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 0001
                                            Volume XIV   
                                            Pages 14-1 to 14-128
                                            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., 
                       and Roberto M. Braceras, Esq.) 
                       Exchange Place, Boston, MA  
                       02109, for the Commission on Judicial 
                       Conduct.
                       
              
                  Law Offices of Richard M. Egbert
                       (by Richard M. Egbert, Esq., and
                       Patricia A. DeJuneas, Esq.)
                       99 Summer Street, Suite 1800,
                       Boston, MA  02110, for the Honorable 
                       Maria I. Lopez.
              
              
                                    Held at:
                           Edward W. Brooke Courthouse
                              24 New Chardon Street
                              Boston, Massachusetts
                            Monday, December 30, 2002
                                    9:43 a.m.
              
                 (Jane M. Williamson, Registered Merit Reporter)
              
                                     * * * *
                                        
 0002
          1                         I N D E X
              
          2   WITNESS        DIRECT  CROSS  REDIRECT  RECROSS
              
          3   Randy Scott
              Chapman
          4    (By Mr. Egbert) 14-3
              
          5   Brian Grifkin
               (By Mr. Egbert) 14-10         14-22
          6    (By Mr. Ware)         14-21
              
          7   Charles Spurlock
               (By Mr. Egbert) 14-24
          8   
              Edward P. Ryan, Jr.
          9    (By Mr. Egbert) 14-29
              
         10   Frederick E. 
              Dashiell
         11    (By Mr. Egbert) 14-37
              
         12   Regina Quinlan
               (By Mr. Egbert) 14-43
         13   
              Christine McEvoy
         14    (By Mr. Egbert) 14-47
              
         15   John Bonistalli
               (By Mr. Egbert) 14-63         14-73
         16    (By Mr. Ware)         14-69
              
         17   Robert Bohn
               (By Mr. Egbert) 14-76
         18   
              Eva Nilsen
         19    (By Mr. Egbert) 14-88
              
         20   Camille F. 
              Sarrouf, Jr.
         21   
                                    *  *  * 
         22   
                                 E X H I B I T S
         23   
              EX. NO.                         FOR ID   IN EVID.
         24   
                                   (None)
 0003
          1                   P R O C E E D I N G S
          2            HEARING OFFICER DAHER:  Mr. Egbert, you may 
          3   continue. 
          4            MR. EGBERT:  I call Randy Chapman.
          5            HEARING OFFICER DAHER:  I take it you've 
          6   given a copy of the Veksler case to Attorney Ware? 
          7            MR. EGBERT:  Yes, Your Honor.
          8            HEARING OFFICER DAHER:  Let's go. 
          9                 RANDY SCOTT CHAPMAN, Sworn
         10                    DIRECT EXAMINATION
         11       BY MR. EGBERT: 
         12       Q.   Sir, would you state your name, please.
         13       A.   Randy Scott Chapman.
         14       Q.   Where do you reside?
         15       A.   Swampscott, Massachusetts.
         16       Q.   What is your current employment?
         17       A.   I'm a partner in the law firm of Chapman & 
         18   Chapman in Chelsea, Massachusetts.
         19       Q.   And you're an attorney licensed to practice 
         20   in the Commonwealth?
         21       A.   I am.
         22       Q.   Can you give me a brief description of your 
         23   professional background, please. 
         24       A.   I passed the bar in 1986 and immediately 
 0004
          1   started to work for the Essex County district 
          2   attorney's office.  I stayed there from 1986 to 
          3   1991, prosecuting in the District Court, the jury 
          4   session, and then Superior Court.  I left in 1991, 
          5   joined my father, practiced in Chelsea, and have 
          6   been there since 1991 to the present, practicing 
          7   mostly in state and federal court, criminal defense 
          8   and some personal injury.
          9       Q.   Sir, can you tell me, have you had occasion 
         10   to be a chair of any bar association committees?
         11       A.   Yes.  I am currently a House of Delegate 
         12   member and an executive committee member for the bar 
         13   association.  I've been involved with the Mass. bar 
         14   since 1993 and have been the chair of the criminal 
         15   justice section for two years.  I was also chair of 
         16   the judicial registration section and was also a 
         17   member of the Judicial Conduct Commission task 
         18   force.
         19       Q.   Have you also had occasion to give lectures 
         20   in the various areas of law?
         21       A.   Yes, I've lectured locally for MCLE, local 
         22   laws.  I've also been on the faculty for 
         23   Northwestern Law Center in Chicago, and have 
         24   lectured around the country, mostly dealing with 
 0005
          1   motor vehicle homicide and 
          2   operating-under-the-influence-related issues.
          3       Q.   Mr. Chapman, while you were in the district 
          4   attorney's office in Essex County, did you have 
          5   occasion to practice in the various district courts 
          6   in Essex County?
          7       A.   I did.
          8       Q.   And did you also have occasion to practice 
          9   in the Superior Court in Essex County?
         10       A.   I did.
         11       Q.   Were you the head of any sections of the 
         12   district attorney's office at the time?
         13       A.   I was chief of the motor vehicle homicide 
         14   unit.
         15       Q.   When was that?
         16       A.   That would have been probably from about 
         17   1999 -- excuse me -- 1989 to 1991.
         18       Q.   Sir, during your tenure as an assistant 
         19   district attorney, did you have occasion to come 
         20   into contact with Judge Maria Lopez?
         21       A.   I did.
         22       Q.   And has your relationship with her been 
         23   solely professional?
         24       A.   Yes, it has.
 0006
          1       Q.   And during the course of your -- strike 
          2   that. 
          3            Tell us how and under what circumstances 
          4   you came into Judge Lopez's -- in contact with Judge 
          5   Lopez during the course of your career as a district 
          6   attorney.
          7       A.   Essex County was -- in 1987 began an 
          8   experiment to abolish trial de novo.  They were 
          9   eliminating the two-trial system in the District 
         10   Court.  I was assigned in 1998 and 1997 and part of 
         11   1989 -- excuse me -- 1987, 1988 and 1989 into the 
         12   jury session, both in Salem and in Peabody.  Judge 
         13   Lopez I think had just around that time been 
         14   appointed to the bench and was assigned as a Region 
         15   2 judge to Peabody District Court. 
         16       Q.   Did you have occasion to both try cases in 
         17   front of Judge Lopez and handle pleas and other 
         18   matters before her?
         19       A.   I did.
         20       Q.   And approximately how many times did you 
         21   appear before her, if you can tell us?
         22       A.   The way the District Court works, you're 
         23   dealing with -- you could be dealing with 50 cases a 
         24   day, so several of those cases when she was in the 
 0007
          1   jury session I'd be handling in front of her.  Many 
          2   of those would be pleas; many also would be jury 
          3   trials.
          4       Q.   Now, while you were an assistant district 
          5   attorney and appearing before her, could you 
          6   describe her judicial demeanor?
          7       A.   She was extremely cordial, she was 
          8   respectful of the litigants, she had a command and 
          9   understanding of the law, and she fully listened to 
         10   the issues and always tried to, in my opinion, reach 
         11   what she felt was the fair and equitable decision.
         12       Q.   After your career as an assistant district 
         13   attorney, you entered private practice?
         14       A.   Yes.
         15       Q.   And that was with your father, I believe; 
         16   is that correct?
         17       A.   Yes.
         18       Q.   Where is your office located?
         19       A.   My office is in Chelsea, but we practice 
         20   primarily in Suffolk County, Middlesex and Essex 
         21   County at the state level.
         22       Q.   And did you have occasion to appear in the 
         23   Chelsea District Court regularly?
         24       A.   Yes.  In 1991 and thereafter, I was in 
 0008
          1   Chelsea District Court on several occasions.
          2       Q.   And that was as a private defense lawyer?
          3       A.   Yes.
          4       Q.   During that time did you also have contact 
          5   with Judge Lopez?
          6       A.   We had a lot of contact with her.  My 
          7   father was partners with the presiding judge, Judge 
          8   Panarese at the time.  So all of our cases he 
          9   recused himself of anything that he had to deal 
         10   with.  So all of our cases were sent to the Second 
         11   Session, where Judge Lopez was assigned.
         12       Q.   And during that period of time as a defense 
         13   lawyer of the District Court, again can you 
         14   approximate how many occasions you appeared before 
         15   Judge Lopez?
         16       A.   Probably not as many as when you're a DA, 
         17   because you're there every day, but it could be once 
         18   or twice a week.  And not only would you be sitting 
         19   there for your matters; you'd be sitting there for 
         20   everybody else's matters because the Second Session 
         21   was sort of the receptacle for any other cases that 
         22   were not being heard in the First Session.  So there 
         23   were a lot of cases going on during that time.
         24       Q.   And while you appeared before Judge Lopez 
 0009
          1   in the Chelsea District Court as a private defense 
          2   lawyer, can you describe for us her legal acumen and 
          3   her judicial demeanor?
          4       A.   The same as it was as when I was on the DA 
          5   side.  She again listened carefully to the arguments 
          6   on both sides that were being made, she was fair, 
          7   she tried to always seem to reach the right result.
          8       Q.   And have you also had experience appearing 
          9   before Judge Lopez in the Superior Court?
         10       A.   Yes.  Obviously to a lesser extent, but 
         11   I've had some matters in front of her which involved 
         12   pleas.  I had a restraining order matter in front of 
         13   her once.
         14       Q.   And again, with regard to your experience 
         15   in the Superior Court with Judge Lopez, how would 
         16   you describe her judicial demeanor?
         17       A.   Again, the same.  Very thoughtful, listened 
         18   to the litigants and always tried to reach what she 
         19   felt was the fair and equitable result.
         20            MR. EGBERT:  I have no further questions.
         21            HEARING OFFICER DAHER:  Any questions? 
         22            MR. WARE:  No. 
         23            HEARING OFFICER DAHER:  Call your next 
         24   witness. 
 0010
          1            MR. EGBERT:  Brian Grifkin, please. 
          2                   BRIAN GRIFKIN, Sworn
          3                    DIRECT EXAMINATION
          4       BY MR. EGBERT: 
          5       Q.   Good morning. 
          6       A.   Good morning, sir.
          7       Q.   Would you state your name, please. 
          8       A.   Brian Grifkin.
          9       Q.   Mr. Grifkin, where do you reside?
         10       A.   Malden, Massachusetts.
         11       Q.   Sir, can you tell us what your current 
         12   employment is?
         13       A.   Trial court, Commonwealth of Massachusetts.
         14       Q.   And what is your position in the trial 
         15   court?
         16       A.   I'm the assistant chief court officer at 
         17   Middlesex Superior Court in Cambridge.
         18       Q.   How long have you been a court officer?
         19       A.   Since February of 1977.
         20       Q.   How long have you had the position as 
         21   assistant chief?
         22       A.   Since June of 1996.
         23       Q.   And during the course of your experience as 
         24   a court officer, how long were you in the Superior 
 0011
          1   Court system?
          2       A.   My whole time I've been in Superior 
          3   Court -- I've worked district courts and probate, 
          4   but mainly in Superior Court.
          5       Q.   And has it also been in Middlesex County?
          6       A.   Yes.
          7       Q.   And has it primarily been in the Cambridge 
          8   court?
          9       A.   Yes.
         10       Q.   Mr. Grifkin -- strike that. 
         11            During the course of your duties have there 
         12   been occasions where arrangements have been made by 
         13   your office or court personnel for litigants, 
         14   witnesses and the like to appear in prearranged 
         15   destinations?
         16       A.   Yes.
         17            MR. WARE:  Objection. 
         18            HEARING OFFICER DAHER:  What's the 
         19   objection? 
         20            MR. WARE:  Your Honor, this is in the 
         21   nature of expert testimony.  This witness has no 
         22   relationship whatsoever to the events that are 
         23   relevant here.
         24            HEARING OFFICER DAHER:  Overruled.  Go 
 0012
          1   ahead.  You may have it.
          2            MR. EGBERT:  Thank you.
          3       Q.   And the answer to my question was? 
          4       A.   Yes.
          5       Q.   And, sir, under what circumstances 
          6   generally are those arrangements made?
          7            MR. WARE:  Objection. 
          8            HEARING OFFICER DAHER:  Same objection.  
          9   Overruled.  Go ahead. 
         10       A.   Sometimes we confer with members of the 
         11   judiciary.  Sometimes the Chief, myself and the 
         12   other Assistant Chief take it upon ourselves to do 
         13   it with conversations with attorneys, both from the 
         14   district attorney's office, from the defense bar 
         15   and, like I said, with members of the judiciary.
         16       Q.   And, sir, are there circumstances -- have 
         17   there been circumstances in your past dealings as 
         18   Assistant Chief where you have made these kinds of 
         19   arrangements where there was press involved?
         20       A.   Yes.
         21       Q.   And what are the nature of the 
         22   circumstances which have caused those arrangements 
         23   to be made?
         24            MR. WARE:  Objection.
 0013
          1            HEARING OFFICER DAHER:  Sustained.
          2       Q.   What are the considerations for your office 
          3   in making arrangements for litigants and the like as 
          4   we've described?
          5            MR. WARE:  Objection.
          6            HEARING OFFICER DAHER:  Same objection -- 
          7   I'm going to sustain that also.
          8            MR. EGBERT:  Judge, it goes to the practice 
          9   and procedure.  It's got nothing to do with expert 
         10   testimony at all.  He's not being asked to deliver 
         11   an opinion.  He's being asked to tell us how the 
         12   courthouse operates in a particular matter.  This is 
         13   a matter that Judge Lopez is particularly charged 
         14   with supposedly exhibiting bias by making 
         15   arrangements which this witness would testify to are 
         16   made all the time under similar circumstances by his 
         17   office, by judges and the like.
         18            HEARING OFFICER DAHER:  The ruling stands.  
         19   Let's go. 
         20       BY MR. EGBERT: 
         21       Q.   Are you familiar with arrangements that 
         22   were made in the Horton case?
         23       A.   Yes, I am.
         24       Q.   And was that a case -- strike that.  Can 
 0014
          1   you tell us what arrangements were made? 
          2            MR. WARE:  Objection.
          3            HEARING OFFICER DAHER:  What's your 
          4   objection? 
          5            MR. WARE:  The only way this witness 
          6   knows -- I don't know if there's going to be a 
          7   better foundation, but my understanding is this 
          8   witness had no role in the Horton case.
          9            HEARING OFFICER DAHER:  What is the 
         10   underpinning, Mr. Egbert? 
         11       Q.   What was your position in September of 
         12   2000?
         13       A.   I was the Assistant Chief Court Officer.
         14       Q.   And what were your duties as Assistant 
         15   Chief?
         16       A.   To supervise the other court officers to 
         17   make sure that, you know, the associate court 
         18   officers are in the building, just in my normal 
         19   course of duties.
         20       Q.   And during that period of time, did you 
         21   supervise the court officers who were in the 
         22   courtroom for the case of Commonwealth versus 
         23   Horton?
         24       A.   Yes.
 0015
          1       Q.   And did they report to you?
          2       A.   Yes, they did.
          3       Q.   And did you have discussions with them 
          4   concerning arrangements being made in the Horton 
          5   case?
          6       A.   Yes.
          7       Q.   And when did you have those discussions?
          8       A.   The morning of the case.
          9       Q.   The morning of the sentencing?
         10       A.   Yes.
         11       Q.   And can you tell us what the conversations 
         12   were with the court officers?
         13            MR. WARE:  Objection.  
         14            HEARING OFFICER DAHER:  What's the 
         15   objection?
         16            MR. WARE:  Hearsay.
         17            MR. EGBERT:  It's not hearsay, Your Honor.  
         18   It's not being offered for the truth.  It's being 
         19   offered to show what he was told as the supervisor 
         20   as to arrangements that were being made.  It's 
         21   putting him on notice of those particular events.
         22            HEARING OFFICER DAHER:  As to what action 
         23   he took upon having been notified?
         24            MR. EGBERT:  That's right.
 0016
          1            HEARING OFFICER DAHER:  I'll hear from Mr. 
          2   Ware.
          3            MR. WARE:  Your Honor, it is in fact 
          4   hearsay.  It is in fact being offered for the truth 
          5   of what the arrangements were. 
          6            HEARING OFFICER DAHER:  Overruled.  Go 
          7   ahead.
          8       A.   The officers in the session informed me 
          9   that Judge Lopez had informed them to meet the 
         10   defendant and the defense attorney at the rear door 
         11   of the building, and then they brought the 
         12   defendant -- actually, they brought the attorney up 
         13   to the 12th floor.  The defendant came in the front 
         14   door of the building, was wandering on the second or 
         15   third floor where the court officers went down there 
         16   with his lawyer, I believe, and got him and then 
         17   brought him up to the 12th floor.  The Judge was in 
         18   Courtroom 12B.
         19            HEARING OFFICER DAHER:  Again, this is 
         20   information that they told you specifically? 
         21            THE WITNESS:  Yes.
         22            HEARING OFFICER DAHER:  Again, Mr. Egbert, 
         23   we're somewhat far afield.  In other words, what 
         24   action did he take once he was notified.  I mean, 
 0017
          1   we're really far afield now.
          2            MR. EGBERT:  I'm sorry, Judge; I didn't 
          3   hear you.
          4            HEARING OFFICER DAHER:  Again, what did he 
          5   do, having been notified.
          6            MR. EGBERT:  I'm about to ask that.
          7            HEARING OFFICER DAHER:  Go ahead.
          8       Q.   When you had the discussions with the court 
          9   officers concerning the arrangements that were being 
         10   made, what did you do?
