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0001 Volume XV Pages 15-1 - 15-193 Exhibits: None COMMISSION ON JUDICIAL CONDUCT Complaint No. 2000-110 et seq - - - - - - - - - - - - - - - - - - - x : In the Matter of Investigation of: : The Honorable Maria I. Lopez, : Associate Justice, Superior Court : Department : - - - - - - - - - - - - - - - - - - - x BEFORE: Hearing Officer E. George Daher, Chief Justice (Ret.) Harvey Chopp, Clerk APPEARANCES: Goodwin Procter LLP (by Paul F. Ware, Jr., Esq., Roberto M. Braceras, Esq., and Cheryl R. Brunetti, Esq.) Exchange Place, Boston, MA 02109, for the Commission on Judicial Conduct. Law Offices of Richard M. Egbert (by Richard M. Egbert, Esq., and Patricia A. DeJuneas, Esq.) 99 Summer Street, Suite 1800, Boston, MA 02110, for the Honorable Maria I. Lopez. held at: Edward W. Brooke Courthouse 24 New Chardon Street Boston, Massachusetts February 28, 2003 9:39 a.m. (Jane M. Williamson, Registered Merit Reporter) * * * * 0002 1 P R O C E E D I N G S 2 HEARING OFFICER DAHER: Good morning. 3 Please accept my apologies for being a little 4 late. 5 MR. WARE: Good morning, Your Honor. 6 MR. EGBERT: Good morning, Your Honor. 7 Your Honor, my purpose here today is to not 8 rehash the hundreds and hundreds of pages of briefs 9 that have been filed in this case. I think that 10 they are extensive. I hope that they have provided 11 to the Court information helpful in garnering the 12 evidence and looking for law. 13 My intention really is to highlight some 14 matters that are more likely left for oral argument 15 in person and frankly to encourage the Court to ask 16 any questions of me that the Court might see fit, 17 because after some 600-odd pages of briefing, there 18 may be questions, either through inartfulness or 19 through simply things left out. 20 Let me also say to you and to Judge Lopez 21 and to tell you that this is not only an important 22 moment, it is a momentous moment, and it is one 23 which I take with the highest degree of 24 responsibility and trust that Judge Lopez has placed 0003 1 in me, and the Court, and I hope and intend to act 2 upon that trust. 3 The backdrop of what brings us here however 4 can't be escaped and I think needs some discussion. 5 There have been recently discussions in the media or 6 otherwise that this case somehow has affected or 7 impacted the Judicial Conduct Commission in such a 8 way as to bust their budget or seek supplemental 9 budgets and the like. And there were public 10 intimations by the Commission that this is a bizarre 11 consequence of the statute and that most judges 12 settle and they never anticipated such a lengthy 13 hearing. That publicity generated just before this 14 argument struck me as something less than 15 coincidental. 16 But you should know and the record of this 17 case is crystal clear that Judge Lopez is not the 18 one who did not seek settlement. Judge Lopez 19 appeared before the Commission, as you know, and you 20 admitted the testimony and you heard evidence 21 concerning those proceedings. She appeared before 22 the Commission at the time and attempted to resolve 23 this matter in a manner which she felt and her 24 counsel felt was then appropriate to save an 0004 1 extraordinary expense to the Commonwealth, an 2 extraordinary expense to her and her family, and to 3 try to put a context to the allegations here. And 4 that's the testimony that was brought before you by 5 the Commission. 6 At no time did the Commission ever even 7 make a proposal, contrary to virtually all prior 8 Commission proceedings. The Commission never 9 proposed a resolution to counsel or to Judge Lopez. 10 The Commission never sent a proposal or discussed a 11 proposal. So we're here not from any lack of trying 12 to go through the process in a less expensive, less 13 arduous and, quite frankly, less insulting manner. 14 So if there is anyone out there who is 15 crying about the money that's been expended, believe 16 me, it was not brought on by Judge Lopez. And those 17 who ask should ask themselves in this system, just 18 as starting out where we are, how many judges can 19 fight back? How many judges, when charges are 20 brought like this, can expend the time, the energy, 21 the emotion and the money to fight back? Judges 22 aren't high-salaried employees in the Commonwealth. 23 Judges' pay in the Commonwealth is low by comparison 24 and do not permit the kind of economic war, so to 0005 1 speak, that this takes. 2 So to the extent that Judge Lopez has opted 3 to get into this fight, has opted to speak out to 4 what she believes in, has opted to spend her 5 personal funds and her family funds and to expose 6 her family, her children, her emotions and the very 7 essence of her life in these public proceedings 8 should not be a slap to Judge Lopez but should, by 9 every judge in this Commonwealth and by every 10 citizen in this Commonwealth, stand up and say, well 11 good, when you're charged with something like that, 12 it's fair to fight back and it's fair to fight back 13 hard. 14 The Commission through its pleadings in 15 this case has concocted a new form of judicial 16 misconduct: fighting back, fighting for your 17 rights. The papers in this case were so shocking to 18 me, when I received them, for the Commission to urge 19 upon you that, for a judge to have the gumption to 20 stand up to their charges is contempt of the 21 Commission, for a judge and its counsel to cross 22 examine witnesses, present evidence and point out 23 the deficiencies in the Commission's case, should be 24 seen by you as contempt of the Commission. 0006 1 I suggest to you that those statements by 2 the Commission are in contempt of the system. They 3 are in contempt of everything that we are taught to 4 believe in this system of justice. 5 The statute requires due process. Due 6 process means just what it says: the ability to 7 present evidence, to cross examine witnesses, all of 8 the witnesses, to confront the witnesses and 9 confront, in essence, your accusers or adversaries. 10 That's what was done here. She's entitled to no 11 less than every other citizen. A judge does not put 12 on the robe and throw away the Constitution. 13 The manner and venom and stridency of the 14 pleadings in this case by the Commission must 15 exhibit to this Hearing Officer that there is 16 something more at work here than the facts that were 17 brought before you. 18 I wonder where any body that is charged in 19 this system that we have here, where the Judicial 20 Conduct Commission ultimately must decide this 21 case -- you are merely sending it back to them with 22 your findings and rulings. They are the ones 23 charged, as you are, but in the subsequent event, of 24 being fair, impartial, with open minds and open ears 0007 1 to the matter of Judge Maria Lopez. And yet they 2 found themselves in a position of filing documents 3 before you telling you that the Commission on 4 Judicial Conduct says that she should be removed 5 from the bench on these facts and on these 6 circumstances, that the Commission on Judicial 7 Conduct calls her a liar in misrepresentative 8 filings before you, that the Commission on Judicial 9 Conduct alleges and does this and does that and does 10 this and does that. It is inappropriate, it is 11 wrong. 12 I don't know what it would do to any future 13 of this matter, should it have a future, but it 14 should not impact you, because you are in fact the 15 arbiter and the decider of these facts. 16 Throughout the Commission's filings in this 17 case they have asked you to disregard the burden of 18 proof. They have asked you to speculate. They have 19 asked you to infer -- inference upon inference upon 20 inference. They have asked you to take every act 21 and statement of Judge Lopez and treat it as a lie 22 and every act and statement of every other witness 23 in contravention and call it the truth, without any 24 reference to the facts or the statements or the 0008 1 context in which they were put. 2 But the burden of proof which you must 3 apply is clear and convincing evidence, strong, 4 positive and free from doubt. This is not some 5 minor affair. These are important affairs in the 6 lives of the judiciary, this judge. 7 Around and surrounding that burden, and 8 this is something that I think has been missed in 9 virtually all of the pleadings in this case, is the 10 statutory exemption, preclusion for review of 11 certain matters by the Judicial Conduct Commission. 12 And I think reading the statute is 13 imperative. It's Chapter 211 C, Section 2. "In 14 absence of fraud, corrupt motive, bad faith or clear 15 indications that conduct violates the Code of 16 Judicial Conduct, no action may be taken for making 17 findings of fact, reaching a legal conclusion, 18 applying the law as the judge understands it." And 19 probably more telling is the last line: "The 20 Commission proceedings shall not be a substitute for 21 an appeal." 22 This statute basically acts as a backstop. 23 More than a backstop, it acts as a shield. I don't 24 want to liken it to the presumption of innocence in 0009 1 a criminal case, because it never leaves. The 2 presumption of innocence in a case can be overcome 3 by certain quantums of proof. This never leaves. 4 And why? Well, the reason is because 5 litigants often leave the courtroom angry. 6 Litigants often see judges as having done them wrong 7 in one fashion or another, have not done as they 8 asked, have taken their property, taken their money, 9 taken their children, taken their liberty. And 10 emotions run high in instances like that. 11 And so the Legislature wanted to make clear 12 and did make clear that the Commission is not here 13 to second guess judicial decisions. It is not here 14 to say, I would have done it differently. It is not 15 here to say, well, that judge allowed in that piece 16 of evidence; that was erroneous. None of that is 17 before you, nor can it be. 18 And yet that is the primary argument 19 throughout the Commission's pleadings here. We've 20 spent hours and hours of testimony, and we will 21 spend pages and pages of transcript, with the 22 Commission arguing to you that Judge Lopez should or 23 shouldn't have relied on a particular document, 24 should or shouldn't have relied on a particular 0010 1 piece of testimony, should or shouldn't have given a 2 certain amount of weight or less weight or more 3 weight to particular matters. Nice for a law school 4 course. It's nice for a judging course. But it has 5 no place here. It simply does not. 6 And so I will come back to these precepts 7 during my argument so that we may try to put them in 8 perspective. 