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 0001
                                            Volume XIII  
                                            Pages 13-1 to 13-163
                                            Exhibits See Index
              
                         COMMISSION ON JUDICIAL CONDUCT
                          Complaint No. 2000-110 et seq
              - - - - - - - - - - - - - - - - - - - x   
                                                    :
              In the Matter of Investigation of:    :
              The Honorable Maria I. Lopez,         :
              Associate Justice, Superior Court     :
              Department                            :
              - - - - - - - - - - - - - - - - - - - x 
              
              BEFORE:  Hearing Officer E. George Daher,
                         Chief Justice (Ret.)
              
                       Harvey Chopp, Clerk
                       
              APPEARANCES:
              
                  Goodwin Procter LLP
                       (by Paul F. Ware, Jr., Esq., Roberto 
                       M. Braceras, Esq., and Cheryl R.
                       Brunetti, Esq.) Exchange Place, Boston, MA  
                       02109, for the Commission on Judicial 
                       Conduct.
                       
              
                  Law Offices of Richard M. Egbert
                       (by Richard M. Egbert, Esq., and
                       Patricia A. DeJuneas, Esq.)
                       99 Summer Street, Suite 1800,
                       Boston, MA  02110, for the Honorable 
                       Maria I. Lopez.
              
                                    Held at:
                           Edward W. Brooke Courthouse
                              24 New Chardon Street
                              Boston, Massachusetts
                            Friday, December 20, 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   Anne Goldbach
               (By Mr. Egbert)                   13-52
          4    (By Mr. Ware)      13-3
              
          5   Dominic Russo
               (By Mr. Egbert)    13-102         13-118
          6    (By Mr. Ware)              13-113
              
          7   Robert Mulligan
               (By Mr. Egbert)    13-120
          8   
              Andrew Meyer
          9    (By Mr. Egbert)    13-126
              
         10   Michael Avery
               (By Mr. Egbert)    13-133
         11   
              J. Owen Todd
         12    (By Mr. Egbert)    13-141
              
         13   Robert M.
              Delahunt, Jr.
         14    (By Mr. Egbert)    13-153
              
         15       
                                    *  *  * 
         16   
                                 E X H I B I T S
         17   
              EX. NO.                         FOR ID   IN EVID.
         18   
              69  Appendix of CPCS-aggregated 13-35 
         19       news articles re Horton
              
         20   W   Documents relating to the            13-106
                  case of Commonwealth 
         21       versus Kelly Angell
              
         22   
         23   
         24   
 0003
          1                   P R O C E E D I N G S
          2                  ANNE GOLDBACH, Previously Sworn
          3                     CROSS EXAMINATION, Resumed
          4       BY MR. WARE: 
          5       Q.   Good morning, Ms. Goldbach. 
          6       A.   Good morning.
          7       Q.   You indicated in your direct testimony that 
          8   prior to your having been assigned the Horton case, 
          9   there was another lawyer from CPCS who was handling 
         10   the case; is that correct?
         11       A.   That's correct.
         12       Q.   And the case was assigned to you because 
         13   the charges at the time were deemed serious enough 
         14   that a more experienced lawyer was required; isn't 
         15   that correct?
         16       A.   Partially correct.
         17       Q.   Well, do you have your deposition testimony 
         18   in front of you?
         19       A.   I don't, unless it's here in the book. 
         20       Q.   We may need this today, so I'm going to 
         21   give you a copy, and let me make a copy available to 
         22   the Court. 
         23            Let me direct your attention to Page 8, 
         24   beginning at Line 8.  Do you recall being asked 
 0004
          1   under oath during your testimony before the 
          2   Commission, "Question:  Is that another way of 
          3   saying that the charges at the time were viewed as 
          4   serious enough to warrant an experienced trial 
          5   lawyer?"  
          6            "Answer:  Yes"?
          7       A.   Yes.
          8       Q.   And that's consistent with your 
          9   recollection, is it not?
         10       A.   It is. 
         11       Q.   The charges in the District Court, were 
         12   those charges identical to what became the charges 
         13   in the Superior Court following indictment?
         14       A.   I believe they were.  I'm not entirely sure 
         15   of that.
         16       Q.   And at the time that you received the case 
         17   prior to Superior Court arraignment, did you have 
         18   any discovery at all in the case?
         19       A.   I had the police reports.
         20       Q.   Other than the police reports, you had no 
         21   other discovery?
         22       A.   I don't believe so.
         23       Q.   And the docket, Exhibit 2 in this case, 
         24   reflects that you made a series of motions in June 
 0005
          1   of 2000.  Does that square with your recollection of 
          2   when you filed discovery motions?
          3       A.   Well, that would have been after the 
          4   arraignment in Superior Court.  I'd have to look at 
          5   the docket; but yes, most of my -- my discovery 
          6   motions were made in the Superior Court, not the 
          7   District Court.
          8       Q.   The only discovery you recall having had in 
          9   December 1999 were the police reports and whatever 
         10   information you had by virtue of conversation with 
         11   your client; is that correct?
         12       A.   In December, and also that from Jay Greene, 
         13   yes.
         14       Q.   Conversation with Detective Greene?
         15       A.   Right.
         16       Q.   Incidentally, one of the things that 
         17   Detective Greene told you was that he had in fact 
         18   spoken to the district attorney's office in the 
         19   District Court; isn't that correct?
         20       A.   Yes.
         21       Q.   And he told you that prior to the Superior 
         22   Court indictment; isn't that correct?
         23       A.   He was in the District Court prior to the 
         24   Superior Court arraignment.
 0006
          1       Q.   But Detective Greene told you at some point 
          2   later that when the case was in the District Court, 
          3   he had in fact spoken with the district attorney's 
          4   office?
          5       A.   He did tell me that.
          6       Q.   Obviously you didn't have grand jury 
          7   minutes at the District Court level prior --
          8       A.   No, I didn't.
          9       Q.   I need to finish the question. 
         10       A.   Sorry.
         11       Q.   -- prior to the indictment, since there had 
         12   been no grand jury, correct?
         13       A.   That's right.
         14       Q.   And it follows, does it not, therefore, 
         15   that the only discovery which Ms. Katz could have 
         16   had available to her in December 1999, at the time 
         17   the December report was prepared, was the police 
         18   reports?
         19       A.   Relative to the incident, yes.
         20       Q.   And, of course, she had her interview with 
         21   Ebony Horton, correct?
         22       A.   Right.  And did some other things to make 
         23   her report. 
         24       Q.   When did you first receive the videotape of 
 0007
          1   the victim, roughly, order of magnitude.  It doesn't 
          2   matter --
          3       A.   I would guess in the spring of 2000, spring 
          4   or early summer.
          5       Q.   But some number of weeks, in any event, 
          6   prior to your appearance before Judge Lopez on 
          7   August 1st; is that correct?
          8       A.   That's right.
          9       Q.   And when you viewed the videotape, you 
         10   learned, among other things, that the child 
         11   represented himself as being 11 years old; isn't 
         12   that true?
         13       A.   That's right.
         14       Q.   Right at the beginning of the tape the 
         15   child is asked his age, and he says, "I'm 11," and 
         16   he gives his birth date as being in January, a few 
         17   weeks hence; isn't that right?
         18       A.   I don't remember the birth date, but I 
         19   remember he said 11.
         20       Q.   You had no reason to disbelieve the child's 
         21   recollection or understanding of his own age, did 
         22   you, at that time?
         23       A.   I just knew that there was a discrepancy 
         24   between the police report and the tape, but no, I 
 0008
          1   didn't have any reason at that time.
          2       Q.   So you were on notice that the police 
          3   reports said he may be 12 years old, there might be 
          4   a mistake in the police reports, but the victim was 
          5   saying he was 11 years old, correct?
          6       A.   I'm not sure I understand your question.  I 
          7   was on notice? 
          8       Q.   When you saw the videotape --
          9       A.   Right.
         10       Q.   -- you knew that the child was saying he 
         11   was 11 years old at the time of these crimes; is 
         12   that correct?
         13       A.   That's true.
         14       Q.   And to the extent the police report said 
         15   otherwise, that was an issue that you, as defense 
         16   counsel, if you thought it was important, had an 
         17   obligation to yourself and to your client to clear 
         18   up; isn't that correct?
         19       A.   If the matter had gone to trial, yes. 
         20       Q.   Well, if the issue of his age had 
         21   importance to you as a defense lawyer, obviously it 
         22   was your obligation, as you understood it, to clear 
         23   up any ambiguity in your mind whether he was 11 or 
         24   he was 12; isn't that right?
 0009
          1       A.   Under the circumstances, I think the 
          2   difference between --
          3       Q.   Ms. Goldbach, please.  You were defense 
          4   counsel in the case, which you viewed to be a very 
          5   serious case, with charges of kidnapping and rape 
          6   and the other charges; isn't that correct?
          7       A.   Yes.
          8       Q.   All right.  You saw a videotape in which 
          9   the victim said he was 11, correct?
         10       A.   Absolutely.
         11       Q.   You had police reports which you believed 
         12   to be at variance with that, which indicated that he 
         13   was 12 at the time of the incident; isn't that 
         14   correct?
         15       A.   That's right.
         16       Q.   Had you thought it important -- that is, 
         17   the distinction between his being 11 or 12 at the 
         18   time of the crimes -- obviously you would have 
         19   cleared up that ambiguity; isn't that correct?
         20       A.   Yes.
         21       Q.   You mentioned in your direct testimony, in 
         22   referring to the transcript of the proceedings on 
         23   September 6th, that as originally represented to you 
         24   by Judge Lopez, Mr. Horton was going to be placed in 
 0010
          1   the community corrections program; is that right?
          2       A.   That's right.
          3       Q.   And at some time you learned that he was 
          4   not eligible for the community corrections program 
          5   because he was considered a violent offender; isn't 
          6   that correct?
          7       A.   That is not what I learned.
          8       Q.   Well, you learned he was not eligible; is 
          9   that correct?
         10       A.   I did.
         11       Q.   And the Court, accordingly, on September 
         12   6th announced that she was going to place him in an 
         13   alternative type of probation or with additional 
         14   probation conditions.
         15       A.   That's correct.
         16       Q.   Let me ask you, if you would, to go back to 
         17   Exhibit 3.  That is the report of Ms. Katz from the 
         18   summer, July or August -- excuse me -- July of 2000?
         19       A.   Yes.
         20       Q.   Now, you had used Ms. Katz, as I understood 
         21   you two days ago, for many of your other cases; 
         22   isn't that correct?
         23       A.   Yes.
         24       Q.   And had used her on numerous occasions to 
 0011
          1   evaluate defendants whom you represented or whom the 
          2   office represented; is that correct?
          3       A.   That's correct.
          4       Q.   Ms. Katz predicted in Exhibit U -- that is 
          5   the December 1999 report -- and again in Exhibit 3 
          6   that Mr. Horton would not be a repeat offender; 
          7   isn't that correct?
          8       A.   That's correct. 
          9       Q.   Am I also correct that three weeks after 
         10   the August 1st conference, lobby conference with the 
         11   Judge, he was in fact arrested for another sex 
         12   offense?
         13       A.   That's not considered a sex offense in some 
         14   circles.
         15       Q.   All right.  Well, let's take a look at 
         16   Exhibit 18, first of all. 
         17       A.   18? 
         18       Q.   Yes.  
         19            MR. WARE:  I'm going to hand up to the 
         20   Court another copy, just for ease of reference.  I 
         21   think you guys have it.
         22       Q.   Directing you, if I can, to the third page 
         23   of the document, but it says in the upper right 
         24   corner "Page 1 of 2," do you have that before you?
 0012
          1       A.   Yes, I do see -- Page 2 of 2 or 1 of 2? 
          2       Q.   Right here (indicating). 
          3       A.   Okay.
          4       Q.   And let me direct your attention to the 
          5   offense that's indicated there. 
          6       A.   Right.
          7       Q.   It indicates the date of offense as August 
          8   29th, 2000; is that correct?
          9       A.   Yes.
         10       Q.   And that's about a week before the 
         11   September 6th plea and sentencing, correct?
         12       A.   That's correct.
         13       Q.   And about a month following the lobby 
         14   conference of August 1st, correct?
         15       A.   Right.
         16       Q.   And this offense is referred to here as 
         17   sexual conduct for a fee.
         18       A.   That's right.
         19       Q.   "(Sexual conduct for a fee)"?
         20       A.   That's correct.
         21       Q.   And did you at some time understand -- come 
         22   to understand the facts of that crime?
         23       A.   Yes. 
         24       Q.   And there was at some point a plea of 
 0013
          1   guilty and a probation in November -- well, in 
          2   November of 2000, correct?
          3       A.   That's right.
          4       Q.   That offense was not discussed with Judge 
          5   Lopez on August 1st, because it hadn't occurred; 
          6   isn't that correct?
          7       A.   That's correct.
          8       Q.   Were you aware of the offense of August 
          9   29th on September 6th, 2000?
         10       A.   No, I wasn't.
         11       Q.   So Mr. Horton did not tell you anything 
         12   about that arrest.
         13       A.   I wasn't aware of it.
         14       Q.   Mr. Horton did not tell you anything about 
         15   his arrest a week prior to the sentencing.
         16       A.   That's correct.
         17       Q.   Accordingly, while Ms. Katz has predicted 
         18   or had predicted that it was unlikely that Ebony 
         19   would repeat the behavior that brought her to court, 
         20   it turns out that Ebony certainly had some violation 
         21   of law only three weeks after the conference with 
         22   Judge Lopez; isn't that correct?
         23       A.   That's not repeating the behavior, Mr. 
         24   Ware.
 0014
          1       Q.   I see.  Okay.  In any event, whatever 
          2   behavior it was, it was sufficient to result in a 
          3   conviction for sexual conduct for a fee, correct?
          4       A.   That's right.
          5       Q.   You mean by that, it did not involve 
          6   children or a child?
          7       A.   It didn't involve many of the allegations 
          8   that were connected to the case that brought us 
          9   here.
         10       Q.   After the arraignment in Superior Court, at 
         11   which point I understand you to have said that you 
         12   gave the December 1999 version of Ms. Katz's report 
         13   to the district attorney, when the final report was 
         14   completed in July of 2000, did you at any time write 
         15   to the district attorney, enclose a copy of the 
         16   report, and say, in effect, "Here's a report I'd 
         17   like you to consider in mitigation of sentencing"? 
         18       A.   No.  I tried to give it to her personally.
         19       Q.   Well, you tried to give it to her 
         20   personally, but you did that on the day that you 
         21   were to have a lobby conference; is that correct?
         22       A.   That's right.
         23       Q.   In advance of that date, did you ever make 
         24   any attempt to serve a copy of it on the district 
 0015
          1   attorney's office and invite them to have a plea 
          2   discussion with you with respect to the disposition 
          3   of Mr. Horton?
          4       A.   No.
          5       Q.   You didn't make it available in advance of 
          6   August 1st to Mr. Deakin or Ms. Joseph or anyone 
          7   else; is that correct?
          8       A.   Mr. Deakin was not involved in the case 
          9   until August 4th, so --
         10       Q.   I understand that.  For clarity's sake, you 
         11   did not make the report available to anyone at the 
         12   district attorney's office prior to August 1st; is 
         13   that correct?
         14       A.   No; only the earlier report.
         15       Q.   In other words, the answer to my question 
         16   is yes, you did not make it available.
         17       A.   I tried to give Ms. Joseph the earlier 
         18   report, but no, I hadn't given the July report to 
         19   Ms. Joseph before August 4th. 
         20       Q.   When you spoke with Detective Greene, he 
         21   told you, did he not, that while --
         22            MR. EGBERT:  Could we have a time? 
         23            HEARING OFFICER DAHER:  Good point.  A 
         24   time.
 0016
          1            MR. WARE:  At any time.
          2            MR. EGBERT:  Are you asking -- you're 
          3   asking for a conglomeration of conversations.
          4            MR. WARE:  I haven't asked a question yet.
          5            HEARING OFFICER DAHER:  Overruled.  Go 
          6   ahead.
          7       Q.   When you talked to Detective Greene, you 
          8   learned that he had responded to the scene; isn't 
          9   that correct? 
         10            MR. EGBERT:  Objection. 
         11            HEARING OFFICER DAHER:  Overruled. 
         12            MR. EGBERT:  In which conversation? 
         13            HEARING OFFICER DAHER:  In a conversation 
         14   when he responded to the scene.  Overruled.  Go 
         15   ahead. 
         16            MR. EGBERT:  Judge, maybe you misheard the 
         17   question.
         18            HEARING OFFICER DAHER:  No, I didn't 
         19   mishear the question.
         20            MR. EGBERT:  The question is in the 
         21   conversation when he responded.
         22            HEARING OFFICER DAHER:  As a result of a 
         23   conversation that she had with Detective Greene, she 
         24   learned that he had responded to the scene.
 0017
          1            MR. EGBERT:  Your Honor, there were a 
          2   number of conversations --
          3            HEARING OFFICER DAHER:  I understand.
          4            MR. EGBERT:  He should at least indicate 
          5   which conversation we're talking about.
          6            HEARING OFFICER DAHER:  Overruled.  Go 
          7   ahead. 
          8       A.   I learned he had responded to the scene, 
          9   yeah.
         10       Q.   And you also learned that he was not one of 
         11   the uniformed patrol officers who was first on 
         12   scene; isn't that correct?
         13       A.   Yes.
         14       Q.   And you knew that in fact, the arrest in 
         15   this case and the officers first on the scene were 
         16   Officers Rose and Sweeney, who were uniformed patrol 
         17   officers in a cruiser, correct?
         18       A.   That's right.
         19       Q.   And consistent with the police report, you 
         20   never learned anything in this case to dissuade you 
         21   from the view that they were the first two police 
         22   officers to observe the crime scene, correct?
         23       A.   That's true. 
         24       Q.   Now, at no time in your defense of Mr. 
 0018
          1   Horton did you ever contact Officers Rose or Sweeney 
          2   and ask them questions about the case; isn't that 
          3   correct?
          4       A.   No, I hadn't at that point, that's correct.
          5       Q.   And when you learned this information that 
          6   you've given us from Detective Greene that you've 
          7   repeated in your direct testimony, you never made 
          8   any attempt to verify any of Detective Greene's 
          9   impressions with the officers who arrived first on 
         10   scene, did you?
         11       A.   No.  Jay Greene is a very tough cop.
         12       Q.   Whatever Jay Greene is, he gave you a 
         13   series of impressions, correct?
         14       A.   He did.
         15       Q.   And he did not give you an evidentiary 
         16   basis for those impressions.  He told you his gut 
         17   reaction, his feel for the scene; isn't that 
         18   correct?
         19       A.   And his observations.
         20       Q.   Yes.  He did not indicate to you any 
         21   evidence that was contrary to what you were reading 
         22   in the police reports; isn't that correct?
         23       A.   Give me evidence -- I'm not sure what you 
         24   mean by "give me evidence." 
 0019
          1       Q.   What I mean is Detective Greene you said 
          2   was a tough cop.  You believed him to be a savvy 
          3   cop, correct?
          4       A.   That's correct.
          5       Q.   He didn't provide you with any evidence in 
          6   the sense of physical evidence or statements or 
          7   documents which in any way changed the facts as 
          8   reported in the police report; isn't that correct?
          9       A.   No, but that would have been unusual --
         10       Q.   Never mind "but."  He did not provide you 
         11   with any such thing, did he?
         12       A.   Of course not.
         13       Q.   And at no time did you take the impressions 
         14   or the views articulated to you by Detective Greene 
         15   and go back to the uniformed officers or the 
         16   detective on the case who was in charge of the 
         17   investigation and say to them, "How does this fit," 
         18   right?
         19       A.   No.  I took it to the district attorney.
         20       Q.   Oh, I see.  You never made any attempt to 
         21   verify Greene's information, did you?
         22       A.   I had no reason to believe that he was 
         23   lying.
         24       Q.   Ms. Goldbach, you made no attempt to verify 
 0020
          1   Greene's information with other police officers or 
          2   the detective in charge of the investigation; isn't 
          3   that true?
          4       A.   Of course not, Mr. Ware.  Of course not.
          5       Q.   Is it true?
          6       A.   It is true. 
          7       Q.   Thank you. 
          8            You knew as well that the police report, 
          9   according to the officers who arrived first on 
         10   scene, characterized the child as crying at the time 
         11   they approached the vehicle.
         12       A.   One of the officers did.
         13       Q.   One of the officers did.  Very well.  You 
         14   understood that one of the two people who was first 
         15   there on that night, November 20th, 1999, who 
         16   observed the child initially, said the child was 
         17   crying, correct?
         18       A.   One did, yes.
         19       Q.   And that's right in the police report, is 
         20   it not?
         21       A.   Yes, it is.
         22       Q.   During your -- let's turn to August 1st, if 
         23   we could for a moment. 
         24            During your direct testimony you said that 
 0021
          1   at no time was Judge Lopez made aware of there 
          2   having been a videotape of the victim; is that 
          3   correct?
          4       A.   Not to my knowledge, no.
          5       Q.   You don't remember that?
          6       A.   No, I don't.
          7       Q.   And you said, with great emphasis, that at 
          8   no time was it brought to Judge Lopez's attention 
          9   that the child was pulled by the arm, whether he was 
         10   actually pulled into the car or assisted or 
         11   whatever; is that correct?
         12       A.   Right.  Or forced in.
         13       Q.   Let me ask you, if you would, to take a 
         14   look at testimony in this proceeding of November 
         15   20th. 