         11       A.   I made sure they did it.  And when I went 
         12   up to the courtroom -- because in addition to the 
         13   Horton case, there were 50 other cases in the 
         14   building that day -- I went up to the courtroom, and 
         15   I walked into the courtroom and saw at that point 
         16   that I guess the disposition of the sentencing was 
         17   just about to take place.  And I then left the 
         18   courtroom.  There was no incidents at that point 
         19   which we needed to put extra security in the 
         20   courtroom.  The courtroom looked secure.  There 
         21   wasn't any situation where we had to call in more 
         22   court officers, and I left and went back to my 
         23   office.
         24       Q.   And had you made similar arrangements in 
 0018
          1   the past in other cases?
          2       A.   Absolutely.
          3       Q.   And had you done so on your own?
          4       A.   Without question.
          5       Q.   Had you done so at the direction of a 
          6   judge?
          7       A.   Absolutely.
          8       Q.   Had you done so at the request of defense 
          9   counsel?
         10       A.   Yes.
         11       Q.   Had you done so at the request of the 
         12   district attorney's office?
         13       A.   Yes, I have.
         14       Q.   And in all of those matters, what was the 
         15   reason that you did that?
         16       A.   For the security of -- 
         17            (Mr. Ware stands)
         18            HEARING OFFICER DAHER:  Sustained. 
         19       Q.   Do you interact with judges regularly 
         20   concerning your requirements for security in the 
         21   courthouse?
         22       A.   Absolutely.
         23       Q.   Have you interacted in the past with Judge 
         24   Lopez concerning your requirements for security in 
 0019
          1   the courthouse?
          2       A.   Yes, I have.
          3       Q.   And what have you informed the judges, 
          4   including Judge Lopez, concerning your concerns for 
          5   security in the courthouse?
          6            MR. WARE:  Objection.
          7            HEARING OFFICER DAHER:  What's the 
          8   objection? 
          9            MR. WARE:  Irrelevant to this particular 
         10   occasion on September 6th, 2000.  We're now asking 
         11   for some global instruction to Judge --
         12            HEARING OFFICER DAHER:  Sustained.  I'll 
         13   hear you.
         14            MR. EGBERT:  It goes to first state of 
         15   mind, No. 1, as to what she was told the concerns of 
         16   the security force were and what she learned -- what 
         17   he told her upon which she has a right to act with 
         18   regard to making arrangements for security in the 
         19   courthouse.
         20            HEARING OFFICER DAHER:  The ruling stands.  
         21   Go ahead. 
         22       BY MR. EGBERT: 
         23       Q.   As Assistant Chief Court Officer, if you 
         24   learned that the Horton case -- strike that.  Were 
 0020
          1   you aware on September 6th -- and I'll inform you 
          2   for a moment that's the date of the sentencing in 
          3   the Middlesex County case, if you would -- were you 
          4   aware on September 6th that there had been some 
          5   press interaction with litigants in Suffolk County 
          6   in the Horton case previous to it coming to 
          7   Middlesex County?
          8       A.   I had seen the news of it, but was unaware 
          9   until the day that it was actually coming to 
         10   Cambridge.
         11       Q.   And as Assistant Chief, if you understood 
         12   that in a prior occasion in Suffolk County the press 
         13   and the litigants came into such contact that there 
         14   were shouting matches in the hallway and litigants 
         15   would not come up elevators and come into court and 
         16   the like, would that give you any concern for the 
         17   security of the Middlesex courthouse on September 
         18   6th of 2000?
         19            MR. WARE:  Objection.
         20            HEARING OFFICER DAHER:  Sustained.  
         21       Q.   Did you, as Assistant Chief at the time on 
         22   September 6th, find anything unusual in the 
         23   arrangements which were being made that day?
         24       A.   No.
 0021
          1            MR. EGBERT:  No further questions. 
          2            HEARING OFFICER DAHER:  Cross? 
          3                     CROSS EXAMINATION
          4       BY MR. WARE:
          5       Q.   Mr. Grifkin, the arrangements that were 
          6   made on September 6th, 2000, as I understood you, 
          7   were as a result of instructions given by Judge 
          8   Lopez to two of the court officers who worked for 
          9   you; is that correct?
         10       A.   That's correct.
         11       Q.   Prior to September 6th, and specifically on 
         12   August 4th, 2000, were you aware of any specific 
         13   arrangements made or problems in the Horton case 
         14   while it was in Middlesex?
         15       A.   I believe it was in Suffolk --
         16       Q.   Excuse me; you're right. 
         17       A.   So, therefore, counsel, what goes on in 
         18   Suffolk, that wasn't our issue at the point.
         19       Q.   As I understood you, until September 6th, 
         20   that morning when you had some conversation, you 
         21   weren't specifically aware of the need for any kind 
         22   of special arrangements; is that correct?
         23       A.   Prior to that, first thing that morning, 
         24   no.
 0022
          1            MR. WARE:  I have nothing further.  Thanks. 
          2                   REDIRECT EXAMINATION
          3       BY MR. EGBERT: 
          4       Q.   You were asked whether or not before 
          5   September 6th you were aware of anything that 
          6   required special arrangements.  Do you recall that 
          7   question just now?
          8       A.   Right. 
          9       Q.   Now, on September 6th did you become 
         10   aware --
         11       A.   Yes, I was told in the morning by the 
         12   officers in the session that they would be doing a 
         13   disposition on this matter and that the Judge had 
         14   made arrangements with the defense attorney to meet 
         15   them at the back door with the defendant so they 
         16   could get in the building without any problems.
         17       Q.   And did you become aware on that date, on 
         18   the morning of September 6th, that there had been 
         19   problems in Suffolk County on this case in the past?
         20       A.   Yes.
         21       Q.   And that they had caused a disruption in 
         22   Suffolk County?
         23       A.   Absolutely.
         24       Q.   And after hearing all this information, did 
 0023
          1   you agree with the arrangements being made?
          2       A.   100 percent.
          3            MR. EGBERT:  No further questions.
          4            HEARING OFFICER DAHER:  I have a question.  
          5   You knew that the Horton matter was before you; is 
          6   that correct? 
          7            THE WITNESS:  Your Honor, I wasn't aware 
          8   until -- on the morning of the 6th, when my officers 
          9   told me that Judge Lopez had requested of them to 
         10   meet the defense attorney and defendant --
         11            HEARING OFFICER DAHER:  And you're in 
         12   charge of the running of the courtroom.
         13            THE WITNESS:  Of the courthouse.
         14            HEARING OFFICER DAHER:  How did you let the 
         15   cameras in without getting her permission first?
         16            THE WITNESS:  The cameras came up to the 
         17   floor.
         18            HEARING OFFICER DAHER:  How did you let 
         19   them in without getting her permission first?
         20            THE WITNESS:  They come into the building.  
         21   We're called from the front desk.  We then tell them 
         22   to go into the 12th floor in the public corridor.  
         23   Then the camera people have the court officers in 
         24   the session speak to the Court and then they ask the 
 0024
          1   Court if the cameras are allowed in and she says yes 
          2   and they come in the courtroom.
          3            HEARING OFFICER DAHER:  Who said "yes"?  
          4   Judge Lopez said "yes"? 
          5            THE WITNESS:  Yes. 
          6            HEARING OFFICER DAHER:  Okay.  Any 
          7   questions, Mr. Ware? 
          8            MR. WARE:  No. 
          9            HEARING OFFICER DAHER:  All right.  Thank 
         10   you. 
         11                  CHARLES SPURLOCK, Sworn
         12                    DIRECT EXAMINATION
         13       BY MR. EGBERT: 
         14       Q.   Would you state your name, please. 
         15       A.   Charles Spurlock.
         16       Q.   Judge, what is your current employment?
         17       A.   Superior Court of Massachusetts.
         18       Q.   And you're an associate justice in the 
         19   Superior Court?
         20       A.   Yes, I am.
         21       Q.   Can you give me a brief description of your 
         22   professional background, please. 
         23       A.   From law school?  I graduated Boston 
         24   University Law School.  I worked at the Center for 
 0025
          1   Criminal Justice at BU, for a while at the 
          2   Commission against Discrimination, Middlesex County 
          3   district attorney's office, United States attorney's 
          4   office, and associate justice of Roxbury District 
          5   Court and then associate justice of Superior Court.
          6       Q.   And when were you named as an associate 
          7   justice of the Roxbury District Court?
          8       A.   December 1986.
          9       Q.   And when were you named to associate 
         10   justice in the Superior Court?
         11       A.   April of 1992.
         12       Q.   And during the course of your -- strike 
         13   that. 
         14            Do you know Judge Lopez?
         15       A.   Yes, I do.
         16       Q.   And do you recall when you first came to 
         17   know her?
         18       A.   It was before we were judges sometime ago.  
         19   We were lawyers, I think, when I first met her.
         20       Q.   And during the course of -- strike that.  
         21   After you became a judge, did you have a 
         22   professional association with Judge Lopez?
         23       A.   Yes.  I mean, during the conferences in the 
         24   District Court and primarily conferences at the 
 0026
          1   Superior Court level, educational conferences.
          2       Q.   And how often would you come in contact 
          3   with her under those circumstances?
          4       A.   At the educational conferences in the 
          5   Superior Court twice a year and in the District 
          6   Court once a year and as many times as we might have 
          7   been assigned to the same courts over the years.
          8       Q.   During the course of your coming into 
          9   contact with Judge Lopez under those circumstances, 
         10   have you had occasion to discuss legal issues and 
         11   issues of general legal principles and the like?
         12       A.   Yes.
         13       Q.   And have you come to know of her legal 
         14   acumen in those regard?
         15       A.   Yes.
         16       Q.   And how would you describe it?
         17       A.   Very smart, very insightful, very quick, 
         18   smarter than me.
         19       Q.   And during -- strike that.  At some time in 
         20   the more recent past, have you had occasion to be in 
         21   a group to travel to Cuba with Judge Lopez?
         22       A.   That was two years ago, in December of 
         23   2000, I believe.
         24       Q.   What were the circumstances surrounding 
 0027
          1   that?
          2            MR. WARE:  Objection. 
          3            HEARING OFFICER DAHER:  What's the 
          4   objection?  
          5            MR. WARE:  Relevance, Your Honor.
          6            MR. EGBERT:  It goes to her community 
          7   service, her community involvement, her input into 
          8   the community at large, all of which are relevant 
          9   factors in any disciplinary proceeding.
         10            HEARING OFFICER DAHER:  Again, in re, this 
         11   is confined solely, Mr. Ware, to the possibility of 
         12   sanctions, I'm going to allow it.  Overruled.  Go 
         13   ahead. 
         14       Q.   Let me repeat the question, if I can.  What 
         15   were the circumstances surrounding your trip to 
         16   Cuba?
         17       A.   Maria organized a trip to Cuba in which 
         18   judges from Massachusetts met with judges and 
         19   lawyers in Havana, Cuba over a ten-day period in 
         20   which we had different opportunities to exchange 
         21   ideas about the criminal justice system and the 
         22   civil justice system between the two countries. 
         23            I think at the time it was not long after 
         24   the Elian Gonzalez episode here in America.  And a 
 0028
          1   lot of the people in Cuba wanted to understand what 
          2   had taken place here and how it had taken place in 
          3   terms of the process by which the boy was returned 
          4   to Cuba and what our system was about.
          5       Q.   How many judges, if you recall, traveled on 
          6   that trip?
          7       A.   Maybe 15 to 20.  I'm not sure.
          8       Q.   And who arranged the trip?
          9       A.   Maria did.
         10       Q.   She had full charge basically of 
         11   arranging --
         12       A.   Yes.  She arranged the trip, she arranged 
         13   who would be the speakers from our end -- I'm not 
         14   sure about how it worked out from the other end, who 
         15   were going to be the speakers from the Cuban side, 
         16   but she arranged for different judges in our group 
         17   to speak about different issues that we knew about 
         18   or that we had an interest in while we were in Cuba.  
         19            I remember an afternoon in which we 
         20   discussed criminal justice there.  And I think it 
         21   was Judge Graham -- I remember Judge Graham.  I 
         22   can't remember the others who were giving it.  And 
         23   they were a bit surprised at how we operated in 
         24   terms of the burden of proof and things like that.
 0029
          1       Q.   And as a judge and a member of the judicial 
          2   community, how did you find that exchange of ideas?
          3            MR. WARE:  Objection.
          4            HEARING OFFICER DAHER:  It doesn't hurt 
          5   you.  Overruled.  Go ahead. 
          6       A.   I thought it was interesting.  I came away 
          7   with a new appreciation -- not a new appreciation, 
          8   but a better understanding of how important our 
          9   system of justice is in terms of its focus on 
         10   protecting the innocent as opposed to trying to lock 
         11   everybody up in order to protect the state.
         12            MR. EGBERT:  I have no further questions. 
         13            HEARING OFFICER DAHER:  Any questions? 
         14            MR. WARE:  No questions. 
         15            HEARING OFFICER DAHER:  Thank you, Judge.  
         16   I appreciate it.  Thank you. 
         17                EDWARD P. RYAN, JR., Sworn
         18                    DIRECT EXAMINATION
         19       BY MR. EGBERT: 
         20       Q.   Would you state your name, please.
         21       A.   Edward P. Ryan, Jr.
         22       Q.   Mr. Ryan, where do you reside?
         23       A.   Walpole, Massachusetts.
         24       Q.   Sir, you're a lawyer?
 0030
          1       A.   Yes, I am.
          2       Q.   Licensed to practice in the Commonwealth?
          3       A.   Yes, I am.
          4       Q.   Can you give me a brief recitation of your 
          5   professional background. 
          6       A.   Yes.  I was graduated from Suffolk 
          7   University Law School magna cum laude in 1976.  I 
          8   was admitted to the practice of law on January 17th, 
          9   1977.  I began my career as an assistant district 
         10   attorney in the office of the Worcester County 
         11   district attorney, where I had worked as an 
         12   administrative secretary all through law school, 
         13   served as a student prosecutor and then served for 
         14   approximately two years as an assistant district 
         15   attorney.  
         16            In approximately 1979 I left the office of 
         17   the district attorney and started a full-time law 
         18   practice with a former assistant district attorney 
         19   by the name of John M. O'Connor who had been a 
         20   district attorney for approximately 20 years. 
         21            After I would say approximately one year, 
         22   we formed a partnership known as O'Connor & Ryan and 
         23   that's where I practice law today.  My practice 
         24   consists of mainly trial work in the federal and 
 0031
          1   state courts, criminal, civil and domestic 
          2   relations.
          3       Q.   Mr. Ryan, have you been a participant in 
          4   various bar associations?
          5       A.   Yes, I have.  I've been a member of the 
          6   executive committee of the Worcester County Bar 
          7   Association, served in that capacity for a number of 
          8   years, ultimately becoming the president of the 
          9   Worcester County Bar Association.  Prior to that, I 
         10   was the president of the Northern Worcester County 
         11   Bar Association.  I served for a number of years as 
         12   the president of the Bar Advocates of Worcester 
         13   County, Inc.  At the same time I was also a member 
         14   of the Massachusetts Bar Association.  I served in 
         15   various capacities in various sections on the House 
         16   of Delegates, I served as secretary, treasurer, vice 
         17   president and ultimately president of the 
         18   Massachusetts Bar Association. 
         19       Q.   When was your term as president of the 
         20   Massachusetts Bar Association?
         21       A.   It began September of 2000 and it runs for 
         22   a year.
         23       Q.   Mr. Ryan, do you know Judge Maria Lopez?
         24       A.   Yes, I do.
 0032
          1       Q.   And how do you know her?
          2       A.   Basically and strictly only professionally.  
          3   That's it. 
          4       Q.   And have you appeared before her in various 
          5   cases?
          6       A.   I've appeared in front of her on one 
          7   occasion in Worcester, Worcester Superior Court.
          8       Q.   And what kind of --
          9       A.   It was a civil case.  I believe it was 
         10   the -- I represented the Boy Scouts of America.  
         11       Q.   And during the course of the proceedings 
         12   where you appeared before Judge Lopez, could you 
         13   describe her judicial demeanor and legal acumen?
         14       A.   Her demeanor and legal acumen was 
         15   exemplary, she grasped a complicated set of 
         16   pleadings, a cypres trust case, fairly quickly.  I 
         17   was on the losing side of a motion for preliminary 
         18   injunction on that day.  Ultimately the case was 
         19   tried before a different Judge almost two years 
         20   later.
         21       Q.   Sir, in September of 2000, when you took 
         22   office as president of the Massachusetts Bar 
         23   Association, did you become aware shortly thereafter 
         24   of a case of Commonwealth versus Horton?
 0033
          1       A.   Yes, I did.
          2       Q.   And did you follow publicly the press 
          3   accounts and the like of that case?
          4       A.   Yes, I did.
          5       Q.   And as president of the bar association at 
          6   that time and thereafter, did you have occasion to 
          7   discuss with various lawyers and members of the bar 
          8   Judge Maria Lopez?
          9       A.   Yes, I did.
         10       Q.   And did you discuss with them their 
         11   knowledge of her demeanor and legal acumen?
         12       A.   Yes, I did.
         13       Q.   And did you come away from those 
         14   discussions with an understanding of her reputation 
         15   in the community of lawyers from which you spoke in 
         16   that regard?