9 I also, as our brief did, Judge, will 10 discuss these matters chronologically, but I want to 11 step aside for a minute. The history of the 12 judicial conduct cases is that singular instances, 13 events, of judicial actions generally, unless they 14 are of the most corrupt sort of bribe taking and the 15 like, which frankly and fortunately are few and far 16 between, but kind of singular events of a judge's 17 conduct are rarely, if ever, seen as disciplinable 18 in a public forum. They most often are rectified by 19 an apology or by a, quote, letter of admonition or 20 the like. 21 And recognizing that fact and deciding that 22 they wanted to turn up the heat on this case in a 23 manner which has never been done before, the 24 Commission charged this matter as six counts of all 0011 1 the same stuff, calling it a different name, 2 tweaking it in a different forum, but all the same 3 event; today this statement about suburbs -- and 4 I'll get to all of this -- is a violation of this 5 canon, and on Page 20 that same statement is a 6 violation of this canon, when they're probably not a 7 violation at all. 8 But my point is this: The manner in which 9 this case has been charged has been an attempt to 10 take a singular event in these lives of the Horton 11 case and parse it and cut it and chop it and chop it 12 and at the end call it a pattern. And by calling it 13 a pattern, the Commission says, Aha, see, now 14 there's a pattern. Now we can step up the volume in 15 this case, and as they urged upon you, argue that 16 removal from the bench is an appropriate sanction in 17 this case. 18 That should be not permitted. It has no 19 meaning, and it's unprecedented in the law. 20 The Commission asked you, as I've 21 indicated, to find that every time that Judge Lopez 22 made a partially inconsistent statement in 15 or 20 23 hours of testimony, find it's a lie; every time that 24 she expanded upon an answer when asked a question on 0012 1 one time and asked to explain another, if the 2 explanation went beyond the limited answer given, 3 find it a lie; every time that you can take a word 4 and twist it in one paragraph and twist it again in 5 another paragraph, find it a lie. 6 Well, I say to you, Judge, that that's not 7 what you do. But how do you come into this picture 8 and try to figure out in fact what is going on here, 9 who is the liar and who isn't? What are the lies 10 and what aren't? What were people's conduct 11 motivated by? What was actually going on here? And 12 that's what I hope to discuss with you. 13 But when I discuss it with you, I want you 14 to know that I'm discussing Judge Maria Lopez, not 15 some unknown person who comes before you without 16 background and not some person who comes before you 17 with bad background. 18 Maria Lopez comes to you with a lifetime of 19 public service dedicated to the disadvantaged, the 20 underrepresented, the poor in our society. That's 21 what she was before she was a judge. That's what 22 every inch of her professional career was devoted 23 to. You can't throw that away. That isn't a plea 24 for mercy. It is a plea that this Court, in judging 0013 1 this human being, judge her on who she is when you 2 make your inferences about what she was thinking or 3 doing, because who we are is a big part of what we 4 do. 5 When she did these things, when she joined 6 these enterprises, such as Boston Legal Services for 7 the poor, the Department of the Attorney General's 8 Civil Rights Division, the Office of Refugees and 9 Immigrants as general counsel, she did that as an 10 articulate, bright, attractive Spanish-speaking 11 lawyer. What was the call, back in the mid '80s, 12 for a bright, articulate, attractive 13 Spanish-speaking lawyer in our professional system? 14 She could have had the world as her oyster, 15 money rolling in from big firms, all the accolades, 16 all the money, all the prestige. But, no, she 17 expended her considerable talents in public service 18 to those who were less fortunate. That must tell 19 you something about her. It must tell you something 20 about what motivates her. And it must tell you 21 something about who she is as she sits here today. 22 And during the 14 years that she was on the 23 bench, she was singularly recognized for her work: 24 bright, articulate, took all tasks without 0014 1 complaint, took the most serious case that the 2 Superior Court had in a long time and handled it 3 with efficiency and intellect. 4 People came in here and testified she was 5 fair, she gave all sides a chance to be heard, both 6 prosecutors and defense lawyers. 7 This is the person who arrived before you, 8 who when she acts and speaks, you must judge what 9 she means and what she says and what motivates her 10 to say it. She arrives with never having had a 11 complaint before the Judicial Conduct Commission, 12 never having had a complaint before her Superior 13 Court Chief Justices. 14 So she arrives to you in these facts and to 15 the Horton case with these facts in a manner which I 16 suggest to you is one with an exemplary professional 17 life. 18 I want to go through the events that start 19 this whole ball rolling. And it really talks about 20 -- and what we have to figure out is this broad 21 question. And I'm not going to go into every canon 22 and its minutia, because the questions I think are 23 broader, when you apply them with these broad 24 questions in mind. And that is, was Judge Lopez 0015 1 biased against Leora Joseph in such a way -- and 2 biased doesn't mean, by the way, that you have a 3 feeling about someone. That's not bias. Judges are 4 not automatons. When people come before them, 5 whether they be defendants, lawyers, court officers 6 and the like, they're entitled to have feelings. 7 What they're not allowed to do is to let any 8 feelings that they have interfere with or create a 9 bias against that individual from either doing their 10 work or being heard or whatever the case may be. 11 On the other hand, a judge does not have to 12 disregard the conduct of counsel or the conduct of a 13 defendant in determining what to believe when the 14 counsel is speaking, what to make of what the 15 counsel is doing, and whether or not one can trust 16 or believes a particular statement of counsel as 17 being credible or not. 18 I suggest to you that the record in this 19 case shows without question that neither was Judge 20 Lopez biased against Leora Joseph, nor did she act 21 upon any such bias. In fact, it's true, what may be 22 said is the contrary. And let's take it from the 23 beginning, because you have to go back to one early 24 time, and that is the Estrada case. That's where it 0016 1 starts. 2 And what happens in the Estrada case? 3 Well, it's worthy of note in some detail, because it 4 is the shroud that Leora Joseph wears for the rest 5 of this case. 6 What happened in Estrada? Well, the first 7 thing that happens is there's a standard, everyday 8 plea conference. Now, I think by this time, Judge, 9 and I know that you never sat in the criminal 10 courts, and we have all attempted by witness and 11 otherwise to present evidence to this Court that 12 would at least present an understanding of what is a 13 different court and a different group of procedures. 14 And I urge you, again, if there are questions in 15 this regard, to speak -- 16 HEARING OFFICER DAHER: I've gone over 17 Chief Justice DelVecchio's testimony, I've gone 18 through all the pages, and I'm quite familiar with 19 what goes on in Superior Court now. 20 MR. EGBERT: Quite honestly, that changes 21 day to day, as it does in every court. 22 HEARING OFFICER DAHER: That's what I'm 23 learning about it. 24 MR. EGBERT: But in any event, at least as 0017 1 to the Estrada case, it's pretty clear. It was a 2 standard plea conference. What that came to mean 3 and what you know it means is that Judge Lopez, as 4 other Superior Court judges would, would sit down 5 with counsel and hear from counsel what it is they 6 thought about the case, the facts and the like, down 7 to counsels' recommendations on a plea. 8 And as you've heard, those could come from 9 two widely divergent places. The Commonwealth can 10 say that the evidence is black, and the defense can 11 say, No, no, the evidence is green. And they're 12 never to agree on that evidence. 13 But as they start to melt down to a 14 possible plea, the evidence becomes less important 15 and the disposition becomes what it's about. And if 16 the disposition is one which the defendant will 17 accept in some circumstances or the Commonwealth in 18 other circumstances, then it can be done. 19 And these are -- as you probably know, 20 virtually 99 percent of the work done in criminal 21 courts is by guilty plea. And if you want to see a 22 system go broke, by the way, and a court system come 23 to a halt, change that statistic from 99 percent to 24 1 percent and have a few more thousand trials a 0018 1 month in the superior courts and see what would 2 occur. 3 So the plea takes place, everybody 4 testifies, Leora Joseph testifies. Nothing happened 5 out of the ordinary. She had a full and fair 6 opportunity to speak her mind, a full and fair 7 opportunity to recommend what she wanted for her 8 sentence, a full and fair opportunity to address 9 each and every matter the defense counsel brought 10 before Judge Lopez. 11 By the same token, Judge Lopez heard from 12 the defense counsel. And in Estrada you had one of 13 these situations that presents one of the kind of 14 complex, urban horror shows that we have come to 15 see. But these complex, urban horror shows come 16 with complex problems. 17 And what was one of the complex problems 18 here? Well, you had the family, including the 19 victim, the victim's mother, begging the Judge not 20 to send him to jail, not because it didn't happen, 21 not because they, as Leora Joseph later said, 22 supported rape, but because they'd be on the 23 streets, they'd be destitute. The mother, the 24 victim and the victim's infant son would have all 0019 1 been on the streets. And they, as the victim's in 2 the case, urged the Judge to not send him away and 3 urged the Judge to do something else, to protect 4 them at the same time, not an easy task. 5 So what did Judge Lopez do? Well, she 6 fashioned a sentence which she thought was 7 appropriate under the circumstances. Now, let me 8 stop there. Whether the Commission thinks it's a 9 good sentence or a bad sentence is irrelevant. 10 Whether the Commission thinks that she should have 11 done something else is irrelevant. That's where the 12 statute comes in. The statute makes it crystal 13 clear. 14 So Judge Lopez did everything she could do 15 that day. She actually called, if you remember, the 16 victim's mother up to the witness stand and the 17 victim up to the stand. "Is this what you really 18 want me to do?" And she did it and then added on 19 her own that there would be sex offender counseling. 