         16            MR. EGBERT:  Hold on one second. 
         17            HEARING OFFICER DAHER:  Take your time. 
         18            MR. EGBERT:  Whose testimony is it? 
         19            MR. WARE:  Judge Lopez's testimony, during 
         20   your questioning. 
         21       Q.   I've placed before you a transcript of the 
         22   sworn testimony, in part, of Judge Lopez in this 
         23   proceeding on November 20th.  And specifically 
         24   directing you to Page 126 of Volume III, beginning 
 0022
          1   at Line 16.  
          2            The question is asked, "Didn't Ms. Goldbach 
          3   tell you at the time that on the very tape we've 
          4   just discussed" -- and I'll represent to you that 
          5   that's the victim tape -- "that in fact, that's not 
          6   all what the victim was saying happened.  He said he 
          7   was pulled by the arm through a window of the car."  
          8            Answer from Judge Lopez:  "Yes.  I believe 
          9   she had a different version of how the kid got into 
         10   the car, and it involved some pulling into it, yes."  
         11            "Question:  And that was actually on the 
         12   tape of the victim?"  
         13            "Answer:  That's correct."
         14            Do you see that testimony?
         15       A.   I do.
         16       Q.   Now, does that refresh you in any way that 
         17   there was conversation with Judge Lopez on August 
         18   1st regarding the child having been grabbed by the 
         19   arm and the fact that there was a videotape of the 
         20   child?
         21       A.   No, it doesn't.
         22       Q.   Do you recall, among the statements which 
         23   Judge Lopez made on August 1st, was the statement, 
         24   "I know transgendered people"?
 0023
          1       A.   Yes, I do.
          2       Q.   And she also indicated her view that she 
          3   did not believe they were violent or predators; 
          4   isn't that correct?
          5       A.   I don't recall her saying that part, no, I 
          6   don't.
          7       Q.   You don't remember one way or the other?
          8       A.   I don't remember one way or the other.
          9       Q.   She may have said it, she may not have said 
         10   it, so far as your recollection is concerned?
         11       A.   I just done remember.  That's right. 
         12       Q.   Now, you indicated that following the 
         13   conversation on August 1st, no decision had been 
         14   made -- certainly on August 1st -- that Mr. Horton 
         15   was going to plead guilty, correct?
         16       A.   That's correct.
         17       Q.   And you've indicated, in fact, that no 
         18   decision was made right up until September 6th of 
         19   2000, correct?
         20       A.   That's correct.
         21       Q.   Accordingly, you were uncertain as a 
         22   defense lawyer whether or not the case might still 
         23   go to trial during the period between August 1st and 
         24   September 6th, correct?
 0024
          1       A.   That it might go to trial between those two 
          2   dates? 
          3       Q.   No.  Let me try to be clear.  Your 
          4   understanding during the period August 1st, 2000, to 
          5   September 6th, 2000, was that there remained the 
          6   potential that the Horton case would go to trial, 
          7   correct?
          8       A.   That's correct.
          9       Q.   And as you've said many times, you didn't 
         10   get a final decision from your client until 
         11   September 6th, correct?
         12       A.   That's right.
         13       Q.   Under those circumstances, you, as a 
         14   defense counsel, could not make Mr. Horton available 
         15   to a social worker from the district attorney's 
         16   office or a psychiatrist to give statements to that 
         17   psychiatrist or professional which might in fact be 
         18   admissions, could you?
         19       A.   I couldn't have allowed her to discuss the 
         20   incident, that's correct.
         21       Q.   Right.  So when we talk about what 
         22   alternatives the district attorney's office had, 
         23   your view is, No. 1, you hadn't yet told them that 
         24   Mr. Horton was going to plead guilty, correct?
 0025
          1       A.   That's true.
          2       Q.   And, No. 2, you would not, under any 
          3   circumstance, have allowed Mr. Horton to make 
          4   statements to a psychologist or a psychiatrist hired 
          5   by the district attorney's office which might result 
          6   in serious adverse admissions to him; isn't that 
          7   correct?
          8       A.   Not those types of communications, of 
          9   course not. 
         10       Q.   What you're saying, among other things, is, 
         11   you wouldn't let him talk about the facts of these 
         12   crimes, correct?
         13       A.   Yes.  That's what I said.
         14       Q.   So he would not even be able to describe 
         15   his version of events to a psychiatrist, would he?
         16       A.   No.
         17       Q.   He would not be able to describe any other 
         18   details which might incriminate him; isn't that 
         19   correct?
         20       A.   Yes.
         21       Q.   And so it would be inconceivable and, 
         22   indeed, impossible for the district attorney's 
         23   office to have submitted a rebuttal report by August 
         24   1st, no matter when you served the document on them; 
 0026
          1   isn't that correct?
          2       A.   Not necessarily. 
          3       Q.   I see.  Well, they could submit a report, 
          4   are you suggesting, in which the psychiatrist or 
          5   psychologist didn't even have the opportunity to 
          6   discuss with the patient what the facts were that he 
          7   was to evaluate?
          8       A.   Well, at least in terms of my client's 
          9   psychological condition, the transgender issues, the 
         10   depression, the suicidal ideation, those things 
         11   don't involve the alleged facts.
         12       Q.   I see.  So are you suggesting that it would 
         13   have been a useful piece of expert work or report 
         14   for the district attorney to somehow have hired a 
         15   psychiatrist or psychologist, had that psychologist 
         16   meet with Mr. Horton, and talk around the facts, but 
         17   never discuss the facts of the crime and come to an 
         18   evaluation?
         19       A.   I'm not suggesting it was useful or not.  
         20   I'm simply saying that what I wouldn't have allowed 
         21   my client to talk about was the allegations in this 
         22   case.
         23       Q.   Well, Ms. Goldbach, you and I can agree, 
         24   can we not, that you have never, in your 25 years of 
 0027
          1   criminal defense, permitted the district attorney's 
          2   office to undertake any such thing; isn't that 
          3   correct?
          4       A.   They've never asked me to, Mr. Ware.  So 
          5   the answer is no.
          6       Q.   And if they had asked you, you know you 
          7   could not have permitted it ethically and 
          8   professionally; is that correct?
          9       A.   Of course not.  About the allegations, 
         10   that's true. 
         11       Q.   You testified a couple of days ago that 
         12   during your meeting in the lobby with Judge Lopez, 
         13   the Judge made a number of statements to Leora 
         14   Joseph about the suburbs and so forth, correct?
         15       A.   Yes.
         16       Q.   And without belaboring those, essentially 
         17   you recall her saying, "You belong in the suburbs"; 
         18   that was one thing she said, correct, or something 
         19   to that effect?
         20       A.   Yes.
         21       Q.   "And you've lost credibility with me."  Do 
         22   you recall her saying that?
         23       A.   That's one part I don't remember.  It's 
         24   just that I don't remember it.
 0028
          1       Q.   Let me ask you to turn to your sworn 
          2   testimony before the Commission and specifically to 
          3   Page 67. 
          4       A.   (Witness reviews document)
          5       Q.   On Page 67, beginning at Line 4, you were 
          6   asked the following question and you give this 
          7   answer:  
          8            "Question:  During the chamber conference 
          9   on August 4, do you recall colloquy between Judge 
         10   Lopez and Ms. Joseph in which the Judge told Ms. 
         11   Joseph something to the effect: 'You've lost 
         12   credibility with me.  I know you have the right to 
         13   call the press, but this was very cruel.  You belong 
         14   in the suburbs.'"  Do you recall that?
         15       A.   Yes, I do.
         16       Q.   And further down on that page, beginning at 
         17   Line 20 --
         18            MR. EGBERT:  Oh, no, Judge.  No.  He gives 
         19   her a question that he asks from Line 4 to Line 10.  
         20   Let's get the answer to the question that she gave.
         21            MR. WARE:  Fine. 
         22       Q.   Your answer is, "I remember her saying -- 
         23   the credibility part is not a clear memory, but that 
         24   wouldn't surprise me," correct?
 0029
          1       A.   Yes.
          2       Q.   So you don't remember one way or the other 
          3   the credibility point, correct?
          4       A.   That's right.
          5       Q.   And you remember her saying, "...it was 
          6   cruel and you just don't get it"?  Is that correct, 
          7   at Line 13?
          8       A.   Yes.
          9       Q.   And at Lines 19 and 20 you've indicated, in 
         10   response to this question, "What do you believe was 
         11   said?
         12            "Answer:  'You don't get it.  You belong in 
         13   the suburbs.'"  you recall that?
         14       A.   Yes, I do.
         15       Q.   Now, on August 1st -- excuse me -- August 
         16   4th, when you appeared in court for a potential 
         17   change in plea, you asked Judge Lopez whether it 
         18   would be acceptable for Mr. Horton to remain on a 
         19   different floor, correct?
         20       A.   I did.
         21       Q.   And you did that, I take it, because of 
         22   sensitivity about press attention; is that right? 
         23       A.   Yes, and because my client was so upset.
         24       Q.   And in the past you have described Mr. 
 0030
          1   Horton as fragile, to use your word; isn't that 
          2   correct?
          3       A.   Yes.
          4       Q.   And is that the case today, in your 
          5   opinion?
          6       A.   Of my client? 
          7       Q.   Yes. 
          8       A.   Today? 
          9       Q.   Yes. 
         10       A.   At this time? 
         11       Q.   Yes. 
         12       A.   My client's doing better, that's for sure.  
         13   Um --
         14       Q.   Do you continue to represent Mr. Horton in 
         15   any way?
         16       A.   I sure do.
         17       Q.   So you have been his lawyer since this case 
         18   as well; is that correct?
         19       A.   I've been Ebony Horton's lawyer for over 
         20   three years now, yeah.
         21       Q.   And that's a representation which continued 
         22   after September 6th, 2000; is that correct?
         23       A.   It did. 
         24       Q.   In representing Mr. Horton, did you 
 0031
          1   represent him with respect to the offense indicated 
          2   as having occurred on August 29th, 2000?
          3       A.   In the Boston Municipal Court? 
          4       Q.   Yes. 
          5       A.   I did not represent Ms. Horton there.
          6       Q.   But you have represented him with respect 
          7   to any probation issues that have come up since 
          8   September 6th?
          9       A.   There have been no occasions for me to need 
         10   to go to court on probation matters, no.
         11       Q.   I'm not talking about going to court.  I 
         12   mean, for example, if he needs permission to leave 
         13   the state, is that worked out directly with his 
         14   probation officer or have you been involved from 
         15   time to time?
         16       A.   There haven't been any recent issues that I 
         17   know of.  I don't recall whether within the first 
         18   few weeks or months after my client was placed on 
         19   the bracelet, whether or not I ever spoke to a 
         20   probation officer about medical issues or 
         21   appointments that she had permission to attend.  I 
         22   just don't remember at this point.
         23       Q.   Do you recall having submitted anything to 
         24   Probation yourself on his behalf after September 
 0032
          1   6th?
          2       A.   On September 6th, in the afternoon, at 
          3   Milton Britton's request, I sent a copy of Joan 
          4   Katz's report by fax.
          5       Q.   It's your view, is it not, that the 
          6   publicity in that case was potentially going to be 
          7   harmful to Mr. Horton; is that correct?
          8       A.   Absolutely.
          9       Q.   And it's your view that any publicity 
         10   regarding Mr. Horton is potentially harmful to him; 
         11   isn't that correct?
         12       A.   Any publicity? 
         13       Q.   Yes. 
         14       A.   No, not necessarily.  I mean, anything made 
         15   public about my client isn't necessarily harmful to 
         16   my client.  But most of the publicity that's 
         17   occurred in the past has led my client to receive 
         18   death threats and things like that.
         19       Q.   Now, isn't it a fact that CPCS itself has 
         20   used Mr. Horton's case as a training vehicle?
         21       A.   Well after the fact, yes, we did.
         22       Q.   In fact, in December of 2000 you began 
         23   using such materials as a training vehicle, did you 
         24   not?
 0033
          1       A.   To my knowledge, it was one time only, yes.
          2       Q.   Well, isn't it available today on the CPCS 
          3   website?  Can't one go to that website and see those 
          4   materials?
          5       A.   You can ask to order them from the website.
          6       Q.   Yes.  And you can go over to CPCS and pick 
          7   up copies of CPCS-aggregated articles regarding Mr. 
          8   Horton and Judge Lopez in this case; isn't that 
          9   correct?
         10       A.   Yes, we can.  That's correct.
         11       Q.   And let me show you a document and ask you 
         12   if you can identify that. 
         13       A.   It's an appendix of articles covering this 
         14   case. 
         15       Q.   And these are training materials from CPCS?
         16       A.   Yes, they are.
         17       Q.   So it follows, I take it, that sometime in 
         18   December of 2000, ten weeks or so following, or 
         19   three months following the sentencing, CPCS itself 
         20   pulled together media articles and made them 
         21   available publicly; is that correct?
         22       A.   Made them available to -- at the time it 
         23   was an in-house solely full-time public defender 
         24   training program.  It was a day-long public defender 
 0034
          1   conference, and by that I mean not just bar 
          2   advocates, but just full-time public defenders.
          3       Q.   What this document consists of is an 
          4   aggregation of various news articles regarding the 
          5   Horton case; isn't that so?
          6       A.   Yes, it is.
          7            MR. WARE:  I offer that, Your Honor, as 
          8   Exhibit 69.
          9            MR. EGBERT:  As what? 
         10            HEARING OFFICER DAHER:  Good question. 
         11            MR. WARE:  Your Honor, one of the issues 
         12   that counsel has persistently argued to the Court is 
         13   that the publicity surrounding this, a press release 
         14   announcing the fact of the guilty plea, created all 
         15   this media hysteria.  Three months following this 
         16   case, CPCS itself puts out this information, 
         17   aggregates all the press information, puts Mr. 
         18   Horton's name on the cover, and makes it available 
         19   on its website for anybody who wants to buy it.  I 
         20   think that bears on the question whether this 
         21   hysteria was justified or indeed genuine.
         22            MR. EGBERT:  Judge, how, months after the 
         23   events that occurred here --
         24            HEARING OFFICER DAHER:  Sustained.  Let's 
 0035
          1   go.  Let's move on.  Mark it for ID.
          2            THE CLERK:  It will be marked for ID only. 
          3            MR. WARE:  Okay. 
          4                 (Document marked as Hearing
          5                 Exhibit 69 for identification)
          6       BY MR. WARE: 
          7       Q.   You regarded the recommendation of the 
          8   district attorney's office in this case, the 8- to 
          9   10-year recommendation, as a heavy recommendation, 
         10   correct?
         11       A.   That's correct.
         12       Q.   But you did not regard it as outside the 
         13   range of sentences recommended by that office in 
         14   similar cases, correct?
         15       A.   That's correct.
         16       Q.   Now, on September 6th am I right that you 
         17   did not personally see any incident in which the 
         18   defendant's mother refused to get off the elevator?
         19       A.   No.  I heard the screaming.
         20       Q.   You heard some screaming.
         21            MR. EGBERT:  I want to make sure the record 
         22   is clear.  I think he said September 6th.
         23       A.   That's right.  It was August 4th.
         24            MR. EGBERT:  We're talking about two 
 0036
          1   different days.
          2       Q.   All right.  Well, let's clear that up.  On 
          3   August 4th you heard some screaming, but you did not 
          4   personally see the incident you described in which 
          5   the defendant's mother refused to get off the 
          6   elevator, correct?
          7       A.   That's correct.
          8       Q.   And you didn't see cameras pointed at Mr. 
          9   Horton's mother as she got off any elevator, did 
         10   you?
         11       A.   Oh, yes, I did.
         12       Q.   Let me ask you to take a look at Page 73 of 
         13   your testimony before the Commission.  And maybe you 
         14   can clarify what you said here. 
         15       A.   (Witness reviews document) 
         16       Q.   Do you see at the top of that page, 
         17   beginning roughly at Line 8 -- you've been 
         18   discussing cameras waiting in the hallway.  I ask 
         19   you at Line 4, "Did you observe anything like that?"  
         20   And you indicate down at Line 12 that you were in 
         21   the hallway?
         22            MR. EGBERT:  Why don't you read --
         23            MR. WARE:  Fine.  You can read anything you 
         24   want.
 0037
          1            MR. EGBERT:  -- "I mean, you did say 
          2   earlier that there were television" --
          3            HEARING OFFICER DAHER:  He gave her a lot 
          4   of latitude.
          5            MR. EGBERT:  You can't read a half 
          6   question.  That's unfair.
          7            HEARING OFFICER DAHER:  We're not going to 
          8   allow that, Mr. Egbert.
          9       Q.   Read anything you want on that page to get 
         10   the context, if you will.
         11       A.   You asked on Line 4, "Did you observe 
         12   anything like that?"  And you said, "I mean, you did 
         13   say earlier that there were television cameras all 
         14   over, and that when you got out of the elevator, 
         15   there were cameras in your face."  And my answer 
         16   was, "And that happened over and over again 
         17   throughout the morning.  And there were cameras 
         18   there when my client's mother got off from the 
         19   elevator."
         20       Q.   Right.  And then, "Question:  Did you see 
         21   that? 
         22            "Answer:  I was out in the hallway when it 
         23   happened.  I did not see this, but I was told..." 
         24       A.   But that goes on to explain that a 
 0038
          1   different transgendered individual had been 
          2   photographed, not that I hadn't seen the cameras in 
          3   front of the mother's face.
          4       Q.   Fine.  All right.  So what you did see was 
          5   that the camera attention on that day that you 
          6   observed, or some of it, was focused on a different 
          7   individual, another person whom you believe to have 
          8   been transgendered, correct?
          9       A.   One time --
         10       Q.   Ms. Goldbach --
         11       A.   No, that's not correct.
         12       Q.   Did you see on that day cameras 
         13   photographing another defendant, whom you believed 
         14   to be transgendered?  Yes or no?
         15       A.   Yes. 
         16       Q.   And in fact, on September 6th, if we can 
         17   switch to that, when your client came to court, your 
         18   client walked right in the front door and went up to 
         19   the floor on which he was to go to court; isn't that 
         20   correct?
         21       A.   She did.
         22       Q.   And no cameras bothered Mr. Horton on that 
         23   occasion, did they?
         24       A.   They didn't know who she was. 
 0039
          1       Q.   Right.  Exactly.  But the defendant walked 
          2   through the front door of the courthouse, managed to 
          3   get up to the courtroom, and no camera paid any 
          4   attention to her; isn't that correct?
          5       A.   That's correct. 
          6       Q.   Now, prior to September 6th, you received a 
          7   call, as I understood your testimony, from a clerk 
          8   or someone that Mr. Horton could use a rear elevator 
          9   to get to a floor on which Judge Lopez was sitting 
         10   on the day of the plea and sentencing, correct?
         11       A.   Yes.
         12       Q.   And you were told to go to the back door of 
         13   the courthouse, correct?
         14       A.   Right.
         15       Q.   And you believe that on that occasion you 
         16   were given the name of someone who was to -- would 
         17   meet you and escort you to the courtroom floor, 
         18   correct?
         19       A.   Yes.
         20       Q.   And on September 6th you were in fact 
         21   greeted by a court officer, were you not?
         22       A.   I was.
         23       Q.   Who escorted you into the building.
         24       A.   I was down there a long time.  There was a 
 0040
          1   clerk there part of the time.  There was a court 
          2   officer there part of the time.  And eventually I 
          3   believe I was escorted upstairs by a court officer.
          4       Q.   And you were waiting outside the building 
          5   for Mr. Horton to arrive, and he never did arrive at 
          6   the back of the building, correct?
          7       A.   Right.
          8       Q.   And that's because he went in the front 
          9   door and went directly up, right?
         10       A.   She did.
         11       Q.   Now, your understanding was that Judge 
         12   Lopez had directed the clerk to call you to make 
         13   these arrangements?
         14       A.   That was my assumption, yes.
         15       Q.   In the courtroom itself, during the course 
         16   of the plea, am I correct that the effect of 
         17   whatever orders were put in place was that Mr. 
         18   Horton's face and, indeed, Mr. Horton himself could 
         19   not really be photographed?
         20       A.   Yes.
         21       Q.   And so all you can really see on the 
         22   videotape is an occasional backside of her head or 
         23   basically the lawyers' and the court officer; isn't 
         24   that correct?
 0041
          1       A.   That's right.
          2       Q.   So the effect of the order as it was 
          3   implemented was that the press couldn't photograph 
          4   Mr. Horton.
          5       A.   Yes.
          6       Q.   You testified in your direct testimony, as 
          7   I understood you, that within a few days of 
          8   September 6th, Judge Lopez called you.
          9       A.   Right.
         10       Q.   And am I correct that she called you two or 
         11   three different times?
         12       A.   That's right.
         13       Q.   At no time did you make a call to Judge 
         14   Lopez; is that correct?
         15       A.   I didn't initiate a call, no.
         16       Q.   All of those calls came from Judge Lopez to 
         17   you?
         18       A.   Yes.
         19       Q.   I thought I heard you say that at least one 
         20   of those calls was to your home on a weekend; is 
         21   that correct?
         22       A.   That's right.
         23       Q.   And were the other calls to your office?
         24       A.   I'm not sure about the third call.  I know 
 0042
          1   for sure that the first call was to my office.
          2       Q.   During the first call you had with Judge 
          3   Lopez, she expressed concern and worry about Mr. 
          4   Horton, correct?
          5       A.   Yes.
          6       Q.   And she --
          7       A.   Concern.  Worry -- well, okay.  The answer 
          8   is yes.