         17       A.   Yes, I did.
         18            MR. WARE:  Objection. 
         19            HEARING OFFICER DAHER:  What's your 
         20   objection?
         21            MR. WARE:  By definition, according to what 
         22   the witness has said, this all occurred after 
         23   September 6th, 2000.  It's based on conversations 
         24   following sentencing with lawyers, as opposed to the 
 0034
          1   witness' personal knowledge. 
          2            HEARING OFFICER DAHER:  Mr. Egbert, it's 
          3   post the Horton matter.
          4            MR. EGBERT:  The conversations was post.
          5            HEARING OFFICER DAHER:  Sure.
          6            MR. EGBERT:  The people's knowledge of 
          7   Judge Lopez spanned a period of time.
          8            HEARING OFFICER DAHER:  I think the 
          9   question was after you had the conversation with 
         10   them, which was post Horton, did you reach a 
         11   conclusion as to --
         12            MR. EGBERT:  Her reputation.
         13            HEARING OFFICER DAHER:  That's post Horton. 
         14            MR. EGBERT:  That's even of more interest, 
         15   I would think, to the Court.  First of all, that her 
         16   reputation, having in mind the press activity in the 
         17   Horton case and the fact that these people obviously 
         18   gained their knowledge over a period of time.
         19            HEARING OFFICER DAHER:  Mr. Ware? 
         20            MR. WARE:  Your Honor, again, as I 
         21   understand Mr. Ryan, he has conversations with 
         22   members of the bar after September 6th, 2000, 
         23   regarding the Horton case --
         24            HEARING OFFICER DAHER:  I'm going to 
 0035
          1   sustain the objection.  I've given you a lot of 
          2   latitude --
          3            MR. EGBERT:  Judge, respectfully, I 
          4   appreciate the latitude, but --
          5            HEARING OFFICER DAHER:  Which you don't 
          6   think you're getting.  Go ahead.
          7            MR. EGBERT:  But I think the law gives me 
          8   more.  In this area of the law the expressions by a 
          9   community of the reputation of a person who was 
         10   subject to discipline are relevant to all factors 
         11   which one must consider in that regard.  Now, the 
         12   weight you give it is a matter of --
         13            HEARING OFFICER DAHER:  That's an exception 
         14   for the record.  The objection is sustained.  Go 
         15   ahead.
         16       Q.   When you spoke with these people that 
         17   you've described to us, did any of them or many of 
         18   them indicate to you that they obtained their 
         19   knowledge prior to September 6th of the Year 2000?
         20            MR. WARE:  Objection.  Again, Your Honor, 
         21   this witness' opinion is what's being elicited here.
         22            HEARING OFFICER DAHER:  Sustained. 
         23            MR. EGBERT:  As an offer of proof I want to 
         24   put on the record what he would testify to so it's 
 0036
          1   on the record.
          2            HEARING OFFICER DAHER:  Go ahead.
          3            MR. EGBERT:  Do you want him to testify to 
          4   it or do you want me to give it?
          5            HEARING OFFICER DAHER:  Do you want to do 
          6   it at the side bar as an offer of proof, Mr. Ware?
          7            MR. WARE:  I don't object to the offer of 
          8   proof being done right from the podium.
          9            HEARING OFFICER DAHER:  Go ahead. 
         10            MR. EGBERT:  Your Honor, I believe if this 
         11   witness were permitted to testify, he would testify 
         12   that as president of the Massachusetts Bar 
         13   Association after the September 6th publicity 
         14   related to the Horton case, he made an effort to 
         15   discuss with lawyers and members of the bar at great 
         16   length Judge Lopez, her judicial demeanor and her 
         17   judicial acumen and that he returned from those 
         18   discussions with a uniform opinion that her judicial 
         19   demeanor and legal acumen was one of an independent, 
         20   hard-working judge who showed balance and fairness 
         21   to both sides in the deliberation of her judicial 
         22   duties.
         23            HEARING OFFICER DAHER:  You've got it.  
         24   Okay.  Anything else? 
 0037
          1            MR. EGBERT:  No further questions.
          2            MR. WARE:  No questions.
          3               FREDERICK E. DASHIELL, Sworn 
          4                    DIRECT EXAMINATION
          5       BY MR. EGBERT: 
          6       Q.   Sir, would you state your name and spell 
          7   your last name, please.
          8       A.   My name is Frederick E. Dashiell, 
          9   D-a-s-h-i-e-l-l.
         10       Q.   And, Mr. Dashiell, where do you reside?
         11       A.   In Boston, Massachusetts, 6 Cotton Hill 
         12   Avenue, Dorchester, Massachusetts.
         13       Q.   And, sir, what is your profession?
         14       A.   I'm a lawyer.
         15       Q.   Can you give me a brief description of your 
         16   professional background. 
         17       A.   I graduated law school Northwestern 
         18   University in '79, returned to Boston, took the bar, 
         19   worked at the Department of Labor for about five 
         20   years, joined the U.S. Attorney's Office in 1984, 
         21   left there at the end of 1994.  During that time, I 
         22   became a member of the George Lewis Ruffin Society, 
         23   a professional criminal justice organization here in 
         24   the Boston area.  I am currently working with my own 
 0038
          1   firm of Dashiell & Associates here in private 
          2   practice.
          3       Q.   Mr. Dashiell, you mentioned the Ruffin 
          4   Society, could you describe what that is. 
          5       A.   Yes.  It's an organization of criminal 
          6   justice professionals that was founded in 1984, and 
          7   it's been affiliated since then with the 
          8   Northeastern University College of Criminal Justice.  
          9   Its goals are to educate the minority community with 
         10   respect to the criminal justice system and to assist 
         11   in the promotion of minorities in the criminal 
         12   justice system.
         13       Q.   And you said you were involved with the 
         14   Ruffin Society since 1984?
         15       A.   I think around early 1990 was when I was 
         16   first invited to join.
         17       Q.   And have you held any offices in the Ruffin 
         18   Society?
         19       A.   Yes, I have.  I've been second and first 
         20   vice president, and I'm currently the president of 
         21   the Ruffin Society as of 2001.
         22       Q.   Sir, do you know Judge Maria Lopez?
         23       A.   Yes, I do.
         24       Q.   And when did you first come into contact 
 0039
          1   with Judge Lopez?
          2       A.   I believe I met her through my affiliation 
          3   with the Justice Ruffin Society.
          4       Q.   And so that would be sometime after 1990?
          5       A.   Yes.  1991.  I believe she was already a 
          6   member of the organization at the time.
          7       Q.   And are you familiar with whether or not 
          8   Judge Lopez held any office within the Ruffin 
          9   Society?
         10       A.   Yes.  I was her first vice president for 
         11   three years before becoming the president of the 
         12   organization.  She was the first vice president to 
         13   the president of the organization prior to that 
         14   while we were all members of the organization, on 
         15   the board of directors.
         16       Q.   So during the three-year period that you 
         17   just described, she was the president of the 
         18   organization?
         19       A.   That is correct.
         20       Q.   Can you tell me whether or not Judge Lopez 
         21   was involved in any matters with relation to the 
         22   Ruffin Society relating to the creation of some 
         23   courthouse history?
         24       A.   Yes, she was. 
 0040
          1       Q.   Can you describe what that was. 
          2       A.   It was during Judge Lopez's tenure that the 
          3   Long Road to Justice Project, which is a study of 
          4   the history of African-Americans in the criminal -- 
          5   in the court system of Massachusetts was developed, 
          6   really under the leadership of Judge Houston, but 
          7   under her leadership that project was funded and in 
          8   fact on September 28 of 2000, here in the foyer of 
          9   this courthouse, we had a reception.  And the first 
         10   exhibit of that very wonderful program about the 
         11   history of minorities in the Massachusetts court 
         12   system.
         13       Q.   Can you describe for us Judge Lopez's 
         14   efforts with regard to that project in bringing it 
         15   to fruition?
         16       A.   Yes.  Judge Lopez is an extremely hard 
         17   worker, very attentive to the details, very 
         18   appreciative of the history of minorities in the 
         19   criminal justice system.  That project looks at not 
         20   only those who have been judges in the system, such 
         21   as Justice Ruffin, but also lawyers that handled 
         22   civil rights matters, the role of minorities in the 
         23   law as it was played out in some major historical 
         24   cases in the Massachusetts court system.  And just 
 0041
          1   her leadership and stewardship in that project, you 
          2   know, was instrumental in bringing it about.
          3       Q.   And, sir, with regard to the Ruffin 
          4   Society, I think you indicated that it was to 
          5   educate and assist in the minority of both 
          6   appreciation of the criminal justice system and 
          7   participation in the criminal justice system; is 
          8   that correct?
          9       A.   That is correct.  If I can expand on that.
         10       Q.   Please. 
         11       A.   In 1984 a number of judges and probation 
         12   officers -- minority members of the criminal justice 
         13   system -- were concerned about the uptick in crime 
         14   and the large influx of minorities into the criminal 
         15   justice system.  And those that were sitting on the 
         16   bench in other positions in the criminal justice 
         17   system said, you know, we need to do something more 
         18   than just what we're doing through our regular jobs, 
         19   and that sort of was the genesis for the founding of 
         20   the organization. 
         21            And so we come together really to sort of 
         22   educate the minority community as to the role of the 
         23   criminal justice system in Massachusetts in their 
         24   lives and to educate the criminal justice system as 
 0042
          1   to, you know, the needs of minority citizens in the 
          2   Commonwealth.  And I want to get back to your point.  
          3   But that's what the organization is all about.
          4       Q.   Sir, how would you describe Judge Lopez's 
          5   efforts on behalf of the Ruffin Society?
          6       A.   Very diligent.  You know, she operates with 
          7   the highest integrity.  I mean, there were funds 
          8   that were raised, people that, you know, you had to 
          9   talk with.  And she was the face of the 
         10   organization.  She presented -- she was the 
         11   moderator of the presentation of the exhibit here in 
         12   September of 2000.  I've always been excited about 
         13   her affiliation.  
         14            I should say the one thing about the Ruffin 
         15   Society is that it's an opportunity for minority 
         16   professionals in the criminal justice system to 
         17   interact with each other.  And so when I was first 
         18   invited to the organization, you know, it was an 
         19   opportunity to meet justices, to meet other 
         20   prosecutors or defense counsel who all are members 
         21   of the organization that you would not otherwise 
         22   come in contact with.  And so it's been that kind of 
         23   organization of professionals who have come 
         24   together, you know, to try to serve the education of 
 0043
          1   the minority community in Massachusetts.
          2            MR. EGBERT:  Thank you.  I have no further 
          3   questions.
          4            HEARING OFFICER DAHER:  Questions? 
          5            MR. WARE:  No questions. 
          6                  REGINA QUINLAN, Sworn
          7                    DIRECT EXAMINATION
          8       BY MR. EGBERT: 
          9       Q.   Good morning, Your Honor. 
         10       A.   Good morning.
         11       Q.   Could you state your name, please.
         12       A.   Regina Quinlan.
         13       Q.   And, Judge, you are associate justice of 
         14   the Superior Court?
         15       A.   Yes, I am.
         16       Q.   Can you give me a brief description of your 
         17   professional background. 
         18       A.   I was in private practice prior to being 
         19   appointed in 1992.  I was a sole practitioner 
         20   working in association with other lawyers, and 
         21   basically it was a small practice, both civil and 
         22   criminal.
         23       Q.   And you came to the bench in 1992?
         24       A.   '92.
 0044
          1       Q.   Since that time, have you sat on various 
          2   counties throughout the Commonwealth?
          3       A.   I have.
          4       Q.   And during that time, have you come into 
          5   contact with Judge Maria Lopez?
          6       A.   I have.
          7       Q.   From approximately 1995 through 1997, were 
          8   you the regional administrative justice for 
          9   Middlesex County?
         10       A.   For criminal business I was.
         11       Q.   For criminal business; I'm sorry. 
         12       A.   Yes.
         13       Q.   What are, briefly, the duties and functions 
         14   of the regional administrative justice?
         15       A.   It's basically to make sure the sessions 
         16   have a sufficient number of cases and that the 
         17   backlog is kept down and also the jail cap, to 
         18   monitor the population of the jail to make sure that 
         19   the cap was honored as best we could under adverse 
         20   circumstances.
         21       Q.   During the period of time where you were 
         22   the regional administrative justice, did you have 
         23   occasion to make assignments of cases and dockets 
         24   basically to various judges?
 0045
          1       A.   I did.
          2       Q.   And was that so as to Judge Lopez?
          3       A.   It was.
          4       Q.   And during the course of your dealing with 
          5   Judge Lopez as regional administrative justice, can 
          6   you give me a description of the way she went about 
          7   her work. 
          8       A.   Whenever she was assigned anything, it was 
          9   always done.  But I think what impressed me most was 
         10   she would call and volunteer, which not many did.
         11       Q.   So she would call and volunteer.  Were 
         12   there particular occasions that you recall in that 
         13   regard?
         14       A.   I do.  There was one situation where, 
         15   shortly after enactment of the dangerousness law, it 
         16   came to my attention as regional that the manner in 
         17   which the detention hearings were being held were 
         18   that the magistrate who would do the arraignment 
         19   would be informed that there had been a detention 
         20   hearing in the District Court and that the person 
         21   was held without bail, and so there would be a 
         22   notation on the file "without bail."  What came to 
         23   my attention was we had no documentation.  And so I 
         24   initiated a review of all the 58A detainees to 
 0046
          1   ensure that we had proper documentation and proper 
          2   findings so that if anything happened, we would be 
          3   able to calculate the time necessary and we would 
          4   also have the supporting documentation to hold the 
          5   detainees.  And Judge Lopez called me at that time 
          6   and was of assistance to me.
          7       Q.   I take it that was on a voluntary basis?
          8       A.   It was.
          9       Q.   Also while you sit on the Superior Court 
         10   bench, do you have occasion to follow Judge Lopez 
         11   into sessions?
         12       A.   I'm not sure.
         13       Q.   Did you have occasion to, I think, by way 
         14   of background on the civil side of the Superior 
         15   Court at least, cases go in and out of sessions, 
         16   having heard motions and the like --
         17       A.   I've seen her name on cases that I've 
         18   inherited or come across and been part of the judges 
         19   who have dealt with them.
         20       Q.   And based upon what you have seen with 
         21   regard to that paperwork in those cases, could you 
         22   describe her conduct of those cases?
         23       A.   No.  That's what appellate courts are for.  
         24   But the work was done.
 0047
          1       Q.   During the course of your time on the 
          2   bench, have you had occasion to have discussions 
          3   with Judge Lopez concerning legal issues and matters 
          4   of the court?
          5       A.   I have.
          6       Q.   And during those conversations, can you 
          7   describe her legal acumen --
          8       A.   I think she was very knowledgeable, she was 
          9   interested and interesting and very engaged in some 
         10   of the discussions that we had on various issues 
         11   that would arise from time to time.
         12            MR. EGBERT:  I have no further questions.
         13            MR. WARE:  No questions. 
         14            HEARING OFFICER DAHER:  Thank you, Judge.  
         15   We appreciate it. 
         16            Next witness. 
         17                 CHRISTINE McEVOY, Sworn
         18                    DIRECT EXAMINATION
         19       BY MR. EGBERT: 
         20       Q.   Would you state your name for the record, 
         21   please. 
         22       A.   Christine McEvoy.
         23       Q.   Your Honor, you are an associate justice of 
         24   the Superior Court?
 0048
          1       A.   I am.
          2       Q.   Can you give us a brief description of your 
          3   professional background. 
          4       A.   Yes.  I can give you a brief description.  
          5   I went to Suffolk Law School and graduated in 1976.  
          6   I was a law clerk to the justices of the Superior 
          7   Court for the first year after graduating.  I then 
          8   went to Middlesex District Attorney'S Office, where 
          9   I was an assistant district attorney under John 
         10   Droney and subsequently Scott Harshbarger.  I left 
         11   the district attorney's office in January of 1989.  
         12   I became an associate justice in the District Court 
         13   Department of the Trial Court.  And my court of 
         14   designation was the concord District Court.  
         15   Although I was a justice of the Concord District 
         16   Court, I was assigned to the Cambridge jury of six 
         17   where I sat for approximately four years on a 
         18   regular basis.  And then the Lowell jury of six for 
         19   a year.  In June of 1994 I became an associate 
         20   justice of the Superior Court and I have been a 
         21   Superior Court justice since June of 1994, appointed 
         22   by Governor Weld. 
         23       Q.   Judge, do you know Judge Maria Lopez?
         24       A.   I do.  I know her well.
 0049
          1       Q.   And how did you first come to know her?
          2       A.   I came to know Judge Lopez when I was a 
          3   District Court judge.  We were both appointed by 
          4   Governor Dukakis.  We were both fairly young women 
          5   at the time and members of the District Court.  
          6   Although not assigned to the same court, I came to 
          7   know her professionally through different joint 
          8   meetings of the justices of that court and came to 
          9   know her professionally and then socially as a 
         10   result of our affiliation.  I came to know Judge 
         11   Lopez better when we were both Superior Court 
         12   judges.  I believe she was appointed to the Superior 
         13   Court by Governor Weld in I want to say 1993, but 
         14   I'm not sure of that.
         15       Q.   And since that time, have you come to enjoy 
         16   a friendship, along with a professional association?