20 So it was done. It was done. Everybody 21 knew what the sentence was going to be. And now it 22 was a matter of just getting the plea, because the 23 defendant's constitutional waiver of rights is a 24 very important part of a plea. But it was over. 0020 1 Leora Joseph wasn't pleased. We know that. 2 But what did Leora Joseph do during the plea 3 hearing? The plea hearing is set in two parts. 4 There is the plea colloquy, where the Commonwealth 5 is asked to put in facts that they would prove at 6 trial, for the defendant to admit those facts exist, 7 the basis of the plea; and then there is, subsequent 8 to the acceptance of the plea, a sentencing hearing. 9 They're not all mixed together. They're 10 two different functions. And the reason you don't 11 mix them together is because the defendant is going 12 to be asked at the end of the colloquy, "You've 13 heard what the prosecutor said. Do you agree with 14 those facts?" And if the prosecutor is putting in 15 hyperbolic statements that aren't fact, it's going 16 to cause the defendant oftentimes to say, "Wait a 17 minute. I don't agree I'm a no-good bum. I don't 18 agree I'm a menace. I don't agree that that's part 19 of this case," and the like. So they come in two 20 places. 21 But Leora Joseph couldn't contain herself. 22 Now, not the most horrible of transgressions the 23 first time, not the most horrible, but worthy of 24 being called upon so it doesn't happen again. And 0021 1 by the way, if you look at the Estrada transcript, 2 you'll see that Judge Lopez didn't bring this up on 3 her own. In the midst of Leora Joseph's statements, 4 it was defense counsel who obviously stood up to 5 object, because you can see Judge Lopez say, "Well, 6 I'll get to that" or "I'll let her put it in for 7 now." It was wrong. She shouldn't have done it, 8 Leora Joseph, but again, not worthy of anything 9 horrible. Worthy of a review, worthy of being told 10 by the Judge, "Don't do that again in my courtroom." 11 I don't think anyone disagrees with that. 12 She put in facts in the plea colloquy like 13 this: "The wife and the pastor have supported" -- 14 the pastor, who was standing there. "The wife and 15 the pastor have supported his criminal behavior, 16 even at the expense of this girl's well-being." 17 That was not fact in this criminal case. Certainly 18 the defendant wasn't going to admit to it. 19 "The defendant's therapist identified him 20 as a reactive sex offender, though it was unclear 21 what he was reacting to when he was repeatedly 22 shoving his erect penis into her mouth when she was 23 11 years old." That whole priest and therapy wasn't 24 coming into this case, and that kind of diatribe 0022 1 wasn't there. So everybody knew it shouldn't be 2 there and it had to be dealt with. 3 Now, here's where we start to get a picture 4 of what's going on here. Leora Joseph told us under 5 oath on the bench, "At the end of the hearing Judge 6 Lopez screamed to me." You remember the impression 7 Ms. Joseph was trying to make with you. "She 8 screamed to me. She humiliated me. I have never, 9 ever, ever been spoken to like that in my life. It 10 was horrible, horrible." 11 Why would she do that, Judge? Why would 12 she do that under oath here before you? We all know 13 why. She thought she could get away with it. The 14 Commission thought they could get away with it. 15 Everybody thought that they could come in and 16 testify and vilify Judge Lopez because she's sitting 17 here as a target and it was easy to do. 18 All there was was a transcript. 19 Transcripts don't talk. All we had was the words. 20 They put the transcript in evidence, had her give 21 this spiel about this horrible event. There's only 22 one thing, they didn't know we had a tape. They 23 didn't know. They didn't go check to see whether or 24 not the court reporters in that session had tapes 0023 1 too, and we did. 2 And the tape made it a lie. Is there any 3 doubt, is there any doubt that the rendition Leora 4 Joseph gave was simply not true? And is that 5 something you'd forget? 6 Now, the Commission says, Oh, forgive her, 7 Judge. Forgive her. It was just a tough time for 8 her. Maybe that's the way she perceived it. Bull. 9 Come on. 10 This is not some 10-year-old child. This 11 is a prosecutor who the Commission, throughout their 12 briefs, said, "This is a responsible prosecutor, 13 well known in the law," da, da, da, da, da, da. And 14 she can't tell the difference between the Judge 15 saying, "Excuse me, would you please not do that 16 again in my courtroom" versus screaming and yelling 17 and humiliating? 18 It was a lie on the stand under oath to get 19 her. That's all it was, period. And it should 20 stick with everything Leora Joseph says in this 21 case. She can't shed it off. It's with her 22 forever. And not to mention one other piece of 23 information we gleaned from that little Estrada 24 case, and that was that Ms. Joseph, because she's so 0024 1 high and mighty and she's so angry, she thinks that 2 she doesn't have to stand when a judge is talking to 3 her. 4 Now, you notice in that transcript that 5 Judge Lopez has to say to her, "Will you stand," 6 "Will you stand," "Stand." Now, lawyers know, I 7 think, that they're supposed to stand when talking 8 with a judge. They're supposed to show some 9 respect. It was another one of these insolent, 10 childish expressions by Ms. Joseph which we saw 11 throughout these proceedings. 12 Now, I am not -- my purpose is not here, as 13 the Commission says, my purpose is not to vilify Ms. 14 Joseph. I could care less about Ms. Joseph. I 15 could care less whether she ever practices law or 16 doesn't practice law or the like. But this conduct 17 was done in front of Judge Lopez, and this started 18 to make the history that she had in front of Judge 19 Lopez, and this started to create for Judge Lopez, 20 and rightfully so, what kind of credibility does 21 this lawyer have with me, what do I believe, what do 22 I not believe. But more important, this follows her 23 with you, because she lied to your face. 24 And I'm not talking some mixing of words, 0025 1 like the Commission's filing on Judge Lopez, trying 2 to find a word here and a word there. That was a 3 big up, blown-out lie. 4 Now, the only other excuse is there was no 5 lie, that she actually is so demented and so 6 emotionally unstable that she doesn't know what's 7 happening in a courtroom, that she actually could 8 perceive a judge talking to her in a normal tone of 9 voice, because she didn't like what she was hearing, 10 as being screaming, yelling and humiliating, in 11 which case that must follow her throughout these 12 proceedings, and those perceptions and inability to 13 perceive must follow her throughout these 14 proceedings. 15 So when the Commission says to you at the 16 outset of these filings that she did nothing wrong, 17 that's not true; she didn't deserve to be 18 admonished, that's not true; and that Judge Lopez 19 did something wrong, that's simply not so. 20 Let me ask something, Judge, by the way, 21 and this is a procedural matter. I don't intend to 22 go until I've put everybody to sleep, but do you 23 have a time limit in mind? You hadn't mentioned 24 one. 0026 1 HEARING OFFICER DAHER: You can take as 2 much time as you want. If you want to come back on 3 Sunday, we can do that. But take as much time as 4 you want. I don't want to be guilty of 5 foreclosing -- you go ahead and take as much time as 6 you need. My schedule is free, subject to your -- 7 MR. EGBERT: It is my intention not to go 8 for long. 9 HEARING OFFICER DAHER: As a matter of 10 fact, I'm enjoying this review of the facts. Go 11 ahead. 12 MR. EGBERT: Now, what happens after the 13 Estrada hearing, and what can we infer? Well, we've 14 now seen Leora Joseph up close and personal, seen 15 her lie to the Court, seen what she said about that 16 tape. And what happens next? 17 Well, we've got an angry Leora Joseph. She 18 didn't like the sentence and she didn't like what 19 Judge Lopez said to her. You don't have to be a 20 rocket scientist to figure out that she was mad. So 21 she had her chance, not through advocacy, but she 22 had her chance to get publicity and to go after the 23 Judge in the press. 24 And there is something about going after 0027 1 judges in the press in an unfair manner. Every 2 judge is subject to criticism and ought to be when 3 it's respectful and fair. But no judge should be 4 subject to misrepresentative criticism. That's 5 unfair and it's wrong. It's unprofessional, it's 6 probably unethical, and it is certainly unbecoming. 7 She went and met with Eileen McNamara. And 8 now we get to this parsing of words. Well, Eileen 9 McNamara called her, she didn't call Eileen 10 McNamara; therefore she didn't call in the press. 11 But we know what "call in the press" means in the 12 vernacular with lawyers. It means get out there in 13 the press and slap a judge around. That's what it 14 means. 15 And when lawyers do it, they do it at their 16 peril, because they better do it carefully, 17 respectfully and not misrepresent the facts. And in 18 this case, she went there and fully and completely 19 misrepresented what happened at that hearing in 20 order to make that judge look bad. That's what it 21 was all about. 22 There is nothing in the article that -- you 23 read the article. Try to find anything that matches 24 what was said in the hearing, anything anywhere, any 0028 1 argument, any statement by Leora Joseph, any 2 sentencing statement. Nowhere. You would think you 3 were talking about two different events. 4 But how does she phrase these comments to 5 McNamara? In talking about the Estrada case, "If 6 you say he is not a threat because he just raped a 7 girl in his own household, then can't you say the 8 car thief," et cetera, et cetera. Who? If who 9 says? We're talking about a sentence that just 10 occurred and a judge who just gave the sentence and 11 about the judge's sentence. 12 This is a message -- this is a wrong, 13 deceitful message to the public: "Judge Lopez says 14 it's okay if you rape people in their house. That's 15 a distinguishing factor. It's a mitigating factor. 16 He's not a threat, because he just raped a girl in 17 his own household." 18 It goes on to say, "Society does not 19 condone the rape and beating of children, quote, 20 even in your own house." 21 So here's what she tells Eileen McNamara 22 and the public. Oh, this judge, this nutcase judge, 23 she's got this rule that if you're in your house, 24 it's not really a rape. If it's your child and you 0029 1 live with them, it's not really a rape. And that's 2 why this judge sentenced to probation. And that's 3 wrong, and that is wrong, and she knew it. 4 And what she is trying to do is to make 5 herself look good at Judge Lopez's expense, instead 6 of advocating her case appropriately or instead of 7 telling Eileen McNamara, "Hey, here were the 8 arguments on each side. Here was my argument for 9 sentencing. It didn't fly." 10 But to leave the impression with the public 11 that this judge released this person on probation 12 with the conditions he did because the rape occurred 13 in his own home with his own child is disgraceful. 