          9       Q.   And she asked you how she was doing.  She 
         10   expressed concern for you as well?
         11       A.   Yes.
         12       Q.   And she was telling you that the press, in 
         13   her view, was misportraying the case, correct?
         14       A.   I think we were agreeing that, yes, 
         15   agreeing to that, yes.
         16       Q.   And you understood that to mean that the 
         17   press attention was excessive and/or the sentence 
         18   was, in her view, fair; is that correct?
         19       A.   No.  I felt that my client was being 
         20   portrayed as a pedophile, which she's not.  And so 
         21   I -- I can't tell you what Judge Lopez exactly was 
         22   thinking, but we were both expressing the view that 
         23   it was an unbelievable amount of press coverage and 
         24   that it was not a fair representation of the case.  
 0043
          1   I cannot tell you what specific words were used.  I 
          2   don't have any clear memory of that.
          3       Q.   Fine.  But in that conversation she did 
          4   tell you that in her view, she thought the press was 
          5   being unfair?  The case was being portrayed 
          6   unfairly; isn't that right?
          7       A.   I think the gist of what we were saying is 
          8   those things, but I cannot quote Judge Lopez on 
          9   that.
         10       Q.   Then in a second conversation you had with 
         11   Judge Lopez, you in fact advised her that she might 
         12   want to get a lawyer; isn't that right?
         13       A.   In the second or third conversation, yes.
         14       Q.   So you had a conversation with the Judge 
         15   again in which she expressed certain concern for you 
         16   and your client; is that right?
         17       A.   Among other things, yes.
         18       Q.   And you talked to her about the ongoing 
         19   media attention and the interest that at least some 
         20   legislators had taken in the case; isn't that 
         21   correct?
         22       A.   I didn't speak to her specifically about 
         23   the interest the legislature or legislators had 
         24   taken in the case.  I just said, you might want to 
 0044
          1   think about getting a lawyer.
          2       Q.   But you did that because you believed, in 
          3   your judgment as a lawyer, that she might need 
          4   counsel, obviously, correct?
          5       A.   Well, I wasn't trying to represent her.  It 
          6   just seemed that it would be a good idea that she 
          7   consult counsel, yes.
          8       Q.   And you told her that?
          9       A.   I did.
         10       Q.   And again, you talked about the case being 
         11   unfairly portrayed in the media?
         12       A.   Yes.
         13       Q.   And again, you talked about Mr. Horton and 
         14   how she was doing?
         15       A.   How my client was doing, yes.
         16       Q.   You would agree, would you not, that a 
         17   phone call from a Superior Court judge following a 
         18   criminal matter is quite unusual; isn't that 
         19   correct?
         20       A.   Yes.  This whole case was unusual.
         21       Q.   But this particular kind of call was unique 
         22   in your experience, isn't it?
         23       A.   Unique -- highly unusual, I suppose, but --
         24       Q.   At some point a decision was made at CPCS 
 0045
          1   to come out publicly and defend the sentence and to 
          2   go public in the press about certain aspects of the 
          3   case; is that correct?
          4       A.   That's absolutely correct.
          5       Q.   And you talked on background to some extent 
          6   about the case as well as occasionally on the 
          7   record, correct?
          8       A.   Right. 
          9       Q.   And Mr. Leahy, chief counsel of CPCS, went 
         10   on television shows and took the lead role in, if 
         11   you will, defending this sentence in this 
         12   proceeding, correct?
         13            MR. EGBERT:  I just want to make sure she's 
         14   talking about her personal knowledge, whatever it 
         15   is, when we're talking about what Mr. Leahy did.
         16       Q.   You know what Mr. Leahy did because he was 
         17   working in the same office and you discussed it; 
         18   isn't that right?
         19       A.   Yes.  I spoke to Bill Leahy the afternoon 
         20   of September 6th.  I went straight to him.  We began 
         21   defending --
         22       Q.   Wait a minute.  You knew what Mr. Leahy was 
         23   doing because a good deal of it was public, 
         24   including television shows and quotations in the 
 0046
          1   media; isn't that correct? 
          2            MR. EGBERT:  Judge, the fact that things 
          3   may be public doesn't mean this.
          4            THE WITNESS:  It had.
          5            MR. WARE:  Let her say so.
          6            MR. EGBERT:  I think the question is, what 
          7   did she know and see.
          8            HEARING OFFICER DAHER:  I'll entertain a 
          9   motion to strike if it's not responsive.  Go ahead. 
         10       A.   I'm aware that Mr. Leahy made at least one 
         11   television appearance.  I don't have a memory of 
         12   whether I actually saw it or not. 
         13       Q.   Do you recall Mr. Leahy having appeared on 
         14   Emily Rooney's show?
         15       A.   Yes.
         16       Q.   And did you see one or more of those shows 
         17   yourself?
         18       A.   I might have.
         19            MR. WARE:  Your Honor, I'd like to offer 
         20   Exhibit 6 at this time, which is the videotape of a 
         21   couple of those shows, on the same basis as the 
         22   newspaper articles were offered.
         23            MR. EGBERT:  On what basis?  That Mr. 
         24   Leahy, who they took off their witness list, went on 
 0047
          1   television? 
          2            MR. WARE:  Yes.  This was among the 
          3   publicity regarding the case.  It was among the 
          4   reasons for public reaction and is relevant on the 
          5   same basis as the newspaper articles and with the 
          6   same limitations.
          7            MR. EGBERT:  Judge, it is the most back 
          8   door of ways to get in some television show that no 
          9   one can authenticate and still hasn't. 
         10            This witness still hasn't said that she's 
         11   ever seen it.  So we're simply going to start 
         12   playing television shows without witnesses and quite 
         13   frankly, to what end, I'm not sure, but I object.
         14            HEARING OFFICER DAHER:  Overruled.  Do you 
         15   want to play them --
         16            MR. WARE:  I don't have it in the 
         17   courtroom.  We'll bring it and mark it later, if 
         18   that's okay with you.
         19            MR. EGBERT:  Wait a minute.
         20            HEARING OFFICER DAHER:  I know.  It's 
         21   putting the cart before the horse.
         22            MR. WARE:  I understand that, but this 
         23   witness is going to be off the stand.  You have a 
         24   copy of it --
 0048
          1            MR. EGBERT:  Wait a minute.  Wait a minute.  
          2   No.  Use this witness to try to authenticate a 
          3   videotape and play it.  They're going to play it in 
          4   front of this witness.
          5            MR. WARE:  I'm not going to play it.  I'm 
          6   not going to spend the time.  I'm offering it not 
          7   for the truth of the matter --
          8            MR. EGBERT:  Well, then --
          9            HEARING OFFICER DAHER:  Let him finish.  Go 
         10   ahead.
         11            MR. WARE:  I'm offering it on the same 
         12   basis as the newspaper articles.  I'm not intending 
         13   to play it.
         14            MR. EGBERT:  Judge, some piece of evidence 
         15   is being offered in this case.  I want it here in 
         16   this courtroom --
         17            MR. WARE:  You have it.
         18            MR. EGBERT:  No, I don't have it.
         19            HEARING OFFICER DAHER:  Let him finish, Mr. 
         20   Ware.
         21            MR. EGBERT:  I want it here in this 
         22   courtroom where I can use it.  I've never seen a 
         23   case tried like this.
         24            HEARING OFFICER DAHER:  I think, Mr. Ware, 
 0049
          1   to try to get it in that way without giving Mr. 
          2   Egbert a chance to scrutinize --
          3            MR. WARE:  Mr. Egbert is not saying he 
          4   doesn't have a copy of it.  He does.  That's not the 
          5   issue.  We happen to have left it at our office this 
          6   morning.
          7            MR. EGBERT:  Then send somebody back to 
          8   your office --
          9            MR. WARE:  If that's what it takes, that's 
         10   what we'll do.
         11            HEARING OFFICER DAHER:  That's what we'll 
         12   do. 
         13            MR. WARE:  Fine. 
         14       BY MR. WARE: 
         15       Q.   I think you said yesterday that you knew 
         16   that Judge Lopez retained jurisdiction in this case; 
         17   is that right?
         18       A.   Yes.
         19       Q.   And that was specifically at your request, 
         20   was it not?
         21       A.   Yes.
         22       Q.   And it was your understanding, I think you 
         23   said, that the case, while over, certainly had the 
         24   potential for probation issues of coming back before 
 0050
          1   Judge Lopez; isn't that correct?
          2       A.   If there had been an allegation of a 
          3   violation, yes.
          4       Q.   And you understand that Judge Lopez has in 
          5   fact been supervising Mr. Horton's probation since 
          6   September 6th, 2000?
          7       A.   The only thing I know is that Milton 
          8   Britton, one of the probation officers, is in touch 
          9   with her or has been in touch with her in the past.  
         10   I don't know how she's supervising it.
         11       Q.   With respect to the conversations you had 
         12   with Judge Lopez shortly after September 6th, those 
         13   two or three conversations all occurred within the 
         14   first few days, first week or so of September 6th; 
         15   is that correct?
         16       A.   That sounds correct.
         17       Q.   And am I correct that at no time did you 
         18   advise the district attorney's office that those 
         19   calls had occurred?
         20       A.   I did not.
         21            MR. WARE:  I have no further questions at 
         22   this time. 
         23            HEARING OFFICER DAHER:  Go ahead, Mr. 
         24   Egbert.
 0051
          1            MR. EGBERT:  Judge, I want to suspend until 
          2   we get that tape.
          3            MR. WARE:  Your Honor, that's entirely 
          4   unnecessary.  Counsel has had the tape for months 
          5   and months and months.
          6            MR. EGBERT:  Judge, I want to suspend until 
          7   I have that tape.  It was offered through this 
          8   witness and I want it. 
          9            HEARING OFFICER DAHER:  Motion is allowed.  
         10   As soon as we get it, we'll pick it up.
         11            (Recess)
         12            HEARING OFFICER DAHER:  Are the tapes here?  
         13   Are you offering it as an exhibit? 
         14            MR. WARE:  No.  I'm withdrawing the offer.  
         15   I have a tape of five Greater Boston shows.  Our 
         16   employee who has the edited tape is not in today.  
         17   We can't locate it.  So I'm withdrawing the offer of 
         18   Exhibit 6. 
         19            MR. EGBERT:  I understand, Your Honor, that 
         20   it's not just a withdrawal of the offer, but it's 
         21   not going to be offered again in these proceedings.
         22            MR. WARE:  That's correct.  I won't offer 
         23   it. 
         24            HEARING OFFICER DAHER:  Okay. 
 0052
          1            MR. EGBERT:  So since you did admit it, I 
          2   move to strike it.
          3            HEARING OFFICER DAHER:  Stricken.  Agree. 
          4            MR. EGBERT:  May I proceed, Your Honor? 
          5            HEARING OFFICER DAHER:  Please. 
          6                  REDIRECT EXAMINATION
          7       BY MR. EGBERT: 
          8       Q.   Ms. Goldbach, you were shown Exhibit U, 
          9   which is the, we'll call it the initial 
         10   psychological assessment.
         11       A.   Right.
         12       Q.   And then you indicated that Ms. Katz met 
         13   with Ebony Horton for some period of an hour or so 
         14   at or about December 6th, correct?
         15       A.   Right. 
         16       Q.   Now, you also met with Ms. Katz concerning 
         17   Ebony Horton, didn't you?
         18       A.   Oh, of course I did.
         19       Q.   And before Ms. Katz went to see Ebony 
         20   Horton, did you provide her with the details of the 
         21   information you had received --
         22            MR. WARE:  Objection to the leading nature 
         23   of these questions.  This is redirect.
         24            HEARING OFFICER DAHER:  Sustained.
 0053
          1       Q.   Without content from me, because I don't 
          2   want to violate the privilege, can you tell me the 
          3   nature of the information you provided to Ms. Katz 
          4   prior to her seeing Ebony Horton. 
          5       A.   I discussed with her the allegations.  As I 
          6   indicated earlier, I gave her the police reports, I 
          7   indicated to her that this was a transgendered 
          8   client, and I did convey privileged information to 
          9   Ms. Katz about the incident.
         10       Q.   And would it be fair to say when you say --
         11            MR. WARE:  Objection.  Leading. 
         12            HEARING OFFICER DAHER:  Overruled.  Go 
         13   ahead.
         14       Q.   -- when you conveyed privileged 
         15   information, that was what your client had told you 
         16   about the events?
         17       A.   Right.
         18       Q.   And you had worked with Ms. Katz on a 
         19   number of occasions in the past, correct?
         20       A.   That's right.
         21       Q.   Take a look at Exhibit U.  It's true, is it 
         22   not, that it references some psychological 
         23   counseling -- strike that -- some counseling at the 
         24   Sidney Borum Health Center?
 0054
          1       A.   Right, it does.  I don't think I have -- 
          2   oh, yes, I do have.  Sidney Borum, right?
          3       Q.   Do you know from your experience what Ms. 
          4   Katz's practice and procedure would have been with 
          5   relation to having received that information?
          6            MR. WARE:  Objection, Your Honor.
          7            HEARING OFFICER DAHER:  What is it? 
          8            MR. WARE:  She's now being asked what Ms. 
          9   Katz would have done.
         10            HEARING OFFICER DAHER:  Sustained. 
         11       Q.   Do you know, from your discussions with Ms. 
         12   Katz and your review of the file, whether or not Ms. 
         13   Katz did anything in regard to the Sidney Borum 
         14   Health Center?
         15       A.   Yes.
         16       Q.   What is that?
         17            MR. WARE:  Objection as to what she did.  
         18   He can call Ms. Katz.
         19            HEARING OFFICER DAHER:  Overruled.
         20       A.   She verified that my client had been at 
         21   Sidney Borum -- that's part of Justice Research 
         22   Institute, as I understand it -- and she spoke to a 
         23   former counselor there, who was actually at that 
         24   point part of the Boston Police Department.
 0055
          1       Q.   And is that the former counselor that 
          2   you've referenced in the report that Ms. Horton's 
          3   counsel left?
          4            MR. WARE:  Objection.
          5            HEARING OFFICER DAHER:  Sustained.
          6       Q.   And with regard to a number of the other 
          7   matters reflected in this report as to where and 
          8   under what circumstances Ebony Horton was going to 
          9   school or work or counseling and the like, was there 
         10   anything in the file that you saw with regard to 
         11   that?
         12       A.   Anything in her file?
         13       Q.   Ms. Katz's file. 
         14       A.   I, myself, didn't see her file.  I know 
         15   that she verified --
         16            MR. WARE:  Objection.
         17            HEARING OFFICER DAHER:  Sustained.
         18       Q.   From your discussion with her, do you know 
         19   what she did?
         20       A.   She verified --
         21            MR. WARE:  Objection.
         22            HEARING OFFICER DAHER:  Sustained.
         23       Q.   When you presented this report -- strike 
         24   that.  When you had this report available to you 
 0056
          1   from the date of arraignment in January of the Year 
          2   2000 -- and I'm talking about you, now -- were you 
          3   satisfied that the information contained in there 
          4   had been verified by Ms. Katz?
          5            MR. WARE:  Objection.
          6            HEARING OFFICER DAHER:  Sustained.
          7       Q.   Did you take any steps to determine whether 
          8   or not you were providing information -- would be 
          9   providing information to the Court that had been 
         10   verified?
         11       A.   Yes.
         12       Q.   What did you do?
         13       A.   I spoke to Ms. Katz about what she had 
         14   done.
         15       Q.   What did she tell you? 
         16            MR. WARE:  Objection. 
         17            HEARING OFFICER DAHER:  Sustained. 
         18            MR. EGBERT:  Your Honor, again, it's not 
         19   for the truth of the matter being asserted.  It's 
         20   for what this lawyer was put on notice of before --
         21            HEARING OFFICER DAHER:  Mr. Ware, for that 
         22   limited purpose? 
         23            MR. WARE:  No, Your Honor.  It is for the 
         24   purpose of it.  What counsel is trying to do here is 
 0057
          1   buck up the report in a backhanded way by having 
          2   someone who read the report --
          3            HEARING OFFICER DAHER:  Overruled.
          4       A.   She verified various aspects of this report 
          5   by making phone calls and speaking to different 
          6   individuals.
          7       Q.   Now, you were asked some questions about 
          8   the clinical impression in Exhibit U, which would 
          9   have been dated -- it certainly would have been 
         10   available to you by the date of arraignment, which 
         11   was January 26th of the Year 2000, right?
         12       A.   Right.
         13       Q.   It starts with, "Ebony is a transgendered 
         14   individual."  Do you see that?
         15       A.   Yes.
         16       Q.   As counsel indicates, was that matter in 
         17   dispute?
         18       A.   No, it was never in dispute that Ebony is 
         19   transgendered.
         20       Q.   And this next statement "that she's been 
         21   struggling with gender issues for years" --
         22       A.   Right.
         23       Q.   -- is that matter in dispute? 
         24            MR. WARE:  Objection.
 0058
          1            HEARING OFFICER DAHER:  What is it?
          2            MR. WARE:  Again, Your Honor, it's asking 
          3   this witness to interpret the report --
          4            HEARING OFFICER DAHER:  Sustained. 
          5            MR. EGBERT:  Well, Judge, she was asked on 
          6   cross examination not only to interpret the report, 
          7   but to give inferences from the report and speculate 
          8   about the report.  And I think I'm entitled to ask 
          9   those same questions to let her clarify her answers.
         10            HEARING OFFICER DAHER:  In regards to any 
         11   responses on cross, Mr. Ware? 
         12            MR. WARE:  Your Honor, the witness, of 
         13   course, is entitled to talk about her interpretation 
         14   of the report.  What she's not entitled to do is to 
         15   speak for Mrs. Katz and what Mrs. Katz meant. 
         16            HEARING OFFICER DAHER:  Sustained. 
         17       Q.   When you were reading this report, what did 
         18   you interpret these two statements to mean:  "Ebony 
         19   is a transgendered individual with all of the 
         20   problems it produces, especially for a young person.  
         21   She has been struggling with gender issues for 
         22   years"?  What did you interpret that to mean?
         23       A.   That Ebony has a gender identity disorder .
         24       Q.   By the way, "gender identity disorder" is a 
 0059
          1   word that is in DSM-IV?
          2       A.   That's correct.
          3       Q.   Do you know something called DSM-III?
          4       A.   I do.
          5       Q.   And what --
          6            MR. WARE:  Objection.  This witness 
          7   testified that she never, ever referenced the DSM-IV 
          8   in any way in a public courtroom or represented it 
          9   to Judge Lopez.
         10            MR. EGBERT:  That doesn't mean she didn't 
         11   have knowledge of it.
         12            MR. WARE:  We don't know when she got the 
         13   knowledge --
         14            HEARING OFFICER DAHER:  Overruled.  Go 
         15   ahead.
         16       Q.   Are you familiar with DSM-III?
         17       A.   Yes.
         18       Q.   And can you tell me what DSM-III described 
         19   or entitled the section -- 
         20            (Mr. Ware stands)
         21            HEARING OFFICER DAHER:  Sustained.
         22            MR. EGBERT:  Let me finish the question.
         23            HEARING OFFICER DAHER:  I beg your pardon? 
         24            MR. EGBERT:  Can I have my question on the 
 0060
          1   record? 
          2            HEARING OFFICER DAHER:  Absolutely.  Mr. 
          3   Ware was very fast in getting up.
          4            MR. EGBERT:  Mr. Ware may be fast getting 
          5   up, but I'd ask the Court to await my question.
          6            HEARING OFFICER DAHER:  Absolutely.  Put it 
          7   on. 
          8       Q.   Do you know what the DSM-III was entitled 
          9   as far as the section which is now in DSM-IV called 
         10   "Gender Identity Disorder"? 
         11            MR. WARE:  Objection.
         12            HEARING OFFICER DAHER:  I'll hear you on 
         13   the objection.
         14            MR. WARE:  This witness is not an expert on 
         15   the "Diagnostic and Statistical Manual".  These 
         16   exhibits are in evidence.  They speak for 
         17   themselves.  To that extent, she's not a 
         18   psychiatrist, she's not a psychologist.  She didn't 
         19   write this report.  In fact, she went to someone in 
         20   her office to do it.
         21            HEARING OFFICER DAHER:  Sustained. 
         22       Q.   You testified that you did not use the 
         23   money provided by the court system for psychiatric 
         24   experts which was permitted by way of a motion filed 
 0061
          1   by you, correct?
          2       A.   Right.  Psychiatric or psychological, 
          3   actually.
          4       Q.   Now, does the CPCS have a budget?
          5       A.   We have a budget. 
          6       Q.   And are you satisfied that that budget is 
          7   full and fair and gets you everything you want?
          8       A.   No, I'm not.
          9            MR. WARE:  I object, Your Honor, although 
         10   I'll stipulate that they don't have what they 
         11   deserve.
         12            HEARING OFFICER DAHER:  It doesn't hurt 
         13   you, Mr. Ware.  Overruled.  Go ahead.  They're 
         14   underfunded.
         15            THE WITNESS:  Yes, Your Honor.
         16       Q.   Did you think, based upon the fact that you 
         17   already had Joan Katz's report and the result of the 
         18   lobby conference, that it was wise or efficient for 
         19   you to then go out and hire a psychiatrist or 
         20   psychologist --
         21            (Mr. Ware stands)
         22            HEARING OFFICER DAHER:  Sustained.  
         23   Sustained. 
         24            MR. WARE:  Objection. 
 0062
          1            HEARING OFFICER DAHER:  The question's on; 
          2   the objection is sustained.  Let's go.
