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 0001
                                            Volume XI    
                                            Pages 11-1 to 11-235
                                            Exhibits See Index
              
                         COMMISSION ON JUDICIAL CONDUCT
                          Complaint No. 2000-110 et seq
              - - - - - - - - - - - - - - - - - - - x   
                                                    :
              In the Matter of Investigation of:    :
              The Honorable Maria I. Lopez,         :
              Associate Justice, Superior Court     :
              Department                            :
              - - - - - - - - - - - - - - - - - - - x 
              
              BEFORE:  Hearing Officer E. George Daher,
                         Chief Justice (Ret.)
              
                       Harvey Chopp, Clerk
                       
              APPEARANCES:
              
                  Goodwin Procter LLP
                       (by Paul F. Ware, Jr., Esq., Roberto 
                       M. Braceras, Esq., and Cheryl R.
                       Brunetti, Esq.) Exchange Place, Boston, MA  
                       02109, for the Commission on Judicial 
                       Conduct.
                       
              
                  Law Offices of Richard M. Egbert
                       (by Richard M. Egbert, Esq., and
                       Patricia A. DeJuneas, Esq.)
                       99 Summer Street, Suite 1800,
                       Boston, MA  02110, for the Honorable 
                       Maria I. Lopez.
              
              
                                    Held at:
                           Edward W. Brooke Courthouse
                              24 New Chardon Street
                              Boston, Massachusetts
                           Tuesday, December 17, 2002
                                    9:45 a.m.
              
                 (Jane M. Williamson, Registered Merit Reporter)
              
                                     * * * *
              
 0002
          1                         I N D E X
              
          2   WITNESS        DIRECT  CROSS  REDIRECT  RECROSS
              
          3   Angela Beaucage
              (By Mr. Ware)  11-12          11-46
          4   (By Mr. Egbert)        11-26
              
          5   Joan Kenney
              (By Mr. Ware)  11-49          11-62, 78
          6   (By Mr. Egbert)       11-55             11-66
              
          7   Suzanne DelVecchio
              (By Mr. Egbert) 11-79         11-161
          8   (By Mr. Ware)          11-128
                  
          9   
              Anne Goldbach
         10   (By Mr. Egbert) 11-190
              
         11                             
                                    *  *  * 
         12   
                                 E X H I B I T S
         13   
              EX. NO.                         FOR ID   IN EVID.
         14   
              T   Interview of Angela         11-40
         15       Beaucage 12/18/01
              