14 What does the Commission respond? It's 15 that these comments are benign, benign, and that 16 they're not a personal attack on Judge Lopez -- get 17 this one -- because she didn't mention Judge Lopez's 18 name. 19 Well, Judge, I suppose if I walked out of 20 here tomorrow and somebody said to me, "How is that 21 hearing on Judge Lopez going? How are you being 22 treated in those rulings?" "Well, those rulings I'm 23 getting in that courthouse," da, da, da, da, da, da, 24 da. Just don't say the word "Daher." 0030 1 This is supposed to be -- this is about a 2 judge and her future, and it's not supposed to try 3 to shape the facts in such a way, to such a far out 4 understanding, as to be both unfair and quite 5 frankly without credibility. 6 These remarks were about Judge Lopez. They 7 were made in an article about Judge Lopez. That's 8 what she was talking about when they were there. 9 And it was a misrepresentation of what it was, and 10 it was done with malice aforethought. 11 So now, we have conduct in the Estrada case 12 and lying about the Estrada case, conduct in the 13 McNamara article. And by the way, you reap what you 14 sow in this business. You reap what you sow as a 15 lawyer. If you were a judge for more than a 16 decade -- and I don't know how much more, but a 17 lot -- and I suspect, without urging it upon the 18 Court, that you would have formed impressions of the 19 people who stood before you and determined how much 20 inquiry had to be made to various representations 21 that were being made. And the reason you did that 22 is based on experience. And the reason you 23 conducted yourself -- and that's typical fact 24 finding. And that's typical judging. 0031 1 Well, a year passes or thereabouts, and 2 there's been no contact with Ms. Joseph, Judge 3 Lopez. I guess Ms. Joseph was out and had a baby 4 for a while, and their paths didn't cross after 5 that. 6 But here comes the truest expression that 7 you can find that the Horton case was not a result 8 of any bias between counsel and Lopez. 9 They come in before Judge Lopez. And, 10 one -- this was after the fact. Everybody wants to 11 go back and recreate history. One, Ms. Joseph 12 indicated that, to her, the Horton case was very 13 important -- and I believe it was; it was important 14 to her professionally, and I took everything she 15 said about its importance in her head at face 16 value -- but that she was petrified of Judge Lopez. 17 She was petrified because she was humiliated, 18 wrongfully, by the way, remember, in her mind, in 19 Estrada. She was yelled at, screamed at and 20 humiliated wrongfully. 21 Well, when a lawyer goes before a judge in 22 an important case and has evidence that the judge is 23 biased, what does the lawyer do? He or she moves to 24 recuse the judge. It's done every day. Sometimes 0032 1 these things happen. Sometimes a judge just can't 2 stand a particular lawyer and a lawyer can't stand a 3 particular judge, and sometimes those things have to 4 find another place in the courthouse. 5 And Ms. Joseph came, not as some neophyte 6 litigant coming before Judge Lopez. She had the 7 full and complete authority and force of the Suffolk 8 County district attorney's office behind her. That 9 is not an instrumentality without power. Elected 10 official. They have full media contact, they have 11 contact with the Legislature, they have direct 12 contact with the court system all the time. They're 13 a powerful organization. And if they think they're 14 getting a raw deal before a particular judge, they 15 know how to move to recuse. 16 Well, it wasn't done because it wasn't so. 17 So they go before Judge Lopez, and they have their 18 lobby conference on Horton. And the conference 19 occurs as it does in every other case. Even Leora 20 Joseph had to testify she had a full, complete and 21 fair opportunity to present her side of the matter, 22 to make her recommendations. Anne Goldbach got a 23 full, fair and complete opportunity to do the same. 24 But what's the one remark, Judge, that 0033 1 tells you that, if you look at it, you can say, Aha, 2 I know why -- I can see clearly there was no bias 3 here. What is it? It's when Leora Joseph 4 testified, if you recall -- and she was reluctant to 5 do it, because I had her saying in a deposition and 6 she didn't want to say it again, the ramifications 7 of it, but she finally admitted it -- that when 8 Judge Lopez was listening to the case -- these are 9 Ms. Joseph's words -- when she was listening to the 10 presentation, she said, "This case looks pretty 11 serious, Anne. I don't think I can give probation 12 here." 13 And then what happened? She looked at the 14 Katz report, and the words were, "she seemed to be 15 swayed by the report." Well, if it was a product of 16 bias when Ms. Joseph came in, that statement never 17 would have been made. 18 It was typical judging. It was typical 19 judging. Here you have a judge. She's heard part 20 of the presentation, part of what Anne Goldbach has 21 to say, and she's talking out loud, "I don't think I 22 can do that in this case. It looks a little too 23 serious." 24 Is that a judge who was biased against the 0034 1 Commonwealth or Leora Joseph? No. It's a judge who 2 was saying, "This one looks like it might deserve 3 this sentence." And she maintained that position 4 until she was provided other information which 5 convinced her otherwise, which swayed her, and 6 that's the so-called Katz report. 7 Now, I want to stop for a minute here, 8 because the Commission makes much of this Katz 9 report in this regard. But I think this whole event 10 kind of puts the lie to it. 11 One, the Commission says that Judge Lopez 12 now, for the first time, is using the Katz report as 13 kind of a rationale for her sentence, that it was 14 never a big deal; she never hardly looked at it. It 15 really wasn't why she sentenced him to that, but now 16 we're making this up for the purpose of this 17 hearing. 18 Well, not according to Leora Joseph, not 19 according to Leora Joseph. Leora Joseph says that 20 she was becoming swayed by the Katz report. That's 21 what she testified to. And that's what Anne 22 Goldbach testified to. And Anne Goldbach 23 testified -- and by the way, when you want to 24 compare witnesses in the case, both their demeanor, 0035 1 their professionalism, their knowledge and their 2 attempt to speak the truth on the witness stand, you 3 compare Anne Goldbach to Leora Joseph, and I'll take 4 that horse in that race any day. 5 And Anne Goldbach testified quite clearly 6 that Judge Lopez read the report carefully, she went 7 over it, asked questions about it and the like, and 8 it was what fashioned the ultimate description of 9 what she thought the sentence ought to be. 10 Now, we come to an area right now where the 11 Court had a number of questions during the hearing. 12 And we tried to explain through witnesses and 13 whatever, but I want to at least take up a couple of 14 points. 15 This Court said, I think, well, how come 16 the DA didn't get a copy of the report? Well, 17 you've heard Anne Goldbach's testimony. She tried 18 on three separate occasions to give her one. It is 19 not the Court's obligation to provide copies to 20 counsel. Certainly the courts have accommodated 21 counsel upon request, "Could I have a copy of that 22 Judge. I forgot mine," that kind of thing. But 23 it's not the Court's obligation to -- with a lawyer 24 standing right there, the Court would expect that if 0036 1 the Court had a document that counsel wasn't given, 2 that counsel would say, "Well, excuse me, Judge, I 3 don't have that," or "It was never provided to me." 4 Now, why didn't Ms. Joseph stand up and say 5 that? Because she knew it was given to her and she 6 simply disregarded it. In the arrogance of power, 7 in the arrogance of her position, she pooh-poohed it 8 and said, "I don't want that. It's got nothing for 9 me. This is a jail case," not understanding, quite 10 frankly, how serious that particular document was 11 going to become in terms of the information it 12 provided to Judge Lopez. It's dangerous lawyering, 13 dangerous lawyering, and she paid for it. 14 Two, why didn't Judge Lopez keep a copy? I 15 think it's crystal clear now, certainly from Judge 16 DelVecchio's testimony, Anne Goldbach's testimony 17 and Judge Lopez's testimony, that that's the way 18 it's done in those proceedings. You take it, the 19 Judges make notes in their books and whatever, and 20 then the sentencing occurs. Most times the 21 sentencing occurs within five minutes, by the way, 22 it goes right then -- but in this case it was 23 continued for a few days -- and if it's going to be 24 used to opt for probation, just as it was in this 0037 1 case. So there was nothing unusual in its 2 treatment. 3 Now, counsel in this case says, when they 4 argued to you, you must hold up the statute, 211 C, 5 and say, No, no, no, that can't play here. Katz 6 worked for the CPCS. It can't play here. 7 The weight she gave the report is the 8 weight she gave the report, period. Period. Unless 9 you find clear and convincing evidence that her 10 reviewing that report and giving it weight was done 11 with a corrupt motive or in bad faith, it's off the 12 table, as it should be. Otherwise, we'd be 13 relitigating judges' determinations in the context 14 of judicial conduct. 15 That's not to say that this report wasn't 16 valid and informative, which I suggest to you it 17 was, but I don't need to nor will I go down that 18 road. But certainly the information was there. 19 Judge Lopez chose to rely on it. That's that. 20 Did the Commonwealth do anything? Because 21 now you might say, Well, here I can find some 22 evidence of bias. Here would be bias if the 23 Commonwealth said to the Judge at the time, "Whoa, 24 Judge. This Katz report is baloney. We want to 0038 1 have a hearing." Maybe then if the Judge said, "No, 2 no, no. You can't speak." Would that be evidence 3 of bias? I don't know. Would it be evidence of 4 something? It would certainly be something 5 different than we have here today? A little bit. 6 If the Commonwealth said, "Can we have our 7 own examiner? Give us a week's continuance, Judge, 8 for our own examiner," and she said, "No," then 9 maybe we might want to examine that ruling, if it's 10 to be examined, what was the cause. But you have 11 none of that here. 12 What you have through every person who was 13 at this hearing -- including Ms. Joseph with her 14 head down saying, "No, I never asked for that. I 15 never asked for a continuance. I never asked for an 16 independent study. I never asked to take the report 17 and rebut it or argue about it or for an evidentiary 18 hearing or otherwise" -- that is off the table. 