          3       Q.   Why didn't you spend the money that was 
          4   authorized to get a psychologist or psychiatrist?
          5       A.   At that point I didn't feel it was 
          6   necessary.  I was aware by August of 2000 that Ms. 
          7   Katz had spent extensive time with my client, as I 
          8   had.  I feel another psychologist or a psychiatrist 
          9   would have come to the same conclusions.  And in 
         10   fact, of course, the same argument could be made for 
         11   the psychologist or the psychiatrist; that we hire 
         12   that person --
         13            MR. WARE:  I object.  I move that so much 
         14   of the answer has said she believes some other 
         15   professional --
         16            HEARING OFFICER DAHER:  It's starting to 
         17   get to that point.
         18            MR. EGBERT:  Judge, those were her reasons.  
         19   She was tested on cross examination for not using 
         20   those funds, and she's entitled to give the reasons 
         21   why she didn't.
         22            HEARING OFFICER DAHER:  Sustained. 
         23       Q.   You said that you're aware that Ms. Katz 
         24   had had extensive interaction with Ebony Horton; is 
 0063
          1   that right?
          2       A.   Right.
          3       Q.   And how were you made aware of that?
          4       A.   Between December and actually August -- 
          5   well, in the entire time I've represented Ebony 
          6   Horton, but specifically up until September 6th 
          7   and/or, shall we say, July, which was when the 
          8   second report was generated, there were multiple 
          9   occasions when my client came to visit me at the 
         10   office.  And while there was not a prior arrangement 
         11   for Ms. Katz to meet with Ebony Horton, it was quite 
         12   often that Ms. Katz would actually meet with Ebony 
         13   either before her appointment with me or right after 
         14   her appointment with me.  And I'm also aware that 
         15   Ms. Katz and Ebony spoke by phone on quite a few 
         16   occasions as well.
         17       Q.   Are you able to quantify those occasions?
         18       A.   I know that there are at least a half dozen 
         19   meetings.  And there were many phone calls.
         20       Q.   By the way, you were given some records of 
         21   the Charles Street Jail in regard to -- and it's 
         22   Exhibit 68.  Do you have that in front of you? 
         23       A.   Exhibit 68? 
         24       Q.   Do you have it?
 0064
          1       A.   Yes. 
          2       Q.   Now, those are the records of the Charles 
          3   Street Jail which were provided to you with relation 
          4   to when people check in, when people check out, all 
          5   of that stuff, do you remember that?
          6       A.   Right.
          7       Q.   Now, you've never seen a record like this, 
          8   have you?
          9       A.   Had I ever seen like this one before? 
         10       Q.   Right. 
         11       A.   Not before two days ago.
         12       Q.   And these aren't provided to counsel when 
         13   you come in and out of the jail? 
         14            MR. WARE:  Objection. 
         15       A.   No, they're not.
         16            MR. WARE:  Objection.
         17            HEARING OFFICER DAHER:  What's the 
         18   objection? 
         19            MR. WARE:  What's the relevance? 
         20            HEARING OFFICER DAHER:  Overruled.  You can 
         21   have it.
         22       Q.   You were tested as to when you go in and 
         23   when you go out and when they check you in and when 
         24   they check you out.  Do you recall that?
 0065
          1       A.   Yes, I recall that.
          2       Q.   Are you aware of what they do when they 
          3   check you out?
          4       A.   I am not aware what they do when they, 
          5   quote, check me out.
          6       Q.   Are you aware of what records are created 
          7   when they, quote, check you out?
          8       A.   No, I'm not.
          9       Q.   Do you know if they're accurate or not?
         10       A.   I don't.
         11       Q.   By the way, speaking of the accuracy of 
         12   these records, take a look at the entry on the 
         13   bottom of the first page.  Do you see where it says 
         14   Lisa Daniels was a visitor?
         15       A.   I do.
         16       Q.   And turn to the next page.  She visited on 
         17   12/1/99, right?
         18       A.   Right.
         19       Q.   At 19:04, right?
         20       A.   Right.
         21       Q.   She never left.
         22       A.   It seems that way.
         23       Q.   She's still in Charles Street.
         24       A.   Apparently -- Nashua Street.
 0066
          1       Q.   Nashua Street.  Now, go to the entry at the 
          2   end of the third page.  And that one references 
          3   someone you know well. 
          4       A.   The end of the third page? 
          5       Q.   Yes. 
          6       A.   Yes.
          7       Q.   What entry is that for?
          8       A.   For me.
          9       Q.   Anne Goldbach?
         10       A.   Right.
         11       Q.   You were there on 12/14/99 at 10:14?
         12       A.   Yes, I was.
         13       Q.   You never left either.
         14       A.   Apparently.
         15       Q.   You're still there.
         16       A.   Right.
         17       Q.   How can that be?
         18       A.   Obviously it's a mistake.
         19       Q.   Now, you were asked a question as to 
         20   whether or not you knew that Ms. Katz in Exhibit 
         21   U --
         22       A.   Yes.
         23       Q.   -- made her clinical impression based upon 
         24   a one-hour interview at the jail.  Do you remember 
 0067
          1   being asked a series of questions like that?
          2       A.   I do. 
          3      *Q.   Do you know whether or not Ms. Katz made 
          4   her clinical impression based upon a one-hour 
          5   interview at the jail? 
          6            MR. WARE:  Objection.
          7            HEARING OFFICER DAHER:  What's the 
          8   objection? 
          9            MR. WARE:  Ms. Katz can speak to what she 
         10   did.  This witness cannot.
         11            MR. EGBERT:  She was asked this -- this was 
         12   her question on cross.
         13            HEARING OFFICER DAHER:  Overruled.  Go 
         14   ahead.  You can have it.
         15            THE WITNESS:  Could you say the question 
         16   again?
         17            MR. EGBERT:  Can you read it for her.
         18            *(Question read)
         19       A.   I know that she made it based on much more 
         20   than that.
         21       Q.   And what was that?
         22       A.   First of all, her many years of experience, 
         23   her speaking with me, her interview of Ebony Horton, 
         24   her verification and conversations with other 
 0068
          1   individuals who have been involved or had been 
          2   involved in Ebony's life at that time.
          3       Q.   And people who have been involved in the 
          4   treatment?
          5       A.   Including people -- prior counselors. 
          6       Q.   Now, on cross you were requested, one, 
          7   whether or not the report speaks the words "gender 
          8   identity disorder," correct?
          9       A.   Right.
         10       Q.   And you looked at it and said, "No, it 
         11   doesn't." 
         12       A.   Right.
         13       Q.   Take a look at Exhibit 3, if you would.
         14       A.   Exhibit 3? 
         15       Q.   Right.  That should be the report that was 
         16   submitted on August 1st?
         17       A.   Right.
         18       Q.   Am I right about that?
         19       A.   Yes.
         20       Q.   I want to take you through some language. 
         21       A.   Right.
         22       Q.   Let's start with Paragraph 2, which says, 
         23   "Charles Ebony Horton, now 22, is a transgendered 
         24   person who looks and feels female." 
 0069
          1       A.   Right.
          2       Q.   Now, I've put up before you DSM-IV.  Do you 
          3   see that?
          4       A.   I do.
          5       Q.   And would you read -- which is in evidence 
          6   in this case, by the way. 
          7       A.   All right.
          8       Q.   Would you read the first paragraph of 
          9   DSM-IV. 
         10       A.   "There are two components of Gender 
         11   Identity Disorder, both of which must present to 
         12   make the diagnosis.  There must be evidence of a 
         13   strong and persistent cross-gender identification, 
         14   which is the desire to be, or the insistence that 
         15   one is, of the other sex (Criterion A).  This 
         16   cross-gender identification must not merely be a 
         17   desire for any perceived cultural advantages of 
         18   being the other sex.  There must also be evidence of 
         19   persistent discomfort about one's assigned sex or a 
         20   sense of inappropriateness in the gender role of 
         21   that sex."  That's Criterion B.  
         22            "The diagnosis is not made if the 
         23   individual has a concurrent physical intersex 
         24   condition (e.g., partial androgen insensitivity 
 0070
          1   syndrome or congenital adrenal hyperplasia) 
          2   (Criterion C).  
          3            "To make the diagnosis, there must be 
          4   evidence of clinically significant distress or 
          5   impairment in social, occupational, or other 
          6   important areas of functioning (Criterion D)."  
          7       Q.   Now, I want you to take a look at this 
          8   first paragraph again of the report. 
          9       A.   Right.
         10       Q.   And it says that, "Charles Ebony Horton is 
         11   a transgendered person who looks and feels female," 
         12   correct?
         13       A.   Right.
         14       Q.   "She goes by the name Ebony," correct?
         15       A.   Right.
         16       Q.   And do you understand that to be a female 
         17   name?
         18       A.   I do.
         19       Q.   "And has been treated with female hormones 
         20   for at least a couple of years." 
         21       A.   Right.
         22       Q.   "Ebony has not had a surgical castration." 
         23   It goes on to tell it's too expensive or whatever 
         24   the case may be, right?
 0071
          1       A.   Right.
          2       Q.   "She's still struggling with a variety of 
          3   psychological and social issues around her sexual 
          4   identity.  Ebony's life for the most part has been 
          5   defined by gender issues.  She recognized early on 
          6   that she was different.  Ebony and her cousin have 
          7   the same concerns and often dressed up in female 
          8   clothes as young children, for which Ebony, at 
          9   least, was beaten." 
         10       A.   Right.
         11       Q.   In your experience, Ms. Goldbach, as you've 
         12   described, particularly in charge of forensics for 
         13   the past five years for CPCS, does Paragraph 1 of 
         14   Ms. Katz's report indicate to you what condition 
         15   Ebony Horton's suffers from?
         16       A.   Yes, it does.
         17            MR. WARE:  Objection.  She's not a 
         18   psychiatrist.  Counsel is trying to use her  --
         19            HEARING OFFICER DAHER:  Sustained. 
         20            MR. EGBERT:  I'm using her as a forensic 
         21   legal person who's a lawyer in this case and 
         22   presented this to Judge Lopez.
         23            HEARING OFFICER DAHER:  Sustained.  Go 
         24   ahead.
 0072
          1       Q.   Go on to Page 2, where it indicates that 
          2   "Ebony was in counseling at the Sidney Borum Health 
          3   Center" on the bottom.  Do you see that?
          4       A.   Yes.
          5       Q.   And what did that indicate to you?
          6       A.   That she was getting therapy.
          7       Q.   For what? 
          8            MR. WARE:  Objection.  I withdraw the 
          9   objection. 
         10            HEARING OFFICER DAHER:  Okay.  It's 
         11   withdrawn.  Go ahead. 
         12       A.   For gender identity disorder, for 
         13   psychological issues.
         14            MR. WARE:  Now I object.  I move to strike 
         15   the answer.
         16            MR. EGBERT:  You can't have it both ways.
         17            MR. WARE:  The witness is trying to use the 
         18   magic words "gender identity disorder" to fit this 
         19   to the "Diagnostic and Statistical Manual."  She's 
         20   not a psychiatrist.
         21            MR. EGBERT:  This herring is not red.  It's 
         22   purple.  For any human being who has achieved the 
         23   12th grade education to not be able to read this 
         24   report and read the DSM and see they're talking 
 0073
          1   about the exact same condition is folly.  And for 
          2   the Commission to argue to you to close your eyes 
          3   and ears and intellect to everything involved in 
          4   this is simply folly.  
          5            If we really want to, if we want to engage 
          6   in this thing to ad nauseam and bring in experts to 
          7   say that all of these conditions fit the DSM manual 
          8   for gender identity disorder and that Judge Lopez, 
          9   in her understanding of what's being given to her, 
         10   writes that down, then we'll do it.  But it seems to 
         11   me that this lawyer, who has both presented this to 
         12   the Court and investigated it herself, ought to 
         13   testify, so that we can go onto another subject.
         14            HEARING OFFICER DAHER:  Your position?  
         15   Same argument?
         16            MR. WARE:  No, Your Honor.  I take counsel 
         17   at his word that a person with a 12th grade 
         18   education might be able to do that.  And it follows 
         19   from that that it's the province of the Court, not 
         20   this witness, who has a particular purpose here, to 
         21   compare the "Diagnostic and Statistical Manual" as 
         22   it's in evidence --
         23            HEARING OFFICER DAHER:  Sustained.
         24       Q.   Do you have a particular purpose here?
 0074
          1       A.   I'm sorry? 
          2       Q.   Do you have a particular purpose in being 
          3   here?
          4       A.   A particular purpose? 
          5       Q.   Yes.  Mr. Ware just said "We have a witness 
          6   who has a particular purpose here."  Did you come 
          7   here with a particular purpose?
          8       A.   No, I didn't.
          9       Q.   Were you on the witness list for the 
         10   Commission?
         11       A.   I was.
         12       Q.   And had they in fact talked to you on a 
         13   number of occasions, planning your appearance here 
         14   in court?
         15       A.   They deposed me and they talked to my 
         16   counsel about my being here, yes.
         17       Q.   And up until a few days ago, did you think 
         18   you were coming to testify on behalf of the 
         19   Commission?
         20       A.   I did.
         21       Q.   And it's only recently they told you they 
         22   weren't going to call you?
         23       A.   That's correct.
         24       Q.   And after that, I called you and told you 
 0075
          1   that I would call you; is that correct?
          2       A.   Right.
          3       Q.   Now, you were asked -- turn to Exhibit 17, 
          4   please.  Those are the findings of the Court. 
          5       A.   Right.
          6       Q.   You were asked by Mr. Ware -- I think I've 
          7   got the question right.  He said "Now, Exhibit 17 
          8   was the first document to make public that Ebony 
          9   Horton suffered from a gender or sexual identity 
         10   disorder; is that correct?
         11       A.   That's what he asked me, right.
         12       Q.   Would you turn, please, to the DA's press 
         13   release. 
         14       A.   Which is what number? 
         15            MR. WARE:  7.
         16       A.   7? 
         17       Q.   Yes.  And is there anything there that 
         18   indicates to you that there had been a public 
         19   statement by anyone that Ebony Horton suffered from 
         20   a sexual identity disorder?
         21       A.   There most certainly is.
         22       Q.   What is that?
         23       A.   The second paragraph where it says, 
         24   "Charles Horton, a transgendered person, who appears 
 0076
          1   as a woman." 
          2       Q.   And did you or your client ever authorize 
          3   the district attorney to release that information?
          4       A.   No, I did not. 
          5       Q.   Was that the first occasion that you know 
          6   of that that had ever been put in the public domain?
          7       A.   Absolutely, it was the first occasion. 
          8       Q.   Now, as far as Exhibit 17 is concerned, 
          9   that was done, you know, as a result of the district 
         10   attorney's office demand for findings, correct?
         11       A.   That's right.
         12       Q.   And those are judicial findings made by the 
         13   Court, correct?
         14       A.   That's right.
         15       Q.   And you know that those are based on the --
         16            MR. WARE:  Objection, Your Honor.  This is 
         17   a series of leading questions.  I haven't objected.  
         18   I do now. 
         19            HEARING OFFICER DAHER:  Sustained.
         20       Q.   Do you know, in your experience as a 
         21   lawyer, whether or not -- strike that. 
         22            Are those findings in the public record?
         23       A.   They are made part of the court record, as 
         24   far as I know, yes.
 0077
          1       Q.   Is the court record a public record?
          2       A.   Yes.
          3       Q.   And is that a matter of law?
          4       A.   Yes.
          5       Q.   And you requested the continuance in this 
          6   case, correct?
          7       A.   Oh, I certainly did.
          8       Q.   Did you understand that the Court would 
          9   have to make findings?
         10       A.   Yes, I did, based on the fact that Mr. 
         11   Deakin had filed this motion.
         12       Q.   And whether or not -- did you have the 
         13   expectation whether or not the Court would use 
         14   information provided by you in making these 
         15   findings?
         16       A.   I did.
         17       Q.   Now, you testified that the charges in the 
         18   District Court you thought were the same, correct?
         19       A.   Yeah.  I'm not totally sure of that, 
         20   though.
         21       Q.   Take a look at Exhibit 18.
         22       A.   (Witness reviews document)
         23       Q.   Do you have it in front of you?
         24       A.   I do.
 0078
          1       Q.   Turn, if you would -- I'll speed it up for 
          2   you.  Turn to what I think is the third page, and 
          3   down at the bottom is there an entry for the 
          4   Dorchester District Court?
          5       A.   Of the third page?  There is an entry on 
          6   "Page 1 of 2" it says at the top, but it's the 
          7   second page.  November 22 of '99? 
          8       Q.   I just want to make sure we're on the same 
          9   page.  It may have gone in in a different order.  
         10   Right.  So let's identify it properly in the exhibit 
         11   you're looking at.  What page is it on?
         12       A.   This is the third page, but it's identified 
         13   at the top where it says "Record information as of 
         14   5/16/2001, Page 1 of 2." 
         15       Q.   And then -- but it's the third page of the 
         16   exhibit, correct?
         17       A.   That's right.
         18       Q.   And at the bottom is there an entry?
         19       A.   There is an entry.
         20       Q.   What's the entry?
         21       A.   "Rape of child." 
         22       Q.   Dorchester District Court?
         23       A.   Dorchester District Court.
         24       Q.   And it shows it was dismissed on a 
 0079
          1   particular day?
          2       A.   Right.
          3       Q.   What date?
          4       A.   February 1 of 2000.
          5       Q.   Now, having this record in mine, was the 
          6   defendant Horton charged with different crimes in 
          7   the Dorchester District Court than in the Suffolk 
          8   Superior Court?
          9       A.   Yes.
         10       Q.   And was he charged with a more serious or 
         11   less serious offense --
         12       A.   Less serious.
         13       Q.   Let me finish.  -- when it got to the 
         14   Superior Court?
         15       A.   A less serious charge.
         16       Q.   And the rape case was dismissed by the 
         17   Commonwealth; is that correct?
         18       A.   That's right.
         19       Q.   And do you understand rape to be a more 
         20   serious offense in all respects than assault to 
         21   rape, for example?
         22       A.   Yes.
         23            HEARING OFFICER DAHER:  Mr. Egbert, Mr. 
         24   Ware, could I just interrupt for a phone call?  I 
 0080
          1   have to make a phone call.
          2            MR. WARE:  Yes.
          3            MR. EGBERT:  Certainly.  
          4            (Recess)
          5            HEARING OFFICER DAHER:  At this time I'm 
          6   going to -- I made a ruling that bothered me.  And 
          7   that was in re to the omitted Exhibit No. 6.  Would 
          8   you play back what Mr. Egbert's request was in 
          9   regards to the tapes.  I don't want to foreclose Mr. 
         10   Ware totally from producing the tapes and offering 
         11   the tapes.  Would you play back that -- I just want 
         12   to make a blanket --
         13            MR. EGBERT:  So you know, that's Mr. Ware's 
         14   agreement with me put on the record.  It's a 
         15   stipulation that he's not going to bring in any of 
         16   the tapes.
         17            MR. WARE:  I think that's a fair 
         18   characterization of what I represented.  I'm 
         19   prepared to live with that, Your Honor.
         20            HEARING OFFICER DAHER:  So it's a 
         21   stipulation, and the JCC does not intend -- it's 
         22   your election not to produce the tapes; is that 
         23   correct? 
         24            MR. WARE:  I produced it months and months 
 0081
          1   ago.  They have the tape, but I'm not going to 
          2   reoffer it in this proceeding.
          3            HEARING OFFICER DAHER:  You're not going to 
          4   offer it today.
          5            MR. WARE:  Right.
          6            MR. EGBERT:  He's not going to offer it 
          7   ever.
          8            HEARING OFFICER DAHER:  That's just it.  
          9   Ever? 
         10            MR. WARE:  That's right, Your Honor.  I've 
         11   withdrawn the exhibit.  All it is is a videotape of 
         12   several television shows, and I'm prepared to live 
         13   without it.
         14            HEARING OFFICER DAHER:  Okay.
         15       BY MR. EGBERT: 
         16       Q.   On cross examination you were asked whether 
         17   or not you learned of the discrepancy, basically, 
         18   between whether the boy was 11 or 12, right?
         19       A.   Right.
         20       Q.   The police reports said he was 12, correct?
         21       A.   Right.
         22       Q.   Some videotape said he was 11?
         23       A.   Right.
         24       Q.   You were asked what steps you took to clear 
 0082
          1   that up and to get the true answer.  Do you recall 
          2   that?
          3       A.   Right.
          4       Q.   Did you care?
          5       A.   No.
          6       Q.   What's the age that makes a difference 
          7   under the statutes under which --
          8       A.   16.  Age 16.
          9       Q.   And, by the way, just so it's clear, turn 
         10   to Exhibit 22. 
         11       A.   Exhibit 22? 
         12       Q.   Yes. 
         13       A.   Yes.
         14       Q.   That tape we're talking about, the tape of 
         15   the young man, that was certainly available to the 
         16   prosecutors, right?
         17       A.   They gave it to me.
         18       Q.   And they participated in making it, right?
         19       A.   Yes, they did.
         20       Q.   What did Mr. Deakin say to Judge Lopez on 
         21   Page 12 of Exhibit 22 at the statement of facts for 
         22   the plea on September 6th of the Year 2000?
         23       A.   At which line? 
         24       Q.   Line 15. 
 0083
          1       A.   "On Saturday, November 20th, 1999, a 
          2   12-year-old boy, the victim in this case, was 
          3   walking to his home in Dorchester." 