         16   J) 
              K)  SJC decisions                        11-84
         17   L)
         18   
         19   
         20   
         21   
         22   
         23   
         24   
 0003
          1                   P R O C E E D I N G S
          2            HEARING OFFICER DAHER:  I'm sorry I was 
          3   late, but I'm trying to reconcile my notes with the 
          4   transcript that I just received this morning.  I 
          5   point to particularly Page 167 in regards to 
          6   questions put to Ms. Kenney.
          7            MR. EGBERT:  You said 167? 
          8            HEARING OFFICER DAHER:  Yes.  
          9            "Question:  Did you learn some additional 
         10   information which Judge Lopez gave you after the 
         11   statement went out?  
         12            "Answer:  Yes.  Each time I talked to her 
         13   there was more information that she gave me.  She 
         14   asked me specifically to call a police detective.  
         15            "Question:  Do you recall the detective's 
         16   name?  
         17            "Answer:  Jay Greene.  
         18            "Question:  What did Judge Lopez tell you 
         19   to do and what did you in fact do?  
         20            "Answer:  She gave me the name of Jay 
         21   Greene and said he would have information pertaining 
         22   to this case, and I called him at her suggestion."  
         23   It goes on. 
         24            So last night, in going over my notes, I 
 0004
          1   was concerned in regards to Ms. Kenney's testimony 
          2   and as to whether it was her practice to seek out 
          3   lawyers to speak on behalf of a judge concerning 
          4   some general principle of law.  
          5            Judge Lopez asked Joan Kenney to speak to 
          6   Detective Greene.  It seems to me that Joan Kenney 
          7   was acting more as an investigator than anything 
          8   else.  Judge Lopez went to Joan Kenney to speak to 
          9   Detective Greene to learn something about the case.  
         10   I still don't know what it was in Joan Kenney's -- 
         11   that Judge Lopez wanted Joan Kenney to hear.  
         12            In order for me to discharge my duties of 
         13   the Supreme Judicial Court, it's vital for me to 
         14   hear what Detective Greene said to Joan Kenney.  
         15   Both sides seem reluctant to call Detective Greene.  
         16   Both of you apparently have concerns about his 
         17   veracity, but I clearly want to know what Detective 
         18   Greene had to know for the truthfulness -- not for 
         19   the truthfulness of his assertions.  Rather, I need 
         20   to know what he said in order to gain some insight 
         21   of why Judge Lopez wanted Joan Kenney to make this 
         22   call.  
         23            It seems to me that this relates to Judge 
         24   Lopez's press release that there was some 
 0005
          1   exculpatory evidence in this case that she could not 
          2   reveal.  But without knowing what Detective Greene 
          3   in fact said, I am at this point unable to draw any 
          4   inferences from Joan Kenney's phone call with 
          5   Detective Greene.  
          6            I am thus requesting that Joan Kenney be 
          7   brought back to the stand to testify as to what 
          8   Detective Greene told her.  I will assume that 
          9   everything that Detective Greene said is very highly 
         10   questionable.  
         11            As you know, I've allowed both sides a 
         12   tremendous amount of latitude in this case, and I 
         13   have to get to the full truth of this matter.  
         14   Without knowing what Detective Greene said to Joan 
         15   Kenney, I'll be unable to make findings based upon 
         16   all the evidence that should have been presented to 
         17   me.  I'll hear both sides. 
         18            MR. WARE:  Well, Your Honor, as you 
         19   correctly read, this conversation with Detective 
         20   Greene purports to have been after the statement 
         21   went out.  So it could not affect the reason for the 
         22   statement or the basis of the statement or the input 
         23   to the statement. 
         24            Judge Lopez in her testimony did not give 
 0006
          1   any further particulars of what she was told by 
          2   Detective Greene.  So the statement stands in its 
          3   own right.  And nothing Joan Kenney was told by 
          4   Detective Greene would have any bearing on the 
          5   statement, principally because she didn't talk to 
          6   him until after the statement was already published 
          7   on September 7th.  So I'm a little unclear what the 
          8   thrust of the Court's problem is here.  
          9            Maybe there's curiosity about what 
         10   Detective Greene said.  I think both sides are 
         11   satisfied -- I don't mean to speak for my 
         12   colleague -- that there's reason to believe that 
         13   Detective Greene's testimony before the Commission 
         14   was simply not true, not truthful.  And that affects 
         15   both sides, and both sides have elected not to call 
         16   him because that testimony is quite unreliable.  
         17            I'm willing at the side bar, out of the 
         18   presence or out of the hearing of others, to provide 
         19   the Court with what I think he said or to mark for 
         20   identification his testimony before the Commission.  
         21   I don't have any objection to that, so long as we're 
         22   both in agreement with respect to it and it's not 
         23   considered by the Court as substantive evidence in 
         24   the proceeding.  I don't mind your reading his 
 0007
          1   testimony.
          2            HEARING OFFICER DAHER:  But again -- I 
          3   totally understand your point, but again, what was 
          4   the purpose -- what did Judge Lopez know that was 
          5   exculpatory that she felt that Joan Kenney could 
          6   investigate and make known to the public? 
          7            MR. WARE:  Well, Your Honor, these are 
          8   issues, of course, of argument.  I don't believe the 
          9   Judge said what she knew.  I think she wasn't given 
         10   particulars by the Judge.  She was told, according 
         11   to testimony as I recall it -- and I'm prepared to 
         12   be corrected by my brother across the aisle -- that 
         13   indeed, she got a message from Ms. Goldbach with a 
         14   beeper number to call Greene and that she called 
         15   Greene and didn't have a substantive conversation 
         16   with him, and then passed along that beeper number 
         17   to Joan Kenney. 
         18            So my understanding of the stated testimony 
         19   is Judge Lopez didn't know anything from Detective 
         20   Greene about what he saw or didn't see. 
         21            MR. EGBERT:  May I have a moment? 
         22            HEARING OFFICER DAHER:  Take your time.  
         23            (Pause)
         24            HEARING OFFICER DAHER:  Go ahead.  Mr. 
 0008
          1   Ware, are you not finished? 
          2            MR. WARE:  Well, Mr. Braceras's 
          3   recollection is that Greene gave some vague 
          4   suggestion that he would be supportive of her 
          5   sentence, but I don't believe there was any 
          6   testimony or has been any testimony in the case of 
          7   particular facts which Greene provided to the Judge. 
          8            HEARING OFFICER DAHER:  Mr. Egbert? 
          9            MR. EGBERT:  My concerns are a few-fold.  
         10   You asked why I didn't -- why counsel didn't call 
         11   Greene as a witness.  I think I'm ethically bound 
         12   not to call him as a witness.  The canons of ethics 
         13   require that lawyers not present evidence that in 
         14   good reason we believe is false.
         15            HEARING OFFICER DAHER:  Yes.
         16            MR. EGBERT:  By the way, sir, I think, so 
         17   that it not be -- Mr. Greene, in terms of what I 
         18   think all counsel think was probably erroneous 
         19   testimony to give it its best light, just basically 
         20   denies --
         21            HEARING OFFICER DAHER:  But I'm concerned, 
         22   Mr. Egbert, in a search for the truth.  I'm 
         23   interested in what he told Ms. Kenney that sent her 
         24   out on an investigative search.  That's what I'm 
 0009
          1   interested in.
          2            MR. EGBERT:  Respectfully, you may be 
          3   interested in that --
          4            HEARING OFFICER DAHER:  And in my findings 
          5   that I have to make to the Supreme Judicial Court.  
          6   It's a search for the truth, and I want to get to 
          7   the bottom of it.
          8            MR. EGBERT:  Respectfully, I do think the 
          9   Court is taking on a role that's in excess of the 
         10   authority of the Court.
         11            HEARING OFFICER DAHER:  Your 
         12   objection/exception noted.  You can tell the Supreme 
         13   Court, if it ever gets that far.
         14            MR. EGBERT:  The Supreme Court has 
         15   indicated that you should be a Hearing Officer.
         16            HEARING OFFICER DAHER:  Right.
         17            MR. EGBERT:  Not an investigator.  The 
         18   investigation in this case was done by the Judicial 
         19   Conduct Commission.
         20            HEARING OFFICER DAHER:  I appreciate that.
         21            MR. EGBERT:  And it was done fully before 
         22   the formal charges were entered.
         23            HEARING OFFICER DAHER:  Right.
         24            MR. EGBERT:  There is now before you an 
 0010
          1   adversarial proceeding where counsel for each 
          2   side -- after making their various choices as to 
          3   what evidence they choose to present --
          4            HEARING OFFICER DAHER:  Right.
          5            MR. EGBERT:  I don't know of any authority, 
          6   respectfully, for a Hearing Officer to call 
          7   witnesses.
          8            HEARING OFFICER DAHER:  Right. 
          9            MR. EGBERT:  And so that request seems to 
         10   me --
         11            HEARING OFFICER DAHER:  Absolutely on 
         12   record.  I appreciate that.
         13            MR. EGBERT:  -- beyond the authority of the 
         14   Court.
         15            HEARING OFFICER DAHER:  I appreciate that 
         16   argument.
         17            MR. EGBERT:  The second part of this whole 
         18   event seems to be that whatever Judge Lopez knew 
         19   concerning Jay Greene's information at the time that 
         20   the press release was issued or the press statement 
         21   was issued, it's clear from the evidence came from 
         22   Anne Goldbach at proceedings in court, meaning the 
         23   plea conference.  And Anne Goldbach is going to be 
         24   testifying in these proceedings.  And that is the 
 0011
          1   only place, prior to the issuing of the press 
          2   statement, that Judge Lopez received any information 
          3   concerning Jay Greene, except from the prosecutors 
          4   and defense counsel during the proceedings in that 
          5   case.
          6            HEARING OFFICER DAHER:  Mr. Ware? 
          7            MR. WARE:  Yes, Your Honor.  You know, I 
          8   don't have an objection in principle to the Court's 
          9   hearing additional evidence on this.  And I would, 
         10   if the Court so requests, recall Ms. Kenney and put 
         11   those questions to her.  In my direct examination I 
         12   was careful to ask her whether she had a 
         13   conversation and what she did as a result.
         14            HEARING OFFICER DAHER:  I've gone through 
         15   it.
         16            MR. WARE:  I did not ask her the 
         17   conversations --
         18            HEARING OFFICER DAHER:  Bring her back and 
         19   ask her the questions.  Your objection is overruled.  
         20   Exception is noted.  When can you get Ms. Kenney 
         21   back? 
         22            MR. WARE:  I'm prepared to call the next 
         23   witness.
         24            HEARING OFFICER DAHER:  Call your next 
 0012
          1   witness. 
          2                 SISTER ANGELA BEAUCAGE, Sworn
          3                    DIRECT EXAMINATION
          4       BY MR. WARE: 
          5       Q.   Good morning, Sister. 
          6       A.   Good morning.
          7       Q.   Will you state your name, please, for the 
          8   Court. 
          9       A.   Sister Angela Beaucage.
         10       Q.   And where do you currently -- I'm going to 
         11   ask you, Sister, if you would, to pull the 
         12   microphone toward you a little bit and speak as loud 
         13   as you can so that everyone can hear you. 
         14            Where do you currently reside?
         15       A.   At 382 Boston Road in Billerica.
         16       Q.   In Billerica?
         17       A.   Right.
         18       Q.   And for what period of time have you lived 
         19   at that address?
         20       A.   Since 1980.
         21       Q.   By whom is that home owned?
         22       A.   The Carmelite Sisters in Concord, New 
         23   Hampshire.
         24       Q.   And for a number of years you were a member 
 0013
          1   of the Carmelite order; is that correct?
          2       A.   That's correct, yes.
          3       Q.   When did you retire as a Carmelite nun?
          4       A.   In 1980.
          5       Q.   And since that time you've been affiliated 
          6   with another group of sisters; is that correct?
          7       A.   Yes.
          8       Q.   And tell us the name of those sisters. 
          9       A.   Sisters of Christian Community.
         10       Q.   And where are the Sisters of Christian 
         11   Community based?
         12       A.   They don't have a base.  They function 
         13   independently.  They're a group of sisters who have 
         14   been in traditional orders, then have left, but 
         15   still function within the church.
         16       Q.   Tell us what kind of work you do on a 
         17   day-to-day basis.
         18       A.   Taking care of elderly people mostly.  I 
         19   took care of my mother for a number of years, but 
         20   now I'm just helping volunteer work for the elderly 
         21   people.
         22       Q.   If you don't mind me asking, Sister, how 
         23   old are you as you testify today?
         24       A.   Seventy-three.
 0014
          1       Q.   At some time in or around September 6th, 
          2   2000, did you have occasion to observe what's come 
          3   to be known as the Horton sentencing on television?
          4       A.   Yes.
          5       Q.   And will you tell us how that happened.  
          6   Just give us a brief overview of what you saw. 
          7       A.   It was on the 11 o'clock news.  And I 
          8   just -- that's when I saw the courtroom scene and 
          9   reacted to it in my own way.  I thought it was --
         10       Q.   I need to have you talk a little louder, 
         11   Sister. 
         12       A.   Okay. 
         13       Q.   You said you were watching the news?
         14       A.   Yes.
         15       Q.   And what?
         16       A.   I was very upset by it, by the behavior -- 
         17   the sentencing of it all.
         18       Q.   And what did you do after you saw the news 
         19   broadcast with respect to filing any kind of a 
         20   complaint?
         21       A.   Well, I wrote to the Commission.  Yes, I 
         22   wrote to the Commission later, but it was in 
         23   October, I think.  I wrote to the Commission.  Is 
         24   that what you mean?
 0015
          1       Q.   Yes.  Between September 6th when you saw 
          2   the news broadcast, and mid October, when you 
          3   actually filled out a complaint form, did you take 
          4   certain steps -- how did you get to the point at 
          5   which you filed a complaint? 
          6       A.   All right.  Okay.  How did I come to that 
          7   point?  It was just a reaction to what I saw on TV 
          8   and reading in the paper -- is that what you mean?  
          9   I don't know what you mean.
         10       Q.   How did you get a complaint form?
         11       A.   I got it from Representative Greene 
         12   after -- I called his office after -- um, let's 
         13   see -- after I received the phone call on November 
         14   1.  Yes, November 1.
         15       Q.   Prior to that time, you filed an initial 
         16   complaint with the Commission; is that correct?  A 
         17   first complaint with the Commission?
         18       A.   The first complaint was after -- no, it 
         19   was -- the first complaint was in October.
         20       Q.   Yes.  The first complaint was in October.  
         21   Let's do it this way.  In front of you you have 
         22   Exhibit 31.  Do you see that?  In court we're 
         23   calling this series of documents Exhibit 31.  And I 
         24   put it also on the screen.  Do you see that 
 0016
          1   document?
          2       A.   Yes. 
          3       Q.   And can you tell us what the first two 
          4   pages of Exhibit 31 are? 
          5       A.   What I sent into the Commission.
          6       Q.   That's the initial complaint that you filed 
          7   with the Commission, correct?
          8       A.   That's right, yes.
          9       Q.   And that is dated, under your signature, 
         10   October 17, 2000; is that correct?
         11       A.   Right.  That's right.
         12       Q.   Following that complaint, something 
         13   happened; is that correct?  On November 1?
         14       A.   Well, she called my house.
         15       Q.   Tell us what happened on November 1.
         16       A.   She called the house after 11 o'clock at 
         17   night and asked if I was Angela Beaucage.
         18       Q.   Now, when you say "she called the house," I 
         19   want you to tell us from beginning to end what 
         20   happened.  Where were you at the time that the phone 
         21   call came in?
         22       A.   I was asleep.  I was in bed.
         23       Q.   And about what time did this phone call 
         24   come to your house?
 0017
          1       A.   After 11 o'clock.
          2       Q.   What did you do when the phone rang?
          3       A.   I answered it, assumed it was the hospital, 
          4   because I had spent the day in the hospital with my 
          5   sister-in-law.
          6       Q.   So you thought this was a call from the 
          7   hospital?
          8       A.   Yes, that was my only reaction to it.
          9       Q.   And what was the conversation with the 
         10   person on the phone?  What did she say and what did 
         11   you say?
         12       A.   She asked who I was, and there were 
         13   intervals -- somebody else was in the room.  All I 
         14   remember is at the end of the conversation she said 
         15   "I'm pleased to meet you" or something to that 
         16   effect.  And I just assumed it was still the nurse 
         17   at the nurse's station.  And somehow there was a 
         18   disconnect -- that was my only reaction to it.
         19       Q.   Did this individual on the other end of the 
         20   phone say "good-bye" or say "thank you" or anything 
         21   like that, or did she just hang up?
         22       A.   No.  Just -- I didn't hear a phone 
         23   clicking.  I just assumed it was a disconnect from 
         24   the hospital.  That was my reaction to it.
 0018
          1       Q.   So at that point you still thought that you 
          2   had gotten a call from the hospital that had been 
          3   disconnected; is that correct?
          4       A.   That's right, uh-hum.
          5       Q.   After that call came in and after what you 
          6   thought was a disconnect, what did you do?
          7       A.   I got up and went into the kitchen to look 
          8   at the caller ID.
          9       Q.   And let me direct your attention to what 
         10   has been marked in this case as Exhibit 45.  I'm 
         11   going to give you an actual photograph of that.  Do 
         12   you recognize that as a photograph of your caller 
         13   ID?
         14       A.   Yes, uh-hum.
         15            MR. EGBERT:  Could we have a moment, 
         16   please, and I'd ask that the cameras be shut down 
         17   for a second.
         18            HEARING OFFICER DAHER:  Sure.  
         19            (At side bar) 
         20            MR. EGBERT:  I think that the phone number 
         21   of Judge Lopez should not be published.
         22            HEARING OFFICER DAHER:  Absolutely. 
         23            MR. WARE:  Fair enough.  I'll take it off 
         24   the monitor.
 0019
          1            HEARING OFFICER DAHER:  Absolutely.  
          2            (End of side bar)
          3            HEARING OFFICER DAHER:  In re Judge Lopez's 
          4   telephone number, that's not for publication to the 
          5   media.  I don't think anyone's going to do it, but 
          6   I'm requesting that -- and I know that you'll all 
          7   comply with it -- that that number not be published.  
          8   There's been enough notoriety in this case.  I 
          9   appreciate it. 
         10       BY MR. WARE:
         11       Q.   I'm not sure whether we got this answer on 
         12   the record, but am I correct that Exhibit 45 is a 
         13   photograph of the caller ID as you observed it on 
         14   the night of November 1, 2000, after 11 p.m.?
         15       A.   Yes, I do.
         16            MR. WARE:  Your Honor, I want to be sure 
         17   that an actual photograph is in evidence and not a 
         18   Xerox copy for the exhibit itself.  So I wonder if 
         19   we could just substitute that.
         20            HEARING OFFICER DAHER:  Do you see a 
         21   problem with that?
         22            MR. EGBERT:  So long as the Court impounds 
         23   that particular exhibit.
         24            HEARING OFFICER DAHER:  I agree.  Put it in 
 0020
          1   an envelope and seal it.  Okay.  You can continue. 
          2            HEARING OFFICER DAHER:  Go ahead. 
          3       Q.   After you observed the caller ID, what was 
          4   your reaction? 
          5       A.   At first I didn't know who M. Lopez was.  I 
          6   couldn't recollect.  But then I remembered later 
          7   that I had received a letter from the Commission of 
          8   acknowledgment of a letter that I had sent, and I 
          9   realized who it was.  I realized that it was Judge 
         10   Lopez.
         11       Q.   And what was your reaction when you 
         12   realized that it was Judge Lopez who had called you? 
         13            MR. EGBERT:  Objection as to relevance.
         14            HEARING OFFICER DAHER:  I want to hear it.  
         15   Overruled.  Go ahead. 
         16       A.   My recollection was I wondered -- I thought 
         17   it a very strange thing to happen and I felt really 
         18   disturbed by it.
         19       Q.   When you say you felt disturbed about it, 
         20   why were you disturbed?
         21       A.   Why would a judge call me about a letter I 
         22   had written?  It just seemed a very strange thing to 
         23   do, and I had no idea what it all meant.  I had no 
         24   idea.
 0021
          1       Q.   And what did you do as a result of 
          2   receiving the call?
          3       A.   The next morning I called Representative 
          4   Greene's office, because that was the source of the 
          5   form being sent to me, the complaint form.  And I 
          6   asked the girl in the office -- I told her what had 
          7   happened.  And I felt really disturbed by it.  And I 
          8   asked her if she had called anybody else, and she 
          9   said "I have no idea."  But I told her at the time 
         10   that it felt like, you know, I-know-where-you-live 
         11   kind of thing.  That's really my only reaction, I 
         12   guess.
         13       Q.   You interpreted the call as 
         14   I-know-where-you-live kind of thing?
         15       A.   Yes, yes. 
         16       Q.   And what did you do ultimately?  Did you 
         17   file another complaint or another letter with the 
         18   Commission regarding the incident?
         19       A.   After -- it was in January that I had heard 
         20   that I guess nothing had happened.  I understood 
         21   whatever information I had, and I assumed that 
         22   nothing had happened.  So that's when I wrote the 
         23   second letter.
         24       Q.   You indicated that the morning after you 
 0022
          1   received the call, which I take it was on November 
          2   2, that you made a call to the representative's 
          3   office?
          4       A.   Yes.
          5       Q.   And at some point did you receive a call 
          6   from the local police?
          7       A.   Yes.  They called later that morning.  They 
          8   called that morning, yes; not too long after, yes.
          9       Q.   And what did they say to you?
         10       A.   They asked about the call and could they 
         11   come over.  And I said yes, they could.  And I told 
         12   them I'd be working outside, but they didn't come.
         13       Q.   Following that, at some point you filed 
         14   another letter or complaint with the Commission on 
         15   Judicial Conduct; is that correct?
         16       A.   Yes, in January I think it was.
         17       Q.   And let me ask you to turn to the next page 
         18   of Exhibit 31, and I'm also going to put it up on 
         19   the screen for you.  There's a letter there dated 
         20   January 19th, 2001. 
         21       A.   Yes.
         22       Q.   And it has a complaint number on it.  Is 
         23   that the letter you signed regarding the telephone 
         24   call you received?
 0023
          1       A.   Yes.
          2       Q.   At any time on November 1 during this 
          3   telephone call did the caller identify herself?
          4       A.   No.
          5       Q.   Did she give you any indication who she 
          6   was?
          7       A.   No.
          8       Q.   Directing your attention to the letter of 
          9   January 19th, in the second full paragraph you 
         10   describe the phone call; is that correct?
         11       A.   Yes.  Yes. 
         12       Q.   And you say that you were sound asleep, the 
         13   phone rang, and then you described what occurred in 
         14   the phone call.  Can you, taking a look at this, 
         15   tell us whether there's anything further that 
         16   occurred that you haven't said so far?  Let me put a 
         17   less awkward question.  Is this an accurate 
         18   reflection of what was said in the phone call?
         19       A.   (Witness reviews document)  Yeah, there are 
         20   intervals, I guess, that somebody else was in the 
         21   room and they were talking, but that's all I 
         22   remember, yes.
         23       Q.   The caller said to you, "Is this Angela 
         24   Beaucage"; is that correct?
 0024
          1       A.   Yes.
          2       Q.   And you answered, "Yes"?
          3       A.   Yes.
          4       Q.   And then there was what you describe here 
          5   as a, quote, long pause; is that correct?
          6       A.   Uh-hum.
          7       Q.   And then --
          8       A.   Pauses, whatever.
          9       Q.   And then some language about, "I am pleased 
         10   to meet you," quote; is that correct?
         11       A.   Uh-hum.
         12       Q.   And then a hang-up?
         13       A.   Yes.
         14       Q.   Now, in the first letter you indicated in 
         15   your earlier complaint on the first page of -- 
         16   excuse me -- the second page of Exhibit 31 that you 
         17   did not know Judge Lopez; is that correct?
         18       A.   That's correct, yes.
         19       Q.   In the phone call on November 1 you say 
         20   here that the caller said, "I am pleased to meet 
         21   you." 
         22       A.   Uh-hum.
         23       Q.   And then hung up the phone; is that 
         24   correct?
 0025
          1       A.   Right.
          2       Q.   And is that what you recall having 
          3   happened?
          4       A.   Yes.
          5       Q.   Following this, did you have any further 
          6   contact with anyone whom you believed to be Judge 
          7   Lopez?
          8       A.   No.
          9       Q.   And why did you save the caller ID?
         10       A.   Well, the girl at Representative Greene's 
         11   office said to be sure to save it, and so I did, 
         12   because it meant that much to me.  It was very 
         13   disturbing and I kept it over a long period of time, 
         14   apparently.
         15       Q.   Did you take any personal precautions 
         16   because you were disturbed by this call?
         17       A.   No, no. 
         18            MR. WARE:  May I have just a moment, Your 
         19   Honor? 
         20            HEARING OFFICER DAHER:  Yes. 
         21   BY MR. WARE: 
         22       Q.   There is additional language in the 
         23   following paragraph of your letter of January 19th 
         24   that's contained in Exhibit 31 in the paragraph that 
 0026
          1   says, "My reason for bothering to write..." Do you 
          2   see that?
          3       A.   Yes.
          4       Q.   And you say, "Some would perceive this as a 
          5   threat."  Were you in fact concerned that this was 
          6   some kind of a threat, or could be?
          7       A.   Yes, I did.
          8            MR. WARE:  I have no further questions.  
          9   Thank you, ma'am.
         10            HEARING OFFICER DAHER:  Any cross? 
         11                    CROSS EXAMINATION
         12       BY MR. EGBERT: 
         13       Q.   Good morning, Ms. Beaucage. 
         14       A.   Good morning.
         15       Q.   Ma'am, am I correct that the reason you 
         16   knew that it was M. Lopez at a particular phone 
         17   number was because it was on your caller ID?
         18       A.   Uh-hum, yes.
         19       Q.   And that that was generated by the phone 
         20   caller's caller ID or caller information, correct?
         21       A.   Yes.
         22       Q.   You didn't have any kind of special 
         23   equipment of your own to indicate or to find out who 
         24   was calling, correct?
 0027
          1       A.   No.
          2       Q.   So in the normal course of a phone call, 
          3   your caller ID picked up the caller ID information 
          4   from the calling phone, right?
          5       A.   That's correct, yes.
          6       Q.   And that's done by a number of -- strike 
          7   that. 
          8            You get that caller ID for a number of 
          9   calls that you receive, correct?
         10       A.   Yes.
         11       Q.   Now, when you got this particular call -- 
         12   let me go back a step. 
         13            It was Representative Greene who sent you 
         14   the complaint form to send to the Commission, 
         15   correct?
         16       A.   That's right, yes.
         17       Q.   And Representative Greene also sent you a 
         18   letter telling you that he was filing a complaint at 
         19   the Commission because he didn't like Judge Lopez's 
         20   sentence in the Horton case, right?
         21       A.   That's right.
         22       Q.   And he told you in his letter that he was 
         23   going to write to the Commission because he didn't 
         24   like the Judge's sentence.  He thought it was too 
 0028
          1   lenient and they should investigate the Judge for a 
          2   lenient sentence; isn't that right?
          3       A.   Yes.
          4       Q.   And then he sent you a complaint form so 
          5   you could do the same? 
          6            MR. WARE:  Objection.  The complaint speaks 
          7   for itself.
          8            HEARING OFFICER DAHER:  Overruled.  Go 
          9   ahead. 
         10       Q.   Is that correct?
         11       A.   What did you say again? 
         12       Q.   He sent you a complaint form with a copy of 
         13   his letter to the Commission, correct?
         14       A.   Yes.
         15       Q.   And the complaint form you understood was 
         16   so that you could file a complaint?
         17       A.   Exactly, uh-hum.
         18       Q.   Now, that was sometime in late October, 
         19   correct?  October 19th, was it?
         20       A.   It was earlier than that.  I kept it for 
         21   quite a while actually before I filed it.
         22       Q.   I'm sorry? 
         23       A.   I kept the complaint form for whatever 
         24   period of time.  I got that immediately in 
 0029
          1   September.  I probably kept it for a month or five 
          2   weeks, whatever.
          3       Q.   And you sent in your complaint on October 
          4   17th, correct?  You looked at that a few minutes 
          5   ago.
          6       A.   Yes.  I guess so, yeah.
          7       Q.   Is that correct?
          8       A.   The complaint form, yes, whatever it says.
          9       Q.   And you received a confirmation from the 
         10   Commission that they received your complaint 
         11   somewhere towards the end of October?
         12       A.   Yes, it was.  Yes, the end of October.
         13       Q.   And then on the November 1 -- was it the 
         14   1st or the 2nd that you received this phone call?
         15       A.   The 1st.
         16       Q.   On November 1 when you received this phone 
         17   call, the woman said to you, "Is this Angela 
         18   Beaucage," correct?
         19       A.   Yes.
         20       Q.   And you responded?
         21       A.   Yes, I was.
         22       Q.   You said, "Yes, I am"?
         23       A.   Yes.
         24       Q.   And did you ask, "Who is this calling?"
 0030
          1       A.   No, I did not.
          2       Q.   So that person asked if you were Angela 
          3   Beaucage.  And then shortly thereafter, after a 
          4   pause I think you said, she said words to the effect 
          5   of, "It's a pleasure to meet you" or "It's been nice 
          6   meeting you," words to that effect?
          7       A.   That's correct.
          8       Q.   And during that conversation she was 
          9   courteous, correct?
         10       A.   Yes.
         11       Q.   She did not raise her voice?
         12       A.   No.
         13       Q.   She did not threaten you?
         14       A.   No.
         15       Q.   She did not intimidate you?
         16       A.   No.
         17       Q.   She was not arrogant?
         18       A.   No.
         19       Q.   And in fact, after that, you didn't file 
         20   any complaint with the Commission for almost two and 
         21   a half months to three months, correct?
         22       A.   It was in January.
         23       Q.   I think your letter is dated January 19th, 
         24   correct?
 0031
          1       A.   Yes.
          2       Q.   So about two and a half months after the 
          3   event.
          4       A.   Yes.
          5       Q.   And the reason you filed the complaint, 
          6   isn't it, is because you saw on television that 
          7   Judge Lopez had made a decision in a case permitting 
          8   a striptease establishment to --
          9       A.   No, that is not true.
         10       Q.   Let me finish the question. 
         11            The reason you filed that complaint is 
         12   because you had read or heard on the news that Judge 
         13   Lopez had issued a decision permitting a striptease 
         14   joint to exist in a particular town over selectmen's 
         15   objection, correct?
         16       A.   I don't remember that, no.
         17       Q.   You don't? 
         18       A.   There is a place in Billerica that had lost 
         19   their liquor license, but there was no -- I have no 
         20   recollection of that --
         21       Q.   So you have no --
         22            MR. WARE:  May she finish her answer?
         23            MR. EGBERT:  I thought she did.
         24       Q.   Did I cut you off?
 0032
          1       A.   I have no recollection of that whatsoever.
          2       Q.   So you don't remember ever testifying in 
          3   the past, then, that you had heard that Judge Lopez 
          4   had overruled selectmen in town to put in a strip 
          5   joint someplace and you thought it was so sleazy, it 
          6   just bothered you a lot?
          7       A.   I have no idea where you got that 
          8   information.  I have no idea what you're talking 
          9   about.
         10       Q.   You have no idea what I'm talking about?
         11       A.   Not at all, no.
         12       Q.   Did you testify at a Commission interview 
         13   conducted on December 18th of the Year 2001?
         14       A.   I haven't testified to anything but what's 
         15   been done here.
         16       Q.   Ma'am, do you recall going to the office of 
         17   Goodwin Procter at 53 State Street and being 
         18   interviewed under oath with a court reporter 
         19   present?
         20       A.   Yes.  I remember that, yes.
         21       Q.   And do you recall being examined by Mr. 
         22   Braceras, this gentleman over here? 
         23       A.   Braceras, yes.
         24       Q.   And do you recall giving testimony under 
 0033
          1   oath at that time?
          2       A.   Yes, I do, yes.
          3       Q.   And do you recall stating as follows --
          4            MR. WARE:  Can we get a page? 
          5            MR. EGBERT:  23.
          6       Q.   "I'll just be interested in how the whole 
          7   thing works itself out.  I just heard recently about 
          8   the -- she overruled the selectmen in some town to 
          9   put in a strip joint in some place.  I think it's 
         10   just so sleazy, and she just bothers me a lot in a 
         11   lot of things, I guess." 
         12            Did you testify in that fashion before the 
         13   Commission under oath?
         14            MR. WARE:  Objection.  This is months 
         15   after -- years after the complaint, and it's 
         16   inconsistent.
         17       Q.   Did you testify in that fashion under 
         18   oath --
         19            HEARING OFFICER DAHER:  One second.  What 
         20   we're dealing with, according to Mr. Ware, it was a 
         21   substantial time subsequent to the alleged -- the 
         22   Horton incident.
         23            MR. EGBERT:  It goes to the bias of the 
         24   witness, Judge. 
 0034
          1            HEARING OFFICER DAHER:  Go ahead, Mr. Ware.
          2            MR. WARE:  It cannot possibly go to the 
          3   witness' testimony.  It occurred a year and a half 
          4   after the complaint was filed, a year and a half 
          5   after the phone call.
          6            MR. EGBERT:  She is testifying here today, 
          7   and her attitudes towards the Judge are appropriate 
          8   on issues of bias. 
          9            HEARING OFFICER DAHER:  You may have to put 
         10   it in a proper timeframe, because what I have right 
         11   now is, according to Mr. Ware, this statement was 
         12   made a year and a half subsequent to her filing a 
         13   complaint with the JCC.
         14            MR. EGBERT:  It's made on December 18th of 
         15   the Year 2001.  And the call was made -- and the 
         16   complaint was January 19th, 2001.
         17            MR. WARE:  I amend it.  A year, not a year 
         18   and a half.  
         19            HEARING OFFICER DAHER:  We're talking a 
         20   year, 11 months or so subsequent to.
         21            MR. EGBERT:  Judge, she says in her 
         22   complaint on January 19th, 2001 --
         23            HEARING OFFICER DAHER:  Go ahead. 
         24            MR. EGBERT:  -- "Today we learn that 
 0035
          1   Clinton gets a pass and Lopez gets a pass.  God help 
          2   any victim who appears in her court.  Maybe she's in 
          3   a position to do more harm than Clinton at this 
          4   point."  
          5            She has indicated in her testimony that she 
          6   wrote this complaint three months later because she 
          7   had information, which she now knows to be erroneous 
          8   information, which caused her to write the January 
          9   19th complaint.  I suggest to the Court that the 
         10   information that she had and what was there was this 
         11   ruling of Judge Lopez's, which she disagreed with so 
         12   violently --
         13            THE WITNESS:  So violently -- excuse me.
         14            HEARING OFFICER DAHER:  Wait a minute. 
         15            MR. EGBERT:  -- and which she has denied 
         16   under oath every single word about it.
         17            MR. WARE:  Your Honor, how can an event 
         18   which happened a year after the filing of the 
         19   complaint have created a bias in the witness to file 
         20   a complaint?  The witness got a call and she filed a 
         21   complaint.
         22            HEARING OFFICER DAHER:  Help me again with 
         23   the timeframe, Mr. Egbert.  When allegedly -- this 
         24   says, quote, strip joint, end of quote.  When was 