19 What is it off the table here? Well, 20 there's a remark made by Ms. Joseph at this plea 21 hearing at the end, when she's not getting what she 22 wants, when she wants to tell the Judge that she 23 doesn't like what the Judge is doing, she does 24 what's starting to be a pattern of advocacy by that 0039 1 office, she gives the veiled threat about the media. 2 Now, her explanation is so phony, it is so 3 unbelievable because it's built on a lie. And 4 here's what I'm saying. On her way out the door, as 5 she's lost the case, she says to Judge Lopez "Our 6 office takes this very seriously. The media is 7 watching" or "The media is paying attention" or "The 8 media is concerned," words to that effect. 9 Now, with the education you've received 10 here from Judge Russo, I think you get a sense of 11 what that remark means over there in Suffolk County. 12 But her explanation was, "Oh, the reason I said that 13 is not to give the Judge a tickle, not to let her 14 know, Hey, we're going to slam you. I just -- it 15 was only fair for me to warn her of the media 16 attention. Just a heads-up," I think she said. 17 The problem was, there was no media 18 attention. There had been no media interest. The 19 only article of media that she could conjure up 20 anywhere was a small article in some Dorchester 21 weekly a year and a half earlier. 22 So she wasn't giving her any heads-up. She 23 was giving her a warning. And the warning was, 24 "Hey, you don't do what we say, Judge, and we will 0040 1 crack you up in the media. And we know how to do 2 it." 3 And if you need any more proof of that, 4 Your Honor, that that's what was going on, look to 5 the Deakin/Russo testimony and look to that event, 6 the same office, same people, same people dealing 7 with this press release. And what does Deakin say 8 to Judge Russo in a conference when he's afraid 9 Judge Russo is going to do something he doesn't 10 like? "I'm going public." "I'm going public"? Is 11 that a citation to some case? That's a threat. 12 That's just what Judge Russo thought it was, a 13 threat. And he said he found it insolent, 14 demeaning, and he understood it to mean, If you do 15 this, Judge Russo, we'll go public and make you look 16 bad in the media. 17 Now, Deakin denied it. A clear question. 18 I asked him a crystal clear, "Did you ever say to 19 Judge Dominic Russo the words 'I'll go public'?" 20 "No." "Anything like it?" "No." "Ever anything 21 like it?" "No, no, no." "Ever happen?" "No." 22 Judge Russo came on the stand. Do you 23 think he wanted to be here? He came on the stand, 24 and he testified to exactly what happened. And he 0041 1 said, why does he remember it so? It's the first 2 time in 22 years on the bench he ever called and 3 made an adverse comment about a lawyer. That's how 4 bad it was. 5 And do you remember what happened then? 6 The Commission's counsel stood up to you and said, 7 "Oh, Judge, if you're going to let this in, we're 8 going to bring in all his superiors to show Judge 9 Russo was not telling the truth about that, that he 10 had conversations with these superiors, and that's 11 not what he said." And of course you saw them bring 12 in those witnesses, you saw them bring in Ms. Keeley 13 and Ms. Borghesani and Ralph Martin. That's on a 14 day when none of us were here, apparently. 15 But that's what they said in open court. 16 That's what they told you would put the lie to Judge 17 Russo. 18 So let's make it crystal clear. Deakin 19 lied on the witness stand on this very same subject 20 matter, because this is what they do over there. 21 And Judge Lopez took it, just as she should have, as 22 this kind of little threat by the DA's office: Once 23 again, we'll go to the press and we'll make you look 24 bad. 0042 1 And that's not okay. That's not okay. 2 That's not free speech. That's not advocacy. 3 That's not professionalism. 4 What happens next? Make a prediction and 5 it will come true. On August 3rd a press release is 6 issued by the district attorney's office. It is 7 sad, to say the least. It is unethical and 8 unprofessional, to say the most. 9 Why do I say those things? Well, what 10 possible purpose other than to rile up the masses 11 with prurient testimony do you put "A transgendered 12 man to plead guilty tomorrow," "Transgendered man 13 who dresses like a woman to plead guilty tomorrow"? 14 There was virtually no legitimate purpose for that 15 statement. 16 Put in anything you want. If you want to 17 write tomorrow, "Charles Horton will plead 18 guilty" -- "will plead guilty" is a problem as you 19 can see from the rules -- "will plead guilty in a 20 criminal case," da, da, da, da, whatever. "He's 21 charged with" this, that and the other thing. You 22 can put that in. 23 But can there be any doubt in anyone's mind 24 what the reason for that phrase was, particularly 0043 1 after the conduct of Ms. Joseph in the McNamara 2 article and her threat to Judge Lopez and Mr. 3 Deakin's threat to Judge Russo? 4 And it's interesting to note that Leora 5 Joseph calls Anne Goldbach about four o'clock on the 6 afternoon of August 3rd, as Goldbach testified, 7 wanting to find out if the plea is going to go 8 through the next day. Why? Well, I suggest to you 9 one of the reasons was because she and Deakin had 10 that press release in hand. 11 And what do you say, Judge, to the hear-no- 12 evil, see-no-evil, speak-no-evil testimony of Deakin 13 and Joseph when it comes to this press release? 14 This is the immaculate press release. It is 15 inconceivable. Their testimony is so silly that it 16 is troublesome. 17 She is the line prosecutor. He's the boss. 18 She just told the Judge, "Watch out for the press," 19 and, bingo, here comes the press release in this 20 case: "Transgendered, dresses like a woman." 21 And you know they got -- they accomplished 22 what they wanted. They really did. The next 23 morning the courthouse is packed, plenty of media, 24 plenty of cameras, plenty of reporters. They had to 0044 1 see the guy who dresses like a woman. They had to 2 see Ebony's dress. They had to see Ebony's hair. 3 They had to take pictures of her. 4 We are not -- cannot blind ourselves to 5 this. This was not some scheduling notice. This 6 was an invitation to a circus, a freak show. That's 7 what it was, and that's what it became. 8 And what did it cause? Well, it caused 9 harm beyond harm, not that they called in the press, 10 not that the press was there; but this attempt to 11 generate this frenzy and to generate this prurient 12 kind of spectacle, that's what it was about. 13 So what happened? Everything gets 14 derailed. You heard all the testimony of Ms. 15 Goldbach, Judge Lopez and Leora Joseph. The parties 16 come in, the press -- by the way, I hate to have the 17 press think I don't understand their rights. They 18 have every right to be there. But that doesn't mean 19 that there are occasions that the press and 20 litigants can get so convoluted that bad things can 21 happen, and maybe it ought to be controlled in a 22 different fashion. 23 The mother won't come out of the elevator. 24 Ebony Horton won't come out of some room. There's 0045 1 swearing and jostling and banging around with 2 cameramen. Anne Goldbach's crying or near tears, a 3 lawyer of 20-odd years experience. 4 Anne Goldbach says to Leora Joseph, "Did 5 you do this?" And what does Leora Joseph say to 6 her? "I'm shocked that the press is here. I'm 7 absolutely shocked. I had no idea." Do you believe 8 that? Why were they all so afraid to admit that 9 they sent out this press release? Because they knew 10 it was wrong. Because they knew what they were 11 trying to do. 12 Well, they did. They managed to drill this 13 plea. Because Anne Goldbach testified -- and I 14 suggest to you not only is her testimony and was her 15 testimony credible, but it was probable, too. 16 Here's this person who was not really ready to plead 17 in the first place and was coming in that day for a 18 final decision, so to speak, hit with all of this 19 attention and the like and tumult. And Anne 20 Goldbach said, "I'm not pleading him today." She 21 told Joseph that and she told Judge Lopez that. 22 Now, Joseph, in her inimitable fashion, 23 denies that that conversation took place. Ms. 24 Goldbach swears on her professional reputation that 0046 1 it took place. That was the reason she went to see 2 the Judge. That was the reason she went to see the 3 Judge, to get a continuance. She had no other 4 purpose to go to see the Judge. If she didn't want 5 a continuance or she wasn't asking for a 6 continuance, there was no reason to go see the 7 Judge. None. She couldn't do anything about the 8 cameras. We all know the rules for cameras in the 9 courtroom. 10 So what was her purpose? Just as she 11 spoke, to get a continuance, because it wasn't going 12 to happen today. She told the Judge and you, it 13 wasn't going to happen, because the defendant 14 wouldn't let them do it, and it wasn't going to 15 happen, because she wouldn't do it. It would be 16 unprofessional conduct of her to allow a plea to go 17 forward under that kind of emotional strain and 18 circumstance, and she would not do it, and a 19 continuance was going to be granted that morning, 20 and Judge Lopez said so. 21 Now, the Commission says in their 22 pleadings, there was no discussion of a continuance, 23 and this was all made up. Fine. I leave it to you, 24 Judge. If you think Anne Goldbach and Judge Lopez 0047 1 were incredible on the issue of this continuance, 2 then you so find. But where can you find a 3 scintilla of believable evidence to the contrary? 4 Now, what happens when they go in? Well, 5 so far Judge Lopez has been lied to by Joseph, 6 threatened by Joseph, maligned and disrespected by 7 Joseph. And now when she comes in and looks and 8 she's asked, basically, "Did you have anything to do 9 with this?" or "Who did this?" or words to that 10 effect, she clams up and denies it. 11 Well, Judge Lopez said "I think you've lost 12 credibility with me. I think you're mean. And I 13 think you belong prosecuting" -- either "prosecuting 14 cases in the suburbs" or "in the suburbs," with the 15 clear understanding, it seems to me, by everybody 16 she meant prosecuting cases in the suburbs. 17 Was Judge Lopez happy with those choice of 18 words? No. Did she indicate both here and 19 otherwise should she have selected better words? 20 Yes. But that's not the end of the inquiry, nor is 21 it evidence of bias. It certainly isn't evidence of 22 bias in one's dealings in professional matters. 