          4       Q.   You can stop there.  So Mr. Deakin told the 
          5   Court as late as September 6th, 2000, that the young 
          6   man was 12 years old --
          7       A.   Yes, he did.
          8       Q.    -- at the time of the offense?
          9       A.   Right.
         10       Q.   You didn't jump up and correct him, did 
         11   you?
         12       A.   No.  It wasn't my job to do so.
         13       Q.   You were next asked about Mr. Horton's 
         14   arrest on or about August 29th of the Year 2000 for 
         15   sexual conduct for a fee.  Do you recall that area 
         16   of inquiry?
         17       A.   Yes.
         18       Q.   Do you know what that was about?
         19       A.   That was a prostitution situation with an 
         20   undercover police officer.
         21       Q.   How old was the undercover police officer?
         22       A.   I met the police officer.  I know who he 
         23   is.  I've known him over the years.  And I'd say he 
         24   was at least in his late 40s, possibly mid 50s.
 0084
          1       Q.   And who offered -- did the officer offer 
          2   money? 
          3            MR. WARE:  Objection. 
          4            HEARING OFFICER DAHER:  What's the 
          5   objection? 
          6            MR. WARE:  We're now into the details of 
          7   this crime on a hearsay basis.  I mean, she's said 
          8   what it was --
          9            HEARING OFFICER DAHER:  Sustained.
         10            MR. EGBERT:  Judge, there's an attempt to 
         11   leave some impression that Mr. Horton on August 29th 
         12   went out and committed some offense that would have 
         13   any impact on the decision making in this process.  
         14   And that was the intent left by the Commission.  She 
         15   ought to be able to explain what it was that he was 
         16   charged with.
         17            HEARING OFFICER DAHER:  Sustained. 
         18       Q.   What judge gave Ebony Horton probation on 
         19   11/7/01 on the case of --
         20       A.   On the Boston Municipal Court case? 
         21       Q.   On the case of sexual conduct for a fee. 
         22       A.   You know, I don't know.  I didn't represent 
         23   Ebony in that case.
         24       Q.   Was it Judge Lopez?
 0085
          1       A.   No.
          2       Q.   And did that disposition occur after Judge 
          3   Lopez had sentenced Ebony Horton on September 6th of 
          4   the Year 2000?
          5       A.   Yes, it did.
          6       Q.   And is it fair to say that unless that 
          7   judge was living in the Ukraine, with all the media 
          8   attention, he would have known of the existence of 
          9   the Ebony Horton case?
         10            MR. WARE:  Objection.
         11            HEARING OFFICER DAHER:  Sustained. 
         12       Q.   To your knowledge, was Ebony Horton's 
         13   having been placed on probation by Judge Lopez a 
         14   part of the probation file on the date of 11/9/2000?
         15       A.   Yes.
         16            MR. WARE:  Objection.
         17            HEARING OFFICER DAHER:  What's the 
         18   objection? 
         19            MR. WARE:  We have no idea what the 
         20   district judge had available to him or her.
         21            HEARING OFFICER DAHER:  Sustained.
         22       Q.   In all your years of practice as a lawyer, 
         23   have you ever seen a district judge denied a 
         24   probation report? 
 0086
          1            MR. WARE:  Objection.
          2       A.   No.
          3            HEARING OFFICER DAHER:  Sustained.
          4       Q.   Or a CORI report?
          5            MR. WARE:  Objection.
          6       A.   No.
          7            MR. WARE:  Objection.  Could you please not 
          8   answer the questions until the objection is ruled 
          9   on.  Objection.
         10            HEARING OFFICER DAHER:  Sustained.  
         11       Q.   By the way, this offense, such as it is, by 
         12   Ebony Horton on about 8/29/2000, was that 
         13   information available to the prosecution in the 
         14   Horton case?
         15       A.   8/29/2000? 
         16       Q.   Yes. 
         17       A.   Yes.
         18       Q.   And did Mr. Deakin, Ms. Joseph or any 
         19   person from the prosecution in your presence advise 
         20   Judge Lopez that Ebony Horton had been arrested for 
         21   sexual conduct for a fee?
         22       A.   No, they didn't.
         23       Q.   You were asked questions about Detective 
         24   Greene and whether or not he was the first on the 
 0087
          1   scene, correct?
          2       A.   Right.
          3       Q.   Did you know whether he was first, last or 
          4   in the middle?
          5       A.   No.
          6       Q.   What did you know?
          7       A.   That he had arrived shortly after the 
          8   uniformed officers had gotten there.
          9       Q.   And how shortly after? 
         10            MR. WARE:  Objection. 
         11            HEARING OFFICER DAHER:  Sustained.
         12       Q.   What did he tell you?
         13       A.   That he was on the scene when all the other 
         14   officers were there.
         15       Q.   What's your experience with the manner in 
         16   which detectives arrive on the scene when calls go 
         17   out on the Boston Police Department radio?
         18            MR. WARE:  Objection. 
         19            HEARING OFFICER DAHER:  Sustained.
         20       Q.   You were asked whether or not you went to 
         21   other police officers to verify what Jay Greene told 
         22   you, correct?
         23       A.   He did.
         24       Q.   Do you do that as a defense lawyer?
 0088
          1       A.   No.
          2       Q.   What do you do?
          3       A.   If I know that police officers or agents of 
          4   the Commonwealth have exculpatory information, or 
          5   suspect that they do, I ask the district attorney to 
          6   fulfill their ethical obligation to check out that 
          7   exculpatory evidence.
          8       Q.   Have you ever found a reluctance by certain 
          9   Boston police officers to talk to you privately?
         10       A.   Of course.
         11       Q.   And so does that affect your decision on 
         12   asking the DA to do it?
         13       A.   Of course it does.
         14       Q.   Now, you were also asked whether or not you 
         15   would have permitted Mr. Horton to engage in a 
         16   rebuttal report, I think it was called, by the 
         17   Commonwealth.  Do you recall those questions?
         18       A.   I do.
         19       Q.   First, did anybody ask you to do that?
         20       A.   No, nobody asked me.
         21       Q.   Second, did the prosecutors ask Judge Lopez 
         22   to order you to do it?
         23       A.   No, they did not.
         24       Q.   Third, did the prosecutors ask Judge Lopez 
 0089
          1   to strike Joan Katz's report unless you went through 
          2   an independent examination?
          3       A.   No, they did not.
          4       Q.   Did the prosecutors say anything to Judge 
          5   Lopez about the Katz report?
          6       A.   Nothing.
          7       Q.   Nothing at all?
          8       A.   Nothing.
          9       Q.   Not an objection?
         10       A.   No.
         11       Q.   Not a word?
         12       A.   Not a word.
         13       Q.   Now, you heard Mr. Ware in his cross 
         14   examination of you go through instances of the Katz 
         15   report and how much time was spent and what this 
         16   meant and what that meant, all of that stuff?
         17       A.   Right.
         18       Q.   Did Leora Joseph say any of that to Judge 
         19   Lopez?
         20       A.   No.
         21       Q.   Anything like it?
         22       A.   Nothing like it.
         23       Q.   Now, you indicated, I think -- on your 
         24   cross examination you were asked what were you upset 
 0090
          1   about in talking about with Judge Lopez when talking 
          2   about the press reports, when you had conversations 
          3   with Judge Lopez sometime after September 6th.
          4            MR. WARE:  I'm sorry; I didn't understand 
          5   the question.
          6            MR. EGBERT:  Let me rephrase it. 
          7       Q.   You were asked about your conversations you 
          8   had with Judge Lopez after September 6th. 
          9       A.   Yes, I was.
         10       Q.   Not to get into detail, but I think you 
         11   said there were one, two, or three?
         12       A.   Right.
         13       Q.   And that they generally involved the press 
         14   treatment of the case?
         15       A.   Yes.
         16       Q.   Am I right that you testified that there 
         17   was discussion of being upset that your client was 
         18   being portrayed as a pedophile?
         19       A.   That's right.
         20       Q.   And was that discussion with Judge Lopez?
         21       A.   That was my feeling, yes.
         22       Q.   And was that discussed with Judge Lopez?
         23       A.   Right.
         24       Q.   And in fact --
 0091
          1            MR. WARE:  Objection.
          2            HEARING OFFICER DAHER:  What's your 
          3   objection? 
          4            MR. WARE:  The witness said that's her 
          5   feeling.
          6            HEARING OFFICER DAHER:  Sustained.
          7            MR. EGBERT:  My question was, was that 
          8   discussed with Judge Lopez, and she answered yes.
          9            MR. WARE:  I don't think she did.
         10            HEARING OFFICER DAHER:  Ask it again.
         11       Q.   Did you discuss that with Judge Lopez?
         12       A.   Yes, I discussed the fact that it was my 
         13   feeling.
         14       Q.   Your feeling what?
         15       A.   That my client was being erroneously 
         16   portrayed as a pedophile.
         17       Q.   You were asked whether or not you had 
         18   advised the DA of your discussion with Judge Lopez?
         19       A.   That's right.
         20       Q.   Did you see any reason to?
         21       A.   No.
         22       Q.   Was there any discussion of the case or 
         23   judicial decisions to be made in that case?
         24            MR. WARE:  Objection, Your Honor.
 0092
          1            HEARING OFFICER DAHER:  What was the 
          2   question again?
          3            MR. EGBERT:  Was there any discussion of 
          4   the case or judicial decisions to be made in that 
          5   case.
          6            MR. WARE:  Objection.
          7            HEARING OFFICER DAHER:  What's your 
          8   objection? 
          9            MR. WARE:  The witness has been asked what 
         10   the conversations were.  She's repeated those 
         11   conversations.  We don't need characterizations 
         12   after the fact.
         13            HEARING OFFICER DAHER:  I'm going to allow 
         14   that.  Overruled.  Go ahead. 
         15       A.   I recall nothing about judicial decisions 
         16   or anything like that being discussed.
         17       Q.   Lastly, you were asked a number of things 
         18   about your statements that you gave on an interview 
         19   before the Commission on June 22nd of the Year 2001, 
         20   correct?
         21       A.   Yes.
         22       Q.   And you were placed under oath for that?
         23       A.   I was.
         24       Q.   And you were asked a series of questions, 
 0093
          1   correct?
          2       A.   I was.
          3       Q.   And who was the lawyer for the Commission 
          4   that was asking the questions?
          5       A.   Paul Ware.
          6       Q.   And were you represented by counsel at the 
          7   time?
          8       A.   I was.
          9       Q.   And who was that?
         10       A.   Patty Garin.
         11       Q.   At the end of the interview, did you ask to 
         12   be able to put certain things on the record?
         13       A.   I did.
         14       Q.   And was there a time when you went off the 
         15   record for a minute to tell Mr. Ware what it is you 
         16   wanted to put on the record of your interview?
         17       A.   Yes, there was.
         18       Q.   And did you tell him those things?
         19       A.   Through counsel, yes.
         20       Q.   And did he refuse to let you put them on 
         21   the record?
         22       A.   Yes, he did.
         23       Q.   Did he tell the court reporter to stop 
         24   taking notes?
 0094
          1       A.   He did.
          2       Q.   And was the information that you wanted to 
          3   put on the record relative to these proceedings?
          4            MR. WARE:  Objection.
          5            HEARING OFFICER DAHER:  Sustained.
          6       Q.   What was the information you wanted to put 
          7   on the record that the Commission on Judicial 
          8   Conduct refused to let you do in an interview?
          9            MR. WARE:  Objection. 
         10            HEARING OFFICER DAHER:  What's your 
         11   objection?
         12            MR. WARE:  My objection is this is in the 
         13   nature under the Supreme Court law of this state of 
         14   a grand jury proceeding.  It's not a setting in 
         15   which a witness is allowed to make statements 
         16   voluntarily.  I conferred with counsel for Ms. 
         17   Goldbach --
         18            MR. EGBERT:  So are you going to testify 
         19   now?
         20            MR. WARE:  -- who refused to let her make a 
         21   speech.
         22            MR. EGBERT:  She didn't want to make a 
         23   speech.  She wanted to put facts on the record that 
         24   weren't asked of her  --
 0095
          1            MR. WARE:  I don't think Mr. Egbert was 
          2   there. 
          3            MR. EGBERT:  Let me ask a question. 
          4       Q.   Did some of the matters that you wished to 
          5   put on the record relate directly to Judge Lopez's 
          6   demeanor in the lobby on August 4th of the Year 
          7   2000?
          8            MR. WARE:  Objection. 
          9            HEARING OFFICER DAHER:  What's your 
         10   objection?
         11            MR. WARE:  My objection, Your Honor, is 
         12   we're now talking about a conversation among Ms. 
         13   Goldbach's counsel, me -- the witness may be present 
         14   or not -- I don't remember -- this is not part of 
         15   the proceeding before the Commission testimony.  
         16   She's given full testimony here.
         17            HEARING OFFICER DAHER:  The last word? 
         18            MR. EGBERT:  We're talking about two 
         19   things, Your Honor.  We're talking about, No. 1, the 
         20   conduct of the Commission in the investigation of 
         21   this case by refusing to put on the record matters 
         22   which directly related to the allegations in this 
         23   case.  Two, the presentation of formal charges in 
         24   this case without permitting a witness to give 
 0096
          1   specific credible information on one of the very 
          2   issues being charged in this case.
          3            MR. WARE:  Your Honor, that is a ludicrous 
          4   proposition.  This witness testified at length about 
          5   what went on in chambers on August 1st, on August 
          6   4th, on September 6th.  This is in the nature --
          7            HEARING OFFICER DAHER:  Sustained.  
          8   Objection is sustained.
          9            MR. EGBERT:  I want an offer of proof.
         10            MR. WARE:  I object to an offer of proof.  
         11   It's irrelevant, it's inadmissible, it's a 
         12   characterization by counsel.
         13            HEARING OFFICER DAHER:  Side bar.  
         14            (At side bar)
         15            MR. EGBERT:  I put on the record at the 
         16   conclusion of the interview with Ms. Goldbach, which 
         17   we described -- I don't have the date.  Let me get 
         18   it.  (Pause)
         19             At the conclusion of the interview on June 
         20   22nd of the Year 2001 of Ms. Goldbach by Mr. Ware, 
         21   where she was represented by counsel, Ms. Goldbach 
         22   was never asked during this interview what the 
         23   Judge's demeanor was on August 4th of 2000 in the 
         24   lobby when she had her discussions with counsel, 
 0097
          1   which is an issue in this case, as you know. 
          2            At the conclusion of the events Ms. Garin 
          3   said to Mr. Ware, "Just before we suspend" -- Ms. 
          4   Garin is counsel for Ms. Goldbach -- "Just before we 
          5   suspend, Anne has just two short points that she 
          6   sort of thought of as you were thinking of things.
          7            "MR. WARE:  Let me discuss that off the 
          8   record with you and then we will see."  
          9            This witness will testify and Ms. Garin 
         10   will testify that Mr. Ware was told that Ms. 
         11   Goldbach would testify that in the lobby conference 
         12   with Judge Lopez on August 4th of 2000, her demeanor 
         13   was stern, not yelling, not screaming, and 
         14   consistent with the testimony she's given here 
         15   today.  Mr. Ware refused to let her put that on the 
         16   record, refused to let her make a record of it.  And 
         17   I think that goes to a number of factors -- and by 
         18   the way, Ms. Garin is prepared to testify to this, 
         19   too.  She's also a member of the bar.
         20            So let me put on the record what I think 
         21   this is for.  I think this is about as disgraceful 
         22   an exhibition of a Commission lawyer trying to keep 
         23   from the Commission the true facts upon which they 
         24   can make a decision, so that they can seek a skin 
 0098
          1   and seek a scalp. 
          2            Mr. Ware is supposed to be, as someone who 
          3   is investigating for the Commission, is someone 
          4   who's supposed to be investigating facts, not a 
          5   one-sided set of events to form a prosecution.  He 
          6   displayed, in my opinion, bias and prejudice by 
          7   doing that.  He was unfair to the Judge --
          8            HEARING OFFICER DAHER:  That's an offer of 
          9   proof?
         10            MR. EGBERT:  Yes, No. 1.  And No. 2, it was 
         11   a part of our response in this case, and I want to 
         12   prove the factors in my response which were made to 
         13   the formal charges.
         14            MR. WARE:  Your Honor, I'm not going to 
         15   respond to the characterizations, but I will say 
         16   that under the law of the Commonwealth, the SJC's 
         17   law, the Commission's investigation is in the nature 
         18   of a grand jury proceeding.  Having been a 
         19   prosecutor on two separate occasions for the 
         20   Iran/Contra Committee --
         21            MR. EGBERT:  How impressive.
         22            MR. WARE:  -- I think I understand how to 
         23   ask questions --
         24            HEARING OFFICER DAHER:  Let him finish.
 0099
          1            MR. WARE:  I think I understand my 
          2   obligations. 
          3            HEARING OFFICER DAHER:  What are you 
          4   knocking him for? 
          5            MR. EGBERT:  I'm putting it on the record 
          6   that it's very impressive.
          7            MR. WARE:  I think I understand the 
          8   obligations of taking testimony in a grand jury 
          9   setting.  I did not permit any witnesses to make 
         10   voluntary speeches, and so I did not on this 
         11   occasion.
         12            MR. EGBERT:  Now I want to put two things 
         13   on the record and we'll end it. 
         14            HEARING OFFICER DAHER:  Is this going to be 
         15   in the nature of an offer of proof? 
         16            MR. EGBERT:  I just want to make sure that 
         17   we're clear. 
         18            First of all, the law of the Commonwealth, 
         19   as far as grand jury matters, you should know, as 
         20   having been an Iran/Contra attorney, that 
         21   exculpatory evidence must be provided to the grand 
         22   jury, unlike the federal system.  But with regard to 
         23   their statement that the Commission never asked 
         24   people to open-endedly make statements, the --
 0100
          1            HEARING OFFICER DAHER:  What do you want to 
          2   say?
          3            MR. WARE:  First of all, I don't believe I 
          4   conducted this investigation.
          5            MR. EGBERT:  Your office did.  Mr. Braceras 
          6   did.  Here's the last question to Sister Beaucage:  
          7   "Sister Beaucage, is there anything else you would 
          8   like to add?"  She was certainly given permission to 
          9   add anything she wanted at the end.
         10            HEARING OFFICER DAHER:  Okay. 
         11            (End of side bar)
         12       BY MR. EGBERT: 
         13       Q.   Ms. Goldbach, you were shown a document 
         14   that was entitled "Media Appendix, Selections From 
         15   the Print Media Coverage of the Ebony Horton Case," 
         16   correct?
         17       A.   Right.
         18       Q.   You were asked questions about whether or 
         19   not CPCS made this public.
         20       A.   Right.
         21       Q.   First of all, under what circumstances was 
         22   this document created?
         23       A.   It was created three months after the fact 
         24   in response to the huge amount of media coverage 
 0101
          1   that attended this case.
          2       Q.   And was it put together with regard to 
          3   teaching any particular subject to public defenders?
          4       A.   It was put together for the purposes of 
          5   teaching full-time public defenders about issues 
          6   concerning ever speaking to the press, as well as 
          7   just in terms of speaking to supervisors.  In other 
          8   words, not -- in other words, when do you speak to 
          9   the press and what are the considerations.
         10       Q.   Just so it's clear also, you said to Mr. 
         11   Ware on cross that you wouldn't let Ebony Horton be 
         12   questioned by a prosecution psychiatrist concerning 
         13   the facts of the case, correct?
         14       A.   At that time, right. 
         15       Q.   Would you have let prosecution 
         16   psychiatrists or psychologists have questioned Ebony 
         17   Horton about her medical conditions?
         18       A.   Absolutely.
         19       Q.   Her psychiatric conditions?
         20       A.   Right.
         21       Q.   Her transgendered status?
         22       A.   Right.
         23       Q.   Her job?
         24       A.   Right.
 0102
          1       Q.   Her schooling?
          2       A.   Right.
          3       Q.   Her counseling?
          4       A.   Right.
          5       Q.   And all the various factors contained in 
          6   that report?
          7       A.   Yes.
          8            MR. EGBERT:  I have no further questions.
          9            MR. WARE:  No questions.  Thank you, Ms. 
         10   Goldbach. 
         11            HEARING OFFICER DAHER:  Thank you very 
         12   much.  Next witness. 
         13            MR. EGBERT:  Judge Russo, please.  
         14                  DOMINIC J.F. RUSSO, Sworn
         15                     DIRECT EXAMINATION
         16       BY MR. EGBERT: 
         17       Q.   Would you state your name, please?
         18       A.   Dominic J.F. Russo.
         19       Q.   And what is your present occupation?
         20       A.   I'm retired from the judiciary.
         21       Q.   And when did you retire?
         22       A.   In January of this year.
         23       Q.   And before your retirement, what was your 
         24   position?
 0103
          1       A.   I was the First Judge of the East Boston 
          2   District Court.
          3       Q.   Approximately how long had you been in that 
          4   position?
          5       A.   Approximately ten years.
          6       Q.   And when did you come on the District Court 
          7   bench?
          8       A.   In 1980.
          9       Q.   Prior to 1980 --
         10       A.   I was the clerk in Brookline for 15 years.
         11       Q.   Did you also practice law during that 
         12   period?
         13       A.   Part of it.  We were permitted to practice, 
         14   but then the practice was forbidden by statute.
         15       Q.   And, Judge Russo, are you familiar with the 
         16   case of Commonwealth versus Kelly -- is it Angell?