 0036
          1   that hearing?  When was there a ruling on it? 
          2            MR. EGBERT:  There were many of them, 
          3   Judge.
          4            HEARING OFFICER DAHER:  But according to 
          5   Mr. Ware, if she did have an attitude in regards to 
          6   the liquor store and the strip joint -- if she did, 
          7   which I don't know -- that occurred 11 months, a 
          8   year later, after she filed a complaint with the 
          9   JCC.
         10            MR. EGBERT:  Judge, let's start from the 
         11   beginning.  A witness' bias on the witness stand is 
         12   appropriate for cross examination.  When a witness 
         13   calls a judge sleazy because of her rulings in a 
         14   constitutional issue, I think that suggests bias, 
         15   particularly when the witness has denied under oath 
         16   that she ever made the statement.
         17            THE WITNESS:  I have no recollection --
         18            HEARING OFFICER DAHER:  One second, please.
         19            MR. WARE:  First of all, Your Honor, 
         20   obviously the statement is hearsay.  But in fairness 
         21   to the witness, the witness isn't calling Judge 
         22   Lopez sleazy.  She's apparently referring to the 
         23   strip joint.  This is really a misuse of the 
         24   testimony.  But the important point is it's hearsay.  
 0037
          1   There's nothing inconsistent with what the witness 
          2   has said, and it occurs months and months and months 
          3   after the filing of the complaint.
          4            MR. EGBERT:  This witness has denied that 
          5   she knew about any ruling, knew about any strip 
          6   joint, knew about Judge Lopez's involvement in it, 
          7   and has no bias towards her about it, and here she's 
          8   made a statement over a year ago which exhibits the 
          9   extreme bias based upon a judge's ruling on a 
         10   constitutional issue.  And her bias, as she 
         11   testifies here today, is appropriate for you to 
         12   consider some of the statements that have now come 
         13   out on the witness stand. 
         14            HEARING OFFICER DAHER:  I understand your 
         15   point, Mr. Ware, but in this case I'm going to allow 
         16   it.  Overruled.  Go ahead, Mr. Egbert. 
         17       BY MR. EGBERT: 
         18       Q.   Did you testify before the Commission as 
         19   follows:  "I just heard recently about the -- what 
         20   she overruled the selectmen in some town to put in a 
         21   strip joint in some place.  I think it's just so 
         22   sleazy and she just bothers me a lot in a lot of 
         23   things, I guess."  Was that your testimony?
         24       A.   That was not a hearing.  That was at a 
 0038
          1   deposition.
          2       Q.   Was that your testimony?
          3       A.   If you say so.  I have no recollection of 
          4   her doing --
          5            MR. EGBERT:  May I approach the witness?
          6            HEARING OFFICER DAHER:  Please.  For the 
          7   record we're talking about the 12/18/01 deposition? 
          8            MR. EGBERT:  Yes.  They've been calling it 
          9   an interview at the Commission under oath.
         10            HEARING OFFICER DAHER:  All right. 
         11       Q.   And I'm going to show you Page 23 of that.
         12       A.   Well, if it's there, it's there.  I have no 
         13   recollection of it.  That's all I can say.
         14       Q.   In fairness to you, I'd like you to just 
         15   take a look at it for a minute and read it. 
         16       A.   Well, if it's there, it's there. 
         17            HEARING OFFICER DAHER:  You take your time, 
         18   Ms. Beaucage. 
         19            MR. WARE:  Can you point it out to her, 
         20   please?
         21       Q.   Let me just show you.  It's the bottom 
         22   section here (indicating.
         23       A.   (Witness reviews document)  This was at our 
         24   deposition last time I was there with you.
 0039
          1       Q.   Let me show the witness the front cover.  
          2   Do you see that's an interview over at Goodwin 
          3   Procter with Mr. Braceras?
          4       A.   Well, all I can say to you, sir, is I don't 
          5   remember saying that.  I don't remember anything 
          6   that has happened that she had anything to do with.  
          7   If it was in Billerica, I probably would remember.
          8       Q.   So you don't remember saying what's in this 
          9   document?
         10       A.   Absolutely not.
         11            MR. EGBERT:  Your Honor, I would offer Page 
         12   23, Line 17 through 24, of the interview. 
         13            MR. WARE:  Objection, Your Honor.
         14            HEARING OFFICER DAHER:  I'll hear you.
         15            MR. WARE:  It does not make the transcript 
         16   evidence.  The witness is here.  We have her 
         17   testimony.  She's been impeached.  That's the 
         18   evidence in the case.
         19            MR. EGBERT:  She's not been impeached, Your 
         20   Honor, unless the document comes into evidence.  
         21   I've asked her if that's her statement.  She says 
         22   she doesn't know.
         23            HEARING OFFICER DAHER:  Sustained, Mr. 
         24   Ware. 
 0040
          1            MR. EGBERT:  Your Honor, I would offer it 
          2   as an ID exhibit, then, so the record is clear. 
          3            THE CLERK:  T for ID.  
          4                 (Document marked as Hearing
          5                 Exhibit T for identification)
          6       Q.   Now, during your Commission interview, the 
          7   interview we were just talking about with Mr. 
          8   Braceras --
          9       A.   Uh-hum.
         10       Q.   Did there come times where the Commission 
         11   lawyer went off the record to have discussions with 
         12   you?
         13       A.   No.
         14       Q.   It never happened?
         15       A.   No.
         16       Q.   Are you sure of that?
         17       A.   I have no recollection of it whatsoever.
         18       Q.   Ms. Beaucage, do you recall there came a 
         19   time during the interview with Mr. Braceras that he 
         20   asked you some questions concerning the phone call?  
         21   And then when you gave an answer -- the following 
         22   answer to his question.  You answered --
         23            MR. WARE:  What page? 
         24            MR. EGBERT:  Page 16.
 0041
          1       Q.   You answered, "Maybe that's all she said, 
          2   you know.  I was just waiting for the nurse to tell 
          3   me something, and that's it."  And then there was a 
          4   discussion off the record.  Do you recall that?
          5       A.   No, I don't.
          6       Q.   And as soon as the discussion off the 
          7   record ended, you spoke, without a question, and 
          8   said, "I would say intimidating."  Do you recall 
          9   that time?
         10       A.   It was intimidation, yes.
         11       Q.   Do you recall that event of going off the 
         12   record?
         13       A.   It's too long ago.  Whatever I said is 
         14   there.  If it's there, it's there.  What can I say? 
         15   Intimidation was certainly a part of it.
         16       Q.   Would you take a look at this document and 
         17   see if you agree that there was a discussion off the 
         18   record --
         19       A.   I have absolutely no recollection --
         20       Q.   Let me ask the question.  Would you take a 
         21   look at the document and see if you can agree that 
         22   the words that you spoke, "intimidating," came just 
         23   after a discussion off the record with Mr. Braceras?
         24       A.   Nobody told me to say anything.  Whatever I 
 0042
          1   say is what I know is the truth.  That's all.
          2       Q.   Let me just ask you a question, if I may.  
          3   Do you recall that your statement "intimidating" 
          4   came right after a discussion off the record with 
          5   Mr. Braceras?
          6       A.   Nobody told me to say "intimidated."
          7       Q.   Do you recall that there was a discussion 
          8   off the record?
          9       A.   I do not.
         10       Q.   So you don't recall that event at all?
         11       A.   Not at all, no.
         12            MR. EGBERT:  I would offer the transcript.
         13            MR. WARE:  Same objection, Your Honor.
         14            HEARING OFFICER DAHER:  Sustained.  Mark it 
         15   for ID.
         16            MR. EGBERT:  May I be heard?
         17            HEARING OFFICER DAHER:  Sure.  
         18            (At side bar)
         19            MR. EGBERT:  Judge, this transcript is a 
         20   verbatim transcript under oath conducted by the 
         21   Commission without me being present.  It is evidence 
         22   of the fact that they go off the record, have a 
         23   conversation with her, ask her a question, that they 
         24   go off the record and she comes back with a 
 0043
          1   response, without even a question, that says, "I 
          2   would say intimidating."  It goes to the issue of 
          3   what was put in this witness' mouth, what 
          4   conversations were had off the record, and what 
          5   information she was provided and the like.  It is 
          6   the event itself.  It is not hearsay.  It's the 
          7   event itself.  They certainly can't complain of a 
          8   lack of a right to cross examine.  They conducted 
          9   the interview.
         10            HEARING OFFICER DAHER:  I'll hear you.
         11            MR. WARE:  Your Honor, it is no different 
         12   than any transcript.  If we're going to start taking 
         13   out-of-court transcripts and offering them into 
         14   evidence, then we don't need live witnesses.  That's 
         15   what live witnesses are all about.   The defendant 
         16   here has the right to cross examine.  He's 
         17   exercising that right.  That's what impeachment is 
         18   all about.  But that doesn't make the testimony 
         19   inadmissible.  You can't just throw a transcript 
         20   into evidence.
         21            MR. EGBERT:  It is not throwing a 
         22   transcript into evidence.  It is a verbatim 
         23   recitation of the event; and that is that they go 
         24   off the record, have a discussion, and she comes 
 0044
          1   back with the statement "I would say intimidating,"  
          2   without a question.  That is something that this 
          3   Court should consider in determining the credibility 
          4   of these events.
          5            HEARING OFFICER DAHER:  The ruling stands.
          6            (End of side bar)
          7       BY MR. EGBERT: 
          8       Q.   When you got this phone call -- and I think 
          9   you said you thought there was a disconnect?
         10       A.   Yes.
         11       Q.   We're talking about the call on November 1?
         12       A.   Yes.
         13       Q.   And when you say you thought there was a 
         14   disconnect, because there was no hang-up sound, at 
         15   least to your ear?
         16       A.   To my recollection, no.  I thought it was a 
         17   disconnect from the hospital, and I was going to 
         18   call them back.
         19       Q.   So that if the phone was hung up, I take it 
         20   it was hung up in a very normal fashion, in terms of 
         21   it wasn't loudly banged or --
         22            MR. WARE:  Objection as to how the caller 
         23   hung up the phone.
         24            HEARING OFFICER DAHER:  Overruled.  It 
 0045
          1   doesn't mean anything.
          2       Q.   In other words, you just heard the call 
          3   end, basically.
          4       A.   Because I assumed it was the hospital, it 
          5   was more of a disconnect to me, to my recollection, 
          6   yes.
          7       Q.   And right after the call when you hung up 
          8   the phone, your thought at the time was that it was 
          9   the hospital calling, correct?
         10       A.   That's correct.
         11       Q.   That they were calling to give you some 
         12   information about --
         13       A.   My sister-in-law.
         14       Q.   Your sister-in-law?
         15       A.   Yes.
         16       Q.   And that you were going to try to get the 
         17   number to call them back?
         18       A.   Correct.
         19       Q.   So there was certainly nothing in the phone 
         20   call that intimidated you in any way, correct?
         21       A.   No, until I found out who it was.
         22       Q.   And the only thing you say was intimidating 
         23   is the fact that the caller left an identification 
         24   of "M. Lopez," correct?
 0046
          1       A.   Of course, once I found out who it was.
          2       Q.   And the caller did nothing to disguise that 
          3   caller ID, correct?
          4       A.   I have no idea how anyone could disguise 
          5   it --
          6       Q.   You got it --
          7            MR. WARE:  Let her finish the answer.
          8            HEARING OFFICER DAHER:  Go ahead.
          9       A.   I have no idea how anyone could interrupt a 
         10   call coming through on a caller ID.  I have no idea.
         11       Q.   And in this case, no one did anything to 
         12   block that ID, correct?
         13       A.   No, I have no idea.  It was on the thing.
         14       Q.   And you considered this call as merely a 
         15   call where someone called you to confirm your 
         16   identity; isn't that correct?
         17       A.   Yes.
         18            MR. EGBERT:  I have no further questions.
         19            HEARING OFFICER DAHER:  Redirect?
         20                    REDIRECT EXAMINATION
         21       BY MR. WARE: 
         22       Q.   When you say that you considered this call 
         23   just a call to confirm your identity, did that 
         24   understanding change when you realized who had 
 0047
          1   called you?
          2       A.   Yes.
          3       Q.   And how did you then feel?
          4       A.   I felt it a very strange occurrence, and I 
          5   had no idea why she would call me at that hour of 
          6   the night.  And I found it disturbing once I found 
          7   out who it was.
          8            MR. WARE:  Thank you, Sister.
          9            MR. EGBERT:  May I have a minute, please? 
         10            HEARING OFFICER DAHER:  Sure.  Take your 
         11   time.  
         12            (Pause)
         13            MR. EGBERT:  I have nothing further, Judge. 
         14            HEARING OFFICER DAHER:  Thank you. 
         15            MR. WARE:  Your Honor, Ms. Kenney is now 
         16   available.  I wonder if I could have five minutes 
         17   just to confer with her and get her focused on what 
         18   it is we're talking about? 
         19            HEARING OFFICER DAHER:  That will be fine. 
         20            MR. EGBERT:  I have Judge DelVecchio here.  
         21   She's been here ready to go and I'm anxious to get 
         22   her back to work, if I can. 
         23            HEARING OFFICER DAHER:  I take it you've 
         24   heard Mr. Ware needs five minutes to talk to Ms. 
 0048
          1   Kenney.  I don't suspect her testimony is going to 
          2   be overly long, and I'm going to grant him the five 
          3   minutes, and we'll try -- I see Judge Russo here, 
          4   and I certainly want to give Judge Russo -- I don't 
          5   want to keep him here waiting any longer than 
          6   necessary.  So I'll try to accommodate everyone.  
          7   Why don't you talk to Joan Kenney --
          8            MR. EGBERT:  And I take it I can be present 
          9   for that conversation with Joan Kenney? 
         10            MR. WARE:  No, Your Honor.
         11            HEARING OFFICER DAHER:  No.
         12            MR. EGBERT: Judge --
         13            MR. WARE:  If we're going to cry about it, 
         14   I'll put her on right now.  It will just take 
         15   longer.
         16            MR. EGBERT:  We're not going to cry about 
         17   anything.  We're going to make legal objections --
         18            HEARING OFFICER DAHER:  Let's cut it short.  
         19   Put her on. 
         20            MR. WARE:  May I have just one minute to 
         21   confer with my colleague, Your Honor? 
         22            HEARING OFFICER DAHER:  Absolutely.  Right 
         23   after we get through with Ms. Kenney I'll take the 
         24   motion in limine.  I'll entertain that.
 0049
          1            HEARING OFFICER DAHER:  Before we get 
          2   started, Mr. Egbert, do you want a few minutes to 
          3   get ready for this witness or are you ready to go? 
          4            MR. EGBERT:  I'm ready to go.
          5            HEARING OFFICER DAHER:  Let's go. 
          6                    JOAN KENNEY, Sworn
          7                    DIRECT EXAMINATION
          8       BY MR. WARE: 
          9       Q.   Ms. Kenney, you are still, I take it, a 
         10   Public Information Officer of the Supreme Judicial 
         11   Court?
         12       A.   Yes.
         13       Q.   Nothing's changed since yesterday; is that 
         14   right?
         15       A.   No.
         16       Q.   And you remain under oath?  Do you 
         17   understand that?
         18       A.   Yes, I do.
         19       Q.   Yesterday I asked you some questions with 
         20   respect to conversations you had with Judge Lopez 
         21   prior to the time the statement was issued by your 
         22   office in her name.  Do you recall that?
         23       A.   Yes.
         24       Q.   And following that statement, you had some 
 0050
          1   additional conversation with the Judge; is that 
          2   correct?
          3       A.   Yes.
          4       Q.   And among the conversations you had was 
          5   some reference to a detective by the name of Jay 
          6   Greene?
          7       A.   Yes.
          8       Q.   Can you tell us what Judge Lopez said to 
          9   you about any conversations she had with Jay Greene?
         10       A.   I don't remember any conversation that she 
         11   had with Judge Greene that she told me about.  She 
         12   asked me to call Judge -- excuse me -- Jay Greene, 
         13   and said that he would have information that would 
         14   be useful or interesting for me to hear.
         15       Q.   And did you ask the Judge, "Well, what is 
         16   he going to tell me" or "Why are you asking me to 
         17   call him"?
         18       A.   No.  I just at that point said I would give 
         19   him a call.
         20       Q.   At no time did Judge Lopez herself relate 
         21   to you any information which purported to come from 
         22   Mr. Greene; is that right?
         23       A.   Not that I recall, yeah.
         24       Q.   Yesterday you testified that two pieces of 
 0051
          1   information were given to you; namely, that --
          2            MR. EGBERT:  Judge, I object to the 
          3   reiteration of her prior testimony.
          4            HEARING OFFICER DAHER:  Overruled.  Go 
          5   ahead. 
          6       Q.   Two pieces of information which were given 
          7   to you were that this was not a kidnapping and that 
          8   the screwdriver was not used as a weapon; is that 
          9   correct?
         10            MR. EGBERT:  Judge, are we going to 
         11   embark --
         12            HEARING OFFICER DAHER:  I'm only allowing 
         13   him a short leash on this.  Go ahead.
         14       Q.   Is that correct?
         15       A.   That's correct.
         16       Q.   And at some point following the direction 
         17   or suggestion of Judge Lopez, did you call this 
         18   Boston Police detective?
         19       A.   I did.
         20       Q.   And how did you get the number to call?
         21       A.   She gave me the number.
         22       Q.   "She" being Judge Lopez?
         23       A.   Judge Lopez gave me the number.
         24       Q.   And what conversation did you have with Mr. 
 0052
          1   Greene? 
          2            MR. EGBERT:  Just for the record, my 
          3   objection as to both process and the hearsay nature 
          4   of this conversation.
          5            HEARING OFFICER DAHER:  Absolutely.  It's 
          6   on record.  Go ahead.
          7            MR. EGBERT:  Not to mention the fact that 
          8   we have yet to have anything that identifies the 
          9   person she's talking to.
         10            HEARING OFFICER DAHER:  Go ahead.
         11       Q.   Well, perhaps we can address that. 
         12            Judge Lopez gave you a phone number which 
         13   she represented as being that of Detective Greene, 
         14   correct?
         15       A.   That's correct.
         16       Q.   And you called that number and you got 
         17   someone on the other end; is that correct?
         18       A.   I called him, I left a message, he called 
         19   me back.
         20       Q.   And did he tell you who he was when he 
         21   called you back?
         22       A.   Yes, he did.
         23       Q.   What did he say?
         24       A.   I explained who I was and how I got the 
 0053
          1   number, and asked him if he had some information 
          2   about this case.  It was a fairly brief 
          3   conversation, but he told me that he had been at the 
          4   scene of the incident.  I think he said he was first 
          5   at the scene or something like that.  And he said he 
          6   thought the boy was faking it.  I don't think those 
          7   were his exact words, but that was the impression 
          8   that I was left with; that the boy, from his 
          9   demeanor at the scene, that he was faking it, that 
         10   he was not upset. 
         11            And he also said that he knew the boy from 
         12   the neighborhood.  He thought he was a very 
         13   street-savvy boy.  He mentioned a brother as well, 
         14   said he knew the brother and was familiar with them 
         15   from the neighborhood.  I think he also indicated 
         16   that this may not have been the first time that 
         17   either he or the brother -- I wasn't sure -- had 
         18   gotten into a car.  And I took it to mean with Mr. 
         19   Horton. 
         20       Q.   Now, were you able in any way to verify a 
         21   shred of that conversation?
         22            MR. EGBERT:  I object to the tone and 
         23   nature of that question on direct examination.
         24            HEARING OFFICER DAHER:  Overruled, the 
 0054
          1   intonation, but obviously -- go ahead. 
          2       A.   Well, I couldn't verify that that 
          3   information was correct, but I felt it was in 
          4   concert with what Judge Lopez had been telling me.  
          5   She seemed skeptical that the boy had been 
          6   kidnapped.  She said it wasn't a kidnapping.
          7       Q.   And did you take certain steps to try to 
          8   verify what Greene told you, as you said yesterday?
          9       A.   Well, I called the Boston Police Department 
         10   to find out whether that information could be used 
         11   in any way by the police department, what their 
         12   rules are about that, and I had indicated that the 
         13   press reports were giving information that was very 
         14   different from what Jay Greene had told me.
         15       Q.   And as you testified yesterday, you also 
         16   asked Greene to go on the record.
         17       A.   I did, yes.  I asked him if he would give 
         18   that information to the press, and he said he could 
         19   not.
         20       Q.   Was there any other conversation with 
         21   Greene that you recall?
         22       A.   No.
         23       Q.   And as you said yesterday, you never used 
         24   this information.
 0055
          1       A.   I did not.
          2       Q.   Why not?
          3       A.   I wasn't sure what role he had in this 
          4   case.  I was never quite sure who Jay Greene was and 
          5   what this information -- you know, whether this 
          6   information could be used.  I was also concerned if 
          7   the Boston Police Department couldn't use it, that I 
          8   shouldn't use it either.
          9       Q.   Did you consider the information reliable 
         10   enough to use?
         11       A.   Well, I just wasn't sure whether it was or 
         12   not.
         13            MR. WARE:  I have nothing further.  Thank 
         14   you, ma'am. 
         15            HEARING OFFICER DAHER:  Mr. Egbert? 
         16                    CROSS EXAMINATION
         17       BY MR. EGBERT: 
         18       Q.   Let's try to get some timeframes down.  
         19   This conversation with Judge Lopez to call Jay 
         20   Greene was after any press statement was released by 
         21   your office, correct?
         22       A.   I think it was some days later, yeah.
         23       Q.   And that was at a time where you were still 
         24   trying to find out more information on the case?
 0056
          1       A.   Well, each time I talked to Judge Lopez, I 
          2   feel I had a little more information about the case.
          3       Q.   And were you asking questions about the 
          4   case?
          5       A.   Somewhat.  I mean, I was relying mostly on 
          6   what Judge Lopez was telling me.
          7       Q.   And did Judge Lopez tell you that there 
          8   was -- there were allegations by defense counsel in 
          9   the Horton case that the Commonwealth had withheld 
         10   or secreted exculpatory evidence that Jay Greene may 
         11   have?
         12       A.   I don't remember discussing that with Judge 
         13   Lopez.
         14       Q.   Do you recall the word "exculpatory 
         15   evidence" being used?
         16       A.   No, I don't.
         17       Q.   Do you know what that is?
         18       A.   Yes.
         19       Q.   And when you called Jay Greene and this man 
         20   called you back, he told you that he was first on 
         21   the scene or one of the first on the scene?
         22       A.   I think -- I believe so. 
         23       Q.   You believe which? 
         24       A.   That he was one or -- one of the first 
 0057
          1   people on the scene.
          2       Q.   One of the first people on the scene.  Is 
          3   that what you understood him to be saying?
          4       A.   I think so.  I don't have a vivid memory of 
          5   that, but I believe so. 
          6       Q.   And this conversation you had with Jay 
          7   Greene, did you find out Jay Greene's credentials 
          8   with regard to how long he had been on the police 
          9   department, for example?
         10       A.   No.  It was is a very brief conversation I 
         11   had with him.
         12       Q.   Mr. Ware was just asking you about whether 
         13   or not or what steps you took to find the 
         14   reliability of Mr. Greene's -- Detective Greene's 
         15   statements.  Do you recall that?
         16       A.   Yes.
         17       Q.   And so one of the ways to start the 
         18   reliability check, so to speak, would be to find out 
         19   how long he's been on the force and what his 
         20   experience is, correct?
         21       A.   Well, I didn't feel this was my role.  I 
         22   was simply calling Jay Greene at Judge Lopez's 
         23   suggestion, and I felt what he was telling me was 
         24   supportive of what she had been telling me.
 0058
          1       Q.   And when you say "supportive of what she 
          2   had been telling you," with regard to the 
          3   kidnapping -- we're back to that kidnapping issue -- 
          4   what she had told you is that she had believed that 
          5   the child got into the car willingly, correct? 
          6       A.   That's right.
          7       Q.   And do you know if the Commonwealth ever 
          8   suggested anything different than that in the case?
          9       A.   I don't know.  I didn't know at the time, 
         10   either.
         11       Q.   You think of kidnapping as people being 
         12   snatched off the street, right?
         13       A.   That would be the traditional sense of the 
         14   word.
         15       Q.   So when you're comparing kidnappings, 
         16   basically when you talk about a regular kidnapping, 
         17   you mean somebody snatched off the street either by 
         18   force or with a gun or with a knife and the like, 
         19   correct?
         20       A.   That's right.
         21       Q.   You don't think of a traditional kidnapping 
         22   as someone agreeing to get into a car.
         23       A.   No, I don't.
         24       Q.   So when you're talking about a traditional 
 0059
          1   kidnapping versus one where the person willingly got 
          2   in the car, you draw that distinction, correct?
          3       A.   I do.
          4       Q.   And did you know that the Commonwealth in 
          5   the case of Ebony Horton actually alleged that the 
          6   child willingly got in the car?
          7       A.   I didn't know that at the time, but a lot 
          8   of these --
          9       Q.   Do you know it now?
         10       A.   Well, now, because it was pointed out to 
         11   me.
         12       Q.   Now, I think you said that Detective Greene 
         13   gave you information about the boy, his family, and 
         14   what Detective Greene knew from being a detective in 
         15   that area over a period of time; is that correct?
         16       A.   He said he recognized or had some 
         17   familiarity with the boy and his brother in that 
         18   neighborhood.
         19       Q.   And Detective Greene didn't refuse to talk 
         20   to you, did he?
         21       A.   Refuse to talk to me? 
         22       Q.   Right. 
         23       A.   No.
         24       Q.   But what he refused to do is to go and give 
 0060
          1   a press statement, correct?
          2       A.   I'm sorry; I didn't hear you.
          3       Q.   What he refused to do was to give a press 
          4   statement, correct?
          5       A.   I asked him if he would give that same 
          6   information that he gave me to the press, and he 
          7   said, "No." 
          8       Q.   So that means he refused to give a 
          9   statement to the press.
         10       A.   That's right.
         11       Q.   Just like all the Boston police did in this 
         12   child case, correct?
         13       A.   I presume so.  I don't know whether --
         14       Q.   That's exactly what they told you when you 
         15   called people over at the Boston Police Department, 
         16   didn't they?
         17       A.   When I called the Boston Police Department, 
         18   they said they would not be able to comment on that 
         19   case.
         20       Q.   Because of the age of the victim, correct?
         21       A.   Yes.
         22       Q.   And so Detective Greene was basically doing 
         23   the same thing as the rest of the Boston Police 
         24   Department was doing vis-a-vis getting information 
 0061
          1   to the press through you.
          2       A.   Well, he said he couldn't comment because 
          3   he wasn't part of that child sexual assault unit.
          4       Q.   And they were the only ones allowed to 
          5   comment.
          6       A.   I don't know.
          7       Q.   The child sexual assault unit, they 
          8   wouldn't comment either, right?
          9       A.   Not that I know of.
         10       Q.   And you tried to get them to comment.
         11       A.   No, I wasn't trying to get anybody to 
         12   comment.  I was simply asking what their procedures 
         13   were.  I wasn't suggesting that anyone should 
         14   comment.  I just wanted to know what the procedures 
         15   were.
         16       Q.   And they told you they wouldn't comment.
         17       A.   That they couldn't because this involved a 
         18   victim.
         19       Q.   Right. 
         20       A.   A young victim.
         21       Q.   You took no steps to confirm a shred of 
         22   information or not with regard to what Mr. Greene -- 
         23   Detective Greene told you, did you?
         24       A.   I didn't think that was my role to do.
 0062
          1       Q.   But I do have to ask you the question.  You 
          2   didn't take any steps to confirm or deny anything he 
          3   told you; isn't that right?
          4       A.   That's right.
          5       Q.   And that's because you didn't think it was 
          6   your role.
          7       A.   That's right.
          8       Q.   So when asked whether or not you obtained 
          9   any -- a shred of confirmation for his statements, 
         10   you didn't go looking, did you?
         11       A.   The only confirmation was what Judge Lopez 
         12   was telling me.
         13       Q.   Did you go looking any other places for 
         14   confirmation?
         15       A.   No.
         16       Q.   That wasn't your task, was it?
         17       A.   Right.
         18            MR. EGBERT:  One moment, please.  (Pause)  
         19   I have nothing further.
         20            HEARING OFFICER DAHER:  Okay.  Mr. Ware, 
         21   anything? 
         22                    REDIRECT EXAMINATION
         23       BY MR. WARE: 
         24       Q.   Judge Lopez told you that this was not a 
 0063
          1   kidnapping; isn't that right?
          2       A.   That's correct.
          3       Q.   And to your best recollection, those were 
          4   her words, without qualifiers; is that right?
          5       A.   That's correct.
          6       Q.   Now, when Judge Lopez told you this prior 
          7   to the statement being issued, she did not tell you 
          8   that the boy, meaning the victim, and the defendant 
          9   did not know each other, did she?
         10       A.   I'm sorry; could you repeat that? 
         11       Q.   Yes.  Did Judge Lopez tell you that the 
         12   defendant admitted that the victim and the defendant 
         13   did not know each other?
         14       A.   No.
         15       Q.   Did she tell you that the defendant 
         16   admitted telling the boy that he was searching for 
         17   his missing son, who, of course, didn't exist?
         18       A.   No.
         19       Q.   Did she tell you that --
         20            MR. EGBERT:  This is so far beyond what you 
         21   permitted this witness to be called for --
         22            MR. WARE:  Your Honor, Mr. Egbert's 
         23   testimony went far afield of the issue that you 
         24   permitted the witness to testify to --
 0064
          1            MR. EGBERT:  I think my cross was directly 
          2   related to the issue of her conversation with Mr. 
          3   Greene.
          4            HEARING OFFICER DAHER:  I have allowed a 
          5   lot of latitude on this matter.  Overruled.  Go 
          6   ahead.
          7            MR. WARE:  Thank you, Your Honor.
          8       BY MR. WARE: 
          9       Q.   Judge Lopez also did not tell you that the 
         10   defendant admitted that he got the victim into the 
         11   car by a ruse; that is, by being dressed as a woman 
         12   and claiming that he was looking for his son and 
         13   offering the child money; isn't that correct?
         14       A.   I don't think I knew that at the time.  
         15   It's hard to remember exactly, because I was 
         16   reading, you know, newspaper accounts, too.  And so 
         17   a lot of this is mushed together.
         18       Q.   But you do not recall Judge Lopez telling 
         19   you those facts prior to the point at which you were 
         20   putting out a statement in her name, correct?
         21       A.   That's correct.
         22       Q.   Judge Lopez did not tell you that the 
         23   defendant admitted putting a screwdriver to the 
         24   child's neck; isn't that so?
 0065
          1       A.   Yes, she did not think it was used as a 
          2   weapon.
          3       Q.   In fact, she told you the reverse; that it 
          4   wasn't used as a weapon, right?
          5       A.   That's right, yes.
          6       Q.   She never told you that in open court the 
          7   defendant had admitted to using the screwdriver as a 
          8   weapon on the child, correct?
          9       A.   She told me what the charges were and what 
         10   he had agreed to in the plea, but she obviously 
         11   didn't believe that happened that way.
         12       Q.   In any event, she told you the screwdriver 
         13   wasn't used as a weapon.
         14       A.   That's correct.
         15       Q.   Whatever the defendant had said in open 
         16   court.
         17       A.   Right.
         18       Q.   The Judge did not tell you that the 
         19   defendant admitted that he was there for purposes of 
         20   some sexual act; is that correct?
         21       A.   Yes.
         22       Q.   And the Judge did not tell you that in 
         23   fact, when the police approached, the child was 
         24   crying.
 0066
          1       A.   I don't remember her telling me that.
          2       Q.   In fact, all she told you was that this 
          3   detective was someone whom you should talk to.  And 
          4   you learned from this detective that at some point 
          5   later, the child, in his view at least, wasn't 
          6   crying, correct?
          7       A.   That's right.
          8       Q.   And the Judge did not tell you that the 
          9   defendant had admitted in open court to having lied 
         10   to the police when they interviewed him; isn't that 
         11   correct?
         12       A.   Yes.
         13            MR. WARE:  I have no further questions.  
         14   Thank you.  
         15                    RECROSS EXAMINATION
         16       BY MR. EGBERT: 
         17       Q.   You are the press office of the Court 
         18   system, correct?
         19       A.   Yes.
         20       Q.   You read the newspapers, correct?
         21       A.   I do.
         22       Q.   That's part of your function, basically, in 
         23   one of these cases that's under scrutiny?
         24       A.   Yes.
 0067
          1       Q.   And would you turn to Exhibit 20 of the 
          2   book in front of you.  This is an article that 
          3   occurred on September 7th in the Boston Herald, 
          4   correct?
          5       A.   I don't have the date already.
          6       Q.   To make your life a bit easier, turn the 
          7   page, and there's an Internet printout that's easier 
          8   to read. 
          9       A.   Yes.
         10       Q.   Do you have that?
         11       A.   I do.
         12       Q.   That's an article entitled, "Man Guilty of 
         13   Sexual Attack on Boy Won't Go to Jail," dated 
         14   September 7th of the Year 2000, correct?
         15       A.   Yes.
         16       Q.   Now, you would have read that, wouldn't 
         17   you?
         18       A.   I would have.
         19       Q.   And in that document -- you would have read 
         20   that probably the morning of September 7th, correct?
         21       A.   Yes.
         22       Q.   And that was before any press release or 
         23   press statement, correct?
         24       A.   Yes.
 0068
          1       Q.   And certainly well before your conversation 
          2   with Judge Lopez about Detective Greene.
          3       A.   Yes.
          4       Q.   And well before your conversation with 
          5   Detective Greene.
          6       A.   Yes.
          7       Q.   Correct?
          8       A.   Right.
          9       Q.   And so -- so you weren't ignorant of 
         10   everything that had gone on in this case before 
         11   September 7th, were you?
         12       A.   Well, I knew -- all I knew about the case 
         13   was what I learned from Judge Lopez and what I was 
         14   reading in the press reports.
         15       Q.   Let's see what you read in the press report 
         16   on September 7th. 
         17            For example, you would have read that -- if 
         18   you go down to the paragraph that begins, "On the 
         19   afternoon of November 20..." Do you see that?
         20       A.   Yes.
         21       Q.   "On the afternoon of November 20 on Corona 
         22   Street in Dorchester, Horton, dressed as a woman, 
         23   lured the boy into her car under the pretense of 
         24   needing help to find her lost son, according to 
 0069
          1   Suffolk County Prosecutor David Deakin.  Horton then 
          2   drove the boy to a deserted parking lot behind a 
          3   warehouse at 50 Park Street and held a screwdriver 
          4   to his neck while demanding oral sex, Deakin said.  
          5   Yesterday in court Horton admitted to putting his 
          6   finger and the screwdriver in the boy's mouth at 
          7   various times while they were in the car," right?
          8       A.   Yes.
          9       Q.   And you also had, in combination with that 
         10   information, the fact that Mr. Horton had in fact 
         11   pled guilty to all of the offenses of guilty, 
         12   assault to rape, assault and battery or assault and 