23 She was mean, Judge. She was mean in 24 creating this event with these groupings of people, 0048 1 both victims and defendants who were in a highly 2 emotional and suffering state. That is mean. 3 That's mean by anybody's book. 4 Suburbs? Well, as Judge Lopez described 5 it, the first number of times she described it, both 6 in depositions and otherwise, what she meant by that 7 was, these are edgy issues that you often find in 8 urban areas, particularly Suffolk County courts and 9 the like, these edgy issues of transgenderedism, of 10 alternative lifestyles, of underground lifestyles. 11 These tend to become more urban issues and require, 12 when you have such things, as the psychological 13 backgrounds and the whole issue of how to get 14 punished and how it affects families, and the 15 Estrada case. These require a different kind of 16 thinking than some of the cases in the suburbs, 17 which -- and by the way, it's not demeaning to 18 prosecutions in the suburbs, but we know there are 19 some differences in the level of them. 20 The nails remark? Well, I meant someone 21 who polishes nails stays home. You read the 22 transcript. That was after about five questions by 23 Mr. Ware where she explained fully all the reasons 24 she had it and she made some flippant answer. That 0049 1 is not punishable by anything. 2 But it turns out that she was right, that 3 the way these matters were handled by Ms. Joseph and 4 continually handled, calling a victim's mother 5 supportive of rape in the Estrada case, calling a 6 pastor a supporter of rape in the Estrada case, 7 calling in a press on a transgendered person case, 8 lacks the urban professionalism needed to deal with 9 these kinds of matters. 10 And you know, Judge, she did it -- and this 11 kind of plays out interestingly -- she did it in her 12 lobby, not in front of 100 lawyers. She did it in 13 her lobby, took her in there, she spoke to her and 14 did it in a manner which let her know how she felt 15 about it, gave her a little wake-up call on her 16 professionalism in this regard, and it was done and 17 it was over. 18 Ms. Joseph tells you that this was -- the 19 magic words -- screaming, yelling, horrible, 20 horrible, horrible, horrible screaming and yelling. 21 Ms. Goldbach told you that it wasn't. She heard it 22 all. I think she described it as stern but normal, 23 and in fact listened to the tape in the Estrada case 24 when Judge Lopez spoke and said it was not 0050 1 dissimilar to those remarks -- not those remarks, 2 but that tone of voice. 3 Well, having in mind what Ms. Joseph 4 perceives as screaming, and having in mind the 5 credibility of Ms. Goldbach, I suggest it should be 6 crystal clear what occurred in that lobby. 7 In our brief, Judge, there is a section 8 which I won't go through now but which really lays 9 out, I think -- it's around 23 to 26 of the brief -- 10 lays out the kind of information that Judge Lopez 11 possessed at the time of her statements to Ms. 12 Joseph, which I suggest to you would indicate that 13 she was reasonably warranted in making the 14 statements she made and the like. 15 But you know, Judge, even with that, I've 16 been practicing 32 years in the courts of the 17 Commonwealth, and I know we've made quite a 18 production out of these two statements, mean and the 19 suburbs part of pleadings and hearings and the like, 20 but I've got to tell you, if that's the worst that's 21 said in a judge's lobby to lawyers in this 22 Commonwealth, then I'd be quite surprised. Whether 23 it rises to this level of televised hearings is 24 beyond me. 0051 1 There is, no doubt, not a judge who has 2 spent any time trying cases or otherwise who hasn't 3 made a similar comment and, at best, have been asked 4 to apologize if it ever came to light. 5 Now we come to the important part of August 6 4th, which is -- 7 HEARING OFFICER DAHER: Mr. Egbert, do you 8 want to take a five- or ten-minute break here? 9 MR. EGBERT: Sure. 10 (Recess) 11 MR. EGBERT: May I proceed, Your Honor? 12 HEARING OFFICER DAHER: Please. 13 MR. EGBERT: So on August 4th, sometime 14 later in the day, when Judge Lopez takes the bench, 15 what's everybody's state of mind? She thinks the 16 case is just being continued, after they've had this 17 meeting in the lobby. She's told counsel it's going 18 to be continued. It has to be continued, there's no 19 question about that, because the defendant is not 20 about to plead, and for those various reasons. And 21 she's already had her say to Ms. Joseph in terms of 22 what she thought was appropriate to say. 23 She comes up, and no one has, to this 24 point, no one has said to her, "I object to what 0052 1 you're doing." No one. She thinks when she comes 2 up it's another day at the bench and there's no 3 reason to go into any great detail about who, what 4 and where, no reason to put her private comments 5 public and the like. 6 And so she comes out, and you recall that 7 basically her words are, "Okay. This case is going 8 to be continued. I have a number of bails and 9 things to do, and we'll do it over in Middlesex, 10 because I'm moving to Middlesex," I think in a day 11 or so. 12 Now, the Commission urges you to say that 13 that was a lie and a pretense, when all it was was 14 an attempt to get the case moving without bothering 15 anybody, if you know what I'm saying. It was true, 16 she had a lot of bails. It was true that she had 17 other things to do. It was true it was going to be 18 continued. She didn't see any reason to -- no one 19 objected to this point -- to go into a long history 20 of what happened. And I think she was right for 21 that. It was appropriate. She wasn't looking for 22 trouble, quite frankly, and she wasn't looking for 23 anyone to look bad. And it would have been over. 24 The Commonwealth was the one who sought 0053 1 findings at that point. They had all day for Ms. 2 Joseph to make it known to the Judge she objected to 3 a continuance, but she didn't. The Commonwealth 4 gives them the motion and says, "We object to the 5 continuance, and we want you to make findings" and 6 the like. 7 Well, remember, Judge Lopez is sitting 8 there on the bench saying to herself, why am I 9 continuing this case? What are the reasons I'm 10 continuing this case? And as she goes back to her 11 lobby and chambers -- and the Commonwealth says, by 12 the way, she couldn't have been that busy. She had 13 plenty of time to write her findings; she writes the 14 findings in hand on the side. And I don't know how 15 long the Commission thinks it takes to do 16 or 18 16 bail reviews, but I suggest to you not very quickly. 17 So now she goes into chambers and she 18 writes out her finding. Now, first of all, Judge, 19 let me stop and once again hold up Chapter 211 C, 20 Section 4, and say to you and to the Commission, 21 these are findings of the Court, and they are not to 22 be part of any judicial conduct inquiry or hearing 23 unless this court finds that they were made in bad 24 faith or with a corrupt motive, not as the case was 0054 1 tried by the Commission, and that is, would you have 2 found the same way, are they supported in the 3 evidence, did you have an evidentiary hearing and 4 the like. None of that has anything to do with 5 anything. 6 Now, if, of course -- as you sit in Judge 7 Lopez's seat you ask yourself, could she have 8 believed this, basically? Could she have inferred 9 these facts to make these findings? Could she have 10 in any possible way that wouldn't be the product of 11 bias or corrupt motive? 12 The first finding, and I'm only going to 13 press the findings that the Commission objects to, 14 is "ADA Joseph, unhappy with the court's position, 15 called the press in." ADA Joseph was clearly 16 unhappy with the Court's position and made that 17 known. She had warned Judge Lopez, in that veiled 18 threat of hers, that the press is looking at this, 19 and the press release gets issued in her case from 20 her office saying "Transgendered person going to 21 plead." 22 Who else would have done it? It's her 23 case. She's lead counsel. She's trial counsel. 24 Who else would have been involved in it? And 0055 1 certainly didn't she have the right to infer that 2 Ms. Joseph followed the rules of professional 3 responsibility, which say that any line lawyer 4 basically must take reasonable steps to make sure 5 that no one in their office or their employ issues 6 any statements to the press that they couldn't issue 7 themselves? It's clearly something that is both 8 supportable, durable and correct. 9 Then she says, "Ms. Joseph has a habit of 10 doing this." What she meant by that, as she 11 explained, and it's clear, she meant the McNamara 12 article. And in her mind, this was just another 13 time where this particular prosecutor was going to 14 try to jack up the Judge in the press and say things 15 in the press or create press in that manner. She 16 was perfectly warranted in so finding. You may not 17 ever. She may not ever (indicating). She was 18 perfectly warranted in doing so. It certainly 19 wasn't done on the basis of any corrupt motive or 20 bias. 21 "The district attorney attempted to 22 embarrass and ridicule a defendant suffering from a 23 psychological disorder." What other purpose could 24 there have been to put that statement in the press 0056 1 release? What was it? What other purpose could it 2 have been? 3 Let me ask you something, Judge. If this 4 case were the same case, same factual case, and the 5 district attorney put in the press release "Joe 6 Smith, a man with a colostomy who carries a bag of 7 waste around his side in flowery colors, is pleading 8 tomorrow to the rape and kidnap of so and so," would 9 that be the same thing? Wouldn't it be the same 10 thing? Just nothing more than an attempt to 11 embarrass and ridicule a defendant in matters that 12 ought not to have been -- certainly she had the 13 right to infer that and make a finding. It wasn't 14 done out of a corrupt motive or bias, not 15 particularly with the history she had seen in this 16 particular case. 17 And then there's been much about this 18 "suffering from a psychological disorder." I don't 19 mean to be flip here, Judge, but have you heard any 20 evidence that there are any transgendered people who 21 are undergoing hormone therapy to enlarge their 22 breasts in an attempt to get ready to have an 23 operation so that they can remove their penis and 24 insert a vagina, and who have wanted to be girls 0057 1 since very young in life and suffer from suicidal 2 tendencies and depression, who don't suffer from a 3 psychological disorder? Do you know of any evidence 4 in this case that, with those combinations of 5 factors that were before Judge Lopez, that that 6 person -- that she did not have the right to find 7 and be warranted in finding that the defendant 8 suffered from a psychological disorder? 