 
          2   list.
          3            MR. EGBERT:  Judge, so it's crystal clear, 
          4   this morning I told him I'm happy to give him my 
          5   witnesses in order as I get them.  I didn't know 
          6   they were going to end today.  So that's going to 
          7   change things.  I have to call around and see who I 
          8   can get for tomorrow.  I told most of my witnesses 
          9   to be available starting Wednesday, figuring that 
         10   was a pretty fair --
         11            HEARING OFFICER DAHER:  Let's start 
         12   tomorrow; and if you can get people here, we'll pick 
         13   up from there.
         14            MR. WARE:  I anticipate we'll file a motion 
         15   to exclude some of these witnesses if all they're 
         16   going to do is be character witnesses.  There are no 
         17   experts by definition.  We've already crossed that 
         18   bridge.
         19            HEARING OFFICER DAHER:  You can file a 
         20   motion and I'll make a ruling on it.  So we'll see 
         21   you tomorrow morning.
         22            (End of side bar) 
         23            HEARING OFFICER DAHER:  Is anyone going to 
         24   call Detective Greene? 
 0218
          1            MR. EGBERT:  Not that I know of.
          2            MR. WARE:  No, Your Honor.
          3                 (Whereupon, the hearing was
          4                 adjourned at 3:12 p.m.)
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 0219
          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 X, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on Monday, December 16, 2002.
          7   
          8   
          9                  _____________________________
         10                            Jane M. Williamson
         11                  Registered Merit Reporter
         12   
         13   
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