         13   battery with a dangerous weapon and the like, 
         14   correct?
         15       A.   Yes.
         16       Q.   So you knew all of that by September 7th.
         17       A.   Based on what I was reading and based on 
         18   what Judge Lopez was telling me.
         19       Q.   Based on what you were reading, based on 
         20   what Judge Lopez said based upon the charges, based 
         21   upon the plea of guilty, correct?
         22       A.   Yes.
         23       Q.   This isn't some matter -- strike that.  
         24   This isn't an area that you're unfamiliar with, 
 0070
          1   pleas and guilty pleas and the like, correct?
          2       A.   That's right.
          3       Q.   So you were familiar with the fact that he 
          4   had pled guilty to these charges.  You didn't need 
          5   Judge Lopez to tell you that, right?
          6       A.   Well, I asked Judge Lopez about that to be 
          7   sure, but yes.
          8       Q.   But you had already known it, correct?
          9       A.   Well, I knew it from her.
         10       Q.   You knew it from the press reports.
         11       A.   The facts that I believe came from Judge 
         12   Lopez.
         13       Q.   Follow my questions for a minute and then 
         14   we'll get to that. 
         15            What I'm asking you is, you knew that this 
         16   gentleman named Horton had pled guilty to these 
         17   various offenses, correct?
         18       A.   I knew that from Judge Lopez.
         19       Q.   And didn't you know it from the news 
         20   reports, too?
         21       A.   Well, that supported it, I suppose.
         22       Q.   Didn't you know it from the news reports?  
         23   I don't mean to bicker with you, but did you read 
         24   the paper?
 0071
          1       A.   I read the paper.
          2       Q.   Did you see television?
          3       A.   Yes, I did.
          4       Q.   This was a fairly high-profile, highly- 
          5   publicized case.
          6       A.   I followed it carefully.
          7       Q.   And when you followed it carefully, was it 
          8   clear to you that this man had pled guilty to these 
          9   offenses?
         10       A.   Yes, but I knew that from Judge Lopez.
         11       Q.   And other sources.
         12       A.   And I was reading it in the paper.
         13       Q.   And other sources, correct?
         14       A.   Sure.
         15       Q.   So your information was coming from a 
         16   number of sources, not just Judge Lopez; isn't that 
         17   right?
         18       A.   As I've testified, those two sources. 
         19       Q.   So when you were asked by Mr. Ware whether 
         20   or not Judge Lopez said this, that or the other 
         21   thing, many of those things you already knew from 
         22   various sources, correct?
         23       A.   I knew everything from what Judge Lopez 
         24   told me and from what I read in the press or saw on 
 0072
          1   television.
          2       Q.   Or saw on television, correct?
          3       A.   That's all I knew.
          4       Q.   And that was what the case was about, 
          5   correct?
          6       A.   That's right.
          7       Q.   For example, Mr. Ware asked you whether or 
          8   not Judge Lopez told you that the boy was lured into 
          9   the car under the pretense of needing help to find 
         10   her lost son.  You don't recall Judge Lopez telling 
         11   you about that, do you?
         12       A.   Not specifically.
         13       Q.   Not specifically.  But that was a 
         14   well-known fact, wasn't it?
         15       A.   Well, as I said, a lot of this information 
         16   was mushed together --
         17       Q.   Please --
         18            MR. WARE:  Objection.  The witness is 
         19   entitled to answer --
         20            HEARING OFFICER DAHER:  This is a very 
         21   vital part of it.  Overruled.  Go ahead.
         22       Q.   I would like direct answers.
         23       A.   I'm trying to.
         24       Q.   This was a well-known fact, wasn't it, by 
 0073
          1   September 7th that the allegation was and what Mr. 
          2   Horton pled guilty to was luring the boy into the 
          3   car to help her find her lost son?
          4            MR. WARE:  Objection.  Did you say 
          5   September 4th?
          6            MR. EGBERT:  I said September 7th, I 
          7   believe.  If I didn't, I mean September 7th.
          8            MR. WARE:  The plea was September 6th.
          9            MR. EGBERT:  I know the plea was September 
         10   6th.  
         11            HEARING OFFICER DAHER:  Do you understand 
         12   the question? 
         13            THE WITNESS:  No.  Could you repeat it. 
         14       Q.   The question of the fact of the boy being 
         15   lured into the car by a man dressed as a woman, that 
         16   fact, you knew about that from the press, didn't 
         17   you?
         18       A.   If you call the press facts -- I mean, I 
         19   don't rely on those as always being the facts, but 
         20   yes, I read those press reports.
         21       Q.   And you read that that's what he pled 
         22   guilty to.
         23       A.   Yes.
         24       Q.   And did Judge Lopez ever indicate to you 
 0074
          1   that Mr. Horton didn't plead guilty to those facts?
          2       A.   No.  I've already testified as to what I 
          3   recall Judge Lopez told me.
          4       Q.   Please, if you could direct yourself.  Did 
          5   Judge Lopez ever tell you that Mr. Horton did not 
          6   plead guilty to these various facts that you now 
          7   know were in the news?
          8       A.   No, she never said he did not plead guilty.
          9       Q.   And in fact, she told you he had pled 
         10   guilty to these particular offenses.
         11       A.   That's correct.
         12       Q.   And then she told you that in terms of her 
         13   information, her understandings, she had certain 
         14   beliefs as a sentencing judge, correct?
         15       A.   That's correct.
         16       Q.   And opinions as a sentencing judge based 
         17   upon information that had been provided to her.
         18       A.   That's correct.
         19       Q.   Now, these conversations you were having 
         20   with Judge Lopez at the time, these were 
         21   conversations like you have with many judges, where 
         22   they share your opinions and thoughts with you; is 
         23   that correct?
         24       A.   Yes, sometimes.
 0075
          1       Q.   And during these conversations, do you 
          2   consider them to be on the record?
          3       A.   What do you mean by "on the record"? 
          4       Q.   In other words, do you consider yourself to 
          5   be privy to talk about anything judges tell you?
          6       A.   It really depends on what you're talking 
          7   about.  It's out of context --
          8       Q.   Are there times when you talk to judges 
          9   about their thoughts and their opinions and the like 
         10   which you don't consider to be on the record or for 
         11   public release?
         12       A.   Do you mean about specific cases? 
         13       Q.   Yes. 
         14       A.   If I'm asking a judge about a case, I want 
         15   to know whether it's information that can be used or 
         16   not used, if that's what you're suggesting.
         17       Q.   And did, for example, Judge Lopez tell you 
         18   that you could or could not use any information she 
         19   provided you?
         20       A.   I don't remember that.  I mean, I don't 
         21   know, you know, what information she said you could 
         22   use or not use.
         23       Q.   For example, it must be so, at least as to 
         24   these comments you've made to us about her thoughts 
 0076
          1   on the screwdriver and the kidnapping --
          2       A.   Yes.
          3       Q.    -- it must be so, musn't it, that you 
          4   consider that to be not releasable information based 
          5   on the press statement which says that she wouldn't 
          6   talk about it?
          7       A.   That's right.
          8       Q.   So that what she was talking to you about 
          9   was private?
         10       A.   I considered it that way, yes.
         11       Q.   And not for public dissemination?
         12       A.   That's right.
         13       Q.   In fact, all of her opinions and thoughts 
         14   with regard to this matter that she was talking to 
         15   you about were not ones which you were permitted to 
         16   release to the public at large; isn't that right?
         17       A.   Except about the sentencing guidelines, I 
         18   felt that was something I could.
         19       Q.   And that was in fact in the press 
         20   statement?
         21       A.   Yes.
         22       Q.   But these other matters that we've 
         23   discussed and the like, you didn't consider those to 
         24   be matters which she was authorizing you to make 
 0077
          1   public comment or public dissemination of; is that 
          2   right?
          3       A.   No, and I didn't feel I had all of the 
          4   information to do that anyway.
          5       Q.   Whether you had all the information or not, 
          6   please answer my question. 
          7       A.   Okay.
          8       Q.   These matters which she was discussing with 
          9   you, which we've talked about -- kidnapping, 
         10   screwdriver and thoughts on sentencing and the like 
         11   -- other than the guidelines, those matters were 
         12   matters which she indicated to you were not to be 
         13   made public and you were not to publicly disseminate 
         14   them; isn't that correct?
         15       A.   I don't remember her ever saying "You are 
         16   not to disseminate this," but I just took it that 
         17   that's what I should do.
         18       Q.   Did you take it from the fact that in her 
         19   press statement she said she was not permitted to  
         20   talk about them, that you were also not permitted to 
         21   talk about them?
         22       A.   I took it that way, that I shouldn't 
         23   either, yes.
         24       Q.   And that was her decision and her 
 0078
          1   directive?
          2       A.   Yes, I guess I would say that.
          3            MR. EGBERT:  I have nothing further. 
          4            HEARING OFFICER DAHER:  Mr. Ware? 
          5                  FURTHER REDIRECT EXAMINATION
          6       BY MR. WARE:  
          7       Q.   At the time you prepared or drafted, at 
          8   least, the statement that Judge Lopez ultimately 
          9   issued under her name, the information that was the 
         10   basis of that statement came from Judge Lopez and 
         11   Judge Lopez alone; is that correct?
         12       A.   That's correct.
         13            MR. WARE:  Nothing further. 
         14            HEARING OFFICER DAHER:  Anything else, Mr. 
         15   Egbert? 
         16            MR. EGBERT:  No, Judge. 
         17            HEARING OFFICER DAHER:  Thank you.  Shall 
         18   we take a short break here and start up in about 
         19   five, ten minutes? 
         20            MR. WARE:  Yes.  Your Honor, at some 
         21   point -- I don't know if you want to hear a comment 
         22   on the motion to exclude certain witnesses.
         23            HEARING OFFICER DAHER:  Do you have a 
         24   motion in limine? 
 0079
          1            MR. EGBERT:  Judge, my first witness is 
          2   Judge DelVecchio, and that has nothing to do with 
          3   anything in this motion in limine, and I would like 
          4   to get her on the stand.
          5            MR. WARE:  That's fine.  I'm just saying 
          6   it's fine to take a break, but then we'll put Judge 
          7   DelVecchio on.
          8            HEARING OFFICER DAHER:  You are concluded 
          9   with your case in chief; is that correct? 
         10            MR. WARE:  Yes, subject only to just 
         11   confirming that all the exhibits are in fact in 
         12   evidence.  I believe they are.  I just want to 
         13   reconfirm that. 
         14            HEARING OFFICER DAHER:  Fine.  We'll pick 
         15   that up in five minutes. 
         16            (Recess)
         17                  SUZANNE DelVECCHIO, Sworn
         18                     DIRECT EXAMINATION
         19       BY MR. EGBERT:
         20       Q.   Good morning. 
         21       A.   Good morning.
         22       Q.   Could you state your name, please.
         23       A.   Suzanne DelVecchio.
         24       Q.   And what is your present occupation?
 0080
          1       A.   I'm Chief Justice of the Superior Court.
          2       Q.   And could you give me a brief background of 
          3   your professional history. 
          4       A.   You mean from law school on? 
          5       Q.   Yes. 
          6       A.   Let's start with I was appointed to the 
          7   Superior Court 17 years ago and I've been a justice 
          8   of the Superior Court since then.  I was the 
          9   regional administrator justice for Plymouth County 
         10   for many years and I was appointed Chief Justice 
         11   three years ago.
         12       Q.   Was your appointment in the fall of '99 was 
         13   it?
         14       A.   Yes, I think so.
         15       Q.   How long have you known Judge Lopez?
         16       A.   Since she came on our court.
         17       Q.   Would that be 1993 or so?
         18       A.   I don't recall, but I've known her since 
         19   she's been on the court.
         20       Q.   And have you had any relationship with 
         21   Judge Lopez other than a professional relationship?
         22       A.   No.
         23       Q.   During your time on the Superior Court 
         24   bench and most particularly your time as Chief 
 0081
          1   Justice of the Superior Court, can you tell me what 
          2   you know of Judge Lopez's judging in the Superior 
          3   Court?
          4            MR. WARE:  Objection. 
          5            HEARING OFFICER DAHER:  What's the 
          6   objection? 
          7            MR. WARE:  I don't know what that question 
          8   means.  Of her judging in the Superior Court?
          9            HEARING OFFICER DAHER:  It's somewhat 
         10   ambiguous.
         11            MR. WARE:  Is this character evidence? 
         12            MR. EGBERT:  No, it's not character 
         13   evidence.  It's a Chief Justice of the Court who has 
         14   experience and knowledge of the performance of 
         15   judges --
         16            HEARING OFFICER DAHER:  "Judging" is so 
         17   indefinite.  If you could be more specific.
         18            MR. EGBERT:  That's why I kept it to 
         19   judging, as opposed to any personal characteristics, 
         20   but if you'd like a better question --
         21            HEARING OFFICER DAHER:  I'd appreciate it.
         22       Q.   In your experience, Judge, can you give us 
         23   an understanding of what your knowledge is as to 
         24   Judge Lopez's handling of cases on the Superior 
 0082
          1   Court bench. 
          2       A.   Since I've been Chief Justice, I've never 
          3   had a complaint against Maria Lopez about the way 
          4   she's handled any case.  I think that she's most 
          5   noted in our court for having handled a very 
          6   difficulty case when she first came on the Court, 
          7   which was the Demoulas case.
          8       Q.   When you said most noted for that, can you 
          9   give us some understanding of why that case was of 
         10   note?
         11            MR. WARE:  Objection.  Irrelevant.  The 
         12   Demoulas case? 
         13            HEARING OFFICER DAHER:  What's the 
         14   relevancy?
         15            MR. EGBERT:  The relevancy is as to this 
         16   Judge's performance on the bench on difficult cases.
         17            HEARING OFFICER DAHER:  She's already 
         18   testified that she had a very difficult case and she 
         19   did a nice job on it.
         20            MR. EGBERT:  And I think the nature of the 
         21   difficulty of that case is important to note for the 
         22   record.  
         23            HEARING OFFICER DAHER:  Objection 
         24   sustained.
 0083
          1       BY MR. EGBERT: 
          2       Q.   Have you followed the Demoulas case through 
          3   the appellate process?
          4       A.   I read the advance sheets --
          5            MR. WARE:  Objection.
          6            HEARING OFFICER DAHER:  Yes or no.  I'll 
          7   give him a short leash.  Go ahead.
          8       A.   I have read the advance sheets.  I don't 
          9   have any personal knowledge of the case, but I do 
         10   read the advance sheets regularly.
         11       Q.   And are you aware of the result with regard 
         12   to the appeals in the Demoulas case --
         13            (Mr. Ware stands)
         14            HEARING OFFICER DAHER:  Sustained.  
         15   Objection sustained.
         16            MR. EGBERT:  I'll ask then the Court to 
         17   take judicial notice of all the Demoulas cases in 
         18   the Supreme Judicial Court, including the Court's 
         19   decisions on the motions to recuse that were filed 
         20   in those cases.
         21            HEARING OFFICER DAHER:  Do you have any 
         22   problems with that? 
         23            MR. WARE:  No. 
         24            HEARING OFFICER DAHER:  That's fine. 
 0084
          1            THE CLERK:  For the record, it will be J, K 
          2   and L. 
          3            MR. WARE:  One piece of paper is J, K and 
          4   L?  
          5            (Document handed to Mr. Ware)
          6            MR. WARE:  Just so I understand, if these 
          7   exhibits are copies of the cases, I have no 
          8   objection.
          9            MR. EGBERT:  He has the exhibits.
         10            THE CLERK:  For the record, it's J, K, and 
         11   L, judicial notice.
         12                 (Document marked as Exhibits J, 
         13                 K and L moved into evidence)
         14       Q.   Judge, in your dealings in the Superior 
         15   Court, do you make judicial assignments?
         16       A.   Yes.
         17       Q.   And can you tell us what your experience 
         18   has been with regard to Judge Lopez and the 
         19   acceptance of assignments?
         20       A.   In what? 
         21       Q.   In her acceptance of various assignments.
         22       A.   I don't think she's ever turned an 
         23   assignment down.
         24       Q.   And with regard to the receipt of 
 0085
          1   complaints, do you receive complaints on occasion 
          2   concerning judges?
          3       A.   Yes, I do.
          4       Q.   And do you receive complaints concerning 
          5   judges' demeanor in cases?
          6       A.   Yes, I do.
          7       Q.   And during your course on the Superior 
          8   Court have you ever received a complaint against 
          9   Maria Lopez?
         10       A.   No.
         11       Q.   Judge, during your time on the Bench and 
         12   particularly, again, as a Chief in the Superior 
         13   Court, have you had any experience with problems 
         14   between the judiciary and the press in the district 
         15   attorney's office?
         16       A.   There's sometimes a very dynamic tension 
         17   amongst those parties.
         18       Q.   And how would you describe that tension?
         19            MR. WARE:  I object to the generalization.
         20       Q.   I'll ask you a specific question.  Have you 
         21   had on occasion in the past seen, as a judge, 
         22   district attorney offices using the press in an 
         23   attempt to coerce or intimidate or affect a judge's 
         24   decision?
 0086
          1            MR. WARE:  Objection.  First of all, these 
          2   are conclusions of this particular judge.  They're 
          3   not observations. 
          4            Secondly, we have no timeframe. 
          5            Third, they're in the nature of character 
          6   evidence that's unsupported. 
          7            MR. EGBERT:  They're not character 
          8   evidence, Your Honor.  It goes to some of the 
          9   problems in the judiciary which Judge Lopez also 
         10   faced at the time and which clearly are a factor in 
         11   what's going on in this case.
         12            HEARING OFFICER DAHER:  Sustained.
         13       Q.   Judge, have you personally had experience 
         14   with district attorneys calling in the press in 
         15   cases where they were likely to be dissatisfied with 
         16   your results
         17            (Mr. Ware stands)
         18            HEARING OFFICER DAHER:  What's your 
         19   objection? 
         20            MR. WARE:  Irrelevant.  It doesn't involve 
         21   Judge Lopez --
         22            HEARING OFFICER DAHER:  Sustained.
         23            MR. EGBERT:  The objection the first time 
         24   was that it wasn't in her personal knowledge.  Now 
 0087
          1   when asked within her personal knowledge --
          2            HEARING OFFICER DAHER:  Sustained.
          3       Q.   Have there been conversations amongst 
          4   judges while you were Chief in various conferences 
          5   and other gatherings of the judiciary with regard to 
          6   the issue of the DA's office's use of the press? 
          7            MR. WARE:  Objection. 
          8            HEARING OFFICER DAHER:  Sustained.
          9       Q.   Do you as Chief Justice -- strike that. 
         10            Was there recently a conference amongst 
         11   judges concerning the judiciary and the press?
         12       A.   Yes.
         13       Q.   And was Judge Lopez present at that 
         14   conference?
         15            MR. WARE:  Objection. 
         16            HEARING OFFICER DAHER:  She can answer 
         17   that. 
         18       A.   Yes.
         19       Q.   And were there discussions at that 
         20   conference with regard to the various litigants' use 
         21   of the press in criminal cases?
         22            MR. WARE:  Objection. 
         23            HEARING OFFICER DAHER:  Sustained. 
         24       Q.   Are you familiar, Judge, with the process 
 0088
          1   called plea conferences or lobby conferences as used 
          2   in the Superior Court in the Commonwealth?
          3       A.   Yes.
          4       Q.   And were you both -- did you take part in 
          5   such conferences as a judge?
          6       A.   Yes.
          7       Q.   And you have an understanding of those 
          8   conferences and procedures as a Chief?
          9       A.   Yes.
         10       Q.   And have those matters also been discussed 
         11   at judicial conferences and the like?
         12       A.   Yes.
         13       Q.   And with regard to Suffolk County -- I'll 
         14   start for a moment.  With regard to Suffolk County, 
         15   do you have an understanding of the regular process 
         16   for something called a plea conference?
         17       A.   Yes.
         18       Q.   Can you tell us what that is?
         19       A.   Generally when a case is brought into 
         20   court, particularly in the First Session, but it can 
         21   be obviously in trial sessions, too, there will be a 
         22   conference between -- amongst the lawyers, the judge 
         23   where really both sides put on their -- tell the 
         24   judge about their case.  And they ask the judge if 
 0089
          1   the judge would consider giving a sentence with 
          2   regard -- if the defendant would take a plea rather 
          3   than try a case.  And that happens all the time.
          4       Q.   Those conferences, in your experience, are 
          5   often off the record?  What I mean by that is 
          6   without a court reporter?
          7       A.   It depends on the judge.  But most of the 
          8   times they are off the record.
          9       Q.   And during those conferences, is it 
         10   basically a free exchange of --
         11            MR. WARE:  Objection to the leading nature 
         12   of the question.
         13            HEARING OFFICER DAHER:  I'm going to allow 
         14   him some latitude.  It's very important.
         15       Q.    -- is basically a free exchange by the 
         16   lawyers with the judge as to what they think the 
         17   facts are and what they think the appropriate 
         18   sentence may be?
         19       A.   Yes.
         20       Q.   And during those conferences, is it often 
         21   the case where documents or information will be 
         22   provided to the judge for purposes of advocating a 
         23   particular sentence? 
         24            MR. WARE:  Objection.
 0090
          1            HEARING OFFICER DAHER:  What's the 
          2   objection? 
          3            MR. WARE:  Again, leading, Your Honor.  
          4   This is the direct testimony of this witness who is 
          5   not an expert on plea conferences.  I'd like to hear 
          6   from her.
          7            HEARING OFFICER DAHER:  Again, obviously 
          8   I'm going to give you extensive cross examination.  
          9   It's a very important dimension of this case.  I've 
         10   allowed a lot of latitude.  I'm going to allow Mr. 
         11   Egbert that luxury.  Go ahead.  You have it.
         12       Q.   Do you recall the question?
         13       A.   No.  Just ask it again. 
         14       Q.   Are you familiar -- strike that. 
         15            During the course of these plea 
         16   conferences, it is not unusual for lawyers to 
         17   present the judge with documents or information 
         18   while advocating their particular position; is that 
         19   correct?
         20       A.   Yes, that's what happened.
         21       Q.   And during those plea conferences where 
         22   there is no court reporter, the documents and 
         23   information provided to the Court, are they placed 
         24   on any permanent record?
 0091
          1       A.   No.  Sometimes they may be placed in a 
          2   probation file, but they're not placed as part of 
          3   the public record of the case.  And I'm talking, 
          4   there can be medical reports, psychiatric reports, 
          5   even letters, character reference letters for a 
          6   defendant, whatever, victim impact statements.  
          7   Those are all placed in a -- if they are placed at 
          8   all -- in a probation file.
          9       Q.   And if they're not placed in a probation 
         10   file, what's done with them?
         11       A.   They're generally given back to the 
         12   attorneys.
         13       Q.   And is that after the judge has given their 
         14   determination as to what the sentence will be?
         15       A.   Yes, pretty much.  It just depends on what 
         16   that judge likes to do, what that judge's habit is.  
         17   Some judges request that the documents be placed in 
         18   a probation file.  Some judges hand them back.  It 
         19   just is the judge's preference.
         20       Q.   And during those plea conferences and lobby 
         21   conferences, do the judge have an expectation as to 
         22   the roles of the parties?
         23       A.   It's an adversarial proceeding, and we 
         24   anticipate that the parties will tell us their best 
 0092
          1   case. 
          2       Q.   When you were -- just for clarity, while 
          3   you're Chief you don't sit on cases; is that 
          4   correct?
          5       A.   No.
          6       Q.   While you were a judge, you engaged in a 
          7   number of these plea conferences?
          8       A.   For 14 years.
          9       Q.   And during those conferences, would you 
         10   understand that a judge's role would be to seek out 
         11   evidence?
         12       A.   What do you mean? 
         13       Q.   Well, to seek out -- to review tapes, 
         14   police reports, things like that?
         15       A.   No.  We're not investigators.  We would 
         16   anticipate that that information would be presented 
         17   to us by either side.
         18       Q.   And with regard to -- do you have an 
         19   exhibit book in front of you?
         20       A.   I do. 
         21       Q.   Could you turn to Exhibit 3. 
         22            Now, that's entitled "Psychosocial 
         23   Assessment and Dispositional Plan for Charles Ebony 
         24   Horton."  Do you see that?
 0093
          1       A.   Yes.
          2       Q.   Have you seen documents such as that 
          3   before? 
          4            MR. WARE:  Objection.
          5            HEARING OFFICER DAHER:  What's your 
          6   objection? 
          7            MR. WARE:  Your Honor, this is in the 
          8   nature of expert testimony regarding this report.  
          9   This is precisely what the Court instructed counsel 
         10   to notify us of prior to trial.  We've been all 
         11   through this.  This witness was not identified as an 
         12   expert on these reports or any kind of 
         13   psychosocial --
         14            HEARING OFFICER DAHER:  Mr. Egbert, you're 
         15   on record of a list; and in my order which indicated 
         16   if there were experts, I wanted a CV.  You indicated 
         17   at some time in the proceedings -- we can go back -- 
         18   that there were no experts.  And this indeed is in 
         19   the nature of expert testimony.
         20            MR. EGBERT:  It's not.  I'm not asking her 
         21   for opinions of expert testimony.  I'm asking her 
         22   for the customs and practice of the Superior Court.  
         23   It is not an expert question.  It is simply the 
         24   custom and practices of the Superior Court and the 
 0094
          1   judges in the Superior Court over the course of many 
          2   years, for which she is eminently familiar as Chief 
          3   Judge.
          4            MR. WARE:  Your Honor, it is by definition 
          5   in the nature of expert testimony.  At a minimum the 
          6   Judge presumably is going to testify based on her 
          7   expertise, which again I don't doubt, and her 
          8   experience in the Superior Court.  It's precisely 
          9   what we had a colloquy about back in November.
         10            HEARING OFFICER DAHER:  Overruled.  I'm 
         11   going to overrule you.  Go ahead, Mr. Egbert.
         12       Q.   Have you seen documents such as that 
         13   before?
         14       A.   Yes.
         15       Q.   And in the course of your practice on the 
         16   Superior Court and your understanding of Superior 
         17   Court practices, is a document such as that unusual 
         18   to be presented in a plea conference? 
         19            MR. WARE:  Objection.  Now we're having her 
         20   speculate on whether documents like this are or are 
         21   not unusual in Superior Court Bench conferences.  
         22   We're way far afield.
         23            HEARING OFFICER DAHER:  Didn't she testify 
         24   that some judges put it on record, some judges 
 0095
          1   review it, some judges give back the reports -- I 
          2   think we've already explored that avenue.
          3            MR. EGBERT:  We haven't identified the type 
          4   of report or type of information --
          5            HEARING OFFICER DAHER:  Overruled.  Go 
          6   ahead. 
          7       A.   Reports such as these are submitted from 
          8   time to time.
          9       Q.   And I want to direct you to the last page 
         10   of the document, which reads, "Joan R. Katz," or 
         11   Katz -- I'm not sure how she pronounces it -- 
         12   "licensed social worker and BCD, Director of Social 
         13   Services Committee for Public Counsel Services."  Do 
         14   you see that?
         15       A.   Yes.
         16       Q.   In your experience, if a defense counsel 
         17   presented a report such as that at disposition or at 
         18   a plea conference and the Commonwealth sought to 
         19   have that report considered unreliable by the Court, 
         20   whose job would it be to present that information to 
         21   the Court? 
         22            MR. WARE:  Objection, Your Honor.  Again, 
         23   this is expert testimony on how this witness would 
         24   react if this report were given to her as a judge in 
 0096
          1   the Superior Court.  This is precisely what was 
          2   disallowed.  It's precisely why we asked for this in 
          3   advance of trial.
          4            MR. EGBERT:  Judge --
          5            MR. WARE:  This is a back-door way of 
          6   trying to build up this report into something.  
          7   We've had the Judge's testimony.  That's all we 
          8   need.  Judge Lopez was the only one who was there on 
          9   August 1st.
         10            MR. EGBERT:  Judge, the Judge was cross 
         11   examined extensively and this Court asked questions 
         12   extensively concerning the proprietary of the manner 
         13   in which the plea conference was held, whether the 
         14   document was retained, whether it was put on the 
         15   record, whether it was relied on, whether or not -- 
         16   Judge Lopez was cross examined at length as to 
         17   whether or not she investigated who this person was 
         18   and what she did and all these things.  And I think 
         19   it's appropriate to show that the custom and 
         20   practice of the Court is exactly as she conducted 
         21   herself.
         22            HEARING OFFICER DAHER:  Overruled.  Go 
         23   ahead.
         24       Q.   Do you have the question in mind?
 0097
          1       A.   No.
          2       Q.   Let me see if I can rephrase it.
          3            If presented a report such as this during a 
          4   plea conference -- when I say "such as this," I mean 
          5   Exhibit 3 -- and the district attorney sought to 
          6   have a court consider this to be unreliable or the 
          7   like, whose role would it be to present the 
          8   information of unreliability to the Court?  
          9            (Mr. Ware stands)
         10            HEARING OFFICER DAHER:  Sustained. 
         11       Q.   As a judge of the Superior Court, who would 
         12   you expect to refute any information provided by 
         13   defense counsel?
         14            MR. WARE:  Objection.
         15            HEARING OFFICER DAHER:  What's the 
         16   objection?
         17            MR. WARE:  Your Honor, again, we are asking 
         18   this witness, however qualified, in effect to 
         19   speculate on whether the process Judge Lopez used or 
         20   should have used on August 1st, 2000 --
         21            HEARING OFFICER DAHER:  I thought a few 
         22   minutes ago I heard you state you have no doubt 
         23   she's an expert.  She's been there for 14 years.
         24            MR. WARE:  That's my point.  You entered an 
 0098
          1   order in this case with respect to experts.  We have 
          2   now totally breached that order and we are listening 
          3   to Judge DelVecchio testify as an expert, right now 
          4   as an expert on these kinds of reports.  That's what 
          5   you ordered could not happen without advance notice, 
          6   CVs, and some summary of what the testimony was 
          7   going to be.  
          8            The defense to this document is Judge 
          9   Lopez's own testimony.  No one's questioned the 
         10   procedure of plea conferences.  That's not what's at 
         11   issue here.  What's at issue is conduct.
         12            HEARING OFFICER DAHER:  What do you want to 
         13   say, Mr. Egbert?
         14            MR. EGBERT:  Judge, again, I am simply 
         15   asking of the custom and practices of the Court.  It 
         16   has nothing to do with expert testimony.  But I will 
         17   say this.  That certainly Judge DelVecchio has been 
         18   on the witness list from time immemorial.  I 
         19   indicated that she would testify to a number of 
         20   things, including facts.  My understanding is that 
         21   since she has been on the witness list, no one from 
         22   the Commission has sought to talk to her, ask her 
         23   about her testimony, ask her about anything she was 
         24   prepared to say.  If the Commission seems prejudiced 
 0099
          1   by this, then I would suggest that the Court permit 
          2   the testimony, continue her cross examination for a 
          3   day or so away so that they can have time to 
          4   prepare. 
          5            This whole issue of the custom and practice 
          6   of the Court in these areas has been a subject of 
          7   these proceedings from Day One.
          8            HEARING OFFICER DAHER:  Overruled.  Go 
          9   ahead. 
         10       A.   I think your question to me was, if I were 
         11   presented with this, would I anticipate that 
         12   somebody would refute it and who would that person 
         13   be? 
         14       Q.   Yes. 
         15       A.   I would anticipate --
         16            MR. WARE:  Objection.
         17            HEARING OFFICER DAHER:  Sustained.  Go 
         18   ahead. 
         19       A.    -- that if presented with something that 
         20   was given to me by defense counsel, if it were to be 
         21   refuted, it would be refuted by the prosecution.
         22       Q.   Is it the custom and practice of the Court, 
         23   in your understanding, when provided with reports of 
         24   professionals, that the courts basically look at 
 0100
          1   them at face value?
          2       A.   Yes, we do.  We look at them at face value.  
          3   That's what we do.
          4       Q.   In the Superior Court system and amongst 
          5   Superior Court judges, are there certain factors 
          6   which go into the decision of sentencing in various 
          7   defendants?
          8       A.   Yes.
          9       Q.   And what, as you understand it, are the 
         10   goals of sentencing?
         11            MR. WARE:  Objection.  I don't know how 
         12   this is anything other than expert testimony.  And 
         13   it's irrelevant.  We've heard from Judge Lopez what 
         14   she took into account.  That's what's at issue here.
         15            MR. EGBERT:  Then if Mr. Ware and the 
         16   Commission's position is that since we've heard from 
         17   Judge Lopez, that's enough, then if they'll 
         18   stipulate on the record that what Judge Lopez said 
         19   is to be credited by the Court and not to be at all, 
         20   as their cross examination indicated, either 
         21   discredited or not given weight, then that would be 
         22   one thing.  But the question of Judge Lopez's 
         23   conduct as it relates to the custom and practice to 
         24   the Court and as it relates to the questions here -- 
 0101
          1   and that is the conduct of the Judge being reviewed 
          2   by you to make findings of fact relative to that 
          3   conduct -- then certainly she is entitled to 
          4   buttress that conduct with the fact that the Chief 
          5   of the Superior Court thinks that that conduct is 
          6   what occurs every day, and rightly so. 
          7            HEARING OFFICER DAHER:  Mr. Ware, last 
          8   word?  Same argument? 
          9            MR. WARE:  Your Honor, what's at issue in 
         10   this disciplinary proceeding is Judge Lopez's 
         11   conduct.  It's not Justice DelVecchio's view of how 
         12   she might have conducted the sentencing proceeding 
         13   or what factors judges generally take into account.  
         14   All that's relevant here is what Judge Lopez did. 
         15            HEARING OFFICER DAHER:  Mr. Egbert, once 
         16   again, I'm the finder of fact.  I'll take care of 
         17   that.  Overruled.  Go ahead. 
         18       BY MR. EGBERT: 
         19       Q.   What are the goals of sentencing?
         20       A.   Twofold.  First of all, we have a victim.  
         21   By the time we get to sentencing, there's either 
         22   been an admission through a plea or there's been a 
         23   trial where a defendant's been found guilty.  And at 
         24   that point we look to what happened to the victim, 
 0102
          1   we look to the record of the defendant, whether 
          2   there was any past history, whether there's any 
          3   criminal record, we look to the severity of the 
          4   crime.  In our court, unfortunately, because our 
          5   court hears felonies, we have victims of crimes who 
          6   are permanently disabled, either psychologically or 
          7   physically, we look to that.  These are all factors 
          8   that we consider in sentencing.  
          9            We also look to the statute that the person 
         10   has admitted guilt under or found guilty under to 
         11   see what the statutory scheme is with regard to 
         12   sentencing.  And we also have a guideline system 
         13   that we use, a sentencing guideline system.
         14       Q.   When you say a sentencing guideline system, 