9 Take a look at the DSM and see what you 10 need to diagnose that psychological disorder, and I 11 suggest to you this goes well far beyond it. 12 And of course we've spent much time with 13 Mr. Ware saying to Judge Lopez, You're the only one 14 who thinks this fellow has a psychological disorder; 15 it's not in this report. All of those factors are 16 listed in the report and in the DSM, so she 17 certainly had every right to find that. 18 "The DAs caused the continuance and sought 19 to turn the court proceedings into a circus." Well, 20 they did turn it into a circus, although there 21 weren't lions and tigers and bears. But we know 22 what you mean when you turn an event into a circus. 23 It was pandemonium, it was tumultuous, it was 24 leering, it was prurient, and it was anticipated by 0058 1 the Commonwealth. And certainly Judge Lopez had the 2 right to find in that regard, it was warranted in 3 finding, that particular matter. 4 And now the one that the Commission says is 5 a callous rejection of the victim in this case, 6 which couldn't be further from the truth. "It will 7 have little if no impact on the victim, as this is a 8 plea." What will have little if no impact on the 9 victim? Not the case, not the assault, not the 10 facts as underlying the event. That's not what this 11 is talking about. 12 The continuance will have little if no 13 impact on the victim. In other words, another 14 couple of weeks to get this thing done right and in 15 order will have little if no impact on the victim. 16 And she goes on to write, "as this is a 17 plea." What does that mean? Well, the victim is 18 not even here in the courtroom, petrified and ready 19 to testify, undergoing the trauma of being ready to 20 testify, and have to give testimony. Judge Lopez 21 knows what a child sexual assault trial can be like 22 for a child. She's had that experience. 23 And so what this is saying, which is 24 perfectly appropriate, is, Look, continuing this 0059 1 case for a few weeks, or whatever, is not going to 2 affect this victim in a significant way. 3 Why did she say that? Well, nobody told 4 her any different either. And remember, although 5 the Commission wants to gloss over this, it's the 6 Commonwealth's obligation, in finding that 7 opposition under Section 16 F, to tell the Judge, 8 quote, to put on the record what the impact of the 9 victim was. They totally didn't do anything. They 10 said, "The grandmother's here." 11 Then they come into court before you and 12 they put on this big show about how they promised to 13 have it done before he goes to school and all of 14 that. Do you recall all that testimony, Judge? 15 Well, that was great, but they never 16 bothered telling Judge Lopez that. And they're 17 trying to make a splash in this courtroom, but they 18 never told Judge Lopez they wanted her to rely on 19 it. It doesn't make sense. 20 These findings may have hurt their 21 feelings. These findings may have gone up their 22 professional back. But these findings were 23 warranted, and they were certainly not based on a 24 corrupt motive or bias. 0060 1 How do you know that? Well, you look for 2 things in people's conduct to figure out where they 3 stand, because we all can go back -- I can go back 4 in history and pull some things you said or did out 5 and talk about it 20 years later and manufacture 6 something about it, or what the court reporter said, 7 and manufacture something about it. But it's their 8 actions at the time that explain to us what's going 9 on. 10 And each of these DAs, Deakin and Joseph, 11 testified that these were insulting attacks on their 12 professionalism, attacks on their jobs, or that they 13 were public expressions of admonishment by the Court 14 against them, and, and, they were totally unfounded. 15 And they were totally unfounded. 16 Now, I don't know about you, Judge, but if 17 somebody made a professional attack upon me in a 18 permanent record of a court that I thought were 19 unfounded, I might at least file one little bitty 20 motion asking that it be reconsidered, one little 21 bitty motion asking for a hearing, one little bitty 22 piece of paper saying that I want you to reconsider, 23 one little bitty piece of paper before the SJC 24 saying these findings were made about me and my 0061 1 conduct. They are unfounded, they have no basis, 2 and I want it overturned. Not one. Not one. 3 And the reason for that is because they 4 knew if they tried to attack these findings and 5 wanted a hearing, they would have got a hearing, and 6 all this business of what they did with the press, 7 all this business of what they put in the press 8 release, all the stuff that they had done in this 9 case would have come out on the record in an 10 evidentiary hearing, and it would have been worse 11 for them, not better. 12 This is the Suffolk County DA's office. 13 And by the way, not only do they have a professional 14 responsibility to themselves, but they have an 15 advocate's responsibility to both the Commonwealth 16 and the victim in this case to assure themselves 17 that they are able to try the case and handle the 18 case and that they will in fact be able to do their 19 job. 20 So you can't have it both ways. If Judge 21 Lopez's findings were totally unfounded, that means 22 she's biased, right? That's what the Commission 23 says. If they were based on whole cloth, then they 24 must have been from bias. 0062 1 Well, if they were based on bias, then the 2 prosecutor should have moved to recuse her. That's 3 their responsibility. If they got a document in the 4 mail and said, "Hey, this is a totally unfounded 5 attack on us as professionals. She's biased. Let's 6 move to recuse her so our client doesn't suffer," 7 did they do that? No. So their actions speak 8 louder than their words now. 9 Their words of crying foul mean nothing, 10 because at the time of the event, they didn't do one 11 singular thing that a lawyer would do when faced 12 with those findings if they were a product of bias 13 or if they were a product of lack of foundation. 14 Ah, but what did they do? The best Lawyer 15 Leora Joseph and David Deakin know how to do, the 16 only lawyering it seems to me that that office was 17 doing at the time. Where did they make their plea? 18 In the newspaper the next day. That's where they 19 went. Not to the courtroom, not to the courthouse, 20 not to the judge, not to the SJC. To the newspaper. 21 Are you starting to see a pattern, Judge? 22 Are you starting to see a pattern? The same pattern 23 that Judge Lopez watched day in and day out in these 24 events? Don't litigate with me. Litigate out 0063 1 there, where you can say what you want, you can say 2 what you want without getting in trouble, you can 3 say what you want without a judge ruling. 4 And what did they say? I think this is 5 Exhibit 15 in the record, Judge. "Martin spokesman 6 James Borghesani noted that Lopez concluded that 7 Horton suffers from a psychological disorder, quote, 8 without hearing any evidence from experts." Lie. 9 Lie. Dead-out lie. She had the Katz report days 10 before that. It was presented to her. Katz is 11 clearly an expert. And all of that information was 12 in there. 13 So they lied, because it's easy. The Judge 14 isn't there to say, "Overruled. That's not so." 15 They lied. They simply lied. Why? Because it 16 makes her look bad. It just makes her look bad. 17 "Look at this judge. She's making findings without 18 even getting any expert information. What's the 19 matter with her?" 20 Then they go on to say the following. "No 21 one should be deceived by this smokescreen." This 22 is a judge they're talking about. These are a bunch 23 of lawyers who just lost an event. "No one should 24 be deceived by this smokescreen. Judge Lopez was 0064 1 prepared to hand down an extremely lenient sentence, 2 and she balked when the media was present to witness 3 it." 4 They knew full well that the reason it was 5 continued is because the plea couldn't go forward. 6 They knew full well that. Did they put in here that 7 Anne Goldbach moved for a continuance because her 8 client was not ready to plead, as was his 9 constitutional right to do or not to do? No. 10 They attacked a Superior Court judge 11 because they didn't like what the sentence was going 12 to be, and they didn't know how to be advocates in 13 the courtroom. They only knew how to be bullies in 14 the newspaper. 15 Now, there is only so much, it seems to me, 16 that people can do, lawyers can do, before they are 17 subject to discipline or reprimand. But the fact of 18 the matter is that nothing was done about that, and 19 it was let lie. 20 And if you need to understand the makeup of 21 a judge, a good judge, without regard to whether you 22 or I or anybody who sentenced higher or lower than 23 her or anything else, she could have run from this 24 case. How many opportunities did she have to let 0065 1 that kind of lawyering win, to let newspapers win 2 over judging, to let prosecutors use the press to 3 beat up a judge and to get her off the case or to 4 change her mind. 5 She could have walked away from this case 6 on any number of occasions. When she was going to 7 Middlesex, she could have said, "I'm going to 8 Middlesex. You do this when you want." She could 9 have read that newspaper article and said, "Leave it 10 at Suffolk." 11 But she had the courage of her convictions 12 to say, "I'm doing what I believe to be right for 13 the reasons that I've thought about them." And so 14 she continued on with the case. But she didn't 15 continue on with it without an institutional memory 16 of events or an institutional memory of history. 17 So what did she do? Well, the first thing 18 she did was she made security arrangements, if you 19 recall. Now, even though we've been calling this a 20 Commission complaint, for them to file documents 21 before you that so torture the facts of the case and 22 all of our understanding of what goes on in a 23 courthouse to try to get a conviction seems to me to 24 be over the top. 0066 1 The Commission's argument on this is a few 2 fold: one, that Judge Lopez made arrangements for 3 the defendant to come to the back door without 4 telling the district attorney, and that's somehow 5 wrong. Why it's wrong, where it's wrong or how it's 6 wrong, they don't say. Everybody does it, we now 7 know from both Judge DelVecchio and Brian Grifkin, 8 who is the deputy chief court officer of Middlesex. 