         17       A.   Kelly Angell, yes.
         18            MR. WARE:  Excuse me, Your Honor.  May I 
         19   confer with counsel for a moment?  
         20            (Mr. Ware confers with Mr. Egbert) 
         21            (At side bar)
         22            MR. EGBERT:  This morning I met with Mr. 
         23   Ware concerning a fact which I knew he knew, which 
         24   is some many years ago I represented Judge Russo in 
 0104
          1   a matter before the Commission which was dismissed.  
          2   Mr. Ware knew about the underlying complaint.  I 
          3   told him I thought it was highly inappropriate that 
          4   the Commission would provide him that information, 
          5   since it's illegal to do so because it's 
          6   confidential.  I have not told Judge Russo about it 
          7   yet, because I don't want to prejudice his 
          8   testimony, but he can take whatever action is 
          9   appropriate after that.  
         10            The fact that the Commission is bringing an 
         11   action against Judge Lopez doesn't mean they can 
         12   search their files for confidential information 
         13   about other judges and provide it in this case.  I 
         14   brought it to Mr. Ware's attention because I didn't 
         15   want him to in any way be sandbagged by that fact.  
         16   And I bring it to your attention.  And that's where 
         17   I leave it.  I don't care to ask Judge Russo, nor do 
         18   I think I should ask him on the record in open 
         19   court, whether or not he had an attorney/client 
         20   relationship with me once many years ago.  You now 
         21   know it.  You're the finder of fact in this regard.  
         22   If it affects you in any way, fine.
         23            HEARING OFFICER DAHER:  Mr. Ware? 
         24            MR. WARE:  Your Honor, I've told counsel 
 0105
          1   that I don't want to ask any questions of Judge 
          2   Russo that would be embarrassing to him in this 
          3   regard, so I don't intend to inquire into anything 
          4   that may have happened before the Commission.
          5            MR. EGBERT:  They're not embarrassing to 
          6   him.
          7            MR. WARE:  Whatever.
          8            MR. EGBERT:  He was erroneously charged and 
          9   the case was dismissed.  He's not embarrassed by 
         10   that.
         11            HEARING OFFICER DAHER:  So I'm notified.
         12            MR. EGBERT:  That's right.
         13            HEARING OFFICER DAHER:  Let's go.  
         14            (End of side bar)
         15       BY MR. EGBERT: 
         16       Q.   Judge, I've handed up a series of documents 
         17   that purport to relate to the case of Commonwealth 
         18   versus Kelly Angell.  Do you see them?
         19       A.   (Witness reviews document)  Yes.
         20       Q.   Are those in fact documents from the case 
         21   file of Commonwealth versus Angell?
         22       A.   Yes.
         23            MR. EGBERT:  I would offer them.
         24            MR. WARE:  Objection.  The objection is the 
 0106
          1   same as the objection to the testimony of this 
          2   witness, Your Honor.  That is to say, it's a 
          3   collateral matter on the third-party witness, not a 
          4   party to the case, for all the reasons set forth in 
          5   the motion I filed with the Court.
          6            HEARING OFFICER DAHER:  I'll hear you.
          7            MR. EGBERT:  You already ruled that this 
          8   would be admissible testimony.
          9            HEARING OFFICER DAHER:  Mr. Ware, wasn't 
         10   that the understanding that we had or was it in 
         11   regards to --
         12            MR. WARE:  Your Honor, I think you have 
         13   ruled that Judge Russo can testify.  I nonetheless 
         14   object to that testimony, as I have before, and as I 
         15   believe I'm required to now --
         16            HEARING OFFICER DAHER:  Overruled.
         17            MR. WARE:  And I object to the introduction 
         18   of these documents.
         19            HEARING OFFICER DAHER:  Overruled. 
         20            THE CLERK:  It will be W. 
         21                 (Documents marked as Hearing
         22                 Exhibit W moved into evidence)
         23       Q.   Judge Russo, sometime during the case of 
         24   Commonwealth versus Angell, did there come a time 
 0107
          1   where there was something -- some conference was 
          2   held off the record?
          3       A.   Yes.  An in-camera conference was held.
          4       Q.   Who was present in that conference?
          5       A.   There was myself, counsel for the 
          6   defendant, and counsel for the Commonwealth.
          7       Q.   And who was counsel for the Commonwealth, 
          8   do you recall?
          9       A.   David Deakin.
         10       Q.   And who was counsel for the defendant?
         11       A.   Anthony Lochiatto.
         12       Q.   Judge Russo, without getting into the 
         13   specifics of the conversation, what was the nature 
         14   of this conference?  Was it about a possible 
         15   resolution?
         16       A.   The nature --
         17            MR. WARE:  Again, Your Honor, I don't want 
         18   to interrupt the Judge.  May I have a standing 
         19   objection to the questions and answers here on the 
         20   same basis? 
         21            HEARING OFFICER DAHER:  Yes.  Go ahead. 
         22       A.   The in-camera conference was an attempt to 
         23   determine, where a tender of plea is being made, 
         24   whether or not the parties were close to a 
 0108
          1   recommended disposition which would be agreeable to 
          2   both sides or whether it was going to be disparate.
          3       Q.   And during the course of that conversation, 
          4   did Mr. Deakin give the Commonwealth's position?
          5       A.   Yes, he did.
          6       Q.   Did Mr. Lochiatto give the defendant's 
          7   position?
          8       A.   Yes, he did.
          9       Q.   And as a result of some statements by Mr. 
         10   Lochiatto, did you say something to Mr. Deakin?
         11       A.   Mr. Lochiatto emphasized that his client 
         12   had no record, and they were seeking a lenient 
         13   disposition.
         14       Q.   What was that disposition?
         15       A.   Continued without a finding.
         16       Q.   Did you address Mr. Deakin at that point?
         17       A.   Yes.  As it was my habit, I turned to 
         18   counsel for the Commonwealth and I asked Mr. Deakin 
         19   whether or not that might not be the proper way to 
         20   dispose of this case, in view of the lack of a 
         21   criminal record on the part of the defendant.
         22       Q.   And did Mr. Deakin say anything to you?
         23       A.   Yes, he did.
         24       Q.   What did he say?
 0109
          1       A.   He said, "You can't do that, Judge.  If you 
          2   do, I'll go public." 
          3       Q.   And when he said, "If you do, I'll go 
          4   public," what did you say?
          5       A.   I said, "Mr. Deakin, you have a right to 
          6   make whatever statements you want on the record in 
          7   the courtroom, but I take offense to that remark and 
          8   I want you to know that it's not relevant.  And if 
          9   you're intending to tell the Court what he can do, I 
         10   won't accept it.  And the Court has" -- and I 
         11   believe these were my exact words -- "the Court has 
         12   many discretionary dispositional arrows in its 
         13   sentencing quiver, and I'm not going to give up any 
         14   one of them because of a statement like that."
         15       Q.   When he made the statement, "If you do, 
         16   I'll go public," what did you understand that to 
         17   mean?
         18       A.   That he would go to the media.
         19       Q.   Wasn't the media following the case, in any 
         20   event?
         21       A.   They were outside, yes.
         22       Q.   So --
         23       A.   They were in the courtroom.
         24       Q.   Pardon me?
 0110
          1       A.   They were in the courtroom.
          2       Q.   So what did you understand his statement to 
          3   mean?
          4       A.   That he would make adverse comments as to 
          5   the Court's ruling to the media.
          6       Q.   And did you think that that at that time 
          7   was appropriate or inappropriate?
          8       A.   I thought it was highly inappropriate and 
          9   uncalled for and somewhat insolent.
         10       Q.   The case ultimately resolved in open court?
         11       A.   Yes.
         12       Q.   And after that, did you do anything about 
         13   it?
         14       A.   Yes.  I felt that Mr. Deakin had 
         15   overstepped, and it was my sincere feeling that he 
         16   was a good lawyer and he needn't resort to 
         17   victory-at-any-cost type statements like he made.  I 
         18   thought he should be reported to his boss.  And I 
         19   called the district attorney's office.
         20       Q.   And do you recall who you spoke to in the 
         21   district attorney's office?
         22       A.   I spoke to someone initially, and I was 
         23   asked what the nature of my call was.  And Mr. 
         24   Martin wasn't there and they said someone would call 
 0111
          1   me back.
          2       Q.   And do you recall having a conversation 
          3   with someone in that subject matter?
          4       A.   Yes, I did.
          5       Q.   Do you recall who it was?
          6       A.   I believe it was a female.  I can't recall 
          7   the name right now.
          8       Q.   And after that -- did you tell the person 
          9   you spoke with what the nature of your complaint 
         10   was?
         11       A.   I told her exactly what happened during the 
         12   in-camera conference.  She was -- she felt that -- 
         13   did he really say that?  I said, "Yes, he did."  I 
         14   said, "He should be talked to.  He's a good lawyer, 
         15   and he needn't resort to that type of statement." 
         16       Q.   And at some point in time after that 
         17   conversation did you have another conversation with 
         18   Mr. Deakin?
         19       A.   Mr. Deakin called, and I had a conversation 
         20   with Mr. Deakin, yes, not long after.
         21       Q.   Concerning the nature of the -- strike 
         22   that. 
         23            What was your conversation with Mr. Deakin?
         24       A.   I told him, I said, "You don't need to do 
 0112
          1   that, counselor.  You don't need to do that.  That 
          2   isn't the proper way -- you can't tell a judge what 
          3   he can do or can't do by that kind of statement." 
          4       Q.   And did it end there?
          5       A.   That's about the size of it.  And he 
          6   apologized, and that was the end of it.
          7       Q.   Now, your calling the district attorney's 
          8   office and making this report and the like, was that 
          9   just your decision on how to deal with this 
         10   situation?
         11       A.   I made many more calls to the district 
         12   attorney's office, mainly on young attorneys who 
         13   were in the court that I thought needed a boost.  
         14   And if their performance was excellent, I thought 
         15   the DA should know it, and I would call Mr. Martin 
         16   or someone in the office to tell them that a person 
         17   did an exceptional job in prosecution.  And this was 
         18   the only time I called with an adverse report.
         19       Q.   The only time?
         20       A.   The only time I ever called with an adverse 
         21   report in my courtroom.
         22       Q.   And how many years on the bench?
         23       A.   22.
         24            MR. EGBERT:  No further questions. 
 0113
          1                     CROSS EXAMINATION
          2       BY MR. WARE: 
          3       Q.   Good afternoon, Judge. 
          4       A.   Good afternoon.
          5       Q.   Your Honor, had you had any other 
          6   experience with Mr. Deakin apart from the Kelly 
          7   Angell case?
          8       A.   I don't recall any other experience with 
          9   Mr. Deakin.
         10       Q.   Now, the Angell case was among the most 
         11   publicized cases we've probably ever seen in the 
         12   Commonwealth; isn't that right?
         13       A.   In East Boston, yes.
         14       Q.   Yes.  And you had reporters crawling out of 
         15   the woodwork every day, all day at every conference; 
         16   isn't that correct, from Europe, from the United 
         17   States and locally, isn't that so?
         18       A.   We had reporters there, yes.  I don't know 
         19   where they were from. 
         20       Q.   The conference that you described at which 
         21   there was discussion about a possible plea or agreed 
         22   disposition, that was a pretty animated conversation 
         23   among counsel, was it not?
         24       A.   Counsel were animated, yes.
 0114
          1       Q.   And by that, would you agree that each 
          2   felt, shall we say, very strongly about his position 
          3   and the righteousness of that position?
          4       A.   It was why I felt it was a disparate 
          5   recommendation to be made in an open court.
          6       Q.   And you would agree that both of the 
          7   attorneys got worked up on this occasion in advance 
          8   of their respective causes; is that so?
          9       A.   I would say that both attorneys did their 
         10   job, except for one going a little bit too far.
         11       Q.   Now, Judge, you say Mr. Deakin said, in 
         12   part, "You can't do that."  And you understood him 
         13   to be talking about the continuance without a 
         14   finding; isn't that correct?
         15       A.   Yes.
         16       Q.   And as a matter of fact, there were reasons 
         17   why there could not be a continuance without a 
         18   finding; isn't that so?
         19       A.   No.
         20       Q.   Was there a continuance without a finding 
         21   in the case?
         22       A.   No.
         23       Q.   But there was a different disposition?
         24       A.   When you say there were reasons -- I could 
 0115
          1   have elected in my discretion to continue the matter 
          2   without a finding.
          3       Q.   But what Mr. Deakin explained to you was 
          4   that his view was you could not legally continue -- 
          5   because of the nature of these charges, could not 
          6   grant a continuance without a finding; is that 
          7   correct?
          8       A.   He never made that statement in that form.
          9       Q.   In that form.
         10       A.   He just said, "You can't do it.  And if you 
         11   do, I'll go public." 
         12       Q.   When he said, "You can't do it," did you 
         13   understand him or do you consider that he may have 
         14   meant to you, "I don't believe you're statutorily 
         15   empowered because of this charge to continue the 
         16   case without a finding"?
         17       A.   I think he knew I was statutorily so 
         18   empowered.
         19       Q.   Following this discussion, you talked with 
         20   the district attorney's office.  And do you recall 
         21   that, in fact, the woman with whom you spoke is 
         22   Elizabeth Keeley, the first assistant now?
         23       A.   It might very well have been, yes.
         24       Q.   And following that, you said that you had a 
 0116
          1   conversation with Mr. Deakin --
          2       A.   Mr. Deakin called, yes.
          3       Q.   He called you, did he not?
          4       A.   He called me.
          5       Q.   And you inferred that that was as a result 
          6   of his superior having talked with him, correct?
          7       A.   I inferred that he was told the nature of 
          8   my complaint by his superior, yes.
          9       Q.   And you said you thought he was a good 
         10   lawyer and you respected him for calling you and 
         11   apologizing for overstepping on that conversation; 
         12   is that correct?
         13       A.   In my conversation with Ms. Keeley? 
         14       Q.   No.  After Mr. Deakin had called you, the 
         15   purpose of his call, as you understood it, was to 
         16   apologize to you, correct?
         17       A.   He apologized, yes.
         18       Q.   And you accepted that apology, did you not?
         19       A.   I told him -- and I'll quote -- "You don't 
         20   need to do things like that.  You're a good lawyer.  
         21   But if you do things like that and you continue to 
         22   do it, there is some judge out there who is going to 
         23   hand you your head."  That's basically what I told 
         24   him.
 0117
          1       Q.   From a personal standpoint, you accepted 
          2   his apology to you?
          3       A.   Oh, yes.  I thought it was genuine.
          4       Q.   And you respected him for having recognized 
          5   that he overstepped --
          6       A.   I respected him for calling me and wanting 
          7   to talk about it.
          8       Q.   And in your experience -- and your 
          9   preference is that that's exactly the way in which a 
         10   professional lawyer ought to act; namely, pick up 
         11   the phone and address the issue with you?
         12       A.   Yes.
         13       Q.   That is the appropriate response, isn't it?
         14       A.   Yes.
         15       Q.   You didn't seek to put out in public any 
         16   kind of finding naming him or excoriating him, did 
         17   you?
         18       A.   I didn't believe that was necessary.  I 
         19   believed it was taken care of in the fashion that it 
         20   concluded, with his call.
         21       Q.   And the fashion in which it was concluded 
         22   was, he called you, he apologized, and you said, "I 
         23   accept that"; you know, "Do your job." 
         24       A.   It was my hope that it wouldn't happen 
 0118
          1   again.
          2       Q.   And as far as you know, it has not?
          3       A.   As far as I know.
          4            MR. WARE:  Thank you, Your Honor.
          5            MR. EGBERT:  Just one quick question.
          6            HEARING OFFICER DAHER:  Sure. 
          7                 REDIRECT EXAMINATION
          8       BY MR. EGBERT: 
          9       Q.   After this conference you had in the lobby 
         10   with Mr. Deakin where he made those remarks -- and 
         11   you know what I'm talking about?
         12       A.   Yes.
         13       Q.   There was nothing that occurred after 
         14   that -- like, he didn't ask to -- he didn't object 
         15   to you being involved in the proceedings, did he?
         16       A.   No. 
         17       Q.   He didn't ask you for specific findings 
         18   about anything, did he?
         19       A.   No, he didn't.  I did inform -- in open 
         20   court I did inform everyone that there had been an 
         21   in-camera conference and that the matter was going 
         22   forward on a disparate recommendation.
         23       Q.   And there were no findings for you to be 
         24   made concerning like a continuance or anything that 
 0119
          1   happened in the lobby, correct?
          2       A.   Everything would be done on the record in 
          3   court.
          4            MR. EGBERT:  Thank you. 
          5            HEARING OFFICER DAHER:  Next witness.
          6            (Conference off the record)
          7            HEARING OFFICER DAHER:  So we can suspend 
          8   here until 1:30.
          9            (Luncheon recess taken from
         10            12:29 p.m. to 1:37 p.m.)
         11   
         12   
         13   
         14   
         15   
         16   
         17   
         18   
         19   
         20   
         21   
         22   
         23   
         24   
 0120
          1                     AFTERNOON SESSION
          2            MR. EGBERT:  I'd like to call Judge 
          3   Mulligan.  
          4                  ROBERT MULLIGAN, Sworn
          5                    DIRECT EXAMINATION
          6       BY MR. EGBERT: 
          7       Q.   Good afternoon, Your Honor. 
          8       A.   Good afternoon.
          9       Q.   Your Honor, could you state your name, 
         10   please.
         11       A.   Robert Mulligan.
         12       Q.   Judge Mulligan, what is your current 
         13   employment?
         14       A.   I'm an Associate Justice of the Superior 
         15   Court.
         16       Q.   And how long have you been a justice of the 
         17   Superior Court?
         18       A.   Twenty years.
         19       Q.   And prior to your appointment to the 
         20   Superior Court, were you also on the bench?
         21       A.   On the Boston Municipal Court from 
         22   September 5th, 1980, to December 14th, '82.
         23       Q.   And prior to your appointment to the bench, 
         24   what was your profession?
 0121
          1       A.   I worked in the U.S. Attorney's Office for 
          2   a couple of years before the appointment to the BMC, 
          3   and I worked in the Attorney General's Office before 
          4   that, and I worked in a small civil firm in Waltham 
          5   prior to that.
          6       Q.   Judge Mulligan, were you at some point in 
          7   your career appointed to the position of Chief 
          8   Justice of the trial court?
          9       A.   No.  Chief Justice of the Superior Court.
         10       Q.   Pardon me. 
         11       A.   November 1 of '94 I was appointed to that 
         12   position.
         13       Q.   And what were your duties and function as 
         14   Chief Justice?
         15       A.   They're statutory duties.  I was 
         16   administrative chief of the Superior Court.  I 
         17   assigned the judges to their assignments, take care 
         18   of any problems.  Aside from the judges, there were 
         19   about 120 employees on the Superior Court payroll at 
         20   that time.
         21       Q.   Judge, do you know Judge Maria Lopez?
         22       A.   I do.
         23       Q.   And when did you first come to know Judge 
         24   Lopez?
 0122
          1       A.   When she was appointed to the Superior 
          2   Court in 1993.
          3       Q.   And for a good part of -- strike that.  For 
          4   all of your tenure as Chief Justice, she was a 
          5   Superior Court judge; is that correct?
          6       A.   That's correct.
          7       Q.   During the time when you were Chief 
          8   Justice, did you receive any complaints concerning 
          9   Judge Maria Lopez?
         10       A.   No.
         11       Q.   And when Judge Lopez -- let me go back a 
         12   second.  I think the statement is well known that 
         13   the Superior Court is a court of equals, correct?
         14       A.   Court of equals?
         15       Q.   Yes. 
         16       A.   It's a collegial court, that's correct.
         17       Q.   And it is not the position of the Chief to 
         18   go around and watch trials and that kind of thing?
         19       A.   That's correct.
         20       Q.   But with regard to Judge Lopez, would it be 
         21   your function at the time when you were Chief to 
         22   give out assignments for various cases in courts?
         23       A.   Well, I give out the yearly assignments to 
         24   various sittings.  Each year judges request 
 0123
          1   assignments.  Based upon seniority, we give out the 
          2   assignments.  And they're given out in December of 
          3   each year for the following year.  And I would have 
          4   given her assignments for each calendar year that 
          5   she was serving under me when I was the Chief.
          6       Q.   And during any of that time, was there any 
          7   difficulty with her taking her assignments or taking 
          8   her jobs or the like?
          9       A.   No.  She accepted -- she was relatively 
         10   junior as a judge when I was a Chief Justice, which 
         11   means she doesn't get necessarily her preferences.  
         12   She took her assignments, accepted them.  She didn't 
         13   ask for reconsideration or complain about any of 
         14   them and went to her assignments and did her work.
         15       Q.   Now, Judge, are you aware of the fact that 
         16   Judge Lopez presided over the case of what's 
         17   commonly called the Demoulas case?
         18       A.   I am.
         19       Q.   And cases?
         20       A.   Yes.
         21       Q.   And do you have enough familiarity to 
         22   describe those cases in a general sense?
         23            MR. WARE:  Objection.
         24            HEARING OFFICER DAHER:  What is your 
 0124
          1   objection? 
          2            MR. WARE:  My objection is to this whole 
          3   line of the Demoulas case as being irrelevant to the 
          4   Horton case.
          5            HEARING OFFICER DAHER:  Show me the 
          6   relevancy, Mr. Egbert.  
          7            MR. EGBERT:  The relevance, Your Honor -- 
          8   and I believe Judge Mulligan would testify -- that 
          9   the Demoulas case was, in his experience, on the 
         10   bench an extraordinarily complex case with much 
         11   acrimony during it, and that Judge Lopez handled the 
         12   case efficiently and that she was virtually upheld 
         13   on appeal on all respects.