         15   are you talking about the proposed guidelines before 
         16   the legislature which have not been adopted?
         17       A.   Well, when I came on the court 17 years 
         18   ago, we had what we call the Ronan guidelines.  
         19   These were a compilation of sentences that was put 
         20   together by Justice John Ronan.  And when we are 
         21   ready to sentence somebody, we use -- the Probation 
         22   Department uses numbers that they give under those 
         23   guidelines to the process -- it's almost like the 
         24   grid.  And we are given a range of sentences that we 
 0103
          1   could impose pursuant, obviously, to the statute.  
          2            A few years ago we had a meeting of the 
          3   Court, where we decided that we might also impose -- 
          4   use the grid, which has never been adopted by the 
          5   Commonwealth.  The difference is, under the Ronan 
          6   guidelines, the sentences were deemed to be served 
          7   concurrently under those guidelines, as opposed to 
          8   the grid where the sentences are deemed to be served 
          9   consecutively.  It makes a difference in the time -- 
         10   it means a lot to us when we do that.  So we know 
         11   that.  
         12            But when we are doing the sentencing 
         13   conferences, we generally have a probation officer 
         14   and we tell them to run the guidelines, just to give 
         15   us an idea for a particular crime and taking 
         16   everything into account that I've just talked about 
         17   the way a sentencing could be.
         18            HEARING OFFICER DAHER:  Again, part of 
         19   me -- pardon me, Chief, for a moment.  On the 
         20   website you have the proposed sentencing guidelines.  
         21   You don't have the Ronan guidelines --
         22            THE WITNESS:  That's right.
         23            HEARING OFFICER DAHER:  The Ronan 
         24   guidelines of '82, they're not even on the website.
 0104
          1            THE WITNESS:  No.  And we do use -- we 
          2   changed the grid a few years ago.  But some judges 
          3   like the probation office to run both sets, because 
          4   these are guidelines.  These are not mandatory at 
          5   all.  They've never been mandatory for us.  But it's 
          6   an aid in sentencing.  It helps judges to know in 
          7   the past what's been done with sentencing for that 
          8   particular type of crime.
          9       Q.   Let me just show you, if I may, Exhibit E.  
         10   Do you recognize what those are?
         11       A.   Yes.  This is the Ronan guidelines and it 
         12   shows the process for placing a number in working 
         13   out a formula how that's done.
         14       Q.   The Judge asked you what guidelines were on 
         15   your website.
         16       A.   The website guidelines, we've changed from 
         17   those to the proposed sentencing guidelines, which 
         18   is done with a grid.  What we found is, when we did 
         19   have a meeting about this, the numbers were not that 
         20   far off between the Ronan guidelines and the grid.  
         21   What we did find is that the Ronan guidelines look 
         22   to serving sentences concurrently versus the grid 
         23   which looks to serving them consecutively.  Once we 
         24   figured that out, we understood that the numbers are 
 0105
          1   essentially the same.  If I use the reason and/or if 
          2   I use the grid, the numbers are pretty much the 
          3   same.
          4       Q.   And are the Ronan guidelines used by 
          5   judges?
          6       A.   Sometimes they are.  Sometimes people 
          7   prefer to use them.  Especially people who have been 
          8   on the Court longer, they'll ask the probation 
          9   officers to work it out that way or even both ways.  
         10   But it's just what a judge is used to working with, 
         11   frankly.  And these are informal.  I want to stress 
         12   the reason we have this flexibility is they are 
         13   informal guidelines.  They don't have to be used.  
         14   But generally we have the probation office run these 
         15   numbers for us, but they're not mandatory for us by 
         16   any means.
         17       Q.   In your experience in the custom and 
         18   practice of the Court, after a plea conference is 
         19   conducted and a judge announces what sentence he or 
         20   she will impose if a defendant pleads guilty, is 
         21   that basically the end of the sentencing phase in 
         22   terms of advocacy?
         23            MR. WARE:  Objection.  It's the same point, 
         24   that this is expert testimony.  We're now trying to 
 0106
          1   broadly generalize about all cases.  We've had reams 
          2   of testimony about the advocacy that occurred after 
          3   August 1st in this case.
          4            HEARING OFFICER DAHER:  Mr. Egbert, again, 
          5   I think I've allowed you plenty of latitude on this 
          6   matter.  Again, it is expert testimony; and fine, 
          7   and maybe through the guidance of -- I've allowed in 
          8   a lot of it.  I think I'm going to sustain Mr. Ware 
          9   at this point. 
         10            MR. EGBERT:  Judge, if the objection is 
         11   that the Court is determining this to be expert 
         12   testimony without notice --
         13            HEARING OFFICER DAHER:  That's essentially 
         14   it.
         15            MR. EGBERT:  -- then I'm going to ask that 
         16   the Court do one of two things.  Either take the 
         17   testimony and give the Commission whatever 
         18   continuance they need to prepare for cross 
         19   examination or continue it generally so they can 
         20   prepare for cross examination.
         21            HEARING OFFICER DAHER:  How about the 
         22   alternatives, Mr. Ware?  What do you want to do? 
         23            MR. WARE:  I don't know, Your Honor.  I 
         24   don't want any continuances.  I'd like the rules 
 0107
          1   enforced.  I think when this Court enters an order 
          2   pretrial, the parties are bound by it and both sides 
          3   have to live with it.  And I don't think speculative 
          4   testimony about what might happen in plea 
          5   conferences in other cases and the degree of 
          6   advocacy that postdates a plea conference has any 
          7   role in this.
          8            HEARING OFFICER DAHER:  Bear with me for a 
          9   moment.  At the sake of being somewhat redundant, I 
         10   did send out an order that before any expert 
         11   testimony, to notify -- give us a CV so that the 
         12   other side would be prepared.  I've allowed a lot of 
         13   latitude in this thing, but I think at this time I'm 
         14   going to sustain Mr. Ware.
         15            MR. EGBERT:  Let me put on the record, 
         16   Judge, that both the rule and the law require that 
         17   the Commission show prejudice, first of all.  I 
         18   submit to you it's not expert testimony, but if you 
         19   so rule, there is no prejudice to the Commission.  
         20   Judge Lopez is entitled to due process.  A rule of 
         21   convenience by the Court is not one which can 
         22   circumvent her right to present evidence on these 
         23   issues.  There has been no suggestion of prejudice 
         24   by the Commission.  
 0108
          1            If they want time, fine.  Judge DelVecchio 
          2   has been on the witness list from Day One in this 
          3   case.  They have not taken the steps of even a 
          4   simply minimally competent advocacy, and even gone 
          5   to see --
          6            HEARING OFFICER DAHER:  Mr. Ware, let me 
          7   hear you on the issue of expert versus an alleged 
          8   violation of Judge Lopez's rights. 
          9            Mr. Egbert feels that, Judge, you did make 
         10   an order, but this is so crucial to her due process 
         11   rights, that --
         12            MR. WARE:  Your Honor, I can only say that 
         13   you're the arbiter of what is relevant, probative 
         14   here or not.  This is a tangent.  We know what Judge 
         15   Lopez's position is.  Everything was over on August 
         16   1st, so it didn't matter what happened after August 
         17   1st.  I presume Justice DelVecchio is going to say 
         18   something along that line. 
         19            It's irrelevant.  We have what the Judge 
         20   did.  We don't need expert testimony which is, by 
         21   definition, speculative as to how a hundred other 
         22   judges permit or don't permit advocacy, whatever 
         23   that's supposed to be, after a plea conference.  
         24   There needs to be some control over the scope of 
 0109
          1   this evidence. 
          2            MR. EGBERT:  The Commission was permitted 
          3   to go into the farthest depths and size of their 
          4   presentation of this case.  They put things down as 
          5   deep over my objection of a tape recording of the 
          6   victim in this case, which Judge Lopez had never 
          7   seen, nor --
          8            HEARING OFFICER DAHER:  She didn't ask to 
          9   see it.
         10            MR. EGBERT:  Why would she ask to see it?  
         11   With all due respect, Judge, we have apparently 
         12   reached the point in our system of justice where the 
         13   Commission expects judges to be advocates.  And 
         14   judges are not advocates and they are not 
         15   investigators.  Judges are presented with the 
         16   information by the advocates, by the litigants, and 
         17   that's what they rule on.  They don't go looking for 
         18   information.  They don't go asking to go into police 
         19   files.  They don't go asking to go into DA's files.  
         20   And I suggest to you DAs would be quite reluctant to 
         21   start letting judges open up their files at plea 
         22   conferences.  So to inject that kind of statement 
         23   into this proceeding borders on the frivolous.  
         24            And so for us to be out on this far-ranging 
 0110
          1   attack on the way Judge Lopez conducted a plea 
          2   conference and statements such as she didn't ask to 
          3   see a tape recording --
          4            HEARING OFFICER DAHER:  Isn't that the 
          5   argument that you presented to Leora Joseph?  That 
          6   she didn't ask to see --
          7            MR. EGBERT:  Leora Joseph is an advocate.  
          8   She has a responsibility as an advocate, not only to 
          9   represent her client, but to present to these judges 
         10   the facts necessary upon which they can rule.
         11            HEARING OFFICER DAHER:  I appreciate the 
         12   forcefulness of the argument.  But where the 
         13   allegation is a sexual abuse case, where the 
         14   allegation is a kidnapping, where the allegation is 
         15   a -- don't you think a judge should reach the 
         16   point -- and they know that a tape has been made.  
         17   Don't you think a judge should look at that tape? 
         18            MR. EGBERT:  Judge, I don't want to act as 
         19   an expert.
         20            HEARING OFFICER DAHER:  Go ahead.
         21            MR. EGBERT:  In 30 years of practicing 
         22   criminal law, I have never in my life seen a judge 
         23   do such a thing, in 30 years, and I'm going to bet 
         24   you that that Judge sitting on the Bench for 17 
 0111
          1   years has never done it either and has never seen it 
          2   done. 
          3            You are asking judges to take on a role 
          4   that they have never had, they have never been 
          5   given, they neither want, nor do the litigants want 
          6   them to have them.  It's the litigants' 
          7   responsibility to present the judge with the 
          8   information they need to rule.  And that's how the 
          9   system is done every single day.  And to think 
         10   differently, I suggest to this Court, is to go down 
         11   a road that doesn't exist.
         12            HEARING OFFICER DAHER:  Go ahead, Mr. Ware. 
         13            MR. WARE:  With all deference to my 
         14   colleague, the defense in part in this case is there 
         15   are a bunch of disputed issues of fact.  I don't 
         16   think Justice DelVecchio or anyone else is going to 
         17   say that in the event that the judge had a question 
         18   about a substantive disputed fact or opinion or 
         19   report, that that judge could either not ask for 
         20   additional information and continue the lobby 
         21   conference; secondly, direct counsel to do more 
         22   investigation or adduce additional evidence; or, 
         23   third, in certain circumstances say, "May I see it?  
         24   May I see your report?  May I see a document?"  
 0112
          1            This is all within the realm of what 
          2   happens every day.  Nobody's putting a burden on 
          3   judges to be investigators, but they are not 
          4   mindless automatons.  They are intelligent, honored 
          5   people who make decisions, mostly good decisions.  
          6   And they run plea conferences in a variety of ways, 
          7   dependent upon the circumstances at hand. 
          8            What counsel is here trying to do is to 
          9   give a broad brush to all plea conferences and thus 
         10   whitewash the conduct of the Judge on August 1st.
         11            MR. EGBERT:  Judge, I've heard about as 
         12   much disrespect out of Mr. Ware's mouth for Judge 
         13   Lopez as I'm going to listen to.  We've reached a 
         14   point in these proceedings where his mouth is the 
         15   most despicable conduct I've seen in a courtroom. 
         16            Judge Lopez is a judge in the Superior 
         17   Court, and I will not sit by and accept his nonsense 
         18   talk.  I won't have it.  I've had about enough of 
         19   it.  And I hope you'll stop it.
         20            HEARING OFFICER DAHER:  The objection is 
         21   sustained.  Go ahead. 
         22       BY MR. EGBERT: 
         23       Q.   Judge, in the sentencing of defendants in 
         24   criminal cases, are the factors of deterrence to the 
 0113
          1   defendant, likelihood of recidivism, and the 
          2   defendant's record considered by the courts?
          3       A.   Yes.
          4       Q.   And is -- for example, you've talked about 
          5   the defendant's record as being a factor in 
          6   sentencing.  How about the likelihood of recidivism?  
          7   Is that something that is considered?
          8       A.   Yes, it is.
          9       Q.   And what kinds of things would one look to 
         10   in that regard?
         11       A.   Well, first of all, we look to the record 
         12   to see what the recidivism rate has been in any 
         13   event.  That's one of the first things that we do.  
         14   And we can look at the juvenile record as well as an 
         15   adult record.  We look at all of it.  If there are 
         16   any reports that are submitted to the Court with 
         17   regard to expectation of recidivism, we can look to 
         18   that.
         19       Q.   Turn to Page 4 of Exhibit 3 that's in front 
         20   of you.  And do you see about three paragraphs down 
         21   the sentence that begins, "I find..."
         22       A.   Yes.
         23       Q.   Would you just read that sentence to 
         24   yourself. 
 0114
          1       A.   Uh-hum.
          2            MR. WARE:  I'm going to object to this, 
          3   Your Honor.  Now we have this witness opining about 
          4   this particular report.
          5            HEARING OFFICER DAHER:  She's already 
          6   testified that recidivism is one of the issues 
          7   that's taken into consideration in re the 
          8   disposition.  I'm going to overrule that.  Go ahead.  
          9   You have it.
         10       Q.   Have you read that?
         11       A.   Yes.
         12       Q.   Is that the kind of -- what you say, 
         13   statement in a report, is that the kind of statement 
         14   in a report you've been referring to?
         15       A.   Yes.
         16       Q.   Is rehabilitation an issue in sentencing?
         17       A.   Yes.
         18       Q.   And do courts look to the efforts of a 
         19   defendant to rehabilitate himself prior to 
         20   sentencing?
         21       A.   Yes.
         22       Q.   And would you look at -- actually, just 
         23   take a brief look through that report from beginning 
         24   to end. 
 0115
          1       A.   (Witness reviews document) 
          2       Q.   Have you read it?
          3       A.   Uh-hum.
          4       Q.   And is that the kind of report -- type of 
          5   report that you have seen in the past with regard to 
          6   rehabilitative efforts of a defendant?
          7            MR. WARE:  Objection.
          8            HEARING OFFICER DAHER:  What's the 
          9   objection?
         10            MR. WARE:  Again, relevance.  The witness 
         11   is just being used here to ratify this report.
         12            HEARING OFFICER DAHER:  Overruled.
         13       A.   Yes, it is.
         14            HEARING OFFICER DAHER:  Let me ask you one 
         15   question, Judge.  Would it make any difference, if 
         16   you were sitting on a plea, as to who supplied you 
         17   with this document?  If the defendant's counsel 
         18   provided you with a document from a social worker 
         19   from their office, would you put the -- is it the 
         20   same weight that you would had you had a 
         21   court-appointed psychiatrist or a clinical 
         22   psychologist conduct an examination?  Would you put 
         23   the same weight on it?
         24            THE WITNESS:  Probably not.
 0116
          1       Q.   What weight would you put on it?
          2       A.   I would give it weight, especially if it 
          3   hasn't been -- if there's nothing from the other 
          4   side.  But if a court-appointed person had done it, 
          5   we might suggest that that person is a little less 
          6   biased.  But if there had been nothing to contradict 
          7   it from the prosecutor, that would be a factor for 
          8   me to consider.
          9       Q.   So that -- and what if, when you were 
         10   presented with this report, the prosecutor didn't 
         11   even object to it?
         12       A.   Well, then I would assume that the 
         13   prosecution was in agreement with it.
         14       Q.   And what if the prosecutor presented no 
         15   evidence to refute it or sought time to refute it or 
         16   sought any kind of independent examination?
         17       A.   It would be a factor.
         18       Q.   A factor towards the reliability of the 
         19   report?
         20       A.   Yes.
         21       Q.   I take it you're familiar with the Horton 
         22   case as it played out in both the media and the 
         23   Superior Court?
         24       A.   Yes.
 0117
          1       Q.   And you're familiar with it as Chief 
          2   Justice, I take it?
          3       A.   Yes.
          4       Q.   Early on, after the sentencing in the 
          5   Horton case, is it fair to say that there was a high 
          6   degree of media attention?
          7       A.   Yes.
          8       Q.   And did you have conversations with Judge 
          9   Lopez shortly after the sentencing?
         10       A.   Yes.
         11       Q.   And do you recall when the first of those 
         12   conversations took place?
         13       A.   No.  It was pretty much immediately 
         14   afterwards, though.
         15       Q.   And did you have conversations with Judge 
         16   Lopez concerning a remark that she had made in court 
         17   concerning "low level" or "low scale"?
         18       A.   I don't recall exactly that conversation.
         19       Q.   Well, you talked with Judge Lopez at some 
         20   point concerning a press statement issued by the 
         21   Court on Judge Lopez's behalf?
         22       A.   Apparently I did.  I didn't recall, and I 
         23   don't recall specifically that conversation, but 
         24   apparently I did have that conversation.
 0118
          1            MR. EGBERT:  May I have a moment?  (Pause)
          2       Q.   I don't know if this has been put in your 
          3   book.  It was a late entry.  Could you check and see 
          4   if Exhibit 50 is in your book?
          5       A.   Yes. 
          6       Q.   Now, have you seen Exhibit 50 before?
          7       A.   I probably have, since it's addressed to 
          8   me.
          9       Q.   And do you recall receiving that fax?
         10       A.   Do I recall specifically that I did?  No. 
         11       Q.   Do you recall having some discussion with 
         12   Joan Kenney concerning a press statement by Judge 
         13   Lopez?
         14       A.   Yes, I do.
         15       Q.   Then would you take a look at Exhibit 51. 
         16       A.   There is no -- here it is.  Yes. 
         17       Q.   And does that contain your writing?
         18       A.   Yes, it does.
         19       Q.   And your signature?
         20       A.   Yes, it does.
         21       Q.   And it says, "Joan, I revised your original 
         22   draft after a telephone consultation with Justice 
         23   Lopez.  Thank you for all of your help in this." 
         24       A.   Yes.
 0119
          1       Q.   "S. DelVecchio," correct?
          2       A.   Yes.
          3       Q.   Does that now refresh your memory that you 
          4   spoke with Judge Lopez concerning this matter?
          5       A.   No.
          6       Q.   You did, however -- strike that.  You were 
          7   involved in looking at the press release, making 
          8   some revisions to it, and discussing it with Judge 
          9   Lopez; is that right?
         10       A.   Yes.
         11       Q.   And would you take a look at Exhibit 24. 
         12       A.   Yes.
         13       Q.   Go to the one that says "Final Version," if 
         14   you would. 
         15       A.   All right.
         16       Q.   And take a look at it, please. 
         17       A.   (Witness reviews document)  Yes.
         18       Q.   Is that, in fact, the document that 
         19   ultimately was sent back to Joan Kenney by you and 
         20   your office?
         21       A.   I don't think so.  I think that what was 
         22   sent back was the first one, which is a little 
         23   different from this one.
         24       Q.   So the sequence of events was that there 
 0120
          1   was a first draft sent to you and you made some 
          2   changes; isn't that correct?
          3       A.   Right. 
          4       Q.   And then you sent those changes back --
          5       A.   Right.
          6       Q.    -- to Ms. Kenney.  And go to the first 
          7   page.  Now, so you know, that's a compilation made 
          8   by counsel in this case, which is a comparison 
          9   basically, from first draft to second draft, with 
         10   redlining.  Do you see that?
         11       A.   Okay.
         12       Q.   And is that redlining consistent with the 
         13   changes you made, your memory of the changes you 
         14   made?
         15       A.   I think those are the changes I made.
         16       Q.   Now, with regard to -- there's a section in 
         17   that statement which says, "My statement in open 
         18   court that it was low-scale matter pertains solely 
         19   to the appropriate level of the sentencing 
         20   guidelines used by judges in sentencing convicted 
         21   defendants."  Do you see that?
         22       A.   Yes.
         23       Q.   Now, what do you understand that to mean?
         24       A.   Well, that the probation office had worked 
 0121
          1   the guidelines with regard to this case, and it came 
          2   out to be -- the numbers -- I hate to use the words 
          3   "low level," but that's what happens.  As I say, our 
          4   court is a case where we'll see major felonies.  And 
          5   a low-scale matter I assumed meant something to do 
          6   with the sentencing guidelines.
          7       Q.   And when you say in your court, the Court 
          8   involves itself in major felonies and the like, take 
          9   my example -- did I leave Exhibit E up in front of 
         10   you?
         11       A.   It's probably caught in the middle of these 
         12   pages.  Yes. 
         13       Q.   Take a look, if you would -- those are the 
         14   so-called Ronan guidelines, correct?
         15       A.   Yes.
         16       Q.   And --
         17            MR. WARE:  I object, Your Honor.  There's 
         18   no evidence that the so-called Ronan guidelines were 
         19   used by anyone at any time in this case. 
         20            HEARING OFFICER DAHER:  Mr. Egbert? 
         21            MR. EGBERT:  Judge Lopez testified that she 
         22   relied on all the factors that she described in 
         23   determining appropriate sentencing in this case, 
         24   factors which are considered in the Ronan guidelines 
 0122
          1   and factors which are considered in the sentencing 
          2   guidelines.
          3            MR. WARE:  Judge Lopez testified that she 
          4   didn't use any guidelines, that no guidelines were 
          5   in existence, and that she was talking about general 
          6   factors.
          7            HEARING OFFICER DAHER:  Could you point me 
          8   to that part of the transcript?  My memory is 
          9   somewhat consistent with that of Mr. Ware.
         10            MR. EGBERT:  I can hardly point you to that 
         11   section of the transcript as I stand here now.
         12            HEARING OFFICER DAHER:  Again, I don't have 
         13   any recollection that she said she relied on the 
         14   Ronan guidelines.
         15            MR. EGBERT:  She didn't say she relied on 
         16   the Ronan guidelines.  She said she relied on the 
         17   same factors relied upon by the guidelines -- in all 
         18   of the guidelines that are used in sentencing 
         19   defendants in criminal cases. 
         20            MR. WARE:  Again, Your Honor, Justice 
         21   DelVecchio is being asked to do something with the 
         22   Ronan guidelines.  There's no evidence in this case 
         23   that anybody looked at the Ronan guidelines.
         24            HEARING OFFICER DAHER:  Sustained.  
 0123
          1       BY MR. EGBERT: 
          2       Q.   Judge, when you involved yourself in the 
          3   sense of correcting or changing this press 
          4   statement, you were a judge at the Superior Court at 
          5   the time and Chief at the time, correct?
          6       A.   Yes.
          7       Q.   Was the Horton case a pending case at that 
          8   moment?
          9       A.   Sentence had already been passed, and it 
         10   was a plea -- there are cases that hold that the 
         11   case is over when sentence has been passed, et 
         12   cetera, so technically was it a pending case?  
         13   Probably not. 
         14       Q.   And in fact, was there any appeal 
         15   available, to your knowledge, in a case such as 
         16   this?
         17       A.   No, not that I know of.  Because the 
         18   prosecutor cannot appeal the sentence.
         19       Q.   You are familiar with the canons that --
         20       A.   I am.
         21       Q.    -- that relate to a judge commenting on a 
         22   pending case?
         23       A.   Yes, I am.
         24       Q.   And had you, as Chief Justice, believed 
 0124
          1   this to be a pending case at the time, would you 
          2   have involved yourself in this press statement? 
          3            MR. WARE:  Objection.
          4            HEARING OFFICER DAHER:  What is the 
          5   objection? 
          6            MR. WARE:  Speculative, Your Honor.
          7            HEARING OFFICER DAHER:  Sustained. 
          8       Q.   As Chief Justice of the Court, do you often 
          9   give directives with -- strike that. 
         10            As Chief Justice of the Court, do you 
         11   attempt to discuss with your other judges matters, 
         12   if they become known to you, which may be 
         13   inappropriate?
         14       A.   What do you mean? 
         15       Q.   In other words, if matters come to your 
         16   attention where a judge may be embarking on conduct 
         17   which could be inappropriate, do you seek them out 
         18   to discuss that matter?
         19       A.   I'm trying to think if I have within the 
         20   past three years.  I have. 
         21       Q.   And did you in this case, as Chief Justice 
         22   of the Court, tell Judge Lopez not to issue a press 
         23   release or press statement?
         24       A.   I told her she shouldn't say anything.
 0125
          1       Q.   Was that as a directive of the Court?  In 
          2   other words --
          3       A.   I can't direct a judge not to do something.  
          4   I can advise.  I can't forbid a judge from talking 
          5   to the press.  I can't do any of those things.  But 
          6   I advised her not to say anything.
          7       Q.   And was that from a public relations 
          8   standpoint?
          9       A.   Yes. 
         10       Q.   It was not from the matter of whether or 
         11   not it was appropriate under the canons.
         12       A.   I didn't consider the canons at the time, 
         13   whether it was appropriate -- but that's up to her 
         14   to consider.  I don't tell a judge how to conduct 
         15   themselves pursuant to the canons, but I did think 
         16   that at that point in this case, the less said, the 
         17   better.
         18       Q.   And that was from a public relations 
         19   standpoint; is that correct?
         20       A.   Yes, it was.
         21       Q.   And why did you tell her that?
         22       A.   Because what happens from time to time in 
         23   our court is judges give sentences that prosecutors 
         24   don't like, et cetera, that the public doesn't like, 
 0126
          1   perhaps.  And we do that.  We do it in all good 
          2   faith, and we think it's the right thing to do.  And 
          3   there will be sometimes a discussion about it in the 
          4   press, and we have found -- judges in our court have 
          5   found from past practice to simply not say anything 
          6   about it.  What we say we say on the record in the 
          7   courtroom as we are sentencing.  And we don't say 
          8   anything beyond that. 
          9            We have had judges that have been 
         10   excoriated by the press.  And what we find is we 
         11   explain ourselves in the courtroom, on the record, 
         12   and nothing beyond that.
         13       Q.   And during the course of your conversations 
         14   with Judge Lopez, do you recall her talking to you 
         15   sometime a week or two after these events concerning 
         16   the issuing of a sentencing memorandum?
         17       A.   I vaguely recall a discussion about that.
         18       Q.   And do you recall indicating to her  --
         19            MR. WARE:  Objection.  He's putting words 
         20   in the witness' mouth.
         21            HEARING OFFICER DAHER:  Sustained.
         22       Q.   Did you give her any advice with regard to 
         23   that?
         24       A.   Yes.
 0127
          1       Q.   And what did you tell her?
          2       A.   I told her at that point I felt it was too 
          3   late to do that.
          4       Q.   Now, Judge, you've been involved in the 
          5   Superior Court on a number of cases, correct?
          6       A.   Yes.
          7       Q.   And have you had an understanding of the 
          8   practice of the Court with regard to making 
          9   arrangements in various cases where there's media 
         10   attention, to keep the parties away from the media?
         11       A.   Yes.
         12       Q.   And can you tell us in general terms what 
         13   that means?
         14       A.   Sometimes cases ongoing get to be high- 
         15   profile cases.  The media is there, everyone is 
         16   jostling for pictures, for comments, et cetera, and 
         17   we try and conduct the Court in an orderly fashion.  
         18   If we feel that something is going to be disoriented 
         19   in any way about the proceedings, we will have our 
         20   court officers devise some kind of a plan to bring a 
         21   witness in, et cetera, so that we don't have that 
         22   kind of a media circus.
         23       Q.   And would that plan include using different 
         24   doors for parties in the case?
 0128
          1       A.   We could.
          2       Q.   Or different rooms or the like?
          3       A.   Yes, absolutely.
          4       Q.   Is that unusual?
          5       A.   No.  If we know it's going to be an issue 
          6   ahead of time, we can plan for it ahead of time.
          7       Q.   And in those cases do you seek the district 
          8   attorney's permission?
          9       A.   No.
         10            MR. EGBERT:  May I have a moment, please, 
         11   Judge? 
         12            HEARING OFFICER DAHER:  Sure.  
         13            (Pause)
         14            MR. EGBERT:  I have no further questions at 
         15   this time. 
         16                    CROSS EXAMINATION
         17       BY MR. WARE: 
         18       Q.   Good afternoon, Judge.  You indicated a 
         19   couple of moments ago that you think at some point, 
         20   perhaps two weeks after September 6th, 2000, you had 
         21   a conversation with Judge Lopez about the sentencing 
         22   memorandum?
         23       A.   Yes.
         24       Q.   And your advice at that time was, it was 
 0129
          1   too late; is that correct?
          2       A.   Uh-hum.
          3       Q.   Now, again, it's your testimony that you 
          4   don't tell judges what to do, do you?
          5       A.   No.
          6       Q.   And as you put it, you're there to advise, 
          7   you're there to give whatever counsel you can as 
          8   Chief Justice, but each judge of the Superior Court 
          9   has the same constitutional and legal power that you 
         10   do; isn't that correct?
         11       A.   Yes.
         12       Q.   And in fact, you personally take quite 
         13   seriously your deference to all other Superior Court 
         14   judges as colleagues, not subordinates; isn't that 
         15   correct?
         16       A.   Absolutely.
         17       Q.   And you depend on those colleagues to be 
         18   truthful with you and to provide you with 
         19   information you need to give good advice and make 
         20   reasoned decisions; isn't that so?
         21       A.   Yes.
         22       Q.   Now, nothing in this case, as you 
         23   understand it, would have prevented Judge Lopez from 
         24   issuing a sentencing memorandum on September 6th or 
 0130
          1   for that matter after September 6th; isn't that so?
          2       A.   You're right.
          3       Q.   She could have done that?
          4       A.   Yes, she could have.
          5       Q.   And at no time until this roughly two weeks 
          6   later did Judge Lopez come to you and say, should I 
          7   issue a sentencing memorandum?  That was all in her 
          8   hands.
          9       A.   Not that I can recall.
         10       Q.   You indicated that -- in fact, many judges 
         11   do issue sentencing memoranda, do they not?
         12       A.   Yes, they do.
         13       Q.   And one virtue of a sentencing memorandum 
         14   is that it, in general, lays out the basis for the 
         15   sentence that's been handed down, correct?
         16       A.   Yes.  It explains your reasoning and the 
         17   factors you considered, what you took into account 
         18   when you were giving that sentence.
         19       Q.   Now, there's nothing unusual about a 
         20   sentencing memorandum.
         21       A.   No.
         22       Q.   And there's nothing unusual about a 
         23   Superior Court judge in a criminal case issuing a 
         24   sentencing memorandum, correct?
 0131
          1       A.   No.
          2       Q.   It's entirely within the judge's 
          3   discretion?
          4       A.   Yes, that's right.
          5       Q.   You indicated that -- first of all, do you 
          6   recall or are you now familiar with the fact that 
          7   sentencing in the Horton case occurred on September 
          8   6th, 2000?
          9       A.   Yes.
         10       Q.   And will you accept from me that the 
         11   exhibit placed in front of you, the statement marked 
         12   Exhibit 24, was issued on the following day, 
         13   September 7th?
         14       A.   Yes.
         15       Q.   Now, you didn't know anything substantive 
         16   about the Horton case other than what you might have 
         17   read in the morning paper; isn't that so?
         18       A.   That's right.
         19       Q.   You were not doing some independent 
         20   investigation of the facts, correct?
         21       A.   Not at all.
         22       Q.   And you certainly did not interrogate Judge 
         23   Lopez with respect to the basis for the pleas of 
         24   guilty in that case; isn't that so?
 0132
          1       A.   That's right. 
          2       Q.   Were you aware of the charges to which the 
          3   defendant had pled guilty?
          4       A.   I don't even recall what they were, 
          5   frankly, and I don't know at the time if I was aware 
          6   of what specific charges the defendant pled guilty 
          7   to.
          8       Q.   Let me ask you to look briefly at Exhibit 2 
          9   in the very front of the book, which is a docket 
         10   sheet. 
         11       A.   Okay. 
         12       Q.   Exhibit 2 lists five felony charges as to 
         13   which there were pleas of guilty, does it not?
         14       A.   Yes, it does.
         15       Q.   Whether or not you understood those 
         16   particular charges after September 6th or not, you 
         17   understood that this was a serious felony case, 
         18   correct?
         19       A.   I think the fact that it's a felony to us 
         20   means it's not a District Court case.  It's a 
         21   Superior Court case.  So that in itself gives rise 
         22   perhaps to the word "serious."
         23       Q.   But in this case, charges of kidnapping or 
         24   assault with intent to rape a child under 16 are 
 0133
          1   among the more serious felony charges that we have; 
          2   isn't that so?
          3       A.   Yes.
          4            MR. WARE:  I apologize for the runny nose, 
          5   Your Honor.
          6            HEARING OFFICER DAHER:  That's perfectly 
          7   all right. 
          8       Q.   When you received the draft statement, 
          9   Exhibit 24, just to be clear here, Exhibit 24, the 
         10   face page is a document which I prepared, showing 
         11   the changes between the first draft, which you got, 
         12   and the final draft that went out?
         13       A.   Uh-hum.
         14       Q.   The second page is the initial draft which 
         15   came to you. 
         16       A.   Okay.
         17       Q.   Does that square with your recollection?
         18       A.   That's probably accurate.
         19       Q.   And then moving back to the first page, 
         20   just because it's easier to see, you made three 
         21   relatively minor changes in that statement and then 
         22   sent it back to Joan Kenney; is that correct?
         23       A.   Yes.
         24       Q.   For purposes of any substantive 
 0134
          1   information, you were dependent, were you not, on 
          2   Judge Lopez to fill you in on anything that was 
          3   inaccurate in this statement; isn't that correct?
          4       A.   Yes.  I didn't do any independent research 
          5   on this.
          6       Q.   Nor would you expect that you would have 
          7   to; is that right?
          8       A.   That's right.
          9       Q.   You received this as a proposed statement 
         10   from Judge Lopez.  You knew it had been drafted by 
         11   Joan Kenney --
         12       A.   I received it from Joan Kenney.
         13       Q.   Yes.  But you knew it was to be a statement 
         14   of Judge Lopez; isn't that correct?
         15       A.   Yes.
         16       Q.   And inherent in that, would you agree that 
         17   you expected that Judge Lopez would look carefully 
         18   at the statement, since it was attributed to her, 
         19   and make any corrections that were appropriate?
         20       A.   I would assume.
         21       Q.   That would certainly be consistent with 
         22   both good practice and with candor with your Chief 
         23   Justice, would it not?
         24       A.   Yes.
 0135
          1       Q.   So that if there were any errors in this 
          2   when Judge Lopez saw the document in draft form, you 