         17       A.   Absolutely.  I'm a very good friend of 
         18   Judge Lopez.
         19       Q.   You're familiar with the case of 
         20   Commonwealth versus Horton, I take it?
         21       A.   I am.
         22       Q.   I want to direct your attention to the 
         23   period of time after the sentencing of Mr. Horton 
         24   on -- and I'll give you the date of September 6th of 
 0050
          1   the Year 2000.  Okay?
          2       A.   Uh-hum.
          3       Q.   Did you have occasion to see Judge Lopez 
          4   after the sentencing on September 6th of the Year 
          5   2000?
          6       A.   I believe I saw Judge Lopez on the day of 
          7   the sentencing, if my memory serves me correctly, 
          8   where we both attended the swearing in at the 
          9   Statehouse of a Supreme Judicial Court justice.  And 
         10   I saw her -- I believe that was a Wednesday.  And I 
         11   saw her again on Friday of the same week, where we 
         12   both attended a memorial service for the deceased 
         13   wife of Justice Robert Bohn in Concord, Mass.
         14       Q.   Between September 6th and that Friday, did 
         15   you also have occasion to speak with her by phone?
         16       A.   I definitely spoke to her by phone.  I may 
         17   have even seen her on that Thursday, but I have no 
         18   recollection of it.
         19       Q.   During the course of the discussions that 
         20   you had in person and on the telephone before that 
         21   Friday, can you describe for me Judge Lopez's 
         22   demeanor?
         23       A.   I can describe it.  I can probably best 
         24   describe it on that Friday.  That Friday -- again, 
 0051
          1   if my memory serves me correctly on the dates -- was 
          2   the day that there was a broadcast for a talk radio 
          3   show that was being broadcast from the end of Judge 
          4   Lopez and her husband, Stephen Mindich's, road going 
          5   up to their house.  It was really at the end of 
          6   their driveway, if I understood the talk show host 
          7   correctly.  And I called their home that morning to 
          8   tell them so that Judge Lopez would know when she 
          9   left for work that morning and that her children 
         10   would know that they were broadcasting from that 
         11   driveway.  
         12            I called her as a friend to let her know 
         13   and also as a colleague.  I also made a call that 
         14   morning to the administrative office of the Superior 
         15   Court so that she would be able to get into the 
         16   courthouse in a safe manner without large crowds 
         17   being around her.  So I called her for two reasons.  
         18   One, to let her and her family know so that when the 
         19   boys went to school, that they would know what they 
         20   were walking outside to, as well as to make sure she 
         21   had safe transport into the courthouse.  I believe 
         22   she was sitting in Cambridge at the time. 
         23       Q.   And during those calls that you made that 
         24   morning, how would you describe her demeanor?
 0052
          1       A.   She was extremely upset.  I believe Stephen 
          2   answered the phone, Stephen Mindich answered the 
          3   phone, and they were extremely upset.
          4            MR. WARE:  Objection to the 
          5   conversations --
          6            HEARING OFFICER DAHER:  Sustained. 
          7       Q.   Did you have any discussion during that 
          8   timeframe -- that would be the 6th and the 7th of 
          9   September -- with Judge Lopez concerning -- strike 
         10   that.  I apologize. 
         11            On or about September 8th, when you were at 
         12   the memorial service for Judge Bohn's wife, did you 
         13   have any discussion with Judge Lopez concerning the 
         14   press and the public comment that was going on in 
         15   the Horton case?
         16       A.   Yes.
         17       Q.   And can you tell us basically what those 
         18   conversations were. 
         19       A.   Yes.  At the memorial service there were a 
         20   number of our colleagues --
         21            MR. WARE:  Objection, Your Honor.
         22            MR. EGBERT:  Judge, this goes to the state 
         23   of mind of Judge Lopez at the time with regard to 
         24   the press, her actions, what she intended to do, 
 0053
          1   what others were telling her with regard to these 
          2   matters, what her intentions were with regard to a 
          3   sentencing memorandum, all of which go not to the 
          4   truth of the statements, but to her state of mind at 
          5   the time in dealing with these very issues, all of 
          6   which is relevant to these proceedings.
          7            HEARING OFFICER DAHER:  Mr. Ware? 
          8            MR. WARE:  Again, Your Honor, Judge Lopez 
          9   testified for five days.  She testified to her state 
         10   of mind.  Conversations with this witness aren't the 
         11   basis for Judge Lopez's state of mind.  So this 
         12   testimony is not relevant here in any respect.
         13            MR. EGBERT:  Judge, Mr. Ware mistakes 
         14   corroboration for irrelevance.  It corroborates 
         15   Judge Lopez's testimony.  Indeed it does.  The 
         16   Commission challenged her testimony in a number of 
         17   ways.  This testimony corroborates with Judge 
         18   Lopez's testimony.  If the Commission's response is, 
         19   through its counsel, well, Judge Lopez already 
         20   testified to that and we take it as a given and 
         21   unrefutable, then fine.  Otherwise, this certainly 
         22   seems to be relevant to those issues.
         23            HEARING OFFICER DAHER:  Overruled.  Go 
         24   ahead.  I'll give it to you.
 0054
          1       A.   The question, I believe, was whether I had 
          2   conversations with her on that Friday.  The answer 
          3   is yes, I had conversations with her both at the 
          4   church in Concord -- I had several conversations 
          5   with her there -- and after the service I had 
          6   several conversations with her at my house in 
          7   Concord, where we went to after the service.  In 
          8   fact, we left the reception after the service early 
          9   and went there.  
         10            In regard to the conversations at the 
         11   church, without saying what the conversations were 
         12   with Chief Justice DelVecchio, I did speak to Chief 
         13   Justice DelVecchio and then I spoke to Judge Lopez.  
         14   There was a service inside the chapel there and then 
         15   there was a reception afterwards.  And it was very 
         16   well attended, the reception.  And a number of our 
         17   colleagues were there.  A number of our 
         18   colleagues -- and I won't say what the conversation 
         19   was -- spoke to Judge Lopez and spoke to me, and 
         20   then I spoke to Judge Lopez intermittently 
         21   throughout that period of time at the reception. 
         22            During that period of time, Judge Lopez was 
         23   extremely upset.  She was very upset about the 
         24   perception of what she had done in sentencing Ebony 
 0055
          1   Horton.  She was very upset about the public 
          2   perception, the press coverage and how it was being 
          3   perceived.  And the conversation, as best as I can 
          4   recall -- and I can't recall it verbatim, 
          5   obviously -- was what she should do about that in 
          6   regard to issuing a press release or issuing a 
          7   sentencing memorandum or something to try to explain 
          8   within the confines of what she was allowed to do 
          9   why she did what she did.  Part of that conversation 
         10   also was about the way that she was being perceived 
         11   in regard to her demeanor with the prosecutor. 
         12       Q.   And what did she tell you with regard to 
         13   what she believed was a misperception of the 
         14   sentencing?
         15            MR. WARE:  Objection. 
         16            HEARING OFFICER DAHER:  Mr. Egbert? 
         17            MR. EGBERT:  Your Honor, it goes to the 
         18   very same issue.  It goes to her state of mind at 
         19   the time.  It also corroborates her testimony in 
         20   this regard.
         21            HEARING OFFICER DAHER:  Go ahead. 
         22       A.   She said then that day numerous times that 
         23   Ebony Horton was not a predatory pedophile, that she 
         24   had relied in part on a report in regard to --
 0056
          1            HEARING OFFICER DAHER:  She did what to the 
          2   Court? 
          3            THE WITNESS:  That she had relied in part 
          4   on a report that she had read and considered, and 
          5   that Ebony Horton is not a predatory pedophile.  She 
          6   said that numerous times that day and frankly 
          7   several other times as well.
          8       Q.   And was there a discussion also of issuing 
          9   a sentencing memorandum at that time?
         10       A.   Yes, there was.
         11       Q.   And what was that discussion?
         12       A.   I don't recall whether that -- my memory is 
         13   that that discussion was at my house.  We went to my 
         14   house with another Superior Court judge who was a 
         15   friend to get away from the environment that was -- 
         16   a lot of people were offering Judge Lopez advice 
         17   about what to do and, frankly, she seemed 
         18   overwhelmed.  And I lived in Concord and as a 
         19   result, I said, why don't we leave here and clear 
         20   your mind and come to my house.  And it was sort of 
         21   a safe haven at the time because there would be no 
         22   press there and it would be an opportunity to 
         23   reflect upon what happened for her to consider what 
         24   action to take.  And we did that.  And we went to my 
 0057
          1   house, myself, Judge Lopez and another judge.  And 
          2   at that time she discussed -- and we discussed what 
          3   options were available to her to try to correct, as 
          4   she saw it, the misperception of what had happened 
          5   in the courtroom.
          6       Q.   And was there also discussion of her 
          7   apologizing with regard to her loss of temper?
          8       A.   Absolutely.  The two main options that were 
          9   being discussed were apologizing for her demeanor 
         10   that had been shown on the tape on the news and 
         11   issuing a sentencing memorandum to explain the 
         12   factors she had considered in sentencing Ebony 
         13   Horton.
         14       Q.   And during the discussions at the church, 
         15   did Judge DelVecchio participate in any of those 
         16   discussions with you?
         17       A.   She did with me, and then she spoke to 
         18   Judge Lopez privately.  She took Judge Lopez aside 
         19   and spoke to her there.  She also called my house.
         20       Q.   Let's stick for a moment with the 
         21   conversation with you. 
         22       A.   Yes.
         23       Q.   What did she say to you with regard to 
         24   whether or not Judge Lopez should take any more 
 0058
          1   public action or statements?
          2            MR. WARE:  Objection.
          3            HEARING OFFICER DAHER:  Sustained. 
          4            MR. EGBERT:  Your Honor, again, this is 
          5   offered not for the truth of it, because what Judge 
          6   DelVecchio says is basically, don't do any more, 
          7   don't give any public statements and the like.  And 
          8   it is not to show that that's a true statement of 
          9   fact, but only that the Chief Justice of the Court 
         10   said it, and said it not just to Judge McEvoy, but 
         11   to Judge Lopez, which is both in corroboration of 
         12   what others have said, but it's the fact of her 
         13   saying that --
         14            HEARING OFFICER DAHER:  Mr. Ware? 
         15            MR. WARE:  Your Honor, Justice DelVecchio 
         16   testified to conversations with Judge Lopez.  Judge 
         17   Lopez testified.  This witness wasn't present, as 
         18   she said, for any conversation between Justice 
         19   DelVecchio and Judge Lopez. 
         20            MR. EGBERT:  She was present immediately 
         21   prior to Judge DelVecchio informing Judge McEvoy 
         22   exactly what she was going to tell Judge Lopez, 
         23   which is nothing more than a statement of intent, 
         24   which is not hearsay.
 0059
          1            HEARING OFFICER DAHER:  The ruling stands
          2       BY MR. EGBERT: 
          3       Q.   Did Judge DelVecchio call your house?
          4       A.   Yes, she did.
          5       Q.   And did she call sometime after the 
          6   service?
          7       A.   Yes, and I answered the phone.
          8       Q.   And was there a discussion at that time as 
          9   to what Judge Lopez ought to do in Judge 
         10   DelVecchio's mind?
         11       A.   Yes.
         12       Q.   And what did she say to you? 
         13            MR. WARE:  Objection.  Same basis.
         14            MR. EGBERT:  Judge, I think the fact that 
         15   the Chief Judge of the court is communicating a 
         16   message to Judge Lopez through Judge McEvoy gives 
         17   Judge Lopez a right to both rely on that statement, 
         18   whether it's true or not, and it affects her state 
         19   of mind as to her actions based upon what 
         20   information was provided.
         21            HEARING OFFICER DAHER:  Overruled.  Go 
         22   ahead.
         23            MR. WARE:  I'm going to object.  This is a 
         24   conversation between Justice McEvoy and the Chief 
 0060
          1   Justice, not between -- there's no evidence here 
          2   that Judge Lopez heard this conversation or this 
          3   instruction.
          4       BY MR. EGBERT: 
          5       Q.   Was Judge Lopez in the room when you spoke 
          6   with Judge DelVecchio?
          7       A.   Yes, we were on my porch.
          8       Q.   And after you spoke with Judge DelVecchio, 
          9   did you speak with Judge Lopez?
         10       A.   Actually, what happened is after I spoke to 
         11   the Chief Justice, I handed the phone to Judge 
         12   Lopez.  Judge Lopez then spoke to the Chief Justice, 
         13   and when that conversation ended, then I spoke to 
         14   Judge Lopez.
         15       Q.   And did you tell Judge Lopez your 
         16   conversation with Judge DelVecchio?
         17       A.   Yes, I did.
         18       Q.   What was your conversation with Judge 
         19   DelVecchio?
         20            MR. WARE:  Objection.
         21            HEARING OFFICER DAHER:  Overruled.
         22       A.   I told Judge Lopez what Chief Justice 
         23   DelVecchio had said to me, which was that she should 
         24   not issue anything to the press; that she should let 
 0061
          1   the story die.
          2       Q.   Have you, during the course of your years 
          3   of friendship and professional association with 
          4   Judge Lopez, discussed legal issues, judicial issues 
          5   in matters relating to the court?
          6       A.   Yes, many times.
          7       Q.   And after those discussions, have you come 
          8   away -- strike that.  Can you describe her legal and 
          9   judicial acumen?
         10       A.   Yes, I can.
         11       Q.   Would you do that, please. 
         12       A.   I know Judge Lopez both as a justice of the 
         13   Superior Court and as a fellow law school professor, 
         14   although we teach at different law schools.  Judge 
         15   Lopez for many years taught at Boston University Law 
         16   School and I've taught at Boston College Law School 
         17   for 14 years.  And during that period of time, I 
         18   have asked her and she has asked me to participate 
         19   in sitting, for example, as a judge at a mock trial.  
         20   And so I've actually attended classes she has 
         21   taught, seen her interact with students at Boston 
         22   University Law School, as well as seen her interact 
         23   with my students at Boston College Law School. 
         24            In regard to the Superior Court, I have 
 0062
          1   spoken to her and rely upon her to give me legal 
          2   advice on issues that I need help with, and she has 
          3   done the same.  And that is true both in the 
          4   District Court, but more particularly in the 
          5   Superior Court. 
          6            I have read her opinions.  I have read her 
          7   opinions because I needed to at times.  I had a 
          8   Demoulas case and had issues in that case involving 
          9   res judicata and law of the case and as a result 
         10   read her legal findings and rulings and legal 
         11   opinions in that case in order for me to rule on my 
         12   case which followed it.  So I've had quite a bit of 
         13   exposure, and that is only a sampling of the 
         14   exposure I've had to her legally.  
         15            In my opinion she has a fine legal mind.  
         16   She has one that I certainly have relied upon.  She 
         17   is a very quick study.  And she is someone who I not 
         18   only respect, but have gone to for advice because I 
         19   hope to get good advice and I go to people that can 
         20   give it to me, and she is certainly one of them.  I 
         21   hold her in the highest regard.
         22            MR. EGBERT:  I have no further questions.
         23            HEARING OFFICER DAHER:  Mr. Ware? 
         24            MR. WARE:  No questions. 
 0063
          1                  JOHN BONISTALLI, Sworn
          2                    DIRECT EXAMINATION
          3       BY MR. EGBERT: 
          4       Q.   Good morning. 
          5       A.   Good morning. 
          6       Q.   Would you state your name, please. 
          7       A.   John Bonistalli.
          8       Q.   What is your current profession?
          9       A.   Attorney.
         10       Q.   And could you give us a brief background of 
         11   your professional experience. 
         12       A.   I was a law clerk to the Superior Court in 
         13   1975, '76.  I then went to the Attorney General's 
         14   Office in the criminal division while Frank Bellotti 
         15   was the attorney general from 1977 to approximately 
         16   1981.  I then went into private practice in '81, 
         17   doing mostly criminal work, and then developed a 
         18   general practice, criminal and civil practice, and 
         19   have been doing that since 1981 in various different 
         20   locations.
         21       Q.   And are you now practicing in the City of 
         22   Boston?
         23       A.   I practice at One Financial Center.  I have 
         24   my own practice, Bonistalli & Associates.
 0064
          1       Q.   While you were at the Attorney General's 
          2   Office for that period of time, did you become chief 
          3   of any division?
          4       A.   After a number of years, we had developed 
          5   an arson unit.  And through various grants and 
          6   funds, Frank Bellotti put together an arson division 
          7   that I headed for the last year or so I was at the 
          8   office.
          9       Q.   Mr. Bonistalli, do you know Judge Maria 
         10   Lopez?
         11       A.   Yes.
         12       Q.   When did you come to know Judge Lopez?
         13       A.   I had a -- I was representing a defendant 
         14   in the Suffolk Superior Court on a double homicide, 
         15   and sometime in 1996 or so the case was assigned to 
         16   Judge Lopez's session.
         17       Q.   Without getting into the gory details, can 
         18   you tell us some of the major issues in the case?
         19       A.   Well, the case had -- it had DNA evidence 
         20   developed initially through the Boston Crime Lab and 
         21   then followed up with a local science lab in Boston, 
         22   CPR, I think it is, in Boston.  And it was one of 
         23   the first Suffolk cases to deal with DNA in a 
         24   criminal case.  And the district attorney's office, 
 0065
          1   in an effort to sort of consolidate the expenses, 
          2   put it together with four or five other cases.  And 
          3   at the outset it was before Judge Moriarty.  And my 
          4   case got separated from the others and ultimately it 
          5   was assigned to Judge Lopez.