         14            HEARING OFFICER DAHER:  Mr. Ware, for that 
         15   purpose? 
         16            MR. WARE:  Well, Your Honor, again, I think 
         17   this is an irrelevant line of questioning.  The 
         18   Judge's conduct in the Demoulas case --
         19            HEARING OFFICER DAHER:  I'm going to 
         20   overrule rule it.  Go ahead. 
         21       Q.   Do you have some familiarity with the 
         22   so-called Demoulas case?
         23       A.   I do.
         24       Q.   And how would you describe those cases?
 0125
          1       A.   Legally I would say they were very complex.  
          2   Factually, perhaps not that complex, but there was a 
          3   great deal of acrimony between the parties.  But the 
          4   legal issues were complex, quite complex.
          5       Q.   And have you followed the handling of that 
          6   case and the ultimate handling of the case by the 
          7   Supreme Judicial Court?
          8       A.   Well, yes.
          9       Q.   And can you tell us whether or not Judge 
         10   Lopez's rulings were virtually upheld in all 
         11   respects in these cases?
         12       A.   I think that's true.  They were upheld in 
         13   virtually all respects.  There were some minor 
         14   adjustments in her rulings and findings and orders.
         15       Q.   And when you say the Demoulas case was 
         16   complex, how would you compare it to the normal 
         17   cases that come into the Superior Court?
         18            MR. WARE:  Objection.
         19            HEARING OFFICER DAHER:  Sustained. 
         20            MR. EGBERT:  No further questions.
         21            HEARING OFFICER DAHER:  Thank you.
         22            MR. WARE:  I have no questions. 
         23            HEARING OFFICER DAHER:  Thank you very 
         24   much. 
 0126
          1            MR. EGBERT:  Your Honor, I would call 
          2   Andrew Meyer.  
          3                    ANDREW MEYER, Sworn
          4                    DIRECT EXAMINATION
          5       BY MR. EGBERT: 
          6       Q.   Good afternoon. 
          7       A.   Good afternoon.
          8       Q.   Would you state your name for the record, 
          9   please.
         10       A.   Andrew Meyer.
         11       Q.   And, Mr. Meyer, are you an attorney 
         12   licensed to practice in the Commonwealth of 
         13   Massachusetts?
         14       A.   I am.
         15       Q.   Sir, could you tell me a bit of your 
         16   background and experience in the practice of law?
         17       A.   I've been practicing since 1974 at the firm 
         18   of Lubin & Meyer, founding partner.  We practice 
         19   mostly civil litigation.  The majority of our cases 
         20   are medical malpractice in nature.
         21       Q.   And, Mr. Meyer, could you tell us some of 
         22   your professional appointments. 
         23       A.   Professional appointments.  Well, I teach 
         24   regularly for MCLE.  I'm a member of Boston Bar and 
 0127
          1   Mass. Bar, American Bar Association, Federal Bar 
          2   Association.  I teach regularly on behalf of most of 
          3   those associations.  I've been chosen -- well, for 
          4   professional appointments, I think that's it.  I 
          5   teach, guest lecture at Harvard Law School on 
          6   occasion, at Suffolk university Law School on 
          7   occasion, at BU Law School on occasion.
          8       Q.   Do you hold any positions with regard to 
          9   any boards of institutions?
         10       A.   I'm on the board of trustees of Suffolk 
         11   university, and I am governor for the Mass. Academy 
         12   of Trial Attorneys.  I have been for about ten 
         13   years.
         14       Q.   Mr. Meyer, do you regularly practice in the 
         15   courts of the Commonwealth of Massachusetts?
         16       A.   I do.
         17       Q.   And does your work consist primarily of 
         18   trial work?
         19       A.   It does.
         20       Q.   And in what area of the law?
         21       A.   Civil litigation, primarily personal injury 
         22   and mostly medical malpractice. 
         23       Q.   Sir, have you had occasion to -- strike 
         24   that.  Do you know Judge Maria Lopez?
 0128
          1       A.   I do.
          2       Q.   And how do you know her?
          3       A.   Professionally.  Strictly as a lawyer who 
          4   practices before her in the Superior Courts.
          5       Q.   And do you recall -- can you tell us 
          6   approximately how many times you have appeared 
          7   before Judge Lopez in your practice. 
          8       A.   Over the course of years I've appeared 
          9   before Judge Lopez numerous times.  I've tried a 
         10   number of cases before her and have appeared 
         11   regularly in front of her on motions.
         12       Q.   Have you -- can you give me an 
         13   understanding of the types of cases you try before 
         14   Judge Lopez?
         15       A.   Most of the cases that I try are highly 
         16   complex medical malpractice cases.  They're 
         17   sophisticated not only in the facts regarding the 
         18   medicines, the evidentiary matters, as well as the 
         19   substance of the law.
         20       Q.   And during the course of your practice 
         21   before Judge Lopez, can you describe for us her 
         22   legal acumen. 
         23       A.   Excellent.  I think Judge Lopez never 
         24   showed any signs of not grasping any of the matters 
 0129
          1   before her that we brought, and to the contrary, 
          2   understood, I felt, very quickly many of the complex 
          3   medical matters and legal matters that are 
          4   addressed, which she does not see on a regular 
          5   basis.  We would on a daily basis.  I can think of 
          6   one case in particular that we had involving a child 
          7   who was going under some complex procedures at 
          8   Children'S Hospital, involving a procedure called 
          9   echmo.  It took me and my staff probably months to 
         10   learn.  I believe Judge Lopez picked up on the facts 
         11   and circumstances of that case, by reading the 
         12   pleadings and listening to the testimony, very 
         13   quickly.  We were very impressed with her ability to 
         14   grasp the law and the medicine. 
         15       Q.   And during the course of your proceedings 
         16   before her, can you describe her work ethic?
         17       A.   Judge Lopez was always there on time.  She 
         18   took appropriate recesses, but never extended 
         19   recesses.  Made us work the appropriate amount of 
         20   time.  However, was cordial in the sense when we had 
         21   scheduling difficulties she was flexible to allow 
         22   our case to proceed appropriately and always 
         23   accommodated the witnesses, but did so with a firm 
         24   hand.
 0130
          1       Q.   During the course of your proceedings in 
          2   front of Judge Lopez, would you describe for us her 
          3   demeanor. 
          4       A.   Always balanced, never too high, never too 
          5   low.  As I said, I've seen Judge Lopez not only in 
          6   trials, but also in motion sessions.  Some of these 
          7   matters, particularly during the course of trials, 
          8   get heated.  And I've had particular circumstances 
          9   where either between the lawyers or between the 
         10   witnesses matters become heated, some of which 
         11   became pretty serious.  And I thought Judge Lopez 
         12   remained above the fray for the most part, never got 
         13   herself personally involved in circumstances -- I 
         14   remember one such circumstance where one lawyer on a 
         15   case I had was attempting during a recess what we 
         16   considered to be intimidating a witness who had come 
         17   in from out of state.  It was, I thought, highly 
         18   improper.  We went back in and reported it to the 
         19   Judge.  Judge Lopez maintained a calm demeanor, 
         20   conducted a voir dire, made findings on the record 
         21   to later be reported, which they were later 
         22   reported, and then moved on with the trial.  Not as 
         23   much as I would have liked at the time, but 
         24   certainly that I think was appropriate.
 0131
          1       Q.   Do you have occasion in your various 
          2   positions that you've described to us to talk with 
          3   other lawyers in your community concerning Judge 
          4   Lopez?
          5       A.   I do.
          6       Q.   And does that include your position with -- 
          7   is it the Massachusetts Trial Lawyers Association?
          8       A.   Yes, it does.  It's Mass. Academy of Trial 
          9   Attorneys.
         10       Q.   Mass. Academy of Trial Attorneys.  And have 
         11   you actually gone and discussed Judge Lopez with 
         12   various lawyers?
         13       A.   I actually have.
         14       Q.   And could you tell us what you found to be 
         15   her reputation in that community. 
         16            MR. WARE:  Objection. 
         17            HEARING OFFICER DAHER:  Sustained. 
         18            MR. EGBERT:  Judge, may I be heard for a 
         19   moment? 
         20            HEARING OFFICER DAHER:  Sure. 
         21            MR. EGBERT:  Probably at the side bar.  
         22            (At side bar)
         23            MR. EGBERT:  Judge, this is a matter that 
         24   I'm offering with regard to the issue of possible 
 0132
          1   sanctions.  And with regard to sanctions, I think 
          2   the law is that virtually anything about the person 
          3   which is in any way relevant to their conduct in the 
          4   past, to their -- to virtually anything is 
          5   appropriate for consideration on sanctions, given 
          6   the weight that the particular person making the 
          7   recommendation gives. 
          8            I recognize that if this were being offered 
          9   on conduct, that it would not fit the bill for 
         10   particular reputation, because it would require 
         11   reputation for truth and veracity; but as a 
         12   reputation as a judge on the bench amongst his 
         13   peers, I believe it's appropriate for sanctions -- 
         14   on the issue of sanctions.  And for that purpose, 
         15   I'd ask you to take it, keep it in its correct 
         16   compartment; and if the time ever comes, then give 
         17   it the weight or lack of weight that you think is 
         18   appropriate.
         19            HEARING OFFICER DAHER:  Mr. Ware? 
         20            MR. WARE:  That's acceptable to me, Your 
         21   Honor.
         22            HEARING OFFICER DAHER:  Fine.  
         23            (End of side bar)
         24       Q.   Let me see if I can repeat that question.  
 0133
          1   Based upon your discussions with other lawyers as 
          2   you've described, can you tell us what you learned 
          3   from those discussions concerning Judge Lopez's 
          4   reputation as a jurist in the Commonwealth of 
          5   Massachusetts?
          6       A.   I believe -- and I've had numerous 
          7   conversations and a number of them since this 
          8   incident came about, because obviously it was a 
          9   topic of conversation.  And I can say that uniformly 
         10   the people I've spoken to in the bar, in the Mass. 
         11   Academy of Trial Attorneys in the defense bar, in 
         12   the corporate arena have all uniformly felt that 
         13   Judge Lopez was a highly competent, efficient, 
         14   balanced, talented jurist, whom they had no 
         15   complaints of.
         16            MR. EGBERT:  I have no further questions.
         17            MR. WARE:  I have no questions. 
         18            HEARING OFFICER DAHER:  Thank you, 
         19   counselor.  I appreciate it.
         20            MR. EGBERT:  Your Honor, I call Michael 
         21   Avery.  
         22                   MICHAEL AVERY, Sworn
         23                    DIRECT EXAMINATION
         24       BY MR. EGBERT: 
 0134
          1       Q.   Would you state your name, please.
          2       A.   Michael Avery.
          3       Q.   Mr. Avery, how are you employed at this 
          4   time?
          5       A.   I'm an associate professor at Suffolk Law 
          6   School.
          7       Q.   Can you give me a synopsis or history of 
          8   your professional background, please. 
          9       A.   I graduated from Yale Law School in 1970.  
         10   I worked for one year for the American Civil 
         11   Liberties Union as a special staff counsel.  After 
         12   that, I was in private practice for the next 27 
         13   years in a variety of small partnerships, first in 
         14   New Haven, Connecticut, and then in Boston.  For the 
         15   last two and a half years, before I went to Suffolk 
         16   Law School, I was a partner in the firm of Perkin, 
         17   Smith & Cohen.
         18       Q.   Have you also, during the time of your 
         19   professional employment, taught in a number of 
         20   different locations?
         21       A.   I've taught as an adjunct professor at 
         22   Northeastern Law School, at Boston College Law 
         23   School, I taught in a clinic course at Yale Law 
         24   School when I was in New Haven, and I've been a 
 0135
          1   visiting professor at Georgia State Law School.  Not 
          2   a whole semester, by the way.  It was a week.  It 
          3   was a very short visitorship.
          4       Q.   Mr. Avery, are you a member of the bar of 
          5   the Commonwealth of Massachusetts?
          6       A.   I am.
          7       Q.   And are you a member of any other court 
          8   bars?
          9       A.   I'm a member of the state bar in 
         10   Connecticut, the United States District Court bar 
         11   for Connecticut and Massachusetts, the bars of the 
         12   First, Fourth, Second and Ninth Circuits, and the 
         13   United States Supreme Court bar. 
         14       Q.   And while you were in private practice, Mr. 
         15   Avery, can you describe the nature of your practice. 
         16       A.   Well, I had both civil and criminal 
         17   litigation.  I did criminal defense work.  I did 
         18   largely plaintiffs' civil work, a lot of civil 
         19   rights work, but other kinds of civil litigation as 
         20   well.
         21       Q.   And do you know Maria Lopez?
         22       A.   I do know Maria Lopez.
         23       Q.   How did you first come to know her?
         24       A.   I first met Judge Lopez when she was a 
 0136
          1   lawyer for Legal Services in Boston, and I can't 
          2   remember what the matter was, but there was some 
          3   civil rights-related matter that she was working on 
          4   professionally, and I believe she called me for some 
          5   advice about it.
          6       Q.   And after that point in time, did you come 
          7   to have a professional and social relationship with 
          8   Judge Lopez?
          9       A.   Yes.  When she went to the Attorney 
         10   General's Office, we had occasion to meet a number 
         11   of times.  We both live in Newton and our children 
         12   have both attended the same schools.  And so over 
         13   the years, we developed not only a professional, but 
         14   also a social relationship. 
         15       Q.   Have you had occasion to be involved in 
         16   teaching with Judge Lopez?
         17       A.   Yes, I've taught as a guest in the class, 
         18   trial practice class, that Judge Lopez taught at 
         19   Boston University.  And this coming spring Judge 
         20   Lopez and I are teaching a CLE program together at 
         21   Suffolk Law School.
         22       Q.   What's the nature of that CLE course?
         23       A.   A four-part course on evidence law.  And 
         24   the section that Judge Lopez and I are doing is on 
 0137
          1   hearsay.
          2       Q.   Have you ever appeared before Judge Lopez?
          3       A.   I never have appeared before Judge Lopez.  
          4   When she was appointed to the bench, she advised me 
          5   very shortly after that that she would disqualify 
          6   herself in any cases in which I was counsel, because 
          7   we had had dinner together and socialized together a 
          8   number of times, and she didn't think it was 
          9   appropriate to sit on my cases. 
         10       Q.   So in years, how long would you say that 
         11   you have had this professional and social 
         12   relationship with Judge Lopez?
         13       A.   Well, it was before she went to the 
         14   Attorney General's Office.  And I can't be precise, 
         15   but I would say it's about 20 years, in any event.
         16       Q.   During the course of those years, have you 
         17   had occasion to discuss the law with her?
         18       A.   Many times.
         19       Q.   And have you had occasion to discuss 
         20   various legal issues and the like with her?
         21       A.   Yes.  We've talked many times either about 
         22   cases I might be working on or cases that are in the 
         23   public eye that people are talking about or perhaps 
         24   recent decisions from the Supreme Court or trial- 
 0138
          1   related matters, because we both have an interest in 
          2   trial practice.
          3       Q.   And can you tell us from what you have 
          4   learned, how you would describe Judge Lopez's legal 
          5   acumen?
          6       A.   I think Judge Lopez is very intelligent, 
          7   very thoughtful jurist.  It's evident to me from our 
          8   conversations spends a lot of time thinking not only 
          9   about the legal correctness of her rulings and 
         10   various doctrines that come into play in the courts 
         11   in which she sits, but also social justice issues 
         12   that lie behind legal matters.  And I would say, of 
         13   the different judges that I know outside the 
         14   courtroom, that she's one of the most thoughtful 
         15   that I've met in my professional career. 
         16       Q.   During the course of your professional 
         17   career, have you had occasion to talk to lawyers, 
         18   law professors, trial lawyers and the like 
         19   concerning Judge Lopez?
         20       A.   I have.
         21       Q.   And on how many occasions, so to speak, or 
         22   what's the frequency of those kinds of 
         23   conversations?
         24       A.   Well, as you might imagine, recently 
 0139
          1   they've been quite frequent.  But even prior to 
          2   that, I've had many conversations with other lawyers 
          3   and practitioners about Judge Lopez.
          4       Q.   And were you able to come away from those 
          5   conversations with an opinion concerning her 
          6   reputation as a jurist amongst those in the 
          7   community with whom you've spoken?
          8       A.   I have.
          9       Q.   And what is that reputation?
         10            MR. WARE:  Objection, unless offered on the 
         11   same basis --
         12            HEARING OFFICER DAHER:  For the same 
         13   limited purpose as indicated at the side bar a few 
         14   minutes ago.
         15            MR. EGBERT:  Yes, Your Honor.
         16            HEARING OFFICER DAHER:  Absolutely.  Go 
         17   ahead.
         18       A.   Judge Lopez is very highly regarded with 
         19   the lawyers and law professors with whom I've spoken 
         20   regarding her.  They believe her to be a person of 
         21   great principle, great integrity and great 
         22   compassion. 
         23       Q.   Now, have you also had occasion to travel 
         24   to Cuba with Judge Lopez?
 0140
          1       A.   No, I have not traveled to Cuba with Judge 
          2   Lopez, but I have traveled to Cuba.  And Judge Lopez 
          3   has traveled to Cuba, and we've talked about Cuba on 
          4   many occasions.
          5       Q.   Do you have some interests in the Cuban 
          6   cultural system?
          7       A.   Yes.  I went to Cuba in 1983 with a 
          8   delegation of lawyers, and I'm a very close friend 
          9   with a lawyer who is a full-time researcher in 
         10   Havana and who does research and writing about Cuba, 
         11   to whom I introduced Judge Lopez.  And she 
         12   subsequently has had many contacts with this 
         13   individual.
         14       Q.   And are you aware of Judge Lopez's work in 
         15   the area of Cuban/United States relations?
         16       A.   I am.
         17       Q.   And can you describe that a bit?
         18       A.   Well, she, I think, has taken many people 
         19   to Cuba and has been involved in many trips of 
         20   people going to Cuba, different delegations of 
         21   lawyers and judges and the like, and has done a lot 
         22   of work, I think, in terms of reducing 
         23   misunderstanding on both sides between the Cuban 
         24   legal profession and the legal profession in this 
 0141
          1   country.
          2       Q.   And -- strike that. 
          3            MR. EGBERT:  I have no further questions. 
          4            MR. WARE:  I have no questions.  Thank you. 
          5            HEARING OFFICER DAHER:  Thank you.  We 
          6   appreciate it. 
          7            MR. EGBERT:  Your Honor, I have two other 
          8   witnesses this afternoon, but this went faster than 
          9   even I thought it would go, so they weren't expected 
         10   to be here for a bit.  So let me check.
         11            HEARING OFFICER DAHER:  Go ahead.  
         12            (Pause)
         13            MR. EGBERT:  Judge, they're not here yet.  
         14   I suspect I'm going to need a 20- or 25-minute break 
         15   or so. 
         16            HEARING OFFICER DAHER:  I'm going to allow 
         17   it.  You think around 2:30?
         18            MR. EGBERT:  I'll let you know as soon as 
         19   they arrive.  
         20            (Recess) 
         21                    J. OWEN TODD, Sworn
         22                    DIRECT EXAMINATION
         23       BY MR. EGBERT:
         24       Q.   Could you state your name, please.
 0142
          1       A.   J. Owen Todd, O-w-e-n, T-o-d-d.
          2       Q.   Mr. Todd, can you give us a brief 
          3   description of your professional background, please.
          4       A.   I graduated from Boston College Law School 
          5   in 1960.  I clerked for a year at the Supreme 
          6   Judicial Court.  I then went with Hale and Dorr, a 
          7   law firm in Boston.  I was there until 1988.  I then 
          8   was nominated and appointed to the Superior Court, 
          9   where I was an Associate Justice from 1988 to 1992.  
         10   I left the Court in 1992 and was a founding partner 
         11   of a law firm, Todd & Weld, in Boston, and I 
         12   practiced -- I have practiced there from 1992 to 
         13   today. 
         14       Q.   And can you give me a brief description of 
         15   any of your professional associations and any major 
         16   part or role you played in any of them. 
         17       A.   I'm a member of the American College of 
         18   Trial Lawyers, a fellow; the American Board of 
         19   Advocates, a fellow; all of the bar associations -- 
         20   American, Massachusetts, Boston -- a member of -- 
         21   entitled to practice before the Supreme Court, 
         22   United States Supreme Court, the Courts of Appeal, 
         23   the District Courts, Tax Court.  I'm a practitioner 
         24   in the Tax Courts, the Federal Court of Claims, the 
 0143
          1   Federal Appeals Court in Washington.
          2       Q.   Thank you.  Mr. Todd, during the course of 
          3   your practice, what type of law have you practiced?
          4       A.   Well, I began as a tax lawyer, lasted a 
          5   year.  I then became involved in bankruptcy work 
          6   with Fred Fisher, the late Fred Fisher.  And then I 
          7   got involved in antitrust work with Corn Hurley and 
          8   Earle Cooley at Hale and Dorr, and then from that 
          9   point on was involved in trial practice.  So for the 
         10   last probably 35 or more years I've been engaged 
         11   entirely in trial practice. 
         12       Q.   Mr. Todd, have you had occasion to become 
         13   familiar with Judge Maria Lopez?