          3   would have expected her to bring those errors to 
          4   your attention before you saw the document, correct?
          5       A.   Yes, or even have corrected it with Joan 
          6   Kenney ahead of time.  I don't know what went on 
          7   before I received a fax of the document.
          8       Q.   Now, the first sentence of the release 
          9   says, "The judicial canons prohibit judges from 
         10   commenting on pending and impending cases," correct?
         11       A.   Uh-hum.
         12       Q.   Is it fair to say that you left the 
         13   question whether this was or wasn't a pending case 
         14   to Judge Lopez?
         15       A.   Yes.
         16       Q.   You weren't trying to pass judgment on 
         17   that, correct?
         18       A.   No.
         19       Q.   And in fact, you had no basis to know one 
         20   way or the other; isn't that so?
         21       A.   No.
         22       Q.   Now, you mentioned in your direct testimony 
         23   that the Commonwealth has no right to appeal.  Am I 
         24   not correct that in circumstances in which a new 
 0136
          1   condition of probation is imposed at the time of 
          2   sentencing --
          3            MR. EGBERT:  Just so it's clear, we're now 
          4   asking her her expert opinion? 
          5            MR. WARE:  Well, I don't have much choice, 
          6   considering the direct testimony.
          7            HEARING OFFICER DAHER:  Are you objecting? 
          8            MR. EGBERT:  No.  But if she's being asked 
          9   questions on her expert opinion, I intend to 
         10   redirect on those areas.
         11            MR. WARE:  I'm cross-examining with respect 
         12   to areas counsel covered.  I don't have much choice.  
         13   The rulings have been made.
         14            HEARING OFFICER DAHER:  Fine.  Evidently 
         15   she is going to be testifying in an expert capacity.
         16            MR. WARE:  I do not agree with that.  And I 
         17   am not going to agree that Mr. Egbert can stand up 
         18   and have a free-for-all with this witness.  I am 
         19   cross-examining, as is the Commonwealth's right 
         20   here.
         21            HEARING OFFICER DAHER:  But again, you 
         22   objected to it and I overruled many of your 
         23   objections, but I did sustain several of them.  But 
         24   in this particular regards, you're asking her for 
 0137
          1   her expert opinion, I take it.  And I made my 
          2   ruling.  Go ahead.  You may examine. 
          3       BY MR. WARE: 
          4       Q.   In any event, with respect to this 
          5   particular case, the Horton case, you didn't know 
          6   the particulars of the sentence that was imposed, 
          7   correct?
          8       A.   That's right.
          9       Q.   And you didn't know whether or not a 
         10   condition of probation was a new condition imposed 
         11   only at sentence, as opposed to discussed on August 
         12   1st, correct?
         13       A.   That's right.
         14       Q.   Am I correct that in circumstances in which  
         15   a new condition of probation is imposed, the 
         16   defendant himself may have a right to appeal, even 
         17   though it's a plea?
         18       A.   I've never seen that done, frankly.  No.  
         19   I've just never seen it done.
         20       Q.   You're not saying it can't be done.  You're 
         21   not familiar with it?
         22       A.   I have no idea.  The problem has never 
         23   arisen. 
         24       Q.   You were asked with respect to other 
 0138
          1   language in this statement -- and let me direct you 
          2   in that regard to the middle of the document.  I'm 
          3   going to work from the third page, which is less 
          4   cluttered. 
          5       A.   Okay.
          6       Q.   Actually, I guess it's the third sentence.  
          7   "My statement in open court that it was a low-scale 
          8   matter pertains solely to the appropriate level of 
          9   the sentencing guidelines."  Do you see that 
         10   language?
         11       A.   I do.
         12       Q.   And when you saw that in draft form, you 
         13   understood that Judge Lopez was referring to -- was 
         14   saying that her use of the term "low scale" in the 
         15   sentencing proceedings applied to or was referencing 
         16   the sentencing guidelines, correct?
         17       A.   Yes.
         18       Q.   Earlier you were asked a number of 
         19   questions with respect to what have variously been 
         20   called plea conferences or lobby conferences, even 
         21   though they may not be in the lobby.  Do you recall 
         22   some of that questioning?
         23       A.   Yes.
         24       Q.   Now, when lawyers engage in a lobby 
 0139
          1   conference before you or any other judge, you expect 
          2   those lawyers to present information.  And your job, 
          3   as a judge, is to sift through that information and 
          4   make some judgments about what's either true or not 
          5   true or deserves weight or does not deserve weight; 
          6   isn't that correct?
          7       A.   Yes.
          8       Q.   So you were not there to simply accept at 
          9   face value anything that's stuck in front of you.  
         10   You're in the business of making judgments from 
         11   advocates, correct?
         12       A.   That's right.
         13       Q.   And each advocate may present you with 
         14   information, you look at it, and based on your 
         15   experience and your know-how you may say, well, I 
         16   think that's a little out there?
         17       A.   That's right.
         18       Q.   You might give deference to a different 
         19   fact, correct?
         20       A.   That's right.
         21       Q.   And this case, in which Exhibit 3 was 
         22   presented to a judge, you would expect would be no 
         23   different than that; isn't that so?
         24       A.   Exhibit 3? 
 0140
          1       Q.   Yes. 
          2       A.   That's right. 
          3       Q.   And so the fact that a judge is given a 
          4   report like Exhibit 3, as counsel referred to it, 
          5   doesn't mean that report should be taken at face 
          6   value, does it?
          7       A.   No.
          8       Q.   In fact, you are familiar, are you not, as 
          9   an experienced judge, with the obligations you have 
         10   to sift through the credibility of so-called expert 
         11   reports; isn't that right?
         12       A.   Yes.
         13       Q.   And so there's a whole body of law and set 
         14   of rules that attend that.  There are references to 
         15   a case called Daubert or Daubert from the U.S. 
         16   Supreme Court.  There's a so-called gatekeeper 
         17   function; isn't that correct?
         18       A.   That's right.  But this isn't a trial.  
         19   When we're talking about this case, we wouldn't 
         20   apply Daubert, because Daubert talks about evidence 
         21   that's going to be presented to a jury during a 
         22   trial.  And if that case deals with the fact that we 
         23   have to determine that the evidence is 
         24   scientifically reliable. 
 0141
          1            This is a different situation.  This is 
          2   where somebody is pleading guilty or has already 
          3   pled guilty.  And what we are doing at that point is 
          4   something that is not going to involve the jury.  
          5   It's going to involve us.  And we get information 
          6   from various reports that are presented to us to aid 
          7   us in putting a sentence together.
          8       Q.   Exactly.  But that doesn't mean you put 
          9   your judgment or your wisdom aside, does it?
         10       A.   No.
         11       Q.   You still look critically at the document 
         12   given to you; isn't that so?
         13       A.   Yes, of course we do.
         14       Q.   And this particular document says -- first 
         15   of all, it's got a pleading heading on it; isn't 
         16   that right?
         17       A.   Yes.
         18       Q.   It's got the name of the case?
         19       A.   Yes.
         20       Q.   And it's set up like a pleading, correct?
         21       A.   Yes.
         22       Q.   It doesn't look like an independent 
         23   psychiatric report with attachments; isn't that so?
         24       A.   We get different kinds of things in our 
 0142
          1   court.  I wouldn't tell you what the format is.  
          2   Some people do it one way, some people do it 
          3   another.
          4       Q.   Let me direct you to the last page of this 
          5   report?
          6       A.   Yes.
          7       Q.   And do you see there that it's indicated 
          8   that it is authored by the Director of Social 
          9   Services for CPCS?
         10       A.   Yes.
         11       Q.   What inference do you draw from that?
         12       A.   That CPCS -- they did the report -- that 
         13   they had the report done.
         14       Q.   All right.  This is an in-house document 
         15   for somebody who works for CPCS; is that correct?
         16       A.   Right.
         17       Q.   Is there anything mystical or difficult 
         18   about drawing that inference based on that 
         19   signature, in your opinion?
         20       A.   No.
         21       Q.   It's pretty self-evident, is it not?
         22       A.   It is.
         23       Q.   If you look at this report, it would not 
         24   occur to you to think that this was a privately- 
 0143
          1   retained psychiatrist or psychologist, would it?
          2       A.   Frankly, I don't know how CPCS does this, 
          3   so I don't know.  And sometimes CPCS, we give them 
          4   money so that they can hire people.  I have no idea 
          5   what this means, frankly.
          6       Q.   But this document appears to be prepared by 
          7   someone working for CPCS, correct?
          8       A.   Yes.
          9       Q.   And that's the way you would understand it?
         10       A.   Yes.
         11       Q.   The document says that it's a dispositional 
         12   plan, in part.  It says, "Psychosocial Assessment 
         13   and Dispositional Plan"; isn't that so?
         14       A.   Yes.
         15       Q.   And you understand that to mean it's an aid 
         16   in sentencing, right?
         17       A.   Yes.
         18       Q.   That's what disposition is.  It means 
         19   sentencing.
         20       A.   That part of it could be.
         21       Q.   Yes.  Have you had occasion to review this 
         22   report prior to today?
         23       A.   No.
         24       Q.   You've never seen it?
 0144
          1       A.   No.
          2       Q.   And so any views you formed in your direct 
          3   testimony are from scanning this report --
          4       A.   Yes.
          5       Q.    -- in your direct examination?
          6       A.   That's right.
          7       Q.   Let me direct you to the next-to-the-last 
          8   page.  I think you were asked about this language 
          9   that says, in part, "I find it highly unlikely..."
         10       A.   Uh-hum, yes. 
         11       Q.   Did you note, as you scanned through this 
         12   report, that there's no reference whatsoever to what 
         13   the alleged crimes are or the facts surrounding 
         14   these events as to which this individual is being 
         15   evaluated?
         16       A.   There is nothing.
         17       Q.   There is not a word --
         18       A.   No.
         19       Q.   -- about the facts; isn't that so?
         20       A.   That's right.
         21       Q.   There is not a word about the defendant's 
         22   conduct; isn't that so?
         23       A.   That's right.
         24       Q.   You certainly couldn't tell from this 
 0145
          1   report whether or not the social worker even knew 
          2   the facts that gave rise to the indictments and the 
          3   conviction; isn't that so?
          4       A.   Now I have to read it again to find out.  
          5   Well, there's a reference in the first paragraph to 
          6   "accepting responsibility for showing poor judgment 
          7   being involved with a minor child."  So I would 
          8   assume that there must have been some kind, but I 
          9   don't know what was told to the social worker, you 
         10   know, but obviously from that, something was.
         11       Q.   The closest this report comes to describing 
         12   any of the events that are relevant to this crime 
         13   are the language you pointed to --
         14       A.   Right.
         15       Q.   -- "accepting responsibility for showing 
         16   poor judgment being involved with a minor child" --
         17       A.   Right.
         18       Q.   That's it, right?
         19       A.   Right.
         20       Q.   Is that yes?
         21       A.   Yes.
         22            MR. EGBERT:  You were asked a question 
         23   concerning the whole report.  If that's the whole 
         24   place.  Have you had a chance to look through --
 0146
          1            THE WITNESS:  Let me look through more.
          2       Q.   Go ahead.  And if you find any other facts 
          3   specific to these indictments, let me know. 
          4       A.   (Witness reviews document)  The other 
          5   place, obviously, is the statement, "I find it 
          6   highly unlikely that Ebony will repeat the behavior 
          7   that brought her to court in this case."  I'm going 
          8   to assume from that that there must have been some 
          9   kind of a discussion about the behavior that did 
         10   bring her to court.  And I'm going to assume that 
         11   these charges must have been discussed with the 
         12   social worker as a result of that.
         13       Q.   But these are assumptions.  There's nothing 
         14   in the report with respect to the facts, correct?
         15       A.   That's right.
         16       Q.   Now, you would agree, would you not, that 
         17   most of what this report deals with is the 
         18   background of the defendant and why the defendant's 
         19   life has been unfortunate?
         20       A.   Yes.
         21       Q.   That's primarily what the report deals 
         22   with, isn't it?
         23       A.   It deals with the defendant's history, what 
         24   the defendant's life has been like, what the 
 0147
          1   defendant has done to rehabilitate herself.  There 
          2   appears to be a history that's been brought forth 
          3   after we're told about the problems that confronted 
          4   this defendant.  We're also told about the 
          5   defendant's attempts to deal with those problems 
          6   through counseling, et cetera.
          7       Q.   So we have somewhat of a history of the 
          8   defendant's background?
          9       A.   Right.
         10       Q.   And then some clinical impressions 
         11   beginning at Page 3?
         12       A.   Right.
         13       Q.   And then a recommendation, correct?
         14       A.   Yes.
         15       Q.   You can't tell from this report how long 
         16   this social worker met with the defendant; isn't 
         17   that so?
         18       A.   No, that's right.
         19       Q.   Let me direct you to the paragraph just 
         20   above the word "Recommendation" on the 
         21   next-to-the-last page. 
         22       A.   Okay.
         23       Q.   Do you see the language, "Further 
         24   incarceration will be a disaster"?
 0148
          1       A.   Yes.
          2       Q.   Do you agree that that's not particularly 
          3   professional language?  That it's an emotional 
          4   conclusion?
          5       A.   I've seen other reports containing such 
          6   language, so I'm not going to...
          7       Q.   But you would agree that that's not 
          8   scientifically dispassionate language.  It's an 
          9   opinion, based in part on emotion of a social worker 
         10   who works for the defense lawyer; isn't that right?
         11       A.   I can't say that, Mr. Ware.  I don't know 
         12   how the social worker expresses herself.  But I'm 
         13   not going to get picky about that language, frankly.  
         14   It's not the first time I've seen it in a report.
         15       Q.   Now, let me direct you to the top of the 
         16   third page that begins, "Sometime ago..."
         17       A.   Okay.
         18       Q.   Do you see the sentence that says, "Ebony 
         19   is in agreement that she needs to return for 
         20   counseling"?
         21       A.   Yes.
         22       Q.   And do you draw the inference from that 
         23   that Mr. Horton had not, until now, been in 
         24   counseling -- had been then stopped, now needs to 
 0149
          1   return?
          2       A.   I'd have to look and see what came before 
          3   that, frankly.
          4       Q.   Do you see in the third line where it says 
          5   that Mr. Horton was frightened off medication?
          6       A.   Yes.
          7       Q.   And the language goes on to say, in the 
          8   next sentence, "I have suggested that she return to 
          9   the agency for both counseling and a psychiatric 
         10   consult."  Do you see that language?
         11       A.   Yes.
         12       Q.   And do you understand that language to mean 
         13   that this social worker is recommending that Mr. 
         14   Horton be seen by a psychiatrist?
         15       A.   Yes.
         16       Q.   The report also goes on on that same page, 
         17   for example, the first sentence of the next 
         18   paragraph, "Ebony realizes she should be spending 
         19   her time with other individuals closer to her age."  
         20   Do you see that?
         21       A.   Yes.
         22       Q.   And it goes on to say that the defendant's 
         23   been volunteering during the week educating teens.  
         24   Do you see that?
 0150
          1       A.   Yes.
          2       Q.   And then the next line it references 
          3   "working with young people." 
          4       A.   Yes.
          5       Q.   And down at the very bottom of the page, 
          6   the social worker in essence gives the opinion that 
          7   it will be hard for Mr. Horton to locate mainstream 
          8   employment.  Do you see that?
          9       A.   Yes.
         10       Q.   Now, CPCS is a professional defense firm, 
         11   if you will; isn't that correct?
         12       A.   It is the body that is publicly funded to 
         13   provide lawyers for people who cannot afford them on 
         14   the criminal side of the Court; defense lawyers.
         15       Q.   And these kinds of reports from CPCS, as 
         16   you've said, are not unusual; isn't that correct?
         17       A.   That's right.
         18       Q.   They are fairly common in a number of CPCS 
         19   cases.
         20       A.   Well, I wouldn't say that they're fairly 
         21   common.  I have only seen them in cases where there 
         22   is a psychiatric component.  You certainly don't 
         23   see them in every case, and we don't see them 
         24   unless there is a psychiatric component to the 
 0151
          1   case.
          2       Q.   When you say a psychiatric component, you 
          3   would agree, would you not, that a social worker is 
          4   not competent to make a psychiatric diagnosis, 
          5   correct?
          6       A.   Well, there are licensed psychiatric social 
          7   workers, and I'm not going to tell you that I don't 
          8   think that they can't make certain judgments about 
          9   things or have certain opinions that have been 
         10   accepted in a court of law.  And I will not say 
         11   that.  Because we do have licensed psychiatric 
         12   social workers that perform a function.
         13       Q.   This was not a licensed psychiatric social 
         14   worker; isn't that correct?
         15       A.   I don't know.
         16       Q.   Well, if you look at the credentials --
         17       A.   Yes.  I don't know what "LIS" -- what a 
         18   licensed social worker -- and what is a "BCD"? 
         19       Q.   I've forgot myself.  Board certified.
         20       A.   Board certified as a social worker.
         21       Q.   This is not a psychiatric specialist; isn't 
         22   that correct?
         23       A.   I don't know if -- she may not have been 
         24   board certified in that, but may not have a history 
 0152
          1   in it.  I don't know.
          2       Q.   In any event, as a judge reading this, you 
          3   have no information to go from in that regard; is 
          4   that correct?
          5       A.   That's right.
          6       Q.   And, accordingly, you would not treat the 
          7   report as a psychiatric evaluation?  You would treat 
          8   it as a social worker's evaluation?
          9       A.   You know, the boundaries --
         10       Q.   If you would, please, Judge.
         11            MR. EGBERT:  Let her finish. 
         12       A.   The boundaries between these professions, 
         13   sometimes we do get reports from social workers, 
         14   from psychiatric social workers, et cetera, instead 
         15   of a full-blown psychiatric report.
         16       Q.   Let's talk about this report.  If this 
         17   report was presented to you, you would not view it 
         18   as having a psychiatric opinion; isn't that 
         19   correct?
         20       A.   I would view it as the opinion of a social 
         21   worker.  
         22            HEARING OFFICER DAHER:  Can we recess at 
         23   this time? 
         24            MR. WARE:  Yes.  That would be fine, Your 
 0153
          1   Honor.
          2            HEARING OFFICER DAHER:  See you at 2:00.  
          3            (Luncheon recess taken from
          4            1:02 p.m. to 2:00 p.m. )
          5   
          6   
          7   
          8   
          9   
         10   
         11   
         12   
         13   
         14   
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   
 0154
          1                      AFTERNOON SESSION    
          2       BY MR. WARE: 
          3       Q.   I would ask you to take a look again at 
          4   Exhibit 24, which is the series of press statements.
          5       A.   Yes.
          6       Q.   Earlier I asked you about the first 
          7   sentence, I think, the one that says, "The judicial 
          8   canons prohibit judges from commenting on pending 
          9   and impending cases."  Do you see that?
         10       A.   Yes.
         11       Q.   Now, when you received this statement in 
         12   draft form from Joan Kenney, you made no change to 
         13   that particular statement; is that correct?
         14       A.   That's right.
         15       Q.   Is that because you didn't know one way or 
         16   another whether the case was pending?
         17       A.   I didn't think about it.  I mean, that's a 
         18   true statement.  The statement itself is a true 
         19   statement.
         20       Q.   Let's accept that it's a true statement.  
         21   You understood that contained in this release it 
         22   carried with it an implication to the media or the 
         23   press that because this case was pending, it would 
         24   preclude certain statements from being made; isn't 
 0155
          1   that right?
          2       A.   No.
          3       Q.   You don't think the inclusion of that 
          4   language implied to the reader, the media, that 
          5   certain things could not be said because the case 
          6   was pending?
          7       A.   I, frankly, didn't think about it.  It was 
          8   just a statement that prohibits judges from talking 
          9   about -- commenting on pending and impending cases.  
         10   I don't think it registered with me whether it was 
         11   or it wasn't.  
         12            You have to understand something.  It was 
         13   up to Justice Lopez to determine herself whether she 
         14   could comment about a case.  It's solely up to her 
         15   to do that.
         16       Q.   Sure.  I understand that, and I think 
         17   you've said that clearly.  But when you received the 
         18   statement in draft form and when you made changes to 
         19   it, you made no change in that particular sentence, 
         20   correct?
         21       A.   No, I didn't.
         22       Q.   And do you now agree that reading this 
         23   statement, it carries with it an implication that 
         24   one of the reasons that the Judge can't say more 
 0156
          1   about the case is that it's pending?
          2       A.   Let me read the rest of it, then.
          3       Q.   Sure. 
          4       A.   (Witness reviews document)  But she does go 
          5   along and talk about, afterwards, factors that she 
          6   considered in sentencing.  So, I mean, in reading 
          7   through it...
          8       Q.   All right.  My question really is, when you 
          9   got the document, you're saying you didn't really 
         10   pay close attention or didn't make particular note 
         11   of the first sentence; is that correct?
         12       A.   I didn't make the judgment as to whether 
         13   the case was pending or not pending at all.  I read 
         14   the first sentence.  That happens to be an 
         15   absolutely true statement.
         16       Q.   And one of the reasons that you didn't fix 
         17   on that statement was you understood it was the 
         18   obligation of Judge Lopez to decide whether the case 
         19   was pending or not pending, whether she could say 
         20   something or could not say something?
         21       A.   That's right.
         22       Q.   It wasn't up to you, correct?
         23       A.   No, it wasn't.
         24       Q.   And you weren't purporting to be an 
 0157
          1   intermediary vetoing what she said or blessing what 
          2   she said.
          3       A.   That's right.
          4       Q.   Now, let me ask you again, am I correct or 
          5   would you agree with me that reading this, it 
          6   carries with it, since it includes that first 
          7   statement, an implication that at least one of the 
          8   reasons Judge Lopez could not say more was that the 
          9   case was pending?
         10       A.   But she goes on to talk about the case.
         11       Q.   Am I wrong?
         12       A.   You're asking me to make a judgment.  I 
         13   mean, I just read this on its face. 
         14       Q.   You do not read the statement containing 
         15   the first sentence as carrying with it an 
         16   implication that one of the reasons Judge Lopez 
         17   could not comment further was that the case was 
         18   pending?
         19       A.   But she does comment further.  That's what 
         20   I'm trying to suggest to you.  As I read further in 
         21   the body of this statement, she does comment 
         22   further.
         23       Q.   Okay.  And do you mean by that, yes, the 
         24   first statement does indicate that she can't 
 0158
          1   comment, but she goes on and does it anyway?
          2       A.   No.
          3       Q.   You mean the first statement does not carry 
          4   with it the implication that the case is pending?
          5       A.   In reading this, this appears to be a 
          6   statement of what the canons prohibit.  Then she 
          7   goes on to state that she is not going to talk about 
          8   some of it, but she does then talk about some of it.  
          9   So that, you know, as I say, it's up to her.  That 
         10   canon applies to her, and it's her case.
         11       Q.   You left to Judge Lopez the decision 
         12   whether or not the case was pending, such that it 
         13   could or could not be commented on, correct?
         14       A.   I left to her the decision to comment on 
         15   the case.
         16       Q.   Were you aware of the fact that Judge Lopez 
         17   had specifically retained jurisdiction in this case?
         18       A.   No.
         19       Q.   And would you agree that in circumstances 
         20   in which a sentencing judge specifically on the 
         21   record retains jurisdiction, that that case, in the 
         22   event of a violation of probation, will go back 
         23   before the sentencing judge?
         24       A.   That's true.  And that's not unusual, by 
 0159
          1   the way.
          2       Q.   All right.  But at least in a case in which 
          3   the judge has unambiguously retained jurisdiction, 
          4   it's assured that the case will go back to the 
          5   sentencing judge who retained jurisdiction.
          6       A.   Yes.  And that's for the probation matters.  
          7   And that's to determine -- generally when that is 
          8   done, it's because the judge has fashioned a 
          9   probation program and the judge wants to make sure 
         10   that that probation program is complied with.
         11       Q.   And is it also the case that in the event 
         12   of a violation of probation, having retained 
         13   jurisdiction, the case would come back before that 
         14   sentencing judge?
         15       A.   Yes.
         16       Q.   If I understood you correctly, you became 
         17   Chief Justice of the Superior Court in 1999?
         18       A.   Three years ago October -- I think it was 
         19   October.  So I think that would be it, isn't it?
         20       Q.   Yes.  That sounds like three to me. 
         21            The proposed sentencing guidelines that 
         22   were discussed earlier with you were promulgated in 
         23   1998 by the Commission, of which Judge Mulligan was 
         24   the Chair?
 0160
          1       A.   That's right.  And at the same time Judge 
          2   Mulligan was Chief Justice of our court.
          3       Q.   Yes.  So those sentencing guidelines came 
          4   out in 1998, correct?
          5       A.   I don't really know, but if you tell me 
          6   they did, I'm going to assume that they did.  I'm 
          7   not questioning you on that, Mr. Ware.
          8       Q.   I'm going to show you a copy of Exhibit 23 
          9   in evidence. 
         10       A.   It says February 1998.
         11       Q.   As far as you know, then, the sentencing 
         12   guidelines were promulgated and published at least 
         13   in 1998?
         14       A.   Right.  They were never adopted. 
         15       Q.   Now, the fact that they're not adopted 
         16   doesn't mean that district attorneys and judges 
         17   don't consider them; is that right?
         18       A.   That's right.
         19       Q.   In fact, they consider them every day, as 
         20   you've said, correct?
         21       A.   Yes.
         22       Q.   That's routinely done, is it not?
         23       A.   Yes.
         24       Q.   Would you agree with me that it is inherent 
 0161
          1   in being a trial court judge having to pass sentence 
          2   on criminal defendants, that the judge would be 
          3   subjected to public criticism sometimes?
          4       A.   Yes.
          5       Q.   And it's fair to say that criticism comes 
          6   with the territory, whether it's fair criticism or 
          7   it's unfair criticism; isn't that right?
          8       A.   Yes.
          9       Q.   And it's also fair to say that judges are 
         10   not free or not as free as the rest of us to stand 
         11   up and defend themselves; isn't that correct?
         12       A.   Yes.
         13       Q.   They have limited options when they're 
         14   criticized, do they not?
         15       A.   That's right.
         16       Q.   And those options are governed, among other 
         17   things, by the canons of judicial conduct, good 
         18   sense and fairness; isn't that right?
         19       A.   Yes.
         20            MR. WARE:  I have nothing further.  Thank 
         21   you, Judge. 
         22                    REDIRECT EXAMINATION
         23       BY MR. EGBERT: 
         24       Q.   Would you turn to Exhibit 22 in the book. 
 0162
          1       A.   Yes.
          2       Q.   Do you have it in front of you?
          3       A.   I do.
          4       Q.   Just so that you know, that's a transcript 
          5   of the change of plea in Commonwealth versus Horton.  
          6   I want you to turn -- first acclimate yourself.  
          7   You'll see that on Page 5 the Court begins to 
          8   address the defendant at the plea colloquy?
          9       A.   Yes.
         10       Q.   You're familiar with that process?
         11       A.   Yes.
         12            MR. WARE:  You're Honork, I'm going to 
         13   object to this.  This was not the subject of cross 
         14   examination.  This is supposed to be redirect.
         15            MR. EGBERT:  We were talking about change 
         16   conditions in probation, we were talking about the 
         17   sentencing that was imposed on cross, we were 
         18   talking about serious felony cases and the like.
         19            HEARING OFFICER DAHER:  But again, that 
         20   wasn't what came up on cross.
         21            MR. EGBERT:  I just quoted from his cross.  
         22   He asked Judge DelVecchio whether or not this was a 
         23   serious felony case, he asked Justice DelVecchio 
         24   whether or not a change in conditions of probation 
 0163
          1   affected people's right of appeal, all of which is 
          2   taken care of right in this particular document.
          3            HEARING OFFICER DAHER:  Mr. Ware? 
          4            MR. WARE:  Your Honor, I did not examine 
          5   with respect to any of the proceedings, which is 
          6   what Exhibit 22 is, at the sentencing on September 
          7   6th.  It simply wasn't the subject of the cross 
          8   examination because it wasn't the subject of the 
          9   direct.
         10            MR. EGBERT:  He asked the Judge 
         11   specifically whether or not a change in conditions 
         12   of probation -- I take it he had to have some 
         13   meaning in this case -- a change in conditions of 
         14   probation affected the appealability or likelihood 
         15   of appeal or right to appeal of the defendant in 
         16   this case.  And I want to put before this Judge the 
         17   plea colloquy in this case, which makes certain 
         18   matters clear concerning that issue.
         19            HEARING OFFICER DAHER:  Sustained.  Mr. 
         20   Ware's objection is sustained.
         21       BY MR. EGBERT:
         22       Q.   You were asked whether or not the defendant 
         23   has a right of appeal if conditions of probation are 
         24   changed.  Do you recall that question?
 0164
          1       A.   Yes.
          2       Q.   Do you have any reason to believe that the 
          3   conditions of probation in this case were changed --
          4            MR. WARE:  Objection -- excuse me. 
          5            HEARING OFFICER DAHER:  Finish the 
          6   question.
          7       Q.   Do you have any reason to believe that the 
          8   conditions of probation were changed in this case 
          9   after the defendant's plea was taken?
         10            MR. WARE:  Objection.
         11            HEARING OFFICER DAHER:  What's the 
         12   objection? 
         13            MR. WARE:  The Judge is not competent -- 
         14   and I use that in a legal sense -- to opine on 
         15   anything in this case.
         16            HEARING OFFICER DAHER:  Sustained. 
         17       Q.   You were asked by Mr. Ware whether or not 
         18   this was a serious felony case.  Do you recall that?
         19       A.   I think so, yes.
         20       Q.   And I think your response was, "All 
         21   felonies are serious," correct?
         22       A.   Uh-hum.
         23       Q.   But there are matters of degree, are there 
         24   not?
 0165
          1       A.   Yes.
          2       Q.   And each case has within it a matter of 
          3   degree not subject to the title of the case, but the 
          4   facts of the case?
          5       A.   That's right.
          6       Q.   And is it true that the factors that you 
          7   consider in gauging the seriousness of the case 
          8   include the injury to the victim?
          9       A.   Yes.
         10       Q.   Whether it be physical or psychological or 
         11   otherwise, correct?
         12       A.   That's right.
         13       Q.   Whether or not -- in a sexual assault case, 
         14   whether or not there had been penetration?
         15       A.   Yes.
         16       Q.   In a sexual assault case, whether or not 
         17   there had been repeated assaults or repeated 
         18   penetrations?
         19       A.   Yes.
         20       Q.   In a sexual assault case, whether or not 
         21   the offender was a pedophile, for example?
         22       A.   When you say "pedophile," do you mean a 
         23   repeat offender? 
         24       Q.   Someone likely to repeat the conduct or 
 0166
          1   unable to control their impulses. 
          2       A.   Uh-hum, yes.
          3       Q.   And in dealing with the seriousness of an 
          4   offense, calling it a serious felony and the like, 
          5   have you ever heard -- strike that. 
          6            Judge Lopez said to Mr. Deakin in these 
          7   proceedings, "Can you rate this case 1 to 10?"  Is 
          8   that a discussion of sentencing guidelines?
          9            MR. WARE:  Objection. 
         10            HEARING OFFICER DAHER:  What's the 
         11   objection? 
         12            MR. WARE:  Well, he's now asking for an 
         13   opinion of the Judge on what Mr. Deakin said in a 
         14   proceeding at which she was not present.
         15            MR. EGBERT:  The matter is the record as 
         16   to -- not what --
         17            MR. WARE:  Your Honor --
         18            MR. EGBERT:  Let me finish.
         19            HEARING OFFICER DAHER:  Okay, guys.
         20            MR. EGBERT:  Okay, guys --
         21            HEARING OFFICER DAHER:  Finish.  I want to 
         22   hear you. 
         23            MR. EGBERT:  It wasn't Mr. Deakin who said 
         24   1 to 10.  It was Judge Lopez who indicated on a 
 0167
          1   scale of 1 to 10, please advise me as to where this 
          2   case stands. 
          3            So I want to ask this Judge, because she 
          4   was asked about guidelines, she was asked about what 
          5   certain things meant in the guidelines, she was 
          6   asked about what was meant by certain statements in 
          7   the press release about guidelines, I wanted to hear 
          8   the exact language that was stated by the Court at 
          9   that time.
         10            HEARING OFFICER DAHER:  Mr. Ware? 
         11            MR. WARE:  Two things, Your Honor.  No. 1, 
         12   we're back to expert testimony.  He now wants to 
         13   take the transcript and have Justice DelVecchio say 
         14   whether or not she agrees that this was or wasn't on 
         15   a scale of 1 to 10, No. 1.  
         16            No. 2, this is not the subject of cross 
         17   examination, so it can't be a subject of redirect.
         18            MR. EGBERT:  Judge, may I be heard? 
         19            HEARING OFFICER DAHER:  Please.
         20            MR. EGBERT:  If you haven't finished, go 
         21   ahead.
         22            MR. WARE:  Essentially that's it, but we 
         23   don't need testimony here about Judge Lopez's 
         24   thinking.  We have that testimony.
 0168
          1            MR. EGBERT:  I'm not asking --
          2            HEARING OFFICER DAHER:  Go ahead.  What do 
          3   you want to say? 
          4            MR. EGBERT:  I'm not asking her questions 
          5   about Judge Lopez's thinking.  But two things come 
          6   to mind.  In the first instance, this Court 
          7   prohibited me from asking certain expert questions 
          8   of this witness on direct.  Mr. Ware then went and 
          9   had his cross and asked her a number of questions as 
         10   an expert.  I'm going back to ask a number of the 
         11   questions that I was kept from asking because of 
         12   your ruling on her testifying as an expert, because 
         13   the Commission has obviously opened the door by 
         14   asking her a number of questions on cross as an 
         15   expert to give an expert opinion, which she has done 
         16   continuously on cross.
         17            HEARING OFFICER DAHER:  I allowed you a lot 
         18   of latitude, especially after you indicated that 
         19   there weren't any expert testimony coming in.  Bear 
         20   with me for a minute.  You're asking her to rate 
         21   this on a scale, is that correct, based upon the 
         22   guidelines? 
         23            MR. EGBERT:  No, I'm not.
         24            HEARING OFFICER DAHER:  What specifically 
 0169
          1   is your question?
          2            MR. EGBERT:  I'm asking her first to 
          3   understand -- since you wouldn't let me show her the 