          6       Q.   How would you describe the issues in that 
          7   case?
          8       A.   For me, the issues were very complex.  They 
          9   were very novel, something that my learning curve 
         10   started at zero on.  And I had to, you know, retain 
         11   a molecular biologist, a population geneticist, a 
         12   statistician.  And for me, having done quite a bit 
         13   of criminal work up until that time, I had never 
         14   dealt with the DNA issues.  And so for me, it was 
         15   very complicated.  And I think even for the Court I 
         16   know it was complicated, because they had initially 
         17   hand-selected Judge Moriarty to handle these cases 
         18   particularly because I think he had a background in 
         19   science.  So he had those cases and had dealt with 
         20   the issues as related to the five different cases.  
         21   And then my case got segregated from the others.
         22       Q.   Did you have hearings that were conducted 
         23   before Judge Lopez with regard to the DNA matters?
         24       A.   Yes.  My case got -- I got -- the DNA was 
 0066
          1   suppressed initially, so that's why I split off from 
          2   the other cases.  And then the DA did some further 
          3   testing for which there needed to be further 
          4   hearings, a Daubert hearing, and that was the 
          5   preliminary issue in the case before it went to 
          6   trial.
          7       Q.   And in those preliminary hearings did you 
          8   actually present evidence to experts and scientists 
          9   and the like?
         10       A.   Yes.
         11       Q.   And how long did the preliminary hearings 
         12   take?
         13       A.   I think the preliminary hearings took 
         14   anywhere from seven to nine days in court.
         15       Q.   And then after the preliminary hearings, 
         16   was there a trial?
         17       A.   Yes.
         18       Q.   And how long did the trial take?
         19       A.   I think the trial took at least a couple of 
         20   weeks.
         21       Q.   During the course of your preliminary 
         22   hearings and the trial of the matter, can you 
         23   describe Judge Lopez's legal and judicial acumen?
         24       A.   I thought it was outstanding.  From my 
 0067
          1   point of view as a trial lawyer, she understood the 
          2   issues, she was somebody who you could engage in 
          3   dialogue with.  I didn't win on all the issues, but 
          4   I was able to present my side of the various 
          5   arguments I was making.  I won some, I lost some.  
          6   And I thought she was outstanding.
          7       Q.   And with regard to her demeanor in the 
          8   courtroom and towards lawyers, could you describe 
          9   that during the course of these proceedings?
         10       A.   Again, from my view as a trial counsel in 
         11   that case, it was exceptional.  She was very -- I 
         12   remember specifically she was very sensitive to the 
         13   fact of me being a lawyer in this case going against 
         14   the Commonwealth, the Boston Police Department, the 
         15   Boston Crime Lab, the FBI, scientists world renowned 
         16   from North Carolina and Maryland.  And she just to 
         17   both sides was somebody who worked with us in terms 
         18   of the scheduling, in terms of the issues, in terms 
         19   of the whole approach to the process in the 
         20   courtroom.  It was just a very good experience.
         21       Q.   And, lastly, can you describe during the 
         22   course of those proceedings her fairness to the 
         23   parties?
         24       A.   I thought she was eminently fair.  As I 
 0068
          1   said, I didn't win on all the issues, but she was 
          2   someone that I could dialogue with on everything.  I 
          3   felt that you could process it and be listened to, 
          4   and I thought it was very good.
          5       Q.   By the way, did you win or lose the case?
          6       A.   I lost the motion and I lost the case.  
          7   Well, the jury found the defendant guilty on both 
          8   counts.
          9       Q.   And was the case entitled Commonwealth 
         10   versus McNickles?
         11       A.   Robert McNickles, yes.
         12       Q.   I want to show you this document.  Can you 
         13   tell us what that is. 
         14       A.   After the conviction, the case was appealed 
         15   to the Supreme Judicial Court as a first-degree 
         16   murder conviction.  The case went directly to the 
         17   Supreme Judicial Court and this was the opinion that 
         18   was issued written by Judge Sosman.
         19       Q.   So this is the Supreme Judicial Court 
         20   opinion in the McNickles case which you tried?
         21       A.   Yes.
         22            MR. EGBERT:  Judge, I'd ask that you take 
         23   judicial notice of the Commonwealth versus 
         24   McNickles.
 0069
          1            HEARING OFFICER DAHER:  Any objections, Mr. 
          2   Ware? 
          3            MR. WARE:  I don't know if I can object.  
          4   It's not being offered as an exhibit.
          5            HEARING OFFICER DAHER:  I agree.  I 
          6   understand.  Fine.  Done.  Let's go.
          7            MR. EGBERT:  No further questions.
          8            HEARING OFFICER DAHER:  Cross? 
          9                     CROSS EXAMINATION
         10       BY MR. WARE: 
         11       Q.   Mr. Bonistalli, I take it from your 
         12   testimony, sir, that you were counsel at the trial 
         13   level, but not the appellate level in the McNickles 
         14   case?
         15       A.   Well, I didn't write the appeal, but I 
         16   collaborated with Nona Walker who did the appeal and 
         17   met with her to get the trial transferred to her, 
         18   met with her about the issues that were raised on 
         19   the appeal, met with her as the brief was being 
         20   written, shared my memorandum with her, my thoughts 
         21   on the issues as they were raised, because she was 
         22   at a very beginning learning curve on that DNA 
         23   stuff.
         24       Q.   At the trial court level -- this case, as I 
 0070
          1   understood your testimony, involved expert 
          2   testimony, including expert testimony with respect 
          3   to DNA evidence; is that right?
          4       A.   Correct.
          5       Q.   And you came to appreciate that one of, 
          6   among the knowledge base that Judge Lopez had, was 
          7   how to screen expert testimony and expert reports; 
          8   isn't that correct?
          9       A.   I don't know what you mean by "screen." 
         10       Q.   Well, for example, there's a case called 
         11   Commonwealth against Lanigan.  There are a set of 
         12   standards which govern when expert testimony should 
         13   or should not be admitted; is that correct? 
         14            MR. EGBERT:  My only objection is are we 
         15   offering expert opinion here through Mr. Bonistalli.  
         16   You can have it as long as I'm able to cross on it.
         17            MR. WARE:  I'm not offering expert 
         18   testimony.  I'm asking for this witness' knowledge 
         19   of what the Judge exhibited at a trial level, which 
         20   is what counsel questioned him about.
         21            MR. EGBERT:  I think he asked him about 
         22   Commonwealth versus Lanigan.
         23            HEARING OFFICER DAHER:  Are you going to go 
         24   into the expert testimony once you introduce the 
 0071
          1   Lanigan case? 
          2            MR. WARE:  No, Your Honor.  I'm asking for 
          3   what this witness inferred as the Judge's knowledge 
          4   base while he encountered her at trial.
          5            HEARING OFFICER DAHER:  Overruled.  Go 
          6   ahead.
          7       Q.   And my question, to reframe it and focus 
          8   it, did you come to understand that Judge Lopez, at 
          9   least in your opinion, had an understanding of the 
         10   standards to be applied to expert testimony and 
         11   expert reports?
         12       A.   Yes.
         13       Q.   And did you satisfy yourself that the Judge 
         14   was familiar with what standards need to be applied 
         15   to an expert report before considering it or 
         16   admitting expert testimony?
         17       A.   Well, I certainly had submitted to her what 
         18   I thought the standards were in the various briefs 
         19   that I had submitted in the previous opinion that 
         20   had been issued by Judge Moriarty, so it was pretty 
         21   well laid out both in my memorandum and in previous 
         22   court opinions, and she certainly was very familiar 
         23   with what the standard was with respect to experts.  
         24   And I disagreed with her on some aspects of it, but 
 0072
          1   she was sustained by Judge Sosman with respect to 
          2   every ruling she made.
          3       Q.   Part of the focus of the proceeding at the 
          4   trial level was the admissibility of these expert 
          5   opinions; is that correct?  Yes or no? 
          6       A.   At the trial? 
          7       Q.   Yes. 
          8       A.   Yes.
          9       Q.   Not at the trial.  At the trial level, 
         10   while the Court was in the trial court.
         11       A.   In the first instance, whether it was 
         12   evidence that was admissible under the standards of 
         13   scientific evidence --
         14       Q.   Yes. 
         15       A.   -- in the first instance.  In the second 
         16   instance, whether it was admissible at the trial 
         17   level before the jury, right.
         18       Q.   And those screening functions were ones 
         19   which Judge Lopez performed while you were counsel 
         20   at the trial level; is that correct?
         21       A.   By "screening," you mean admissible 
         22   decisions? 
         23       Q.   Yes. 
         24       A.   Yes.
 0073
          1            MR. WARE:  I have no further questions. 
          2                   REDIRECT EXAMINATION
          3       BY MR. EGBERT: 
          4       Q.   When you handled the McNickles case before 
          5   Judge Lopez and you had these hearings with regard 
          6   to DNA evidence, that involved expert testimony; is 
          7   that correct?
          8       A.   Substantial expert testimony.
          9       Q.   That was expert testimony that the 
         10   Commonwealth was seeking to present at trial, 
         11   correct?
         12       A.   Yes.
         13       Q.   And you were objecting to?
         14       A.   Yes.
         15       Q.   And so you made your objections known to 
         16   the Court?
         17       A.   Correct.
         18       Q.   And you went through and objected to 
         19   various aspects --
         20            MR. WARE:  Objection, Your Honor.  This is 
         21   all leading.  This is redirect.
         22            HEARING OFFICER DAHER:  Sustained. 
         23       Q.   Let's take it as it was.  There was talk 
         24   about the Judge screening experts.  Do you recall 
 0074
          1   that?
          2       A.   Yes.
          3       Q.   Did the Judge screen any experts in your 
          4   case?
          5       A.   I'm not sure what he meant by "screening," 
          6   but the Judge had to in the first instance make a 
          7   determination of whether or not this evidence 
          8   satisfied the scientific criteria to be reliable 
          9   enough to be admitted before a jury of lay people.
         10       Q.   And how was that accomplished?  Who did 
         11   what at the hearing?
         12       A.   Well, it started off with the Commonwealth 
         13   having the burden of going forward and bringing 
         14   forward their experts on two or three different 
         15   areas to present the evidence and the reliability of 
         16   the evidence in the current scientific atmosphere.
         17       Q.   When the Commonwealth proffered their 
         18   experts and their reports, did you ask for a copy of 
         19   the reports?
         20       A.   Yes.  I had gotten it already.
         21       Q.   So you had a copy?
         22       A.   Right.
         23       Q.   And you read it?
         24       A.   Right.
 0075
          1       Q.   And after you read it, did you object to 
          2   it?
          3       A.   Yes.
          4       Q.   And so you made your objections known to 
          5   the Court.
          6       A.   Yes.
          7       Q.   And did that result in a hearing?
          8       A.   Right.
          9       Q.   And that hearing was --
         10            MR. WARE:  Again, Your Honor.  This is all 
         11   leading.
         12            HEARING OFFICER DAHER:  Overruled.  Go 
         13   ahead. 
         14       Q.   And at that hearing did you make your 
         15   objections known?
         16       A.   Yes.
         17       Q.   And did you present evidence as to your 
         18   objections? 
         19            MR. WARE:  Objection.
         20            HEARING OFFICER DAHER:  Overruled.  You may 
         21   have it
         22       A.   I presented evidence both through the 
         23   examination of the witnesses and I had my own 
         24   experts who I had retained and flown in from Seattle 
 0076
          1   and Chicago and different parts of the country to 
          2   present at the hearing.
          3       Q.   And after that, the Judge made a ruling as 
          4   to the admissibility at trial before a jury, 
          5   correct?
          6       A.   Correct.
          7            MR. EGBERT:  No further questions.
          8            MR. WARE:  No further questions. 
          9            HEARING OFFICER DAHER:  Thank you.  Next 
         10   witness.
         11            MR. EGBERT:  Can I have five minutes to 
         12   collect, and then I think we can be fairly brief.
         13            (Recess) 
         14                    ROBERT BOHN, Sworn
         15                    DIRECT EXAMINATION
         16       BY MR. EGBERT: 
         17       Q.   Good morning, Your Honor.
         18       A.   Good morning.
         19       Q.   Would you state your name, please.
         20       A.   Robert Bohn, B-o-h-n.
         21       Q.   You are a justice of the Superior Court?
         22       A.   I am.
         23       Q.   Could you give me a brief history of your 
         24   professional background. 
 0077
          1       A.   I graduated from Villanova University in 
          2   1961, Georgetown Law School in 1964, went to work 
          3   for a program called Neighborhood Legal Services 
          4   Program in 1964, which was an Office of Economic 
          5   Opportunity-funded legal services program in 
          6   Washington, D.C., and I worked at that program until 
          7   1969.  In 1969 I was asked to start a program in 
          8   Wichita, Kansas.  It was the last OEO-funded program 
          9   that was not yet operational.  So I moved to 
         10   Wichita, Kansas and started a legal services program 
         11   in Wichita, Kansas.  I stayed there for three years.  
         12            I came back to Harvard Law School in 
         13   1970 -- 1972, and I had a teaching fellowship at 
         14   Harvard Law School in the clinical program.  In 1972 
         15   I got a master's degree in law from Harvard Law 
         16   School.  I then went to the Massachusetts Parole 
         17   Board until 1975.  So from 1972 to 1975 I was a 
         18   member of the state parole board.  From 1975 to 1981 
         19   I was an assistant attorney general in Attorney 
         20   General Bellotti's office.  From July of '76 to '81 
         21   I was chief of the civil rights division in the 
         22   Office of the Attorney General, Commonwealth of 
         23   Massachusetts.  
         24            In 1985 I was appointed to the Newton 
 0078
          1   District Court as an associate justice of the Newton 
          2   District Court, and in 1989 to the Superior Court of 
          3   the Commonwealth of Massachusetts.
          4       Q.   Where you remain today?
          5       A.   Where I remain today.
          6       Q.   Judge, during the course of your position 
          7   as chief of the civil rights division in Attorney 
          8   General Bellotti's office, did you have occasion to 
          9   come in contact with Maria Lopez?
         10       A.   I did.
         11       Q.   And can you tell me how that came to be?
         12       A.   Yes.  As I said, I became the chief of the 
         13   civil rights division in Attorney General Bellotti's 
         14   office in 1976.  And it was apparent that we had a 
         15   need for a lawyer with a Hispanic background, and we 
         16   didn't for a long time.  
         17            I did hear about Maria Lopez and I knew her 
         18   reputation because at that time she was working at 
         19   the Greater Boston Legal Services program.  And so 
         20   from time to time I would speak with Maria.  And in 
         21   1980 I recruited her to come to work for the Office 
         22   of the Attorney General.  And indeed, in 1980 she 
         23   join the civil rights division in Attorney General 
         24   Bellotti's office.
 0079
          1       Q.   Were you her supervisor at the time?
          2       A.   I was indeed.  I think we had eight or nine 
          3   lawyers.  She was the newest lawyer.  I recall at 
          4   that time we had offices in the Saltonstall 
          5   Building.  We had a very nice suite of offices with 
          6   windows.  But we had only one office that was left 
          7   for Judge Lopez when she joined us, and that was an 
          8   interior office.  And she came on board with the 
          9   Office of the Attorney General in 1980 and was 
         10   gracious enough to accept an interior office without 
         11   a view of downtown Boston.
         12       Q.   While at the Attorney General's Office, 
         13   were you cognizant of her assignments and 
         14   activities?
         15       A.   Yes, indeed.
         16       Q.   Could you describe them for me. 
         17       A.   At that time in 1980, 1981, we were very 
         18   invested in housing issues in the Hyde 
         19   Park/Roslindale area, and particularly interested in  
         20   discrimination that was going on in the rental of 
         21   housing.  And I know we had sort of dedicated a lot 
         22   of our energy at that time to address housing issues 
         23   in the Greater Boston area and particularly in that 
         24   Hyde Park/Roslindale area.  
 0080
          1            We worked with -- the civil rights division 
          2   worked with the criminal bureau in Attorney General 
          3   Bellotti's office to address issues of housing and 
          4   housing discrimination in those neighborhoods.  And 
          5   I know Judge Lopez got very interested in and 
          6   invested that issue.  So she was particularly 
          7   concerned, particularly of help to me in the housing 
          8   areas.  
          9            She also became very interested in school 
         10   issues.  At that time there were a lot of private 
         11   schools that were beginning, the busing situation in 
         12   Boston was at its height, and a lot of religious 
         13   schools were beginning, and I actually went back and 
         14   pulled some of my earlier reports and I noted that 
         15   she had become interested in issues involving the 
         16   process by which these private academies and private 
         17   schools were conducting their educational programs. 
         18            For example, there was a case entitled 
         19   Anrig versus New Life Christian Academy.  And the 
         20   New Life Christian Academy people were refusing to 
         21   report attendance records, and that was one of the 
         22   requirements of the State Board of Education, State 
         23   Department of Education, and Maria I know sued the 
         24   New Life Christian Academy in a case in which they 
 0081
          1   were made to report attendance, attendance records, 
          2   scholarly records, academic records and so on.  So 
          3   those were the kinds of issues that she became very 
          4   important to me in. 
          5            She also, of course, was the liaison to me 
          6   to much of the Hispanic community and also to the 
          7   Asian community in Chelsea and Charlestown, those 
          8   areas over there in the '80s and mid '80s when 
          9   things were really sensitive in this community.  She 
         10   was very helpful to me in establishing those 
         11   contacts in the Chelsea and Charlestown 
         12   neighborhoods.  