         14       A.   Yes, I have.
         15       Q.   And when did you first come in contact with 
         16   Judge Lopez?
         17       A.   I was trying to think of that.  I knew 
         18   Judge Lopez when she was a District Court Judge.  
         19   Whether I had appeared before Judge Lopez in the 
         20   District Court, I'm not sure.  I believe that the 
         21   Judge became a Superior Court judge either during my 
         22   last year as a judge or shortly after that.  And I 
         23   think when we were both judges, perhaps in different 
         24   courts for a while, I had had some interaction.  And 
 0144
          1   if we were together as a Superior Court -- on the 
          2   Superior Court, we had interaction.  And then I've 
          3   appeared before Judge Lopez in a number of cases 
          4   since 1992.
          5       Q.   During the time that you have appeared 
          6   before Judge Lopez since 1992, can you -- strike 
          7   that. 
          8            Did you appear before Judge Lopez in any 
          9   cases that are related to the so-called Demoulas 
         10   matter?
         11       A.   Yes, I have.
         12       Q.   And what was your role or what part of that 
         13   case did you have? 
         14            MR. WARE:  Objection, Your Honor.
         15            HEARING OFFICER DAHER:  What's the 
         16   objection? 
         17            MR. WARE:  The same objection, Your Honor.  
         18   That this is a tangent, the Demoulas cases, and 
         19   irrelevant to these proceedings.
         20            HEARING OFFICER DAHER:  I think that would 
         21   be the grounds, Mr. Egbert.  Show me the relevance.
         22            MR. EGBERT:  It goes to the background of 
         23   Mr. Todd's knowledge of Judge Lopez, his dealings 
         24   with her on the bench, and his dealings with her in 
 0145
          1   a case -- particularly in that case, where he will 
          2   describe some of the conduct of lawyers towards her, 
          3   and her judicial demeanor and dealings with that on 
          4   the bench.
          5            HEARING OFFICER DAHER:  Sustained.
          6            MR. EGBERT:  Then I would offer it, Your 
          7   Honor, for the second ground, and that is as it 
          8   relates to any matters relating to potential 
          9   sanctions in this case.
         10            MR. WARE:  No, Your Honor.  I think this is 
         11   different in kind from the testimony of the judges 
         12   with respect to their view or their conversations 
         13   with others regarding the Judge's reputation.  I 
         14   don't object to Mr. Todd giving such testimony, but 
         15   the Demoulas case is a whole other can of worms.
         16            MR. EGBERT:  Judge, this specifically goes 
         17   to this lawyer's observation of the Judge under very 
         18   difficult circumstances, as he'll describe them, and 
         19   very trying circumstances, and the Judge's reaction 
         20   and dealings with those particular matters.  It goes 
         21   to the issue of whether or not there are sanctions 
         22   available in this case, what they ought to be, 
         23   considering her rather distinguished prior dealings 
         24   on the bench, No. 1.  And, No. 2, whether or not the 
 0146
          1   conduct that we saw on tape in the Horton case was 
          2   so aberrational, based upon her prior conduct and 
          3   experience, as to affect what sanction ought to be 
          4   imposed. 
          5            HEARING OFFICER DAHER:  Mr. Ware? 
          6            MR. WARE:  Your Honor, that's the very 
          7   reason the testimony should not be permitted.  
          8   What's at issue here is specific conduct in the 
          9   Horton case, and an attempt to compare it or set 
         10   standards of conduct through this witness is 
         11   completely inappropriate and irrelevant.  The 
         12   Court's already ruled for that purpose this 
         13   testimony is inappropriate.
         14            MR. EGBERT:  I think he misunderstood or I 
         15   didn't speak clearly as to what I mean. 
         16            HEARING OFFICER DAHER:  Go ahead. 
         17            MR. EGBERT:  It doesn't affect her conduct.  
         18   Her conduct in the Horton case on tape is for all 
         19   eyes to see and hear.  There's no one refuting on or 
         20   doing anything with that more than playing tapes. 
         21            It goes to the issue, as it always does in 
         22   any case of discipline, should there be discipline, 
         23   as to who is the person and what has that person 
         24   done and said over a particular portion of their 
 0147
          1   career and how they distinguished themselves and 
          2   whether or not the conduct at issue is one of a 
          3   pattern of conduct or one of a single aberration or 
          4   a single event.
          5            HEARING OFFICER DAHER:  For that purpose, 
          6   it's allowed. 
          7            MR. EGBERT:  Thank you. 
          8       Q.   Let me go back.  You were involved in the 
          9   Demoulas case?
         10       A.   Yes.
         11       Q.   And could you tell us your involvement. 
         12       A.   I was not involved in the trials, the now 
         13   famous two trials that took place before Judge 
         14   Lopez, one a jury trial and one a bench trial.  I 
         15   became involved following the decisions that were 
         16   written in those two cases in representing Rafaele 
         17   Demoulas, who was the widow of Evan Demoulas, who 
         18   originally had brought the lawsuit and then died 
         19   tragically in an automobile accident, leaving a very 
         20   young wife and a child.  And I represented them in 
         21   connection with some controversy about the stock 
         22   among the family.  
         23            But in that role, I, in a number of 
         24   occasions, was required to be present in the role as 
 0148
          1   counsel for Rafaele Demoulas in hearings that were 
          2   held before Judge Lopez in relationship to the scope 
          3   of her orders, what should be included in her 
          4   orders, how her orders would be carried out in terms 
          5   of money exchanging between the two branches of the 
          6   family, what equitable relief would be granted in 
          7   terms of unraveling certain companies and so forth.  
          8   They were very convoluted issues. 
          9            And at the time that I was present in that 
         10   case and participating in hearings before Judge 
         11   Lopez, the problem raised by accusations --
         12            MR. WARE:  Your Honor, I'm going to object, 
         13   with all deference to Mr. Todd.
         14            HEARING OFFICER DAHER:  I think I'm going 
         15   to sustain this part of it.
         16       Q.   Were you aware -- strike that.  Had it 
         17   become public -- strike that. 
         18            Had the conduct of the lawyers involved in 
         19   the so-called Demoulas case and their conduct 
         20   towards Judge Lopez become public by that point in 
         21   time? 
         22       A.   Yes.  The accusations against Judge Lopez, 
         23   by the lawyers that were present in the courtroom.
         24       Q.   And had you had a chance to observe the way 
 0149
          1   Judge Lopez treated those lawyers even after the 
          2   so-called accusations?
          3            MR. WARE:  Objection.
          4            HEARING OFFICER DAHER:  What is the 
          5   objection? 
          6            MR. WARE:  Again, Your Honor, we're now 
          7   going to have the witness describing how the Judge 
          8   treated lawyers in another case in which he was not 
          9   a party because in a related case he had a personal 
         10   need to make observations.
         11            HEARING OFFICER DAHER:  Overruled.  Go 
         12   ahead.  I want to hear it. 
         13       A.   Well, the conduct that I observed on the 
         14   part of Judge Lopez toward all of the lawyers, those 
         15   lawyers that had accused her of very serious things 
         16   and those lawyers who had not -- was 
         17   indistinguishable.  She was very quiet, 
         18   professional, courteous, respectful to all the 
         19   lawyers, handled the questions in a very 
         20   professional manner, and took arguments, asked 
         21   questions.  I saw absolutely no display by body 
         22   language, by verbal indications, any way of any 
         23   hostility or disrespect or antagonism towards the 
         24   lawyers who had accused her of all these things 
 0150
          1   versus the lawyers who had not.  And I was candidly 
          2   very, very impressed that somebody could do that 
          3   under those circumstances. 
          4       Q.   Now, you also had occasion to appear before 
          5   Judge Lopez on other matters during the course of 
          6   your practice?
          7       A.   Yes.
          8       Q.   And in fact, have you appeared before her 
          9   in cases where she has been required to make legal 
         10   rulings and the like?
         11       A.   I have.  And, Chief, may I just add this?  
         12   I believe that --
         13            MR. WARE:  Objection, Your Honor.
         14            HEARING OFFICER DAHER:  Sustained. 
         15       A.   Yes, I have appeared in other cases.
         16       Q.   Can you describe for us her legal acumen 
         17   displayed in those cases?
         18            MR. WARE:  I don't object to the extent 
         19   this is offered on the issue of sanctions, as the 
         20   earlier witnesses were.
         21            HEARING OFFICER DAHER:  That's precisely 
         22   what it's being offered for.  Go ahead. 
         23       A.   The judicial acumen that I observed, both 
         24   in the Demoulas cases, which the opinions that were 
 0151
          1   authored by Judge Lopez in those two cases I feel 
          2   are responsible for the fact that we have a business 
          3   court in this Commonwealth today.  They were 
          4   cutting-edge opinions on fiduciary duties, 
          5   partnership law.  For years, Massachusetts has been 
          6   considered kind of a backwater place in terms of 
          7   corporate law --
          8            MR. WARE:  Your Honor, I object.  We're a 
          9   little far afield from the question here.
         10            HEARING OFFICER DAHER:  I think so.  
         11   Sustained. 
         12       A.   But in any event -- I understand your 
         13   ruling, Judge.  And in any event --
         14            MR. WARE:  Please, Mr. Todd.
         15       A.   Just to continue on the acumen --
         16            HEARING OFFICER DAHER:  I think you've gone 
         17   well beyond that.  If you can just focus your 
         18   comments in re the question of her legal acumen 
         19   without getting into the business court development, 
         20   et cetera. 
         21            THE WITNESS:  I will.
         22            HEARING OFFICER DAHER:  I'd appreciate it. 
         23       A.   Those two opinions were brilliant.  And for 
         24   a judge who hadn't been on the Superior Court for 
 0152
          1   more than one or two years, to have authored them, 
          2   they were incredible.
          3            HEARING OFFICER DAHER:  They were 
          4   brilliant.  Let's move on.
          5       A.   Then in cases I've been before her on, a 
          6   case for Kirkpatrick & Lockhart, a law firm; there 
          7   were difficult questions of jurisdiction involved in 
          8   that, and bankruptcy issues, whether debts were 
          9   discharged or not.  I believed, although I was not 
         10   always on the winning side, that the opinions that 
         11   the Judge generated in that case were really 
         12   paradigmatic of judicial acumen.  Any number of 
         13   cases.  I've had about five or six cases.
         14       Q.   And, Mr. Todd, in the times that you 
         15   remember before Judge Lopez and on times where you 
         16   observed her directly by -- at times when you were 
         17   not counsel, but observing, are you able to describe 
         18   her demeanor on the bench?
         19       A.   Always low-keyed, quite participatory in 
         20   asking questions and searching for views from 
         21   attorneys, quite open to arguments from the lawyers, 
         22   never rude or cutting people off in the middle of 
         23   arguments, quite scholar -- I think more scholarly 
         24   or academic would be the impression that I took away 
 0153
          1   mostly from my interactions with Judge Lopez as a 
          2   counsel.
          3            MR. EGBERT:  Thank you.  I have no further 
          4   questions.
          5            MR. WARE:  No questions.
          6            HEARING OFFICER DAHER:  Thank you.   
          7              ROBERT M. DELAHUNT, JR., Sworn
          8                    DIRECT EXAMINATION
          9       BY MR. EGBERT: 
         10       Q.   Would you state your name, please. 
         11       A.   Yes.  Good afternoon.  My name is Robert M.  
         12   Delahunt, Jr.  Delahunt is spelled D-e-l-a-h-u-n-t, 
         13   and I am junior of said name.
         14       Q.   I'm sorry? 
         15       A.   I'm junior of that name.
         16       Q.   Mr. Delahunt, how are you currently 
         17   employed?
         18       A.   I am an attorney.  I am engaged in the 
         19   private practice of law with the law firm of Murphy, 
         20   Hesse, Toomey & Lehane.  Our offices are in Boston, 
         21   Springfield and Quincy, Massachusetts.
         22       Q.   Can you give me a synopsis of your 
         23   professional background, education and prior 
         24   employment. 
 0154
          1       A.   I graduated from Colby College in 1987 with 
          2   a Bachelor of Arts.  I graduated from the Boston 
          3   University School of Law in 1990.  From there, I 
          4   proceeded to a ten-year career in state law 
          5   enforcement as a state prosecutor.  From August of 
          6   1990 to December of 1998, I was employed as a 
          7   prosecutor with the office of the Norfolk District 
          8   Attorney.  From January of 1999 through November of 
          9   2000, I was employed as a state prosecutor with the 
         10   office of the Middlesex District Attorney'S Office.  
         11   And during that period of time, I was 
         12   cross-designated for various assignments, including 
         13   a six-month stint in the office of the Suffolk 
         14   District Attorney for one homicide case.  Following 
         15   that, in November of 2000, I entered private 
         16   practice, where I have been to date.
         17       Q.   You were at the Norfolk District Attorney'S 
         18   Office I think you said from 1990 to 1998 or 
         19   thereabouts?
         20       A.   Yes, sir.
         21       Q.   Can you tell us what types of cases you 
         22   handled at the Norfolk DA's office?
         23       A.   I began as a prosecutor in the District 
         24   Courts and then to the jury of six, where I handled 
 0155
          1   the routine misdemeanors, including an abundance of 
          2   trial work in the jury of six. 
          3            I then progressed to the Superior Court, 
          4   where I handled felonies and ultimately worked on 
          5   almost exclusively homicides for the last four years 
          6   there.  In addition, one of my primary assignments 
          7   was to handle all civil rights-related matters and 
          8   hate crimes, as they were commonly known.  That 
          9   required community interfacing with the various 
         10   groups affected and worked with law enforcement 
         11   professionals in those areas.
         12       Q.   You said you went to the Middlesex DA's 
         13   from 1999 to the Year 2000?
         14       A.   That's correct.
         15       Q.   What types of cases did you handle there?
         16       A.   Almost exclusively homicides.  I handled 
         17   select felonies at the discretion of the District 
         18   Attorney Martha Coakley and other special projects 
         19   for her, but I was principally involved in the 
         20   homicides.
         21       Q.   And during that, time I think you said you 
         22   were a special assistant in Suffolk County for one 
         23   case?
         24       A.   That's correct.
 0156
          1       Q.   What was the case of that?
          2       A.   Commonwealth versus Jeffrey Bly, which 
          3   involved the murder of an Assistant Attorney General 
          4   Paul McLaughlin.  My assignment in that case was to 
          5   be loaned from the Middlesex DA's office to the 
          6   Suffolk DA's office, cross-designated as a Special 
          7   Assistant DA and as a Special Assistant Attorney 
          8   General to support the lead prosecutor, Thomas 
          9   Brennan.  My principal assignment in the case was 
         10   twofold:  One was the forensic DNA evidence, to 
         11   compile the experts, to interface with them, and to 
         12   present the DNA evidence through admissibility 
         13   hearings, to cross-examine defense DNA experts and 
         14   the like. 
         15            My second assignment in that case was 
         16   witness preparation.  And thirdly, I was just at Mr. 
         17   Brennan's disposal for other issues that came up. 
         18       Q.   Sir, have you been involved in the -- 
         19   strike that. 
         20            Do you teach at the Massachusetts Criminal 
         21   Justice Training Council?
         22       A.   I have in the past.  In fact, one year -- 
         23   one full academic year I was a weekly instructor for 
         24   the purposes of hate crimes and civil rights work 
 0157
          1   for in-service training for Massachusetts police 
          2   officers.
          3       Q.   Sir, during your approximately ten years' 
          4   experience with the DA's offices that you've 
          5   described, did you have occasion to appear before 
          6   Judge Maria Lopez?
          7       A.   Many times.
          8       Q.   And can you quantify that in any way that's 
          9   helpful?
         10       A.   Yes, sir.  When I was a prosecutor in the 
         11   district courts while Judge Lopez was a District 
         12   Court Judge, I would say I appeared in front of her 
         13   on motions, pleas, and trials at least 20 to 25 
         14   times. 
         15            In the Superior Court I appeared in front 
         16   of her on felonies and numerous times on homicide 
         17   cases in everything from plea negotiations and plea 
         18   dispositions to motion hearings, full-blown 
         19   evidentiary motion hearings and the like.  I also 
         20   try cases in front of her principally in the 
         21   District Court.
         22       Q.   While in Superior Court, you mentioned that 
         23   you had various pleas in front of her.  Guilty 
         24   pleas, I take it?
 0158
          1       A.   Yes, sir.
          2       Q.   Did you participate in anything called 
          3   "lobby conferences"?
          4       A.   Yes, I did.
          5       Q.   And what are those?
          6       A.   Those are conferences between a prosecutor, 
          7   defense counsel and the Judge in an effort to 
          8   dispose of the case short of trial.
          9       Q.   And did Judge Lopez have a particular 
         10   practice in the way those were conducted that you 
         11   observed?
         12       A.   Yes, she did.
         13            MR. WARE:  Objection, Your Honor. 
         14            HEARING OFFICER DAHER:  What's the 
         15   objection? 
         16            MR. WARE:  The relevance of this.  We're 
         17   concerned here with a single case again. 
         18            HEARING OFFICER DAHER:  Overruled.  Go 
         19   ahead. 
         20       A.   Yes, she did.
         21       Q.   And can you just again, without belaboring, 
         22   tell us generally what the practice was of Judge 
         23   Lopez for lobby conferences.
         24       A.   In the Superior Court my experience was 
 0159
          1   that Judge Lopez would see attorneys at side bar.  
          2   These were done off the record.  She would take 
          3   great pains to listen and take notes.  She would 
          4   listen to both sides, she would listen to 
          5   aggravating circumstances, she would listen to 
          6   mitigating circumstances.  She would then tell 
          7   counsel, based upon their recommendations, what she 
          8   would do on a plea, what sentence she would give on 
          9   a plea.  That was made known to counsel, so that the 
         10   defense counsel could then make an informed decision 
         11   relative to their client as to whether the matter 
         12   would proceed by way of a plea.
         13       Q.   And as the prosecutor in those cases, what 
         14   did you understand when she told you that that would 
         15   be her sentence on a plea?
         16            MR. WARE:  Objection.
         17            HEARING OFFICER DAHER:  Sustained. 
         18       Q.   During the course of your dealings with 
         19   Judge Lopez, both in -- strike that. 
         20            During the course of your appearances 
         21   before Judge Lopez in all the various aspects that 
         22   you just described, can you tell us how you found -- 
         23   how you would describe her legal and judicial 
         24   abilities. 
 0160
          1       A.   Well, I found her legal and judicial 
          2   abilities to be outstanding.  It was my experience 
          3   that she was able to combine the highest legal 
          4   acumen with a degree of humanity that some of the 
          5   most severe felonies and homicides require.
          6       Q.   And, sir, could you tell me during those 
          7   courses of those proceedings before Judge Lopez, how 
          8   you would describe her demeanor and conduct. 
          9       A.   In my experience, she was always fair, 
         10   patient, measured and professional, highly 
         11   professional with all parties.
         12       Q.   And during the course of -- strike that. 
         13            You've described all those appearances that 
         14   you've had before her as a prosecutor, correct?
         15       A.   Yes, sir.
         16       Q.   Have you ever appeared before her as a 
         17   defense counsel?
         18       A.   No, I have not.
         19       Q.   Since you went into private practice, have 
         20   you appeared before her at any time?
         21       A.   No, I have not.
         22            MR. EGBERT:  I have no further questions.
         23            HEARING OFFICER DAHER:  Cross? 
         24            MR. WARE:  No questions. 
 0161
          1            MR. EGBERT:  That's all the witnesses I 
          2   have for today, Your Honor. 
          3            HEARING OFFICER DAHER:  Let's agree -- I 
          4   know that the parties -- I want to get it on record 
          5   that the parties agree that there will be no 
          6   hearings next week.  Is that correct?  That's by 
          7   agreement.  I want to get it on record.  And we can 
          8   pick it up -- how much more do we have?  Another day 
          9   or so?  Will one more day do it? 
         10            MR. EGBERT:  I think it will, Judge, 
         11   particularly with the speed that this is going with 
         12   these type of witnesses and so forth.  So I think 
         13   our agreement was we would start up a week from 
         14   Monday, which is the 30th, I believe.
         15            HEARING OFFICER DAHER:  If you want to do 
         16   that -- if it's only going to take one day, we could 
         17   do it on the 3rd of January or the Monday of that 
         18   week. 
         19            MR. WARE:  I think we're talking about a 
         20   week from Monday, December 30th; is that right? 
         21            HEARING OFFICER DAHER:  That would be 
         22   December 30th.  We could start it on a Monday; or 
         23   else -- if it's going to be one day, we could do it 
         24   in January, on the 3rd of January.
 0162
          1            MR. EGBERT:  I'm going to lose witnesses.  
          2   We've been calling around to people --
          3            HEARING OFFICER DAHER:  If you want the 
          4   30th, we can do it the 30th.  If you want the 3rd of 
          5   January and get through the holidays, I really don't 
          6   care.
          7            MR. WARE:  I would like to go with December 
          8   30th, which is what we talked about.
          9            HEARING OFFICER DAHER:  You've got the 
         10   30th.  That will be fine. 
         11            What else do we have?  Anything else?  
         12   Nothing pending?  
         13            (No response)
         14            HEARING OFFICER DAHER:  Okay, fine.
         15                 (Whereupon, the hearing was
         16                 adjourned at 2:53 p.m.)
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          1                   C E R T I F I C A T E
          2            I, Jane M. Williamson, Registered 
          3   Professional Reporter, do hereby certify that the 
          4   foregoing transcript, Volume XIII, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on Friday, December 20, 2002.
          7   
          8   
          9                  _____________________________
         10                            Jane M. Williamson
         11                  Registered Merit Reporter
         12   
         13   
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