          4   transcript -- to let her understand what Judge Lopez 
          5   said at the hearing, when she turned to Mr. Deakin 
          6   and asked him to rate this case from 1 to 10.
          7            HEARING OFFICER DAHER:  Rate it 1 to 10 in 
          8   re of the sentencing guidelines; is that correct?
          9            MR. EGBERT:  No, sir, that's not what 
         10   occurred in court.  Let me go to the page.
         11            HEARING OFFICER DAHER:  Go ahead.
         12            MR. EGBERT:  If the Court would turn to 
         13   Page 29, Line 19. 
         14            HEARING OFFICER DAHER:  I've got it. 
         15            MR. EGBERT:  That is the statement of Judge 
         16   Lopez, which says, "And of those hundred cases, in 
         17   terms of the facts of this case, on a scale of 1 to 
         18   10, where would you put this case?"  That was the 
         19   language used by Judge Lopez at those proceedings.  
         20   There was nothing about guidelines.  She didn't say 
         21   anything about guidelines.  There's nothing in there 
         22   about guidelines. 
         23            I want to ask this judge, having heard 
         24   those words, whether or not that could possibly 
 0170
          1   refer to any sentencing guidelines, per se.
          2            HEARING OFFICER DAHER:  Mr. Ware? 
          3            MR. WARE:  Your Honor, I object, because 
          4   you're now asking a witness who wasn't there to 
          5   interpret the words of Judge Lopez, who's already 
          6   testified in the case, there's no probative value to 
          7   this.  And we should not permit Justice DelVecchio, 
          8   in fairness to her and to the proceeding, to be put 
          9   in the position of giving an opinion whether this is 
         10   or isn't a case on a scale of 1 to 10.
         11            MR. EGBERT:  I haven't asked her that.
         12            MR. WARE:  Judge DelVecchio is not here to 
         13   interpret what Judge Lopez said.
         14            MR. EGBERT:  I'm not asking her to give her 
         15   statement of 1 to 10.  I'm first asking her to look 
         16   at those words.  And my question to her is, after 
         17   looking at those words of Judge Lopez, do you know 
         18   of any way that could refer to any sentencing 
         19   guidelines -- 
         20            (Mr. Ware stands)
         21            HEARING OFFICER DAHER:  Objection is 
         22   sustained.
         23       Q.   Do you know of any sentencing guidelines 
         24   that have a scale of 1 to 10?
 0171
          1            MR. WARE:  Objection.  It's irrelevant.
          2            HEARING OFFICER DAHER:  I want to hear 
          3   that, go ahead.  Can you answer that? 
          4       A.   No.
          5       Q.   Now, with regard to the statement that 
          6   you've been shown most recently by Mr. Ware, where 
          7   he asked you concerning the pending case issued, do 
          8   you recall those questions?
          9       A.   Yes.
         10       Q.   And I think you testified that the first 
         11   line reads, "Judicial canons prohibit judges from 
         12   commenting on pending and impending cases."
         13       A.   Yes.
         14       Q.   24, by the way. 
         15       A.   Yes.
         16       Q.   And then you see that the Judge went on to 
         17   comment on various matters with regard to the Horton 
         18   case; is that correct?
         19       A.   Yes.
         20       Q.   And that's what you interpret that to be?
         21       A.   Yes.
         22       Q.   And with regard to -- you were asked with 
         23   regard to the statement on "low scale" and 
         24   "sentencing guidelines."  Do you recall that?
 0172
          1       A.   Yes.
          2       Q.   When you were discussing this -- strike 
          3   that. 
          4            When you received this statement, did you 
          5   understand it -- having in mind what the Judge said 
          6   in open court was, "And of those hundreds of cases 
          7   in terms of the facts of this case, on a scale of 1 
          8   to 10, where would you put this case"; and then her 
          9   saying after that, that she considered it on a low 
         10   scale or very low level, what did you understand 
         11   those two statements to mean in conjunction?
         12            MR. WARE:  Objection.
         13            HEARING OFFICER DAHER:  What is the 
         14   objection?
         15            MR. WARE:  Justice DelVecchio has never 
         16   given any indication -- first of all, she certainly 
         17   didn't have a transcript.  She has never suggested 
         18   in the slightest that she knew what words Judge 
         19   Lopez used in the courtroom.
         20            MR. EGBERT:   The Commission, by its cross, 
         21   asked Judge Lopez to interpret this statement on a 
         22   number of events and a number of occasions, and I'm 
         23   asking her to do the same and to fully explain it, 
         24   as opposed to single-word answers.
 0173
          1            HEARING OFFICER DAHER:  Anything else, Mr. 
          2   Ware? 
          3            MR. WARE:  No, Your Honor. 
          4            HEARING OFFICER DAHER:  Overruled.
          5            THE WITNESS:  What was the question again, 
          6   Mr. Egbert?
          7            MR. EGBERT:  Let me see if I can repeat it 
          8   again. 
          9       Q.   Having in mind that Judge Lopez's words in 
         10   open court that "And of those hundreds of cases, in 
         11   terms of the facts of this case, on a scale of 1 to 
         12   10, where would you put this case?" and then her 
         13   further statement that "... in the scale of cases 
         14   that charge sexual assault of children, this is on a 
         15   very low level" -- in conjunction with the statement 
         16   and the press statement which I've read to you, "My 
         17   statement in open court that it was a low-scale 
         18   matter pertains solely to the appropriate level of 
         19   sentencing guidelines used by judges in sentencing 
         20   convicted defendants," what did that statement mean 
         21   to you? 
         22            MR. WARE:  Objection.
         23            HEARING OFFICER DAHER:  What is the 
         24   objection?
 0174
          1            MR. EGBERT:  Judge, how many times do we 
          2   get to object?  It's hard enough --
          3            MR. WARE:  I get to object every time you 
          4   ask a question.
          5            MR. EGBERT:  I asked the same question that 
          6   you already ruled on.
          7            HEARING OFFICER DAHER:  I want to hear it.  
          8   Go ahead.
          9       A.   First of all, I didn't --
         10            HEARING OFFICER DAHER:  It's overruled. 
         11       A.   I did not know anything about this 
         12   transcript or what was said in that courtroom.
         13            HEARING OFFICER DAHER:  Did you know what 
         14   the charges were?
         15            THE WITNESS:  No.
         16            HEARING OFFICER DAHER:  Did you know that 
         17   the charges included kidnapping, assault with intent 
         18   to rape a child under 16, indecent assault and 
         19   battery on a child under 14, assault and battery, 
         20   and assault and battery with a dangerous weapon?  
         21   Did you know that?
         22            THE WITNESS:  No, I did not.
         23            HEARING OFFICER DAHER:  Now you can ask 
         24   your question.
 0175
          1       Q.   Did you know in general the nature of the 
          2   charges against the defendant?
          3       A.   No.
          4       Q.   You had no idea what the case was about?
          5       A.   Well, I did from reading in the paper know 
          6   what the allegations were in the case, but I had no 
          7   idea what the formal charges were and what this 
          8   defendant had pled guilty to.
          9       Q.   And again, having in mind my question as to 
         10   having all those factors in mind, what did you 
         11   understand that statement to mean or what did it 
         12   mean to you when you read it? 
         13            MR. WARE:  Objection.
         14            HEARING OFFICER DAHER:  Overruled.  I want 
         15   to hear the response. 
         16       A.   First of all, initially, I thought in 
         17   reading this, before I just paid attention to the 
         18   transcript of the trial or to the plea -- I thought 
         19   that this was -- "low level" meant sentencing 
         20   guidelines.  However, based on the colloquy that 
         21   I've just read with regard to Judge Lopez --
         22            MR. WARE:  Objection, Your Honor.  "Based 
         23   on the colloquy I just read."  The Judge is now 
         24   going to give us an interpretation of the 
 0176
          1   transcript.
          2            THE WITNESS:  No.  
          3            HEARING OFFICER DAHER:  Overruled.  Go 
          4   ahead. 
          5       A.   It leads me to believe, based on that 
          6   colloquy -- if that's what she meant -- and I don't 
          7   know what she meant -- but it leads me to believe 
          8   that what she did was consider the things that were 
          9   behind our numerical guidelines, such as --
         10            MR. WARE:  Your Honor, I object.
         11            HEARING OFFICER DAHER:  Sustained. 
         12            MR. WARE:  I move that it be struck.
         13            HEARING OFFICER DAHER:  Yes.  Stricken. 
         14       Q.   Well, you understand that the matter of the 
         15   Judge's statement, 1 to 10, as I've just described 
         16   it to you in the transcript, and "low level" as I've 
         17   just described it to you in the transcript, you 
         18   understand that those segments of the Judge's 
         19   comments were played on television day in and day 
         20   out from the moment of sentencing for the following 
         21   number of days, don't you?
         22       A.   I saw it on television.
         23       Q.   And this press statement you understood to 
         24   be some kind of an explanation for the statements 
 0177
          1   the Judge made in open court?  Didn't you understand 
          2   that?
          3       A.   Yes.
          4       Q.   And these are the very statements in open 
          5   court that these were geared to explaining to the 
          6   press and to the public; is that correct?
          7       A.   Yes.
          8       Q.   And having that in mind, what did you 
          9   understand from this statement?
         10            MR. WARE:  Objection. 
         11            HEARING OFFICER DAHER:  Sustained. 
         12            MR. EGBERT:  I want to make an offer of 
         13   proof.  First, I'd permit the Judge to answer for 
         14   the offer of proof.
         15            MR. WARE:  No, Your Honor.
         16            HEARING OFFICER DAHER:  Go ahead.  He wants 
         17   to make an offer of proof and he wants the Judge to 
         18   respond.  It's his witness.  So it's not a witness 
         19   on cross.
         20            MR. WARE:  Your Honor, that is not an offer 
         21   of proof. 
         22            MR. EGBERT:  It is an offer of proof, 
         23   Judge.  You obviously ruled it inadmissible, but the 
         24   record ought to reflect what her answer would have 
 0178
          1   been had it been admitted.
          2            MR. WARE:  I object to that.  I've never 
          3   seen an offer of proof with a live witness answering 
          4   a question that the Court's just sustained an 
          5   objection to. 
          6            HEARING OFFICER DAHER:  Sustained. 
          7            MR. EGBERT:  Then I'll make the offer of 
          8   proof based on my good-faith belief on what her 
          9   answer would be, but I won't take any responsibility 
         10   from any statement that what I'm saying isn't out of 
         11   this witness' mouth or the like.  I'm trying to get 
         12   the most accurate offer of proof that's available 
         13   under the law.
         14            HEARING OFFICER DAHER:  Mr. Ware? 
         15            MR. WARE:  Your Honor, I don't mind counsel 
         16   making an offer of proof in the way it is supposed 
         17   to be done, which is at side bar on the record.
         18            MR. EGBERT:  Side bar is only when there's 
         19   a jury present.  There's no jury present here.
         20            HEARING OFFICER DAHER:  Side bar.  Come on.
         21            MR. EGBERT:  Judge, respectfully, I object 
         22   to side bar.  This is a public proceeding.  This is 
         23   a public proceeding, and for those purposes I think 
         24   all of these matters ought to be in the public 
 0179
          1   record and in the public domain.
          2            HEARING OFFICER DAHER:  Objection noted.  
          3   Side bar.  
          4            (At side bar)
          5            MR. EGBERT:  I believe the Judge's response 
          6   would be that reading this segment of the press 
          7   release, that it was her understanding that what the 
          8   Judge was talking about in juxtaposition to the 
          9   position of low level was the factors that went to 
         10   the sentencing of the criminal defendants in most 
         11   criminal cases, including the seriousness of the 
         12   offense, the rehabilitation, likelihood of 
         13   recidivism, and the various deterrent factors and 
         14   the like that she has described in other events in a 
         15   more forward fashion.
         16            HEARING OFFICER DAHER:  Comment? 
         17            MR. WARE:  No, Your Honor.  
         18            (End of side bar)
         19       BY MR. EGBERT: 
         20       Q.   And you were asked whether or not you 
         21   relied on Judge Lopez being candid with you in the 
         22   preparation of this statement and the like; is that 
         23   correct?
         24       A.   Yes.
 0180
          1       Q.   Do you have any reason to believe she 
          2   wasn't being candid with you?
          3       A.   No.
          4       Q.   Turn to Exhibit 3, if you would, please, 
          5   Judge.  You were asked a number of questions by Mr. 
          6   Ware about whether or not this document, first of 
          7   all, indicated whether or not there was a 
          8   description of facts either provided to the social 
          9   worker or discussed with the social worker with 
         10   regard to this case, correct?
         11       A.   Yes.
         12       Q.   Now, first of all, when you receive a 
         13   document such as this, Exhibit 3, executed by a 
         14   licensed social worker or a professional of any 
         15   kind, and submitted by an officer of the court, do 
         16   you have any reason to doubt its accuracy?
         17       A.   No.
         18       Q.   And do you draw fair inferences from what's 
         19   stated in the document?
         20       A.   What do you mean by that? 
         21       Q.   Do you regularly draw fair inferences from 
         22   facts which are stated in the document?
         23       A.   I don't know what you mean by that.
         24       Q.   Well, let me ask you specifically.  For 
 0181
          1   example, on Page 1 of the first paragraph the 
          2   statement is made, "This is behavior that will not 
          3   occur again." 
          4       A.   Uh-hum.
          5       Q.   Do you agree that it's a fair inference 
          6   from that statement that the behavior that was 
          7   charged in the offense had been described to the 
          8   social worker?
          9       A.   Yes.
         10       Q.   And when, on the last page the social 
         11   worker, if that's what she is, indicates, "I find it 
         12   highly unlikely that Ebony Horton will repeat the 
         13   behavior that brought her to court in this case," do 
         14   you believe it to be a fair inference from that 
         15   document?
         16            MR. WARE:  Objection.  These questions are 
         17   all leading.  The witness should be asked how she 
         18   reads the statement.
         19            HEARING OFFICER DAHER:  Sustained.
         20       Q.   Do you draw any inference from that 
         21   statement?
         22       A.   I draw the inference that it is that social 
         23   worker's opinion that this defendant will not offend 
         24   again.
 0182
          1       Q.   Do you draw any inference from the 
          2   statement "will not repeat the behavior that brought 
          3   her to court in this case"?
          4       A.   Just what it says; that that is the social 
          5   worker's opinion.
          6       Q.   Would it be fair to infer from that that 
          7   the social worker knew of the behavior that brought 
          8   her to court?
          9            MR. WARE:  Objection.  Again --
         10            HEARING OFFICER DAHER:  Sustained. 
         11       Q.   You were asked also whether or not an 
         12   independent examination would have been stronger, I 
         13   guess was the word, than this particular document.  
         14   Do you recall those questions?
         15       A.   Yes.
         16       Q.   How often in criminal cases at a plea is 
         17   there some independent psychological or sociological 
         18   report?
         19       A.   I would say it's rare.
         20       Q.   In most instances are reports of this 
         21   nature given to you by one party or the other?
         22       A.   Yes.
         23       Q.   Whether it be the prosecution or the 
         24   defense?
 0183
          1       A.   Yes.
          2       Q.   And are those documents -- strike that. 
          3            Who generally hires the people that provide 
          4   those reports?
          5       A.   Either the prosecutor or defendant's 
          6   counsel.
          7       Q.   Is that unusual?
          8       A.   No.
          9       Q.   And is that, in your opinion, any reason to 
         10   disregard the report?
         11       A.   No.
         12       Q.   Or to lessen its impact?
         13       A.   No.
         14       Q.   You've now had a chance to look at this 
         15   report in some depth?
         16       A.   Yes.
         17       Q.   Would you describe -- how would you 
         18   describe this report in terms of its depth, 
         19   discussion of facts and discussion of history and 
         20   the like?
         21            MR. WARE:  Objection.
         22            HEARING OFFICER DAHER:  What's the 
         23   objection? 
         24            MR. WARE:  Again, this is just expert 
 0184
          1   testimony --
          2            HEARING OFFICER DAHER:  You went over it 
          3   considerably, Mr. Ware.  Overruled.
          4            MR. WARE:  Your Honor, I asked because you 
          5   let this in on direct testimony.  We're now going to 
          6   have an opinion about the opinion.
          7            HEARING OFFICER DAHER:  Overruled.  I'll 
          8   give it the weight that it deserves.
          9       A.   This report does not state what the 
         10   defendant told the social worker, for instance, 
         11   although the report indicates that the defendant did 
         12   talk to the social worker and recount some 
         13   information to the social worker.  And it says that 
         14   in a couple of places.  It does not say what that 
         15   was.  It does not go through the history.  It 
         16   doesn't list the crimes charged, for instance.
         17       Q.   How about with regard to the defendant's 
         18   prior dealings with the mental health system and the 
         19   like?
         20       A.   There's an extensive discussion here of the 
         21   defendant's prior -- well, really from the 
         22   defendant's childhood on into what the defendant's 
         23   mental health issues were and what the defendant did 
         24   to deal with those issues.
 0185
          1       Q.   And does it also discuss in some depth the 
          2   steps taken to rehabilitate -- to get 
          3   rehabilitation?
          4       A.   Yes.
          5       Q.   Does it discuss -- strike that. 
          6            In the scheme of things, would you call 
          7   this report an in-depth report?
          8            MR. WARE:  Objection.
          9            HEARING OFFICER DAHER:  Sustained. 
         10       Q.   How would you describe it?
         11            MR. WARE:  Objection. 
         12            HEARING OFFICER DAHER:  Too vague. 
         13            MR. EGBERT:  I can't lead her and I can't 
         14   ask her how she would describe it, Judge.  I'm not 
         15   sure what other questions can be asked.
         16            HEARING OFFICER DAHER:  I sustain it.  
         17   Rephrase it. 
         18       Q.   Would you describe this report as 
         19   comprehensive? 
         20            MR. WARE:  Objection.  The 
         21   characterizations of the report --
         22            HEARING OFFICER DAHER:  Sustained. 
         23       Q.   In the scheme of cases that you've had in 
         24   reports of this nature that have been before you, 
 0186
          1   how would you characterize this one? 
          2            MR. WARE:  Objection.
          3            HEARING OFFICER DAHER:  He's asking on a 
          4   comparative basis as to what her experience is.  I'm 
          5   going to overrule it. 
          6       A.   I've seen other reports like this.  We get 
          7   some that have more detail with regards to pressing 
          8   a crime charge.  In these reports it doesn't list 
          9   that; but a type of report that would list the 
         10   history of the defendant and what history the 
         11   defendant has had, for instance, with the mental 
         12   health system, et cetera, I've seen these before.
         13       Q.   Would you rely on such a report? 
         14            MR. WARE:  Objection. 
         15            HEARING OFFICER DAHER:  What's your 
         16   objection? 
         17            MR. WARE:  Well, Your Honor, the relevance 
         18   of whether this Judge would rely upon this report 
         19   now, having seen it only today, is not probative.  
         20   Judge Lopez has testified she did rely on it.
         21            HEARING OFFICER DAHER:  Go ahead.
         22            MR. EGBERT:  He has asked her a number of 
         23   questions which go to the insinuation that this 
         24   report should not be relied on and snippets of 
 0187
          1   pieces of information as to whether or not it is a 
          2   good report or a bad report.  I think it's important 
          3   to find out whether a Superior Court judge --
          4            HEARING OFFICER DAHER:  I think there's a 
          5   vast difference of being on the witness stand seeing 
          6   reports like this and having Judge Lopez intimately 
          7   involved in the proceedings.  We're cosmically 
          8   apart.  Sustained, Mr. Ware.
          9       BY MR. EGBERT:
         10       Q.   You were asked about this gatekeeper 
         11   function of the Daubert case.  Do you understand 
         12   that?
         13       A.   Yes.
         14       Q.   At a plea conference or a plea hearing, 
         15   does the Court embark on Daubert hearings?
         16       A.   No.
         17       Q.   What do you do with reports such as this 
         18   when they're provided?
         19       A.   Read them.
         20       Q.   And then do what?
         21       A.   Consider them.
         22       Q.   And then do what?
         23       A.   Give them whatever weight I'm going to give 
         24   it and then consider that a factor as part of my 
 0188
          1   sentencing.
          2       Q.   And, Judge, in whose sole discretion is it 
          3   in the criminal justice system as to what weight to 
          4   be given to such a report as to the sentence to be 
          5   delivered?
          6       A.   The judge.
          7       Q.   Anybody else?
          8       A.   No.
          9       Q.   Judge, you were asked a number of questions 
         10   about judges being subjected to public criticism, 
         11   right?
         12       A.   Yes.
         13       Q.   And that it's inherent in being a judge?
         14       A.   Yes.
         15       Q.   And is it inherent in being a judge to have 
         16   reporters in your yard and setting up radio programs 
         17   in your yard and calling on people to call your home 
         18   and come to your home and make threatening calls?  
         19   Is that inherent in being a Superior Court judge in 
         20   the Commonwealth of Massachusetts?
         21       A.   The First Amendment says that basically 
         22   this is a country with a free press.  And as long as 
         23   they don't trespass on your property, they can 
         24   certainly do that.
 0189
          1       Q.   And have you -- and it's your testimony, 
          2   and you said before, that a judge is limited in 
          3   their options on how they can defend against that; 
          4   is that right?
          5       A.   Absolutely.
          6       Q.   And one of their options, as you know, and 
          7   has been done, is to engage surrogates to discuss 
          8   the system and discuss the procedures in any 
          9   particular case, correct?
         10       A.   Yes. 
         11       Q.   Such as bar association members or 
         12   executives, correct?
         13       A.   That's right.
         14       Q.   Lawyers?
         15       A.   Uh-hum, yes.
         16       Q.   Other scholars and professors?
         17       A.   This happens routinely.
         18            MR. EGBERT:  May I have a moment, please. 
         19            HEARING OFFICER DAHER:  Sure.  
         20            (Pause)
         21            MR. EGBERT:  I have nothing further.
         22            HEARING OFFICER DAHER:  Mr. Ware? 
         23            MR. WARE:  No questions.  Thank you.
         24            HEARING OFFICER DAHER:  Thank you very 
 0190
          1   much.
          2            Gentlemen?  Mr. Egbert, anybody else? 
          3            MR. EGBERT:  Yes.  Anne Goldbach. 
          4            HEARING OFFICER DAHER:  Mr. Egbert, I take 
          5   it this witness is going to be somewhat extensive 
          6   examination and cross examination? 
          7            MR. EGBERT:  I would think.
          8            HEARING OFFICER DAHER:  I would think so, 
          9   too.  Is Judge Russo here? 
         10            MR. EGBERT:  No.  I sent him home so that 
         11   he wouldn't be tied up.
         12            HEARING OFFICER DAHER:  I agree.  Mr. Ware, 
         13   it's going to be a rather extensive examination on 
         14   this witness.  Do you want to start it tomorrow? 
         15            MR. WARE:  I would rather get going with 
         16   it, Your Honor.
         17            HEARING OFFICER DAHER:  Let's go.  
         18                   ANNE GOLDBACH, Sworn
         19                    DIRECT EXAMINATION
         20       BY MR. EGBERT: 
         21       Q.   Good afternoon. 
         22       A.   Good afternoon.
         23       Q.   Would you state your name, please. 
         24       A.   Anne Goldbach.
 0191
          1       Q.   And how are you employed?
          2       A.   I'm employed by the Committee for Public 
          3   Counsel Services. 
          4       Q.   Let me go back.  Are you an attorney?
          5       A.   I am an attorney.
          6       Q.   Licensed to practice in the Commonwealth?
          7       A.   Yes, I am.
          8       Q.   And can you give us a bit of your 
          9   professional background and experience. 
         10       A.   I've been with the Committee for Public 
         11   Counsel Services or the public defender's office for 
         12   almost 25 years.  I've been a staff attorney in both 
         13   the Boston and Roxbury offices.  I was the attorney 
         14   in charge of the Boston trials office, which is the 
         15   largest of the many trials offices in the 
         16   Commonwealth.  For the past five years I've been the 
         17   forensics director for the state, for the public 
         18   defender's office, as well as for bar advocates.
         19       Q.   What is the public defender's office or the 
         20   Committee for Public Counsel Services?
         21       A.   We provide defense for indigent clients all 
         22   over the state in criminal cases.
         23       Q.   And who funds the Committee for Public 
         24   Counsel Services?
 0192
          1       A.   The state does.
          2       Q.   Now, how much of your practice over the 25 
          3   years has been devoted to the trial of criminal 
          4   cases?
          5       A.   Most of my practice -- well, I'd say the 
          6   first ten years was entirely casework.  Running the 
          7   trials office I maintained a case load, but I also 
          8   had administrative duties, and I still have cases.
          9       Q.   When you say "running the trials office," 
         10   at what time did you begin running the trials 
         11   office?
         12       A.   From November of 1987 to November of 1997. 
         13       Q.   And what did that entail?
         14       A.   We had over 20 trial attorneys in our 
         15   office.  We had two investigators, support staff.  I 
         16   would oversee the assignment of attorneys to various 
         17   courts.  We had supervisors overseeing teams in 
         18   those courts.  I would meet with the supervisors, I 
         19   would meet with individual attorneys.  We saw to 
         20   some of the training of our lawyers.  We had weekly 
         21   meetings for ongoing training.  I would evaluate the 
         22   attorneys in the office, things like that. 
         23       Q.   And then you've indicated that for the last 
         24   five years I think you said you've been head of 
 0193
          1   forensics for CPCS?
          2       A.   That's right.
          3       Q.   What is that?
          4       A.   I maintain a forensics resource list.  It 
          5   contains hundreds of names of experts throughout the 
          6   state.  I act as a resource both for bar advocates, 
          7   as well as public defenders.  When they have any 
          8   type of forensic issue that arises in one of their 
          9   cases in a criminal case, they call me.  And that 
         10   could be looking for an expert, that could be 
         11   looking for information files.  We also keep 
         12   transcripts of expert testimony, and sometimes we 
         13   make those transcripts available to defense counsel. 
         14       Q.   Ms. Goldbach, at some point in time did you 
         15   undertake the representation of Charles Ebony 
         16   Horton?
         17       A.   I did.
         18       Q.   Approximately when was that?
         19       A.   Late November of '99.
         20       Q.   And in what court was the case pending when 
         21   you first took the case over?
         22       A.   The Dorchester District Court.
         23       Q.   So you were assigned to it -- strike that.  
         24   Were you assigned from the initial arraignment?
 0194
          1       A.   I was not the arraignment attorney.  Eve 
          2   Hanan was the arraignment attorney.
          3       Q.   And when did you come into the case in 
          4   terms of process rather than date?
          5       A.   Maybe a couple of weeks later.
          6       Q.   And while you were in the Dorchester court, 
          7   did there come a time when a proceeding occurred in 
          8   which you served a subpoena on any particular police 
          9   officer?
         10       A.   I served a subpoena on Detective Jay 
         11   Greene.
         12       Q.   When did that occur?
         13       A.   That was prior to the first probable cause 
         14   date, which would have been December 16th of 1999.
         15       Q.   And was there a reason that you subpoenaed 
         16   the police officer to a probable cause hearing?
         17       A.   It was because of a conversation I had with 
         18   him when I ran into him in the Dorchester District 
         19   Court on an entirely different date, when I had 
         20   other cases in that court.  And as a result of my 
         21   conversation with him, I summonsed him to court.
         22       Q.   And prior to you summonsing him to court, 
         23   had you had any conversation with any members of the 
         24   district attorney's office concerning Detective 
 0195
          1   Greene?
          2       A.   I summonsed him and then had a conversation 
          3   with the district attorney's office.
          4       Q.   In the District Court?
          5       A.   Yes.
          6       Q.   And who would that conversation have been 
          7   with?
          8       A.   I don't recall the name of that district 
          9   attorney now.
         10       Q.   Was it someone who was assigned to the 
         11   case?
         12       A.   Yes, it was.
         13       Q.   In the District Court?
         14       A.   Yes, it was.
         15       Q.   And can you tell me what the conversation 
         16   was with that member of the district attorney's 
         17   office?
         18            MR. WARE:  Objection. 
         19            HEARING OFFICER DAHER:  I want to hear it.  
         20   Overruled.  Go ahead. 
         21       A.   That Detective Jay Greene had what I 
         22   believed to be exculpatory information concerning 
         23   the allegations in this case.  And I elaborated what 
         24   those exculpatory bits of information were to the 
 0196
          1   district attorney, and I asked that the district 
          2   attorney speak to Jay Greene.
          3       Q.   Now, was Detective Greene -- at that time 
          4   did you have the police reports in hand?
          5       A.   I had the police reports, yes, I did.
          6       Q.   And do you know whether or not, from the 
          7   police reports, Detective Greene was on scene at or 
          8   about the time of the arrest?
          9       A.   At this point I don't recall whether he was 
         10   listed within the police reports.
         11       Q.   I'm going to ask you to turn to Exhibit 27.  
         12   Take a look at that for a moment. 
         13       A.   (Witness reviews document)  Yes.
         14       Q.   Let me first ask you, is that at least one 
         15   of the police reports involved in the case of 
         16   Commonwealth versus Charles Ebony Horton?
         17       A.   Yes, it is.
         18       Q.   And can you tell me from that report 
         19   whether or not Detective Greene was on scene -- 
         20   listed as on scene at sometime during that --
         21       A.   He is listed as being there, as being on 
         22   scene.
         23       Q.   And where are you looking to determine 
         24   that?
 0197
          1       A.   It is the last line of Page 2 of a three- 
          2   page eleven-incident report dated November 20th of 
          3   1999.
          4       Q.   Now I want you to turn to Page 3 of that 
          5   same report and take a look at that.  And does that 
          6   give you any further information as to Jay Greene's 
          7   presence and involvement -- Detective Jay Greene?
          8       A.   Yes, that there were statements made by my 
          9   client to Officer Sweeney and Detective Greene.
         10       Q.   So Detective Greene was part of the team, 
         11   so to speak, that interviewed your client?
         12       A.   Yes.
         13       Q.   Now, I recognize, Ms. Goldbach, that -- let 
         14   me state it a different way. 
         15            Is there an attorney/client privilege that 
         16   currently exists between you and Charles Ebony 
         17   Horton?
         18       A.   Yes.
         19       Q.   And has Charles Ebony Horton waived that 
         20   attorney/client privilege?
         21       A.   No, she has not.
         22       Q.   So is your testimony limited by Charles 
         23   Ebony Horton's nonwaiver with regard to 
         24   conversations between you and Charles Ebony Horton?
 0198
          1       A.   Yes, it is.
          2       Q.   I'm going to ask you some questions that 
          3   may implicate those statements.  And if there's any 
          4   time where you can't answer because of that, would 
          5   you indicate that as opposed to simply not 
          6   responding?
          7       A.   Yes.
          8       Q.   When you took on the representation of 
          9   Charles Ebony Horton, did Charles Ebony Horton 
         10   provide you a version -- his version of the events 
         11   which occurred which formed the basis of his 
         12   criminal charges?
         13       A.   Yes.
         14       Q.   And are you able to discuss those with us 
         15   today?
         16       A.   No.
         17       Q.   Prior to the Superior Court arraignment -- 
         18   let's go back to the process for a minute.  You said 
         19   that you were in the District Court and there was 
         20   supposed to be a probable cause hearing and you 
         21   subpoenaed Detective Greene?
         22       A.   That's right.
         23       Q.   Was there a probable cause hearing?
         24       A.   No, there was not.
 0199
          1       Q.   Why not?
          2       A.   The Commonwealth sought a continuance.  
          3   They said that the case was being indicted.
          4       Q.   And what would normally happen at a 
          5   probable cause hearing?
          6       A.   At a probable cause hearing, if there had 
          7   been one, I would have had the opportunity to 
          8   subpoena and cross-examine Commonwealth witnesses 
          9   and any other witnesses I sought to have there in 
         10   the court.  Normally the Commonwealth has some 
         11   witnesses there, and sometimes we subpoena 
         12   witnesses.
         13       Q.   And without regard to who you could 
         14   subpoena and the like, what does the Commonwealth 
         15   have to do in a probable cause hearing?
         16       A.   They have to present enough evidence to get 
         17   by the probable cause standard.  That's usually by 
         18   way of the testimony of an alleged victim and, 
         19   additionally, sometimes police officers.
         20       Q.   And that did not occur in this case?
         21       A.   No, it did not.
         22       Q.   Did there come a time when there was to be 
         23   an arraignment in the Superior Court?
         24       A.   Yes.  That was January of 2000.
 0200
          1       Q.   And prior to the arraignment, had the 
          2   defendant, Charles Ebony Horton, been released on 
          3   bail?
          4       A.   Yes.
          5       Q.   And was there, at the time of the 
          6   arraignment, from your mind, a consideration as to 
          7   whether or not bail would become an issue?
          8       A.   I expected that it might become an issue.
          9       Q.   And in preparation for that, did you do 
         10   anything?
         11       A.   Yes.  I asked Joan Katz of our office, a 
         12   licensed social worker, clinical social worker, to 
         13   meet with my client and evaluate her.  That wasn't 
         14   the only reason I asked for her to meet with my 
         15   client, but that was one of the reasons.
         16       Q.   And you mentioned Joan Katz. 
         17       A.   Yes.
         18       Q.   How long have you known Joan Katz?
         19       A.   I've known her for probably 15 years, at 
         20   least.
         21       Q.   Do you know of her background and 
         22   experience?
         23       A.   She had worked at the Committee for Public 
         24   Counsel Services as the social services director I 
 0201
          1   believe from 1987 until about the past year.  She is 
          2   a licensed clinical social worker.  They used to be 
          3   called "psychiatric social workers."  She's also a 
          4   diplomate in her field, which means that she has 
          5   extra training and extra certification on a regular 
          6   basis to maintain that status as a diplomate. 
          7            Prior to her coming to the Committee for 
          8   Public Counsel Services, she worked in the Court 
          9   Clinic at the Quincy District Court.  She evaluated 
         10   individuals for competency and responsibility.  She 
         11   evaluated others for other sorts of mental health 
         12   issues or disorders.  She even did some short-term 
         13   therapy in her capacity at the clinic. 
         14      *Q.   Now, you say she evaluated people for 
         15   competency and criminal responsibility.  When did 
         16   she do that, to your knowledge?
         17            MR. WARE:  Objection.
         18            HEARING OFFICER DAHER:  What's your 
         19   objection? 
         20            MR. WARE:  This witness didn't know Ms. 
         21   Katz at that time.
         22            MR. EGBERT:  She knows her credentials.
         23            MR. WARE:  She's given an overview of her 
         24   background.  I don't object to that.  As to detail, 
 0202
          1   Ms. Katz can testify.
          2            MR. EGBERT:  She's entitled, Judge, to tell 
          3   you the knowledge that she has about Ms. Katz's 
          4   background.
          5            HEARING OFFICER DAHER:  Which he had no 
          6   problems with.
          7            MR. EGBERT:  She gave an answer and I was 