         13            And, of course, 1988 she was appointed to 
         14   the Chelsea District Court I think to some extent as 
         15   a result of her involvement in matters of legal 
         16   issues in the Chelsea neighborhoods.
         17       Q.   And during the time that she was working 
         18   with you and for you in the civil rights division, 
         19   could you describe her commitment to public service 
         20   law?
         21       A.   She was enormously committed to public 
         22   service law.  Her whole history as a professional 
         23   has been in public service.  Greater Boston Legal 
         24   Service was her first legal involvement after Boston 
 0082
          1   University Law School.  The work that she did in the 
          2   Attorney General's Office was fantastic work, it was 
          3   dedicated, it was done intelligently, it was done 
          4   with thoughts of strategy, as well as legal 
          5   proceedings.  And she was, as I said, of immense 
          6   help to me and to the department and to the division 
          7   and to the communities that she served.
          8       Q.   Judge, there came a time -- and I'm going 
          9   to use the "D" word -- there came a time when you 
         10   became involved in a case involving the Demoulas 
         11   family; is that correct?
         12       A.   Yes.
         13       Q.   And how did that come to be? 
         14            MR. WARE:  Objection.
         15            HEARING OFFICER DAHER:  What's your 
         16   objection? 
         17            MR. WARE:  Irrelevance.
         18            HEARING OFFICER DAHER:  Show me the 
         19   relevance with regard to that.
         20            MR. EGBERT:  The relevance, Your Honor, is 
         21   that Judge Bohn was integrally involved in the 
         22   Demoulas case and because of his involvement fully 
         23   reviewed all of the matters in the Demoulas case, 
         24   the decisions from the SJC concerning the Demoulas 
 0083
          1   case, also concerned his rulings along with Judge 
          2   Lopez's.  He is fully familiar with her rulings and 
          3   findings and the opinions of the SJC, and he is able 
          4   to tell us concerning that case its complexity, its 
          5   level of acrimony amongst the parties, its 
          6   difficulty for a judge and the like.
          7            HEARING OFFICER DAHER:  Mr. Ware, I take it 
          8   synoptically it's in re of her judicial acumen, and 
          9   basically that's what it is.
         10            MR. WARE:  Well, I understand, Your Honor.  
         11   I don't withdraw the objection.  I think that the 
         12   Demoulas case is a tangent in this case.  There's no 
         13   dispute that Judge Lopez is an able, intelligent 
         14   jurist, and that's not at issue in these 
         15   proceedings.
         16            HEARING OFFICER DAHER:  But I think Mr. 
         17   Egbert wants to get that on record.  Go head.
         18       Q.   Briefly, how did your involvement come to 
         19   be?
         20       A.   In March of 1991 Judge Patrick Brady had 
         21   entered an order against Telemachus Demoulas and his 
         22   family not to transfer or to compromise any funds of 
         23   the business other than in the ordinary course of 
         24   business.  And there was a very specific order not 
 0084
          1   to transfer nor to spend any money other than in the 
          2   ordinary course of business. 
          3            At some point the allegation on the part of 
          4   the plaintiffs was that between October of '92 and 
          5   December of '92 the defendant Demoulas Telemachus 
          6   Demoulas and his family had distributed some $73 
          7   million to their family members by accelerating 
          8   notes that had been made payable to his members.  
          9   And those notes were to be paid in 1996, '97 and 
         10   '98.  But in 1991 they accelerated payment of those.  
         11   And so there was a complaint for contempt filed 
         12   against the defendant Demoulas family.  And for some 
         13   reason, that case was assigned to me. 
         14            And in the spring of 1993, over a period of 
         15   several months, I held hearings on the issue of 
         16   whether the transfer of funds violated Judge Brady's 
         17   order.  And indeed, after a long period of hearings, 
         18   days and days of hearings, I did find that the 
         19   defendant family members had indeed violated Judge 
         20   Brady's order, and I ordered that they put $68.5 
         21   million into an escrow account, and that was the 
         22   outcome of my involvement with that.  And my order 
         23   was probably in early 1994. 
         24            After I had finished my piece of the work, 
 0085
          1   had found them in contempt of Judge Brady's order, 
          2   had ordered them to place $68.5 million in escrow, 
          3   the case in chief then went to Judge Lopez who then 
          4   began whatever enormously complicated process she 
          5   was required to do in order to advance that case to 
          6   trial.  That was my involvement.
          7       Q.   And while you had the case, can you 
          8   describe the level of acrimony between the parties?
          9       A.   It was an enormously contentious case.  
         10   Probably that case and my Ellis & Ellis litigation 
         11   in Worcester are the two most contentious pieces of 
         12   litigation I've been involved in.
         13            I remember in the middle of the hearing on 
         14   the contempt complaint one of the sons of the 
         15   plaintiff family died in a car crash up in Canada.  
         16   He was a race car driver, and he died.  And I 
         17   thought to some extent that would force some 
         18   settlement in the Demoulas litigation early on, 
         19   but if anything, it stimulated them to more 
         20   litigation.  
         21            And there was contentiousness among the 
         22   lawyers, there was contentiousness among the 
         23   parties.  I recall at one point I think there was 
         24   even a physical confrontation in the hallway of the 
 0086
          1   courthouse.  So it was an enormously complicated 
          2   piece of litigation because of the legal issues 
          3   involved.  It was a very difficult case because of 
          4   the contentiousness of the families.  And, of 
          5   course, there was an awful lot of money involved, 
          6   too, which put an awful lot of pressure on the 
          7   parties, the lawyers, and on the Court, on the 
          8   Judge.  There was a lot of pressure in that case.  
          9   And Judge Lopez handled those complicated issues in 
         10   an extremely competent, careful and professional 
         11   manner.
         12       Q.   And did you have occasion to follow the 
         13   findings and opinions and the like that followed 
         14   after your contempt?
         15       A.   I did.  And if you'll note, the SJC 
         16   report --
         17            MR. WARE:  Objection.  
         18            HEARING OFFICER DAHER:  What's your 
         19   objection? 
         20            MR. WARE:  He said he did.  I think he's 
         21   well beyond having answered the question.
         22            HEARING OFFICER DAHER:  Overruled.  Go 
         23   ahead.
         24       A.   I did because my piece of the case was also 
 0087
          1   reported in the SJC opinion.  And so I was invested 
          2   because of my own, whether I was going to be 
          3   affirmed or reversed.  I was interested in following 
          4   it for that reason, of course, but I was also 
          5   interested in following it because of the 
          6   complicated nature of the issues and I wanted to see 
          7   how another judge was going to be able to deal with 
          8   all of this.
          9       Q.   And you in fact did observe, by way of 
         10   findings and opinions, how Judge Lopez dealt with 
         11   it?
         12       A.   I did.
         13       Q.   And what did you observe?
         14            MR. WARE:  Objection, Your Honor, to expert 
         15   testimony and opinion on these opinions which are 
         16   themselves public records and available.
         17            MR. EGBERT:  It's not an opinion on the 
         18   opinions.  It's his observations as a judge; not 
         19   anything more than that.
         20            HEARING OFFICER DAHER:  Sustained.  Let's 
         21   go.  Objection is sustained.
         22            MR. EGBERT:  I have nothing further of this 
         23   witness.  Thank you.
         24            MR. WARE:  No questions. 
 0088
          1                    EVA NILSEN, Sworn
          2                    DIRECT EXAMINATION
          3       BY MR. EGBERT: 
          4       Q.   Could you state your name, please. 
          5       A.   My name is Eva Nilsen, N-i-l-s-e-n.
          6       Q.   And where do you reside?
          7       A.   I live in Cambridge.
          8       Q.   What is your current profession?
          9       A.   I'm a clinical professor at Boston 
         10   University School of Law.
         11       Q.   And are you also an attorney licensed to 
         12   practice in the Commonwealth?
         13       A.   Yes, I am.
         14       Q.   Could you give me a brief synopsis, a 
         15   history of your professional background?
         16       A.   Yes.  I graduated from the University of 
         17   Virginia Law School in 1977.  I was a Prettiman 
         18   Fellow, a graduate fellow at Georgetown University 
         19   Law School for a couple of years where I practiced 
         20   public defender work.  And then I came to Boston in 
         21   1980 and began working as a law professor at Boston 
         22   University Law School.
         23       Q.   What subject or matters do you teach at 
         24   Boston University?
 0089
          1       A.   Criminal law.  I teach in a criminal law 
          2   clinic open to second- and third-year law students.  
          3   They receive cases in the Boston Municipal Court and 
          4   work under my supervision from first appearance 
          5   through the end of the cases.
          6       Q.   Now, during the course of your tenure as a 
          7   professor at Boston University Law School, have you 
          8   had occasion to come in contact with Judge Maria 
          9   Lopez?
         10       A.   Yes, I have.
         11       Q.   And what were the circumstances under which 
         12   you've come in contact?
         13       A.   Judge Lopez has been an adjunct professor 
         14   at Boston University Law School for a number of 
         15   years, eight or ten years.  I can't remember the 
         16   exact number of years.  And I've met her at Boston 
         17   University functions.  I've sometimes overlapped 
         18   with her in classrooms.  And I've actually talked 
         19   about her indirectly with my students over the 
         20   years, because she was an adjunct professor in trial 
         21   advocacy.  And before students can take the criminal 
         22   clinic, they have to take trial ad., and many of 
         23   them had Judge Lopez as their trial advocacy 
         24   teacher.  
 0090
          1            So I had occasion to talk to her about 
          2   particular students.  Sometimes if a student was 
          3   having a problem, I would talk to her or she would 
          4   tell me about students she had had.  And my students 
          5   had talked about her over the years as their trial 
          6   advocacy teacher.
          7       Q.   And during the course of your interaction 
          8   with Judge Lopez, have you also had occasion to 
          9   discuss legal issues, issues of legal education and 
         10   issues of clinical legal education?
         11       A.   Absolutely. 
         12       Q.   And from your discussions with Judge Lopez 
         13   in that regard, do you have an opinion of her legal 
         14   and professional acumen in that regard?
         15       A.   Yes.  From my discussions with her and also 
         16   from my discussions with students about her, I have 
         17   very strong opinions about her evidentiary 
         18   knowledge, about her knowledge of the role of the 
         19   judiciary, about her trial advocacy skills, because 
         20   those are all issues that I care very much about and 
         21   they're issues that my students talk about with me 
         22   and that I have talked about with her over the 
         23   years.
         24       Q.   And what is your opinion in that regard?
 0091
          1       A.   My opinion is that she is a very smart 
          2   judge, that she has great legal abilities, that she 
          3   has very strong trial advocacy skills, and that as a 
          4   teacher, she's able to be patient and convey these 
          5   to students, which can sometimes try the patience of 
          6   any teacher.  And so I've found that she was very 
          7   patient and that she understood very well how 
          8   students were to be in front of judges.
          9       Q.   Now, your students in the clinical program 
         10   actually appear before judges; is that correct?
         11       A.   They do.
         12       Q.   And do they do that under your supervision?
         13       A.   Absolutely.
         14       Q.   And when I say "supervision," are you often 
         15   present when they are in court?
         16       A.   I am always present when they're in court.
         17       Q.   So you are basically the supervising 
         18   attorney?
         19       A.   That's right.  They discuss every aspect of 
         20   the case with me.  And it's very important to me 
         21   that they have trial advocacy skills, because we 
         22   don't teach a separate trial advocacy course.  So 
         23   when they come to me and know evidence, then they're 
         24   ready to step into the courtroom, and I don't have 
 0092
          1   to teach them evidence.  And I felt that when Judge 
          2   Lopez was the teacher, that the students knew their 
          3   evidence and knew their trial ad. skills.  And it 
          4   made my job a little bit easier.
          5       Q.   Do you also have occasion to have students 
          6   appear before Judge Lopez in hearings or otherwise?
          7       A.   Yes, I did.
          8       Q.   What would be the occasion for those?
          9       A.   My students take arraignments at the Boston 
         10   Municipal Court and often their clients are held on 
         11   bail.  And they do all the bail appeals on their 
         12   cases.  And often Judge Lopez was sitting in the 
         13   Superior Court bail review session.  So the students 
         14   would go up in the afternoon with their clients and 
         15   make bail arguments in front of her.
         16       Q.   And were you during those occasions able to 
         17   make observations of Judge Lopez in her judicial 
         18   demeanor?
         19       A.   Yes, I was.
         20       Q.   And could you tell us what you observed?
         21       A.   I observed her to be a patient judge, a 
         22   judge who knew the bail law, knew the bail statute, 
         23   and who did not always give the students what they 
         24   wanted, but I felt that the times that they appeared 
 0093
          1   before her, they understood her decisions.  That is, 
          2   that she gave the reasons for why she would deny 
          3   them the relief that they wanted, and I felt that 
          4   she was open-minded, and I've always said to the 
          5   students that the best you can hope for is that a 
          6   judge will be fair, open-minded and know the law.  
          7   And sometimes you'll win and sometimes you'll lose.  
          8   And with Judge Lopez, that was the case.
          9       Q.   When you say that was the case, what do you 
         10   mean by that?
         11       A.   She was fair, open-minded and knew the law.
         12            MR. EGBERT:  Thank you.  I have no further 
         13   questions.
         14            MR. WARE:  No questions. 
         15            MR. EGBERT:  Judge, can I have one minute? 
         16            HEARING OFFICER DAHER:  You can have all 
         17   the time in the world.  Go ahead.  (Pause)
         18              CAMILLE F. SARROUF, JR., Sworn
         19                    DIRECT EXAMINATION
         20       BY MR. EGBERT: 
         21       Q.   Good morning.
         22       A.   Good morning, sir.
         23       Q.   Could you state your name and spell your 
         24   last name, please. 
 0094
          1       A.   It's Camille F. Sarrouf, Jr., 
          2   S-a-r-r-o-u-f.
          3       Q.   And, Mr. Sarrouf, you're an attorney 
          4   licensed to practice in the Commonwealth of 
          5   Massachusetts?
          6       A.   I am.
          7       Q.   And could you give me a brief synopsis of 
          8   your professional background. 
          9       A.   After passing the bar, I was employed as an 
         10   assistant district attorney in Middlesex County from 
         11   mid to late 1993 to I think the summer of 1995.  
         12   From there, I began my employment at the law office 
         13   of Sarrouf, Tarricone & Fleming, 95 Commercial Wharf 
         14   in Boston.  And I'm still there today.
         15       Q.   Are you familiar with an organization 
         16   entitled the Middlesex County Bar Association?
         17       A.   I am.
         18       Q.   What is that?
         19       A.   It is a county bar association made up of 
         20   lawyers who live and/or practice in Middlesex 
         21   County.  The association has a board of directors 
         22   and officers who are voted on on a yearly basis by 
         23   the members of the association as their 
         24   representative body.
 0095
          1       Q.   And do you hold some position with the 
          2   Middlesex County Bar Association?
          3       A.   I did.  I believe I would now be classified 
          4   as the immediate past president.
          5       Q.   And as immediate past president, have you 
          6   been authorized by the association to appear here 
          7   today?
          8       A.   I have.
          9       Q.   And has the association authorized you to 
         10   provide a statement with regard to Judge Lopez?
         11       A.   They have.
         12       Q.   And what is that?
         13            MR. WARE:  Objection. 
         14            HEARING OFFICER DAHER:  I'll hear you.
         15            MR. WARE:  Well, Your Honor, this is by 
         16   definition a hearsay endorsement of some kind of a 
         17   judge.  I think it has no place in evidence in this 
         18   case.  If they want to seek to file some amicus 
         19   brief with the Court, they can do so; but as far as 
         20   a statement which is proffered in the guise of 
         21   evidence, it seems to me that this is inappropriate.
         22            MR. EGBERT:  I'm offering this aspect of it 
         23   on the issue of sanctions, if any.  This is a 
         24   statement authorized by a whole bar association 
 0096
          1   concerning their statement as to Judge Lopez's 
          2   conduct on the bench and her position as a judge.  
          3   It is classic information which is appropriate at a 
          4   phase of the hearing which is not bifurcated in this 
          5   case.
          6            HEARING OFFICER DAHER:  Mr. Ware, we're 
          7   dealing with a nonbifurcated proceeding.  We have 
          8   the Brown case that indicates that, you know, gives 
          9   some guidance as to the weight the Court's going to 
         10   give it.  So I can't see how you're going to get 
         11   hurt by it.
         12            MR. WARE:  It isn't a question of my being 
         13   hurt or not hurt.  It's a question whether this is 
         14   evidence in any respect.  And an endorsement by a 
         15   bar association strikes me as not having any 
         16   evidentiary value whatsoever.  If the bar 
         17   association wants to make a, quote, statement, it 
         18   can make it in the appropriate context when and if 
         19   the time comes.  It has no place in a court 
         20   proceeding.
         21            MR. EGBERT:  This is the appropriate 
         22   context and when the time has come.  There is no 
         23   other time to present matters to this record or to 
         24   this office or anyone up and down the line
 0097
          1            MR. WARE:  Your Honor, Mr. Egbert himself 
          2   has made a heavy point of fact that the rules of 
          3   evidence apply.  This isn't evidence.  Whatever it 
          4   is, it's not evidence.