          8   unclear whether or not that was done for the 
          9   Committee for Public Counsel Service or for Court 
         10   Clinic.
         11            HEARING OFFICER DAHER:  Would you read back 
         12   that question, please, again.
         13            *(Question read)
         14            HEARING OFFICER DAHER:  Overruled.  Go 
         15   ahead. 
         16       A.   When she worked for the Quincy Court 
         17   Clinic.
         18       Q.   And you're familiar with court clinics in 
         19   your practice?
         20       A.   Yes, I am.
         21       Q.   What are they?
         22       A.   The court clinics employ sometimes 
         23   psychologists, sometimes psychiatrists, sometimes 
         24   licensed clinical social workers.  Quite often when 
 0203
          1   individuals come into the court at arraignment, a 
          2   probation officer or a court officer or a lawyer 
          3   will detect that there may be an issue with a 
          4   person's competency or responsibility, and there may 
          5   be a referral to the Court Clinic so that they can 
          6   be evaluated to that end.  If there's a real concern 
          7   about the competence and responsibility, there may 
          8   be a request for further evaluation beyond that, 
          9   which can be done at the Court Clinic.
         10       Q.   And so as you came upon Ebony Horton's 
         11   arraignment in I think you said January of '99; am I 
         12   correct?
         13       A.   January of 2000 was the Superior Court 
         14   arraignment.
         15       Q.   January of 2000.  I apologize.  As you came 
         16   upon that date, did you have an understanding as to 
         17   the background and experience of Joan Katz in the 
         18   area of psychological disorders?
         19       A.   Yes, I did.
         20       Q.   And how would you describe that?
         21       A.   It was extensive.  She had seen hundreds 
         22   and hundreds of individuals by that point, both in 
         23   her capacity as a member of the Quincy Court Clinic, 
         24   as well as in her capacity as our director of social 
 0204
          1   services at the Committee for Public Counsel 
          2   Services. 
          3       Q.   When you say director of social services, 
          4   what is that position, if you could help us out?
          5       A.   We have over the years employed a number of 
          6   social workers in our various offices throughout the 
          7   state, not in every office, and we have fewer now 
          8   than we did a few years ago.  So not only did she 
          9   have responsibilities in terms of helping or 
         10   advising or evaluating clients in our particular 
         11   office, the Boston trials office, she met with the 
         12   other social workers and discussed with them issues 
         13   that they were dealing with throughout the state.  
         14   She talked to them about ongoing training.  She had 
         15   certain supervisory duties as well.
         16       Q.   And you say that you asked Joan Katz to see 
         17   Charles Ebony Horton before the Superior Court 
         18   arraignment?
         19       A.   I did.
         20       Q.   And do you know whether or not Joan Katz 
         21   actually did meet with Charles Ebony Horton?
         22       A.   I do.
         23       Q.   And did she?
         24       A.   She met with Ebony Horton at first at the 
 0205
          1   Nashua Street jail.
          2       Q.   And were you present for that interview?
          3       A.   No, I was not.  I made a referral to her.
          4       Q.   And do you know whether or not there were 
          5   any other meetings before the Superior Court 
          6   arraignment other than the Nashua Street jail 
          7   meeting?
          8       A.   My memory is that there was also a meeting 
          9   at the office.
         10       Q.   And do you know -- were you present for 
         11   that meeting?
         12       A.   No.
         13       Q.   And is it customary for the lawyers to be 
         14   present when meeting with licensed social workers 
         15   and the like?
         16       A.   Many of us, what we will do is make a 
         17   referral to Joan Katz in written form and outlining 
         18   what we are seeking, for instance, to have an 
         19   evaluation done, as I did in this case, attaching 
         20   police reports, grand jury minutes, things like 
         21   that.  And in this instance, what I did was greet my 
         22   client at the office, introduce her to Joan, but I 
         23   did not sit through the evaluation.
         24       Q.   Now, did you provide to Joan Kenney before 
 0206
          1   the Superior Court arraignment the police reports in 
          2   this case?
          3       A.   Joan Katz? 
          4       Q.   Joan Katz.
          5       A.   Yes, I did, and grand jury minutes -- 
          6   sorry.  That was later.  The police report, yes.
          7       Q.   Do you recall on this first event now 
          8   whether you supplied anything beyond police reports 
          9   by way of documents?
         10       A.   I don't believe I had other pieces of 
         11   discovery at that point beyond the police reports.  
         12   As I said, it was a written referral.
         13       Q.   Now, you say you made a written referral.  
         14   For what purpose did you make this written referral?  
         15       A.   There were multiple purposes.  Based on my 
         16   experience, I expected that this case would take a 
         17   several-month period before it was resolved either 
         18   by trial or by some sort of disposition.  And I felt 
         19   that it was important that Ms. Katz see my client as 
         20   early as possible, and then to be able to observe my 
         21   client over a long period of time, rather than just 
         22   having a quick evaluation.  So that was one purpose:  
         23   to get her involved early in the case and keep her 
         24   involved early in the case. 
 0207
          1            The other purpose, of course, was that I 
          2   was anticipating that the district attorney's office 
          3   might be seeking an increase in bail, and that if it 
          4   were necessary and if Ms. Katz's evaluation were 
          5   favorable, that I could bring that to court to use 
          6   in terms of a bail argument.
          7       Q.   Did you in your referral tell Ms. Katz what 
          8   to put in her report?
          9       A.   No, I did not.
         10       Q.   Did you tell her what findings to make?
         11       A.   I did not.
         12       Q.   Did you tell her anything about what 
         13   conclusions she should draw?
         14       A.   No, I did not.
         15       Q.   In your experience with Ms. Katz, would she 
         16   permit that?
         17            MR. WARE:  Objection.
         18       A.   No, she would not.
         19            MR. WARE:  Objection as to what Ms. Katz 
         20   would do.
         21            HEARING OFFICER DAHER:  Sustained.  
         22   Stricken. 
         23       Q.   Have you ever had any experience with Ms. 
         24   Katz succumbing to lawyers' requests to put certain 
 0208
          1   results in their reports?
          2            MR. WARE:  Objection, Your Honor.
          3            HEARING OFFICER DAHER:  What's the 
          4   objection? 
          5            MR. WARE:  This is back-ended character 
          6   evidence.  That's all it is.
          7            MR. EGBERT:  This is what this lawyer 
          8   presented --
          9            HEARING OFFICER DAHER:  Overruled.  You 
         10   have it.  Go ahead.
         11       A.   No, I've never seen her succumb to 
         12   something like that.
         13       Q.   Now, I take it you went to the Superior 
         14   Court arraignment?
         15       A.   I did.
         16       Q.   And Ebony Horton went?
         17       A.   My client went, some of her family went, 
         18   her minister was there, yes.
         19       Q.   And she was out on bail at the time?
         20       A.   She was out on bail.
         21       Q.   And did you have a conversation with Leora 
         22   Joseph at or about the time of the Superior Court 
         23   arraignment?
         24       A.   I did.
 0209
          1       Q.   Did you have any conversations particularly 
          2   with concern to Ms. Katz's reports?
          3       A.   I offered her Joan Katz's report.
          4       Q.   Let me go back a step. 
          5       A.   Yes.
          6       Q.   Was there a report prepared for 
          7   arraignment?
          8       A.   There was an evaluation that was prepared 
          9   prior to arraignment.  I brought it with me.
         10       Q.   To court?
         11       A.   To court.
         12       Q.   On the date of arraignment?
         13       A.   On the date of the arraignment.
         14       Q.   Now, I want you to, in as much detail as 
         15   possible, describe to us what occurred with regard 
         16   to the report in your conversations with Leora 
         17   Joseph. 
         18       A.   I offered Joan Katz's report to Leora 
         19   Joseph.  She basically flipped through it very 
         20   quickly and handed it back to me very quickly, as 
         21   though she were not interested in it.
         22            MR. WARE:  Objection.  I move that that 
         23   conclusion be struck.
         24            HEARING OFFICER DAHER:  Stricken.
 0210
          1       Q.   Describe her demeanor in as much detail as 
          2   you can. 
          3       A.   Her demeanor was a lack of interest in this 
          4   psychosocialist's evaluation that I had brought to 
          5   court.
          6       Q.   When you say she handed it back to you, did 
          7   she just hand it back to you pleasantly?
          8       A.   No, she did not.
          9       Q.   What did she do?
         10       A.   Very rapidly, with a look on her face that 
         11   was negative, just like it was a worthless piece of 
         12   paper.
         13       Q.   Did she keep a copy?
         14       A.   No, she did not.
         15       Q.   Did she seek to make a copy?
         16       A.   I had multiple copies.  That was a copy for 
         17   her, but she didn't keep it.
         18       Q.   So you actually had a copy for her that 
         19   day?
         20       A.   That was her copy, yes.
         21       Q.   And she gave it back to you?
         22       A.   She did give it back to me.
         23       Q.   Now, that was on the date of arraignment?
         24       A.   That was on the date of arraignment.
 0211
          1       Q.   Now, did that report differ -- turn to 
          2   Exhibit 3 in that book in front of you, if you 
          3   would. 
          4       A.   (Witness complies)  Yes.
          5       Q.   Do you see what that is?
          6       A.   Yes, I do.
          7       Q.   And tell us what that is. 
          8       A.   This is the psychosocial assessment and 
          9   dispositional plan for Charles Ebony Horton that was 
         10   prepared in the summer of 2000, prior to a plea 
         11   conference in this case.
         12       Q.   The report that's Exhibit 3 in this case, 
         13   is that materially different than the report that 
         14   was prepared some I guess it was seven months 
         15   earlier or so?
         16       A.   No.  What it is is it's an updated report.  
         17   Basically the same information that was in the first 
         18   report is in here, but it is updated in terms of 
         19   things my client had accomplished over that 
         20   seven-month period, improvements in her life in 
         21   various ways, and some of her activities, the things 
         22   that she had been doing for self-improvement, if you 
         23   will, over that seven-month period.
         24       Q.   Is it the same type of report?
 0212
          1       A.   Absolutely, it is.
          2       Q.   Now, during the course of discovery in the 
          3   Horton case, do you recall whether or not there came 
          4   an issue -- strike that. 
          5            During the course of discovery in the 
          6   Horton case, were you made aware -- before August 
          7   1st of the Year 2000, were you made aware that there 
          8   had been any tests conducted on a screwdriver that 
          9   was retrieved from Ebony Horton's car?
         10       A.   Before August 1st? 
         11       Q.   Before August 1st of the Year 2000. 
         12       A.   No.  I was seeking those tests, but I had 
         13   yet to receive any lab reports.
         14       Q.   Now, had anyone told you orally that the 
         15   tests were negative?
         16       A.   No.  I knew of no forensic evidence at that 
         17   point that was inculpatory, but I had not been told 
         18   orally what the lab results were.
         19       Q.   So by August 1st -- up until August 1st of 
         20   2000 -- we'll move on from there in a moment, but at 
         21   least up until August 1st of 2000, you did know that 
         22   there had been a screwdriver seized from Ebony 
         23   Horton's car, correct?
         24       A.   Yes, I did.
 0213
          1       Q.   You believed, I take it, that there were 
          2   tests that had been conducted?
          3       A.   Yes.
          4       Q.   And that those tests were for the presence 
          5   of something that would indicate that the victim's 
          6   saliva was on the screwdriver?
          7       A.   That's right.  I expected it to be the 
          8   Amylase test.
          9       Q.   And the amylase test -- why don't you tell 
         10   us what that is.
         11       A.   An enzyme that you have in saliva.  And if, 
         12   in fact, saliva had been detected -- amylase had 
         13   been detected, these days further tests can be 
         14   conducted, such as DNA.
         15       Q.   And so was that an important fact for you 
         16   in preparation for this case?
         17       A.   Yes, it was.
         18       Q.   And why was that?  Did it relate to some 
         19   particular allegation?
         20       A.   There were inconsistencies within the taped 
         21   interview of the victim in this case.  And there was 
         22   other information that I had that led me to believe, 
         23   from Jay Greene, as well as from my investigation, 
         24   that the screwdriver had never been in the child's 
 0214
          1   mouth.
          2       Q.   And what would the amylase test do with 
          3   regard to that?
          4       A.   The absence of amylase would be 
          5   exculpatory, particularly in this case, where 
          6   supposedly the police happened upon the scene -- in 
          7   other words, happened in the midst of things --
          8            MR. WARE:  I object.  This is nonresponsive 
          9   at this point.  She can give us her understanding of 
         10   an amylase test, but no more.
         11            HEARING OFFICER DAHER:  I'd like to know a 
         12   little more, again, about the chemical background of 
         13   this amylase, as to how fast it degenerates.  It's 
         14   an enzyme.  DNA is totally virtually indestructible.  
         15   Amylase is an enzyme.  It's a protein carbohydrate 
         16   enzyme.  It deteriorates.
         17            THE WITNESS:  Right.
         18            HEARING OFFICER DAHER:  I don't know if 
         19   she's an expert to testify in regards to that.  If 
         20   that's what you're asking, I'd like to know.  Why 
         21   don't you ask her about the amylase and what she 
         22   knows about it.
         23            Amylase is an enzyme that breaks down 
         24   carbohydrates; is that correct?
 0215
          1            THE WITNESS:  Yes, Your Honor.
          2            HEARING OFFICER DAHER:  Okay.  Go ahead. 
          3       A.   Because the police seized the screwdriver 
          4   so quickly, that it was supposed to be almost 
          5   minutes, if not seconds, after it was allegedly in 
          6   the boy's mouth --
          7            MR. WARE:  I object to this, Your Honor.  
          8   This is the witness' characterization.  No police 
          9   officer is saying this.
         10            HEARING OFFICER DAHER:  Go ahead.  It's her 
         11   belief that it was seized immediately.  Go ahead.
         12            MR. EGBERT:  I think, Judge, not only that, 
         13   we've had testimony from Leora Joseph as to the 
         14   immediate nature of the police arriving on the 
         15   scene.  We have a colloquy at the plea where Mr. 
         16   Deakin said that the police came immediately on the 
         17   scene as the events were occurring and, as you 
         18   recall, as the boy's head was down.  And we have the 
         19   boy's own statement now in evidence that the police 
         20   were immediately on the scene during the course --
         21            HEARING OFFICER DAHER:  This is turning out 
         22   to be a CSI case. 
         23            MR. EGBERT:  We go where we must.
         24            HEARING OFFICER DAHER:  I'm going to give 
 0216
          1   some latitude in regards to the amylase.  At this 
          2   point -- I don't know how much she knows about it 
          3   and how the amylase was tested. 
          4       BY MR. EGBERT: 
          5       Q.   Have you, during the course of your 
          6   professional career, had occasion to investigate the 
          7   amylase tests?
          8       A.   I have.
          9       Q.   And to read and study on their use?
         10       A.   I have.
         11       Q.   And to examine and cross-examine experts in 
         12   the field?
         13       A.   Yes.
         14       Q.   And when dealing with -- I think you called 
         15   yourself head of forensics right now for CPCS?
         16       A.   Yes.
         17       Q.   Is amylase testing something you considered 
         18   to be forensic?
         19       A.   Yes.
         20       Q.   And would you tell us, please, what you 
         21   were looking for with regard to this amylase test, 
         22   vis-a-vis the facts as you understood them to be 
         23   alleged in the indictments and police reports?
         24       A.   What I was looking for was the absence of 
 0217
          1   amylase.  I believed that the lab reports would 
          2   demonstrate that the screwdriver had not been in the 
          3   boy's mouth and that the absence of amylase would be 
          4   exculpatory.  And in fact, that is what happened 
          5   eventually when I got the results. 
          6            And given that the screwdriver was taken 
          7   into police custody so quickly, I anticipated that 
          8   it was handled properly and that absence of amylase 
          9   would be exculpatory, even if amylase breaks down --
         10            HEARING OFFICER DAHER:  I've allowed some 
         11   latitude.  "Handled quickly."  "I assume."  I'm not 
         12   going to allow that in.
         13       Q.   Let me ask you this question, Ms. Goldbach.  
         14   You've been a criminal defense lawyer for 25 years?
         15       A.   Yes.
         16       Q.   Do you know what the definition of 
         17   "exculpatory evidence" is?
         18       A.   Yes.
         19       Q.   And in your formal understanding of the 
         20   law, would it be exculpatory evidence in a case 
         21   where a victim alleges that he was forced to put his 
         22   mouth on a screwdriver and suck on it repeatedly, 
         23   the police arrived within moments of that event, the 
         24   screwdriver was seized, tested and found to not 
 0218
          1   contain amylase?
          2            MR. WARE:  Objection.  We're not here to 
          3   get a legal opinion from Ms. Goldbach.
          4            HEARING OFFICER DAHER:  Sustained.
          5            MR. EGBERT:  Judge, with all due respect, 
          6   virtually everything that this lawyer has done and 
          7   did with regard to this case, both in what was 
          8   brought up by her to the Court or what was said to 
          9   the Court, all is based upon her investigation, the 
         10   proceedings which occurred in the past and her 
         11   professional experience.  These are all matters 
         12   which were made available to Judge Lopez, which 
         13   you'll see in future testimony were part and parcel 
         14   of her arguments to Judge Lopez and upon which this 
         15   whole event continued on. 
         16            HEARING OFFICER DAHER:  Mr. Ware, last 
         17   word? 
         18            MR. WARE:  I don't have the last word, Your 
         19   Honor.
         20            HEARING OFFICER DAHER:  With that 
         21   presentation by Mr. Egbert, I'm very much inclined 
         22   to overrule the objection.  Go ahead, Mr. Egbert.  
         23   You have it. 
         24       Q.   Do you remember the question?
 0219
          1       A.   I considered it exculpatory, yes. 
          2       Q.   Did you also consider it important?
          3       A.   Very important.
          4            MR. WARE:  Objection.
          5            HEARING OFFICER DAHER:  Sustained. 
          6       Q.   Did you make a request of the Commonwealth 
          7   for production of any and all forensic reports of 
          8   that nature?
          9       A.   I did.
         10            MR. WARE:  Objection.  It's irrelevant, 
         11   Your Honor.
         12            MR. EGBERT:  Well, it goes to a couple of 
         13   matters.  One, it goes to the conduct of the case by 
         14   the Commonwealth.  
         15            No. 2, I suggest that it is in direct 
         16   contravention of Leora Joseph's testimony, where she 
         17   testified in this proceeding, one, that she orally 
         18   told Ms. Goldbach long before August 1st of the 
         19   tests and their results, and that she provided the 
         20   results to Ms. Goldbach in writing after August 1st, 
         21   but she fully apprised her of this information prior 
         22   to August 1st.  That was Ms. Goldbach's testimony in 
         23   this case when presented by the Commission.
         24            MR. WARE:  Your Honor, again, this is a 
 0220
          1   side issue.  The issue is not what Ms. Goldbach knew 
          2   or what Ms. Joseph knew.  The issue is what Judge 
          3   Lopez knew at the time that she lobbied this case on 
          4   August 1st.  Judge Lopez didn't testify she was 
          5   aware of any of this.  That's the only way in which 
          6   it could be relevant here.
          7            MR. EGBERT:  Judge, the issue of whether or 
          8   not people come into this courthouse and courtroom, 
          9   take the oath, and lie to this Court in 
         10   presentations is always an issue.  The credibility 
         11   of Leora -- her testimony need not be taken alone.  
         12   She testified in direct contravention to what I know 
         13   this witness will testify to.
         14            MR. WARE:  Your Honor, this goes to the 
         15   same character issue that we've been trying to bring 
         16   before the Court for the last two days.  We cannot 
         17   engage in a sideshow with respect to each witness in 
         18   an attempt to assassinate or let's just say question 
         19   the character of witnesses.  That's not the way it's 
         20   done.  That evidence is not relevant here.  This is 
         21   a case about Judge Lopez's conduct and what Judge 
         22   Lopez knew and on the basis of which Judge Lopez 
         23   made decisions. 
         24            MR. EGBERT:  This is a case about, as all 
 0221
          1   cases are, what credibility this Court should give 
          2   to any witness who has testified before it. 
          3            You have heard Leora Joseph come in here --
          4            (Mr. Ware stands)
          5            HEARING OFFICER DAHER:  Overruled.  You've 
          6   got it.
          7       BY MR. EGBERT: 
          8       Q.   Did Leora Joseph provide you orally any 
          9   results from the amylase test prior to August 1st of 
         10   the Year 2000?
         11       A.   No, she did not.
         12       Q.   Had you been requesting those results?
         13       A.   Yes, I had.
         14       Q.   What did she tell you before August 1st, 
         15   2000, concerning those results?
         16       A.   That she would get them for me, but not 
         17   what the results were.
         18       Q.   Did she tell you that she knew the results?
         19       A.   No, she did not.
         20       Q.   Was Mr. Horton released on bail at the 
         21   Superior Court arraignment?
         22       A.   Yes.  The bail remained the same at the 
         23   Superior Court arraignment.
         24       Q.   Was it argued?  And what I mean by that is, 
 0222
          1   was there a hearing in which both sides argued -- 
          2   strike that.  That's very inarticulate.
          3            Was there a hearing in which the 
          4   Commonwealth sought to increase the bail?
          5       A.   That's correct.  There was.
          6       Q.   And who sought to increase the bail?
          7       A.   Leora Joseph.
          8       Q.   And do you have any question about that in 
          9   your mind?
         10       A.   I have no question about that in my mind.
         11       Q.   Were you at the hearing?
         12       A.   I was at the hearing.  Members of my office 
         13   were at the hearing.
         14       Q.   And did Leora Joseph seek a dangerousness 
         15   hearing on that occasion?
         16       A.   No, she did not.
         17       Q.   Did bail remain the same?
         18       A.   Bail remained the same.
         19       Q.   And the defendant was released?
         20       A.   Yes.
         21       Q.   Sometime between the arraignment and August 
         22   1st of the Year 2000, is it fair to say that typical 
         23   discovery practices were ongoing?
         24       A.   Yes.
 0223
          1       Q.   And at or about August 1st of 2000, had 
          2   there been a proceeding scheduled for the Superior 
          3   Court with regard to a lobby conference?
          4       A.   We were scheduled to be on the 15th floor 
          5   in the First Session where the Judge is, as opposed 
          6   to the magistrate session, for a possible plea 
          7   conference on August 1st.
          8       Q.   When you say "a possible plea conference," 
          9   what does that mean?
         10       A.   When I say "possible plea conference," what 
         11   I mean is sometimes these conferences are scheduled, 
         12   but they don't necessarily happen the first time 
         13   around. 
         14            In this instance, it did happen the first 
         15   time around, and we did have a plea conference on 
         16   August 1st.
         17       Q.   So the "possible" was related to whether or 
         18   not a plea conference would take place?
         19       A.   That's right.
         20       Q.   Now, by the way, you say the word "plea 
         21   conference." 
         22       A.   Yes.
         23       Q.   What is a plea conference?
         24       A.   It's basically a scenario -- and it can 
 0224
          1   happen in different locations -- that could be in 
          2   the courtroom, it could be at side bar, it can be in 
          3   a judge's office or a lobby.  But it's where the 
          4   Commonwealth and defense counsel present their sides 
          5   of the story and explain to the judge the type of 
          6   sentence that they're seeking -- present it to the 
          7   judge, sometimes backing it up with documentation of 
          8   various sorts, and seeking to find out what type of 
          9   a sentence a judge would consider imposing after 
         10   hearing from both sides.
         11       Q.   And are those generally on or off the 
         12   record?  And what I mean by that is with or without 
         13   a court reporter. 
         14       A.   It's quite often done without a court 
         15   reporter.  But some judges do choose to have a court 
         16   reporter there. 
         17       Q.   Now, did a plea conference take place on 
         18   August 1st of the Year 2000?
         19       A.   Yes, it did.
         20       Q.   First of all, who was the judge?
         21       A.   It was Judge Lopez.
         22       Q.   And where did the conference take place?
         23       A.   It was to the Judge's right at side bar.
         24       Q.   Was that the customary place for Judge 
 0225
          1   Lopez to conduct her lobby conferences?
          2       A.   This was actually the first case I had ever 
          3   conferenced with Judge Lopez.  But I spent some time 
          4   in the courtroom that morning before it was my turn.  
          5   My case came up in the courtroom, before it was 
          6   called up to the Bench.  And all of the plea 
          7   conferences were occurring at side bar that day. 
          8       Q.   And were they on the record, to your 
          9   knowledge?
         10       A.   To my knowledge, none of them were on the 
         11   record. 
         12       Q.   And how many occurred that day that you can 
         13   remember?
         14       A.   I didn't count.  I know that there were a 
         15   lot of attorneys, including lawyers in my office, 
         16   waiting behind me.  It wouldn't surprise me if at 
         17   least there were a dozen of them, but I didn't 
         18   count.  There seemed to be a lot of them.  The 
         19   courtroom was quite full.
         20       Q.   Now, at that lobby conference -- strike 
         21   that. 
         22            Before that lobby conference, did you have 
         23   occasion to have a discussion with Leora Joseph 
         24   concerning your recommendation and her 
 0226
          1   recommendation and the like?
          2       A.   I had a brief conversation with her.  I 
          3   don't know if I told her what my recommendation was 
          4   going to be.  I did offer Joan Katz's report, that 
          5   is now Exhibit No. 3, to her on August 1st.
          6       Q.   Stop there, if you would.  Where were you 
          7   when you offered the report of Joan Katz, which is 
          8   now Exhibit 3, to Leora Joseph?
          9       A.   In the courtroom, in the audience area.
         10       Q.   And were you standing or seated, if you 
         11   recall?
         12       A.   Standing.
         13       Q.   And is that the area where lawyers stand, 
         14   waiting to be called?
         15       A.   Yes.
         16       Q.   During that -- tell us exactly what you 
         17   said and what she said, to the best of your memory, 
         18   concerning this report and its provision to her. 
         19       A.   There wasn't much conversation at all.  I 
         20   handed it to her again, and basically the same thing 
         21   happened as happened before.  She looked through it 
         22   and she handed it back to me.
         23       Q.   What you handed her, was that her copy?
         24       A.   Yes, it was.
 0227
          1       Q.   You had made copies for counsel?
          2       A.   Yes.  I always do.
          3       Q.   And she just gave it back to you?
          4       A.   She did. 
          5       Q.   Did you require that she give it back?
          6       A.   Did I? 
          7       Q.   Require that she give it back?
          8       A.   Absolutely not.  That was her copy.
          9       Q.   Did you expect that she would keep it?
         10       A.   Yes, I did.
         11       Q.   Did it strike you as unusual --
         12            MR. WARE:  Objection. 
         13            HEARING OFFICER DAHER:  Allowed.  
         14   Sustained.  Go ahead. 
         15       A.   Yes --
         16            HEARING OFFICER DAHER:  No.  I actually 
         17   sustained the objection.
         18       Q.   You say that Ms. Joseph looked through the 
         19   document?
         20       A.   Yes.
         21       Q.   How long did it take her to look through 
         22   the document?
         23       A.   Seconds.
         24       Q.   Did she read it, in your judgment?
 0228
          1       A.   No.  She glanced at it.
          2       Q.   Did she discuss it with you at all?
          3       A.   No.
          4       Q.   And when she gave it back to you, what was 
          5   her demeanor in giving it back to you?
          6       A.   She just handed it back to me.
          7       Q.   Did you feel at that time that you had 
          8   performed your ethical functions in providing copies 
          9   to counsel? 
         10            MR. WARE:  Objection.
         11            HEARING OFFICER DAHER:  Sustained. 
         12       Q.   Why did you give her a copy?
         13       A.   It's my practice to give the district 
         14   attorney a copy of a psychosocial evaluation that 
         15   I'm going to present to the Court.  It would be 
         16   unethical for me not to do that.  And this was 
         17   something that helped my client, in my view.  I was 
         18   hoping that perhaps it would in some way perhaps 
         19   change the view of Ms. Joseph in terms of the way 
         20   she viewed my client.  So, of course, I wanted her 
         21   to have a copy of this.
         22       Q.   After that occurred, did you actually have 
         23   a plea conference with Judge Lopez?
         24       A.   Yes.  It was at side bar.
 0229
          1       Q.   And can you first just tell us the 
          2   procedure -- we'll get to the details in a minute.  
          3   Tell us the procedure that occurred for this 
          4   conference. 
          5       A.   There were clerks standing in the clerk 
          6   area.  The court reporter was seated in his chair, 
          7   but not taking notes at that point.
          8       Q.   Let me stop you for a moment.  Where is the 
          9   court reporter in the First Session. 
         10       A.   It's basically in the same position where 
         11   the court reporters are here today, to the left of 
         12   the Judge.
         13       Q.   The Judge facing out, to the Judge's left?
         14       A.   To the Judge's left.
         15       Q.   And where did this conference take place?
         16       A.   To the Judge's right.  In the First Session 
         17   on the 15th floor there are two or three stairs that 
         18   lead up to the Judge's Bench.  And actually, I 
         19   believe we took turns standing on those stairs next 
         20   to the Judge's Bench in order to speak with her.
         21       Q.   And what was the process that occurred?
         22       A.   The process was that Ms. Joseph, on behalf 
         23   of the Commonwealth, outlined her view of what the 
         24   allegations were, the events, the incident itself, 
 0230
          1   and then made -- she made a sentence recommendation, 
          2   and then, of course, the procedure would be that I 
          3   would follow with any comments that I had to make 
          4   regarding those allegations, as well as the reasons 
          5   why I was seeking probation for my client in this 
          6   case.
          7       Q.   And now, do you have a clear memory of what 
          8   Ms. Joseph said with regard to the allegations that 
          9   you put forward to Judge Lopez?
         10       A.   I don't remember everything she said about 
         11   it.  I remember certain things, certainly, but I 
         12   cannot be absolutely positive of each and every 
         13   thing that she said.
         14       Q.   Do you recall whether or not Ms. Joseph 
         15   told Judge Lopez --
         16            MR. WARE:  Objection.  Leading.  I think we 
         17   ought to have the witness' recollection.
         18            HEARING OFFICER DAHER:  Sustained. 
         19       Q.   Was there any discussion of force being 
         20   used to pull the boy into the car?
         21       A.   No, there was not.
         22       Q.   Did you hear those words or words like 
         23   those spoken at all by Leora Joseph?
         24       A.   No.
 0231
          1       Q.   Is there any doubt in your mind about that?
          2       A.   No, there is no doubt.
          3       Q.   Was there any discussion of Ebony Horton 
          4   threatening to kill --
          5            MR. WARE:  Objection to the leading nature 
          6   of these questions.
          7            HEARING OFFICER DAHER:  Sustained.
          8            MR. EGBERT:  Judge, I don't think it's 
          9   leading to identify an area and then ask her to give 
         10   us the discussion.
         11            HEARING OFFICER DAHER:  Sustained.  Go 
         12   ahead. 
         13       Q.   Did you see the tape of the victim 
         14   statement?
         15       A.   Yes, I did.
         16       Q.   When did you see the tape?
         17       A.   I can't tell you the first time I saw it.  
         18   I haven't checked the date, but it was -- in the 
         19   course of discovery, it was weeks, if not months, 
         20   prior to the plea conference.
         21       Q.   We're going to play the tape now and I'm 
         22   going to stop it in certain places and ask you 
         23   whether or not any of those matters on the tape, 
         24   individual matters --
 0232
          1            HEARING OFFICER DAHER:  Again, if we could 
          2   do that tomorrow morning.  We haven't had a break.
          3            MR. EGBERT:  I'll go with your schedule.
          4            MR. WARE:  Whatever you say, Your Honor.  
          5   Are we going to recess now? 
          6            HEARING OFFICER DAHER:  Yes.
          7            MR. WARE:  Your Honor, if we're going to 
          8   recess, I would like to make a demand at this point 
          9   for a copy of the report to which the witness 
         10   referred.  I've previously asked for that report and 
         11   have been denied it and would like a copy of the 
         12   first report, the one that the witness has testified 
         13   is a precursor to Exhibit 3.
         14            MR. EGBERT:  I don't have it.  I've never 
         15   seen it.
         16            MR. WARE:  I'd like the witness to produce 
         17   it tomorrow.
         18            THE WITNESS:  Your Honor, as Ebony Horton's 
         19   attorney, I would object to that.  That never was 
         20   made part of the court record.  I did not use it.  
         21   It was not necessary for me to present it to the 
         22   trial magistrate at the arraignment, and it has 
         23   never been part of any record in this proceeding -- 
         24   in the Horton matter, Your Honor.
 0233
          1            HEARING OFFICER DAHER:  Your position is --
          2            THE WITNESS:  It's confidential at this 
          3   point.
          4            MR. WARE:  Your Honor, by definition it is 
          5   not privileged, and it's certainly relevant if it's 
          6   a precursor to the existing report. 
          7            This witness testified this afternoon that 
          8   she physically gave a copy to the district attorney, 
          9   and the district attorney looked through it.  To the 
         10   extent there was any privilege, it was waived at 
         11   that point.  And I'm entitled to that report.  I've 
         12   asked for it before.
         13            HEARING OFFICER DAHER:  Counselor? 
         14            THE WITNESS:  Again, Your Honor, I would 
         15   object.  It's not substantially different --
         16            HEARING OFFICER DAHER:  Forget the 
         17   "substantially different."  You did make an offer, 
         18   did you not? 
         19            THE WITNESS:  I offered it to her.  It was 
         20   returned to me.  It was not read.
         21            HEARING OFFICER DAHER:  I'm going to deem 
         22   the privilege waived.  You'll produce a copy for Mr. 
         23   Ware.
         24            THE WITNESS:  Fine. 
 0234
          1            MR. EGBERT:  And that goes to both counsel?
          2            HEARING OFFICER DAHER:  Oh, yes, of course.  
          3   Okay.  9:30 tomorrow morning. 
          4            MR. WARE:  Your Honor --
          5            HEARING OFFICER DAHER:  Go ahead.
          6            MR. WARE:  There is as well this pending 
          7   motion that we have with respect to --
          8            HEARING OFFICER DAHER:  The motion in 
          9   limine, fine.  Go ahead.
         10            MR. WARE:  Is that something you want to 
         11   deal with now, tomorrow morning or --
         12            HEARING OFFICER DAHER:  Probably tomorrow 
         13   morning.  I have my thoughts on that.  I've been 
         14   going through it, I've been leafing through it.  
         15   Tomorrow morning.
         16            MR. WARE:  Thank you.
         17                 (Whereupon, the hearing was
         18                 adjourned at 3:36 p.m.)
         19   
         20   
         21   
         22   
         23   
         24   
 0235
          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 XI, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on Tuesday, December 17, 2002.
          7   
          8   
          9                  _____________________________
         10                            Jane M. Williamson
         11                  Registered Merit Reporter
         12   
         13   
         14                        -  -  -  -
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   

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