          5            MR. EGBERT:  The rules of evidence apply, 
          6   Your Honor, to the findings of fact which you must 
          7   make and to the evidence which is presented as to 
          8   the findings of fact.  The rules of evidence do not 
          9   apply to those areas that relate to what the 
         10   ultimate disposition of any disciplinary matter 
         11   ought to be.  They never have and they never will.  
         12   The case I provided to you, Veksler versus Board of 
         13   Registration in Dentistry, makes it quite clear that 
         14   things like allocution and presentation of 
         15   mitigating circumstances and in fact likening it to 
         16   a sentencing hearing in a criminal case for which a 
         17   judge can take all forms of information in 
         18   determining it, including double, triple, and 
         19   quadruple hearsay in making a determination of what 
         20   an appropriate result may be. 
         21            HEARING OFFICER DAHER:  Overruled, Mr. 
         22   Ware.  Go ahead. 
         23       A.   At a meeting held at the Middlesex County 
         24   Bar Association, the message to be conveyed to the 
 0098
          1   panel and to this hearing is that Judge Lopez is 
          2   deemed to be a reasonable, intelligent, fair and 
          3   just jurist.
          4            MR. EGBERT:  Thank you.  I have no further 
          5   questions.
          6            MR. WARE:  No questions.
          7            HEARING OFFICER DAHER:  Call your next 
          8   witness.
          9            MR. EGBERT:  Your Honor, at this time I 
         10   have no further witnesses to present.  I do wish to 
         11   present Judge Lopez in a matter of allocution before 
         12   the Court at this time.  She wishes to address the 
         13   Court, as is her right, and so I would like to do 
         14   that at this time.
         15            HEARING OFFICER DAHER:  Let me hear from -- 
         16   anything in rebuttal? 
         17            MR. WARE:  No, Your Honor.
         18            HEARING OFFICER DAHER:  You have no 
         19   witnesses? 
         20            MR. WARE:  No rebuttal testimony.  Your 
         21   Honor, the Judge does have a right of allocution, 
         22   and that right was exercised over five days of this 
         23   hearing.  She does not have an independent right to 
         24   take the stand and make some statement in this 
 0099
          1   proceeding.
          2            MR. EGBERT:  Judge, a right of allocution 
          3   is far different than testimony under the rules of 
          4   evidence in all proceedings, whether it be criminal 
          5   or disciplinary.  The statements -- or the testimony 
          6   that Judge Lopez gave pursuant to the rules of 
          7   evidence, with objections and the like, all go to -- 
          8   and I suggest go to the findings of fact which this 
          9   Court must make at any particular time because they 
         10   are bound by the rules of evidence. 
         11            The right of allocution, however, is 
         12   classic in both the criminal law and disciplinary 
         13   law and is stated as clearly as anyone can state it 
         14   by Justice Ireland in the Veksler case, and that is 
         15   where the Court stated the statutes cannot be 
         16   plainer.  The petitioner is entitled to a hearing.  
         17   That's the first aspect of it.  And then, of course, 
         18   we're entitled to a hearing here, too, on 
         19   discipline.  And it goes on to say, "Such a hearing 
         20   provides the petitioner, like the criminal defendant 
         21   at a disposition hearing, with a right of 
         22   allocution, the right to present mitigating factors 
         23   prior to sentencing."  That right of allocution is 
         24   absolute.  
 0100
          1            And I might note, Your Honor, rather than 
          2   getting into what I think might be a constitutional 
          3   debacle, you'll note that the SJC didn't reach the 
          4   due process issue because they found they didn't 
          5   have to.  But I would suggest that it would be quite 
          6   clear under the case law that if they did, 
          7   allocution would have been constitutionally 
          8   mandated.
          9            HEARING OFFICER DAHER:  Last word, Mr. 
         10   Ware? 
         11            MR. WARE:  Your Honor, counsel cites as the 
         12   only precedent for this request to the Court a case 
         13   from the Board of Registration in Dentistry.  And 
         14   obviously the statutory framework that we're dealing 
         15   with here is unique and quite different.  It makes 
         16   it plain under Section 7 that the formal hearing 
         17   shall be conducted before you and that it shall be 
         18   subject to the rules of evidence.  Those rules of 
         19   evidence are not suspended because we're at a point 
         20   at which the Judge would like to make some personal 
         21   statement.  
         22            There are many forms by which Judge Lopez 
         23   can make a personal statement.  She can make them in 
         24   the course of the briefing with Mr. Egbert, but they 
 0101
          1   are not evidence.  She's testified here and been 
          2   subject to cross examination.  She's not now 
          3   entitled to a separate appearance under the guise of 
          4   what counsel is calling "allocution," which itself 
          5   is a term borrowed from the criminal law in a 
          6   sentencing proceeding.  
          7            This is not a sentencing proceeding.  The 
          8   Hearing Officer can make a recommendation to the 
          9   Commission.  Mr. Egbert will have an opportunity to 
         10   appear before the Commission presumably, as will the 
         11   Judge.  Further proceedings may occur before the 
         12   Supreme Judicial Court.  But Judge Lopez is not 
         13   entitled to simply take the stand and make a 
         14   statement here in the guise of something other than 
         15   the five days in which she's already testified.  
         16   That is her right.  That is her due process right 
         17   here, and she exercised it.
         18            HEARING OFFICER DAHER:  Mr. Egbert?
         19            MR. EGBERT:  That, unfortunately, is Mr. 
         20   Ware's statement, but it isn't a statement of the 
         21   law.  The statement of the law is quite clear.  So 
         22   it's clear, I'm not offering this as factual 
         23   evidence -- evidence of facts in the case upon which 
         24   you should make your findings and rulings on facts.  
 0102
          1   I'm offering this on allocution, which is an unsworn 
          2   allocution to be taken by the Court in the event, 
          3   and only in the event, there's a recommendation or 
          4   you intend to recommend any form of findings.
          5            HEARING OFFICER DAHER:  Overruled, Mr. 
          6   Ware.  Go ahead.  
          7            JUDGE LOPEZ:  Thank you, Judge Daher, for 
          8   this opportunity to address the charges against me 
          9   and to speak not only on my own behalf, but on 
         10   behalf of a principle that is the foundation of the 
         11   judicial branch of government -- that principle 
         12   being the independence of the judiciary.  
         13            None of my remarks are directed at this 
         14   tribunal or at how these proceedings were conducted 
         15   by Your Honor.  
         16            These proceedings were contentious and much 
         17   lengthier than anticipated by both sides.  The Court 
         18   did an excellent job of staying in control in a 
         19   patient and dignified manner, as a judge is expected 
         20   to.  And while I'm on the subject of Your Honor's 
         21   staying in control, remaining patient and conducting 
         22   these proceedings in a dignified manner, I want to 
         23   make it absolutely clear again how sincerely 
         24   apologetic I am for having allowed myself to lose my 
 0103
          1   self-control during the proceedings of the Horton 
          2   case on September 6th, 2000. 
          3            As this Court and the Commission know, even 
          4   before these proceedings began, as well as during 
          5   them, I have acknowledged my mistake, and I believe 
          6   I have conveyed my full understanding of that 
          7   transgression.  Although uncharacteristic of my 
          8   behavior in over 14 years on the bench, I 
          9   understand -- I fully understand how such a 
         10   transgression of judicial demeanor can undermine the 
         11   public's confidence in the administration of 
         12   justice.  And such confidence is critical to the 
         13   legitimacy of our justice system. 
         14            To the extent many of the remainder of my 
         15   remarks are critical, they are not directed to Your 
         16   Honor, but they are directed solely at the 
         17   Commission on Judicial Conduct and its attorneys. 
         18            Sitting here listening to the witnesses the 
         19   Commission has relied on to support its charges 
         20   against me has not been easy.  I do not believe that 
         21   in the history of the Massachusetts judiciary there 
         22   has been a judge that has been required to respond 
         23   in a formal disciplinary proceeding to charges of 
         24   this nature and on the quality of the evidence 
 0104
          1   presented by the Commission in these proceedings. 
          2            The Commission has relied on assistant 
          3   district attorneys who are inexperienced, 
          4   unprofessional and of questionable veracity to 
          5   challenge a legal sentencing decision made by a 
          6   judge of the Superior Court who has been on the 
          7   Bench for 14 years.  
          8            In these proceedings the Commission 
          9   advances a new and novel theory of Canon 3(A)(6) of 
         10   the Code of Judicial Conduct, which requires judges 
         11   to abstain from public comment about a pending case.  
         12   Not only did the Commission bring these charges 
         13   knowing that that canon had never been interpreted 
         14   by the Supreme Judicial Court as it urges here, but 
         15   it also knows that the weight of the legal opinion 
         16   amongst judges of the Superior Court is that a case 
         17   is no longer pending once a sentence is imposed, 
         18   including a probationary sentence.
         19            The charges involving the pending case 
         20   issue is just the clearest example of the 
         21   Commission's overreaching in this case.  I'm going 
         22   to leave it to my counsel to argue the strength and 
         23   quality of the Commission's evidence, even though I 
         24   know I could launch into a complete and detailed 
 0105
          1   refutation of its case. 
          2            As frustrating as these proceedings have 
          3   been for me, I believe that standing up to these 
          4   unfounded and irresponsible charges -- those that go 
          5   beyond the demeanor issue -- was the only thing I 
          6   could do, not just for myself, but for the right 
          7   guaranteed to all citizens of this Commonwealth by 
          8   Article 29 of the Declaration of Rights of the 
          9   Massachusetts Constitution, which states as follows:    
         10   "It is the right of every citizen to be tried by 
         11   judges as free, impartial and independent as the lot 
         12   of humanity will admit."  
         13            For me personally, it has been unpleasant 
         14   and financially costly -- consequences I fortunately 
         15   have the ability to bear.  For the citizens of this 
         16   Commonwealth, the cost is immeasurable.  How do we 
         17   quantify the chilling effect that these proceedings 
         18   have had on the exercise of independent judgment by 
         19   judges?  I have heard it from colleagues on the 
         20   Superior Court, as well as freely from judges in 
         21   other courts of the Commonwealth.  We can all be 
         22   assured that the example the Commission has sought 
         23   to make of me is not aspired to by any member of the 
         24   Massachusetts judiciary.  
 0106
          1            The historical figure I have been 
          2   identifying with during the course of these 
          3   proceedings is Sir Edward Cooke, the great English 
          4   champion of an independent judiciary.  He was born 
          5   in the 16th Century and he was the first Chief 
          6   Justice of England.  His career, as has been mine, 
          7   was a stormy one.  He incurred the enmity of King 
          8   James in his obstinate maintenance that the common 
          9   law as interpreted by the court were superior to the 
         10   rights claimed by the church, chancery and even the 
         11   King.  Not surprisingly, the King finally removed 
         12   Chief Justice Cooke from the Bench.  Cooke's theory 
         13   of a judiciary, independent of control by royalty or 
         14   Parliament, was not developed further in England.  
         15   It was, as we know, highly regarded and adopted by 
         16   the American colonies as early as 1761. 
         17            Historians have surmised that Cooke's 
         18   theory of an independent judiciary was not pursued 
         19   further in England until much later because other 
         20   judges, having seen what happened to Chief Justice 
         21   Cooke, feared a similar fate. 
         22            The Commission has succeeded in making me 
         23   the example of the fate judges are to avoid.  
         24   Unfortunately, this means that many judges will now 
 0107
          1   seek to avoid controversial cases, judges will 
          2   concern themselves with public opinion before making 
          3   decisions, and they will worry about making 
          4   unpopular decisions. 
          5            I fear it is quickly becoming a justice 
          6   system composed of judges not just concerned with 
          7   applying the law in a fair and just fashion, but it 
          8   is becoming a justice system that will think first 
          9   about what happened to Judge Maria Lopez. 
         10            These proceedings against me have 
         11   undermined the very foundation of our judiciary's 
         12   constitutional mandate, which is to dispense justice 
         13   freely, impartially and independently.  It is a 
         14   sorry day for the people of the Commonwealth. 
         15            As to the specific charges against me, I 
         16   believe that my only actual ethical transgression 
         17   was losing my temper at Mr. Deakin's conduct.  And 
         18   while I fully understand and admit to the negative 
         19   impact of that loss of temper -- and I say this not 
         20   in justification, but in mitigation of what 
         21   occurred -- Mr. Deakin was in violation of a court 
         22   order, and that should not be ignored.  There are 
         23   times that judges are not only authorized to, but 
         24   required to issue harsh orders, and one of those 
 0108
          1   circumstances is in order to keep control of the 
          2   proceedings when a lawyer is contumacious.  Though 
          3   again, regrettably, I should have spoken to him in a 
          4   more controlled and dignified manner. 
          5            With certainty, however, I can state that 
          6   in deciding the sentence that I imposed in the 
          7   Horton case, a sentence that was essentially decided 
          8   on August 1st, and despite my loss of demeanor at 
          9   Mr. Deakin and my shortness with him on September 
         10   6th, I was free of any bias or prejudice towards any 
         11   of the participants in the case. 
         12            I decided that sentence based on my 
         13   judgment of what was a fair sentence considering all 
         14   of the circumstances of the case.  I must, say, 
         15   however, it is still inconceivable to me how that 
         16   one instance of judicial misconduct has subjected me 
         17   and everyone involved here to these time-consuming 
         18   and costly proceedings.  Maybe if I had had the 
         19   foresight to have handled it man-to-man -- as Mr. 
         20   Ware on behalf of the Commission stated during these 
         21   proceedings was the appropriate way to handle an 
         22   insubordinate and disrespectful lawyer -- all of 
         23   this could have been obviated.  But in absolute 
         24   candor, Your Honor, the idea of handling it, quote, 
 0109
          1   like a man, unquote, did not even enter my mind, nor 
          2   should it have. 
          3            In evaluating that single instance of lapse 
          4   of demeanor in my otherwise unblemished 14-year
          5   career as a jurist, I ask you to consider that 
          6   judges, like all mortals, make mistakes.  My error 
          7   should be put into the context of my entire career 
          8   and who I am as a person. 
          9            In addition, I ask that my conduct in this 
         10   regard be put into the context of Commission 
         11   precedence.  I submit that never in the history of 
         12   the Commission has a judge been sanctioned for a 
         13   single instance of loss of demeanor, and certainly 
         14   there have never been formal charges brought against 
         15   a judge for a single instance of loss of demeanor. 
         16            I also ask you to consider that my family 
         17   and I have had to endure the strain of these 
         18   proceedings, and it has been a substantial burden.  
         19   In my view, this is one of those situations where an 
         20   elephant gun has been used to shoot a mouse.  
         21   Because of the unprecedented nature of these 
         22   proceedings, the question of why have they been 
         23   brought must be asked.  It certainly was not my 
         24   single instance of loss of demeanor. 
 0110
          1            The reason I have been proceeded against in 
          2   this manner is because of the political and public 
          3   outcry of the sentence I imposed.  A consideration 
          4   of the evidence the Commission has presented here 
          5   indicates the Commission believes it is authorized 
          6   to put my sentence on trial.  Well, it is not.  And 
          7   respectfully, Judge Daher, neither are you.  It is a 
          8   legal sentence.  To this day, I stand by that 
          9   sentence as a fair one.  The Commission's authority 
         10   does not extend to a review of a legal sentence.  
         11   Even an appellate court would lack jurisdiction to 
         12   review the sentence imposed on the Horton case.
         13            What does the record show about the 
         14   evidence the Commission presented in this case?  
         15   Well, most of its evidence went to issues concerning 
         16   the lawful sentence I decided on August 1st.  We 
         17   spent a lot of time scrutinizing the Katz report.  
         18   Should I have relied on the Katz report?  Was it a 
         19   biased report because Ms. Katz prepared it on behalf 
         20   of the Committee for Public Counsel Services?  What 
         21   were Ms. Katz's credentials?  Anyone familiar with 
         22   our adversarial system knows that except in rare 
         23   circumstances, whatever is given to the Court comes 
         24   from one side or the other.  And as the Judge, the 
 0111
          1   decision-maker in the case, I could give what was 
          2   presented to me whatever weight I deemed 
          3   appropriate. 
          4            As the judge imposing a legal sentence, I 
          5   am not to be second-guessed.  However, a review of 
          6   the record created by the Commission in these 
          7   proceedings shows that that is precisely what the 
          8   Commission seeks to do.
          9            The Commission's modus for bringing these 
         10   proceedings must be scrutinized.  It has in these 
         11   proceedings exceeded not only its customary 
         12   practice, but I submit its legal mandate.  And I ask 
         13   you, Judge Daher, to ask why. 
         14            The answer to this question is crucial to 
         15   any findings this court might make and any sanctions 
         16   this court might entertain.  If the Commission's 
         17   motives are not legitimate, how can I, in fairness, 
         18   be deemed in violation of any canon, never mind 
         19   sanctioned?  I stand here before you not because of 
         20   a series of serious ethical violations, as would be 
         21   expected from the aggressive nature of the 
         22   Commission's handling of the investigation and these 
         23   proceedings, but because of public outrage over my 
         24   legal sentence -- outrage which has been fueled by 
 0112
          1   unfettered and ill-informed criticism of judicial 
          2   decisions and the role of the judiciary in our 
          3   constitutional democracy. 
          4            A situation similar to this one occurred 
          5   some years ago with Judge Harold Baer of the Federal 
          6   District Court in the Second Circuit.  As a result 
          7   of suppressing evidence in a drug case, it called 
          8   for Judge Baer's removal or the reversal of his 
          9   decision came from everywhere, including President 
         10   Nixon and Senator Dole. 
         11            In a most unusual act, the Chief Justice of 
         12   the Second Circuit Court of Appeals, Judge John 
         13   Newman and his colleagues, issued a statement to the 
         14   press that pointedly applies to my situation. 
         15            In the statement the justices stated, The 
         16   recent attacks on the justice of our circuit have 
         17   gone too far.  They threaten to weaken the 
         18   constitutional structure of this nation which has 
         19   well served our citizens for more than 200 years.  
         20   These attacks do a grave disservice to the principle 
         21   of an independent judiciary and more significantly, 
         22   mislead the public as to the roles of judges in a 
         23   constitutional democracy.
         24            When a judge is threatened with a call for 
 0113
          1   resignation or impeachment because of disagreement 
          2   with a ruling, the entire process of orderly 
          3   resolution of legal disputes is undermined.  We have 
          4   no quarrel with criticism of any decision rendered 
          5   by a judge.  Informed comment and disagreement from 
          6   lawyers, academics and public officials have been 
          7   the hallmarks of the American legal system.  But 
          8   there is an important line between legitimate 
          9   criticism of a decision and illegitimate attacks 
         10   upon a judge. 
         11            Criticism of a decision can illuminate 
         12   issues and sometimes point the way to better 
         13   decisions.  Attacks on a judge risk inhibition of 
         14   all judges as they conscientiously endeavor to 
         15   discharge their responsibilities.
         16            The Commission in this case has proceeded 
         17   on the basis of what Justice Newman and his 
         18   colleagues in the Second Circuit characterized as 
         19   illegitimate attacks upon a judge, and its 
         20   unprecedented pursuit of me has had all the adverse 
         21   consequences Justice Newman's statement cautions 
         22   about.  I want to briefly return to the comments I 
         23   began my remarks with. 
         24            In addition to making clear my apology, I 
 0114
          1   want it to be clear that I chose to stand up to 
          2   these allegations, because if I allowed myself to be 
          3   bullied, I would empower the Commission to bully 
          4   other judges.  I wonder how many judges in the past 
          5   have been forced to acquiesce to unreasonable 
          6   allegations and settlements with the Commission 
          7   because they could not, like I, pay the emotional 
          8   and economic price of putting the Commission to its 
          9   proof. 
         10            But even more lamentable than the 
         11   unfairness to the judges is the devastating effect 
         12   these kinds of illegitimate and 
         13   politically-motivated proceedings have on the 
         14   independence of the judiciary. 
         15            And before I conclude, I want to comment on 
         16   the role that the Commission and its attorneys have 
         17   assumed in these proceedings.  Commencing from how 
         18   the investigation was undertaken and up to arguments 
         19   made by the Commission in the course of this 
         20   hearing, one would think it was engaged in a 
         21   criminal prosecution.  Nothing, of course, could be 
         22   further from the truth. 
         23            These are civil administrative proceedings.  
         24   As far as I know, I have not been charged with a 
 0115
          1   criminal offense.  My understanding of the 
          2   investigative function of the Commission is that it 
          3   is to look at all of the evidence, including 
          4   exculpatory evidence.  At that stage it should be 
          5   acting as a neutral investigator searching for the 
          6   truth.  Clearly, that did not happen here. 
          7            In my case, as I believe will eventually be 
          8   shown, it commenced with a mission to make an 
          9   example of me.  As has been shown here, the 
         10   Commission refused to consider exculpatory evidence 
         11   and pursued only that evidence which, regardless of 
         12   its quality, could be used in a manipulated and 
         13   distorted way to support any allegation of 
         14   misconduct against me. 
         15            I refer to Anne Goldbach's testimony before 
         16   the Commission in which she was refused the 
         17   opportunity to offer exculpatory evidence.  I refer 
         18   to the disingenuous pursuit of my husband's emails 
         19   on the mere speculation that I or we had engaged in 
         20   a, quote, whispering campaign -- a charge noticeably 
         21   absent from the charges it eventually brought, a 
         22   charge the Commission knew it had not even a 
         23   scintilla of evidence upon which to justify its 
         24   intrusion into my husband's privacy. 
 0116
          1            As we all know, bad facts make bad law.  
          2   And this is, in my opinion, one of the many 
          3   unfortunate consequences of the Commission's actions 
          4   in this case.  And there is more that will come out.  
          5   The subpoenaing of any friend of mine that was 
          6   quoted in the press of saying something favorable 
          7   about me, the subpoenaing of individuals' personal 
          8   computers, the harassment of attorneys who dare to 
          9   write about this case in the context of judicial 
         10   independence; and as the evidence in these 
         11   proceedings has shown, the complete disregard of the 
         12   Commission's confidentiality proceedings -- 
         13   provisions, I'm sorry.
         14            Before commencing these proceedings, the 
         15   Commission was required to find sufficient cause 
         16   based on a preponderance of the credible evidence 
         17   that my conduct constituted grounds to issue formal 
         18   charges and for discipline.  Based on how Mr. Ware 
         19   himself has represented he conducted the 
         20   investigation, the Commission was not presented with 
         21   a complete record of the evidence.  If exculpatory 
         22   evidence was excluded, how, then, could the 
         23   Commission make a finding based on a preponderance 
         24   of the credible evidence? 
 0117
          1            What these proceedings have unequivocally 
          2   established is that the Commission has, at best, 
          3   misperceived its role and at worst, as the record I 
          4   believe shows, it has violated many of my rights and 
          5   those of other individuals who were involved here. 
          6            And finally, once again returning to the 
          7   issue of my conduct, which is why we are supposed to 
          8   be here, I would like to conclude with a quote from 
          9   the philosopher Pascal, in which he speaks to the 
         10   importance of recognizing humanity by judges and in 
         11   judges.  And I will retain the gender used by the 
         12   philosopher in the quote. 
         13            Pascal cautioned as follows:  "We must not 
         14   expect too much of any judge.  We must not assume 
         15   that he will cease to be a man and become an angel, 
         16   because man is neither angel nor brute.  And the 
         17   unfortunate thing is that he who would act the 
         18   angel, acts the brute." 
         19            I ask, not only on my behalf, but on behalf 
         20   of the principles that are the foundation of our 
         21   justice system, that I be completely exonerated of 
         22   these charges.  Again, I appreciate this opportunity 
         23   to say what has been on my mind for some 27 months. 
         24            Thank you.
 0118
          1            HEARING OFFICER DAHER:  I'm delighted to 
          2   give you the opportunity. 
          3            Mr. Ware, this is not a closing, but 
          4   there's been a personal attack on you.  Would you 
          5   like to make some comments? 
          6            MR. WARE:  No, Your Honor, not at this 
          7   time.
          8            HEARING OFFICER DAHER:  Okay.  Fine.  Thank 
          9   you very much. 
         10            Both parties rest; is that correct? 
         11            MR. WARE:  Yes, Your Honor.
         12            MR. EGBERT:  But for checking a couple of 
         13   exhibits that I want to check, but --
         14            HEARING OFFICER DAHER:  You can take care 
         15   of that with Harvey.
         16            Gentlemen, I would like to have briefs 
         17   in -- how does the 17th of January sound?  Is that 
         18   enough time for briefs?  Briefs by the 17th?
         19            MR. EGBERT:  I think we're going to have a 
         20   brief --
         21            HEARING OFFICER DAHER:  We're going to have 
         22   the briefs, and then we'll have the closing 
         23   arguments two weeks later.  I want to review the 
         24   briefs.
 0119
          1            MR. EGBERT:  I understood that you were 
          2   going to require the Commission to file its request 
          3   for findings in brief and then we would then file 
          4   ours.
          5            MR. WARE:  No, no, no.
          6            MR. EGBERT:  We have the record from the 
          7   last proceeding that that's exactly what you ruled, 
          8   because it's the Commission's burden of proof --
          9            MR. WARE:  That's not --
         10            MR. EGBERT:  Let me finish.
         11            HEARING OFFICER DAHER:  One at a time.
         12            MR. EGBERT:  I'm sick of being interrupted 
         13   from the side and the front.  And I'm also quite 
         14   frankly, Your Honor, sick of the Commission counsel 
         15   consistently misrepresenting the record in this 
         16   case.  You ruled on this when we last --
         17            HEARING OFFICER DAHER:  Let's talk about 
         18   the briefs and the rulings of findings.  Tell me -- 
         19   let's cut to the chase.
         20            MR. EGBERT:  My understanding is, Your 
         21   Honor, it's the Commission's burden to prove -- that 
         22   they were going to present to you their findings in 
         23   brief, we would then present to you our findings in 
         24   brief, and then you would set up argument for 
 0120
          1   whatever date.
          2            HEARING OFFICER DAHER:  Mr. Ware, does that 
          3   interrupt your schedule at all? 
          4            MR. WARE:  My understanding was that you 
          5   wanted simultaneous filing of the briefs and then 
          6   reply briefs, and that I'm amenable to doing.  I 
          7   would also be amenable to our filing a brief, having 
          8   Mr. Egbert reply, and our filing a final brief in 
          9   reply to his response.  I'll go either way on that.
         10            HEARING OFFICER DAHER:  Okay, great. 
         11            MR. EGBERT:  You remember the conversation, 
         12   Judge.  
         13            HEARING OFFICER DAHER:  I do.
         14            MR. EGBERT:  Apparently that was at the end 
         15   of the proceedings off the record.
         16            MR. EGBERT:  But it appears to me -- and I 
         17   will say this on the record because I'm sick of 
         18   it -- any time there isn't is a record here, Mr. 
         19   Ware recreates it out of whole cloth.  I hope you 
         20   remember what our conversations were.
         21            HEARING OFFICER DAHER:  Mr. Egbert, can you 
         22   agree on Mr. Ware's suggestion? 
         23            MR. EGBERT:  Which one? 
         24            HEARING OFFICER DAHER:  The fact that there 
 0121
          1   will be simultaneous filing of the briefs, request 
          2   for rulings --
          3            MR. EGBERT:  No.  It's wholly inappropriate 
          4   for us to be responding to the Commission's charges 
          5   at the time they're making them.
          6            HEARING OFFICER DAHER:  Mr. Ware, again, 
          7   the case does have some great import to Judge Lopez.  
          8   Would that be a problem for you?  We have the brief, 
          9   you file your request, copy and then they'll file 
         10   their brief and reply within 7 days thereafter.
         11            MR. WARE:  I'm agreeable to that, as long 
         12   as the Commission, which has the burden of proof, 
         13   gets to file a reply.
         14            HEARING OFFICER DAHER:  Of course.  I 
         15   thought I indicated that.  And at one time you were 
         16   somewhat reluctant to wanting to file a reply.  No, 
         17   that's absolutely right.
         18            MR. WARE:  Let me try to be clear.  I will 
         19   go either of two ways or any other reasonable way; 
         20   that is, simultaneous filings of initial briefs -- 
         21   that's one option -- and simultaneous filings of 
         22   replies.  That's acceptable to the Commission.
         23            MR. EGBERT:  That is not acceptable.
         24            MR. WARE:  In the alternative, the 
 0122
          1   Commission is prepared to file its memorandum and 
          2   request for findings by January 17, some period of 
          3   reply by Judge Lopez, and then we will respond 
          4   within ten days of having received that reply.
          5            HEARING OFFICER DAHER:  Mr. Egbert? 
          6            MR. EGBERT:  Your Honor, my suggestion is 
          7   that -- I would suggest if the Commission files on 
          8   the 17th, that we file two weeks after that.
          9            HEARING OFFICER DAHER:  That would make it 
         10   the 31st?
         11            MR. EGBERT:  That's correct.  And then if 
         12   the Commission then wants ten days after that for 
         13   any replies, I think you should give it to them.
         14            HEARING OFFICER DAHER:  As long as the time 
         15   periods are the same.  If Mr. Egbert wants two 
         16   weeks, we'd like two weeks.
         17            HEARING OFFICER DAHER:  Fine.  The 17th 
         18   finding by the JCC.  The 31st in response.  You 
         19   want --
         20            MR. WARE:  14th of February for a reply? 
         21            HEARING OFFICER DAHER:  Absolutely.  14th 
         22   of February for a reply.  Do you want to argue at 
         23   that time, or do you want two weeks thereafter? 
         24            MR. WARE:  I thought you wanted an 
 0123
          1   opportunity to read things.
          2            HEARING OFFICER DAHER:  I do, absolutely. 
          3            MR. EGBERT:  Judge, I think only because 
          4   we're getting out in time now, maybe it makes sense 
          5   to do the following --
          6            HEARING OFFICER DAHER:  I have about
          7   2000 pages of stenographic notes, I have about 200 
          8   pages of scribblings that I have to go through, I 
          9   have the floppies that I have to review.
         10            MR. EGBERT:  Bear with me, Judge.  That's 
         11   fine.  And the 14th for the Commission reply is 
         12   fine.  I would only ask for seven days after that 
         13   for us to reply --
         14            MR. WARE:  No, Your Honor.  The Commission 
         15   has the burden of proof.  We're entitled to the last 
         16   word here and that's what I'd like.
         17            MR. EGBERT:  I've never heard of such a 
         18   thing, but I will say this:  If they file something 
         19   on the 14th and I think a reply is necessary, I'm 
         20   going to seek to file it.  What I was going to say, 
         21   though, Your Honor, is maybe then you should be 
         22   given the opportunity to digest everything, and then 
         23   us pick a hearing date, because quite frankly, for 
         24   me to pick a hearing date with you now, which goes 
 0124
          1   into the end of February, early March, is probably 
          2   going to be an exercise in folly --
          3            HEARING OFFICER DAHER:  How does that 
          4   sound? 
          5            MR. WARE:  No, Your Honor.
          6            HEARING OFFICER DAHER:  You want to 
          7   establish the time parameters right now?
          8            MR. WARE:  First of all, I want to 
          9   establish the briefing schedule --
         10            MR. EGBERT:  We just did.
         11            MR. WARE:  -- and Judge Lopez is not 
         12   entitled to a reply following the Commission's reply 
         13   brief.  We're going to go on forever with this 
         14   thing. 
         15            MR. EGBERT:  No, we're not.
         16            MR. WARE:  Secondly, as soon as we file our 
         17   reply on the 14th of February, we're proposed to 
         18   argue.  Whatever time it takes the Court to get a 
         19   feel for those briefs, I'd like to argue.  I'd like 
         20   to set that date now.  We have many other 
         21   commitments we're both dealing with.
         22            MR. EGBERT:  Judge, my only proviso to 
         23   you is -- and I don't know why we're doing this, 
         24   unlike lawyers who in all other cases, but 
 0125
          1   apparently the Commission doesn't have any others or 
          2   its counsel -- you can set a date today.  What I'm 
          3   telling you is that I can't tell you I can abide by 
          4   it.  It can be a guidance, I'm sure, but I'm on 
          5   trial on a number of cases.  I think Mr. Ware tries 
          6   a couple here and there.  And so if we set a date 
          7   now --
          8            HEARING OFFICER DAHER:  I think Mr. Ware's 
          9   suggestion of setting a date, that would somewhat 
         10   illuminate precisely what your schedules should be.  
         11   I'm going to set the date right now.  There's enough 
         12   time, Mr. Egbert, for you to take care of your 
         13   scheduling. 
         14            The 17th, the 31st, the 14th, and we'll 
         15   take argument on the 28th.  You can take as much 
         16   time as you need for the closing and argument. 
         17            MR. EGBERT:  What time, Your Honor -- I 
         18   don't have my schedule in front of me.
         19            HEARING OFFICER DAHER:  I understand that  
         20   10:00 in the morning, Mr. Ware?  Is that okay? 
         21            MR. WARE:  That would be fine. 
         22            HEARING OFFICER DAHER:  What else do you 
         23   need? 
         24            MR. WARE:  Which week is President's week?
 0126
          1            (No response)
          2            MR. WARE:  Well, there's no point in 
          3   scheduling it the 28th if -- I know I'm out that 
          4   week, whatever week that is.  It's school 
          5   vacation.
          6            MR. EGBERT:  If Mr. Ware has a vacation, I 
          7   don't have any problem with changing the date.
          8            HEARING OFFICER DAHER:  I'm going to 
          9   accommodate Mr. Ware --
         10            MR. WARE:  Your Honor, please, don't 
         11   accommodate me until we know which week it is.  It 
         12   may not be the week of the 28th.
         13            HEARING OFFICER DAHER:  The 28th is a no-go 
         14   for you?
         15            MR. WARE:  I don't know if I can be here.
         16            HEARING OFFICER DAHER: Oh.
         17            MR. WARE:  I'm saying I'm out the week of 
         18   school vacation.  I don't know which week that is.  
         19   It may be the preceding week.  Whatever week 
         20   President's Day falls on, I am not here.
         21            HEARING OFFICER DAHER:  Why don't we 
         22   tentatively schedule it for the 28th. 
         23            Mr. Ware, if that's the week that you're 
         24   going to be inconvenienced, let me know, and 
 0127
          1   then we'll try to alter that.  And likewise, Mr. 
          2   Egbert, if you run into any exigencies, let me 
          3   know.
          4                 (Whereupon, the hearing was
          5                 adjourned at 12:41 p.m.)
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 0128
          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 XIV, is a true and 
          5   accurate transcription of my stenographic notes 
          6   taken on Monday, December 30, 2002.
          7   
          8   
          9                  _____________________________
         10                            Jane M. Williamson
         11                  Registered Merit Reporter
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