9 It's a regular occurrence done. 10 Why was it done? It was done for obvious 11 good reason. Look what went on in Suffolk when 12 there was no control of the meetings between the 13 litigants and the press? There was this circus, and 14 everything derailed. So it was not only the smart 15 thing to do and the right thing to do, it was the 16 intelligent thing to do. 17 And by calling them special arrangements, 18 it's like making it up to be some kind of goody 19 basket, like it really matters to Ebony Horton in 20 terms of specialness to go in the front door or the 21 back door. In fact, Ebony Horton went in the front 22 door anyhow. There was nothing special about it. 23 It was an attempt to keep the place sane and to keep 24 the matter sane. 0067 1 All the orders with regard to the cameras 2 were just the same. They weren't solicitous of 3 anyone. She wanted this plea to happen. This judge 4 wanted this plea to happen and happen in a way that 5 it could be handled. And you're dealing with 6 emotional people with emotional problems and highly 7 volatile situations. 8 So what did she do? She said cameras can 9 fully have and view the proceedings, but I'm not 10 going to have this defendant, full-faced view, 11 pictured. Why? One, because it's the prurient 12 interest of some of the media in this male/female 13 show; two, because this particular defendant has 14 already shown that confrontations with cameras may 15 derail him and not get this proceeding completed. 16 And so what? She didn't hide anything. 17 She hid the defendant's face. Big deal. The 18 defendant's face often is not shown, because he's 19 sitting with his back to the press. But it 20 certainly wasn't done out of bias and favored 21 solicitousness to the defendant. It was done in a 22 well-intentioned and frankly intelligent attempt to 23 let this plea go forward in a rational fashion. 24 We come upon the 6th of September, the plea 0068 1 itself. And there's been much discussion of what 2 was really going on here. I'm going to suggest to 3 you what was really going on here, and I think after 4 all you have seen and heard, you'll see that that's 5 the case. 6 This proceeding now on September 6th was a 7 formality. Now, I don't mean formality in the sense 8 that the defendant's constitutional rights and the 9 waiver thereof is not an extraordinarily important 10 event in any case, but the rest was a formality. 11 The sentence had been determined. It was already 12 determined on August 1st. It was in place on August 13 4th. And it was there, undisturbed, on September 14 6th. It was over. 15 Now, the Commission kind of minces these 16 words in some of its filings you'll see. "Well, 17 Judge Lopez could have changed the sentence. She 18 could have changed the sentence." And I could jump 19 over the Empire State Building. But the 20 circumstances of this case, she could not. Why? 21 The sentence had been told to the defendant. No one 22 had moved for reconsideration. They were there to 23 take the plea. And the defendant was there to get 24 the sentence that he had already been told would be 0069 1 the sentence in this case in return for his plea. 2 It was over. 3 What further evidence do you have that it's 4 over? She tells the defendant before he ever enters 5 his plea, now, you know, right on the record. In 6 Exhibit 22 she says to him, on Page 8 -- this is 7 before the defendant is waiving any constitutional 8 rights -- "Okay. Now the sentence, and I think I 9 indicated I was going to place the defendant on 10 probation for a period of five years. I had 11 initially indicated that I would be placing him in 12 Community Corrections. It appears he will not be 13 accepted into the Community Corrections program. 14 Therefore I'm going to place him on probation for a 15 period of five years, on electronic monitoring for a 16 period of one year, and you'll be required to attend 17 counseling, and you're to stay away from children 18 under the age of 16, okay? Do you understand that 19 this is the sentence that you are going to get? 20 "Yes." 21 It's over, Judge. All that we're here to 22 do from a constitutional standpoint is for the 23 defendant to waive his constitutional rights 24 knowingly, intelligently and voluntarily and for the 0070 1 judge to make such a finding and for a clerk to read 2 what the judge had already said. 3 So when Mr. Deakin got up and went on in 4 his lengthy description of the facts, those of us or 5 anyone who's been in the business long enough knows 6 those statement of facts weren't being delivered to 7 Judge Lopez. Those long statement of facts were 8 being delivered to our friends in the media, and it 9 wasn't there for sentencing purposes. The 10 sentencing had already been done. It was kind of 11 this long, flowing statement which we get out into 12 the media and try to jack this case up, which is 13 fine, which is fine, except now you have to put in 14 context what Judge Lopez was doing. 15 She's sitting there saying, "Okay. All I 16 need is sufficient facts so I can finally ask the 17 defendant, are these facts true." By the way, you 18 don't even have to ask the defendant, are these 19 facts true, can they prove these facts, or do you 20 disagree with these facts. But in any event... 21 So he goes on, and at one point Judge Lopez 22 interrupts him, if you can call it that, politely. 23 And it is at a point right when all the facts have 24 been given and they announce, "and the defendant was 0071 1 arrested," which was a natural break point for the 2 judge to say, "Okay." And then Mr. Deakin said, 3 "No. I want to say more," basically. And she let 4 him go, and off he went and said more. 5 So for the Commission to argue that that 6 was some kind of bias is to simply take every word 7 spoken, every event, and say there's no other 8 explanation but it's bias. It was a natural break 9 point and was certainly not bias nor did it look to 10 be bias. 11 Interestingly enough -- and to this day I 12 can't figure out why. I have tried to figure it 13 out, but I can't. If you can when you make your 14 findings, I'm anxious to read them. But why -- when 15 we now know from that videotape, we now know that 16 the victim told the district attorney's office that 17 he had been pulled off the street by force into the 18 car, that Ebony Horton threatened to kill him in the 19 car if he didn't shut up, and that Ebony Horton laid 20 on top of him in the car in the passenger's seat -- 21 why those three facts were never communicated to 22 Judge Lopez by any competent prosecutor. 23 There is no doubt that those would have 24 jacked up the price of this case in anybody's mind: 0072 1 a threat to kill, a forcible pulling off the street 2 into the car, actual laying on top, body to body, in 3 the car. There's simply no doubt as to the impact 4 that those facts would have had. And I cannot get 5 my arms around what it was the prosecutors were 6 thinking. But I can get my arms around one concept: 7 this nonsense that they tried to feed us in this 8 courthouse that they all two of them forgot those 9 three most important facts does not make any sense 10 in any world which we live in, period. It doesn't. 11 The three most important facts -- the three worst 12 facts in the case, both prosecutors at different 13 times in different proceedings forget. 14 Now, there was something else amiss, and 15 again, I haven't been able to put my finger on it, 16 but it certainly goes to the credibility of these 17 prosecutors and what they were doing here. To say 18 they forgot is an outrage. To say they forgot is 19 simply incredible. 20 And during this statement that Mr. Deakin 21 is making, one of the first objections, so-called, 22 of the Commission or an argument that Judge Lopez 23 was either biased or failed to give a proper 24 opportunity to speak was by not permitting -- that's 0073 1 their words -- not permitting Leora Joseph to read 2 the victim impact statement. 3 They came into court, Deakin and Joseph. 4 They sat down. When counsel was asked to identify 5 themselves, Mr. Deakin stood. Mr. Deakin stood. 6 Whether that was one more little piece of Leora 7 Joseph saying to Judge Lopez, "I don't stand in your 8 presence" or not, I don't know. But Mr. Deakin 9 stood, and he identified himself as clearly the 10 person who would be speaking on behalf of the 11 Commonwealth. And he in fact did all the speaking 12 on behalf of the Commonwealth. 13 And when it came time to read the victim 14 impact statement, it was Mr. Deakin who went to the 15 side bar and told the judge that he was going to 16 read parts of the statement. And apparently, 17 according to their testimony, when one of the 18 statements was about to be read, Ms. Joseph went to 19 stand up -- that's the best I can make of it, 20 because we can't find it anywhere in the 21 proceedings -- and according to them, Judge Lopez 22 said, "Mr. Deakin, would you please read it." 23 Perfectly appropriate, not biased. 24 That's the way courthouses are run. People 0074 1 just don't jump in proceedings and say, "Hey, me, 2 too." That's not the way it happens. You don't 3 stand up -- Ms. DeJuneas, you would be shocked to 4 see her stand up in the middle of my argument and 5 have her say, "Judge, I want to say a couple of 6 words, too." It's inappropriate. That's not the 7 way things are done. 8 It's done by one lawyer speaking on a 9 subject. And if there's plans otherwise, then seek 10 the Court's permission respectfully and ask. None 11 of that was done -- whether or not it was deliberate 12 or not is unimportant -- and Judge Lopez exercised 13 her legitimate discretion and said, "No. You're 14 standing. Go ahead and read it." It's not as if 15 she was going to be doing any lawyering, by the way. 16 She's simply going to read somebody else's 17 statement, which doesn't take much lawyering. 18 So now we get to what I consider the famed 19 "1 to 10" remark. Now, as a beginning point, does 20 Judge Lopez wish she never engaged in this colloquy 21 with Mr. Deakin, no matter what point they're each 22 trying to prove? Well, of course, because look 23 where it went. Look where it went. 24 Its initial purpose was not a bad one, just 0075 1 like the question about where would you house him, 2 in a male or a female prison, was not a bad one. 3 This was a public forum, and the public was watching 4 this sentencing. And these were some of the impacts 5 or the considerations that would impact this very 6 bizarre set of circumstances in developing this 7 sentence. And there's nothing wrong with the public 8 being educated on those kinds of issues. And in 9 fact, Mr. Deakin was well prepared to answer those 10 issues. So he obviously expected them to come. 11 The question asked, though, was not as has 12 been portrayed over and over by the Commission. The 13 question was -- I'm sorry. 14 HEARING OFFICER DAHER: Go ahead. 15 MR. EGBERT: I'm just trying to keep myself 16 from going too long. 17 HEARING OFFICER DAHER: I can honestly say 18 that my first assessment of Sunday seems to be 19 holding true. But go ahead. You take your time. 20 I'm free, and I'm sure Mr. Ware has nothing else to 21 do. So you take your time, and I mean that very 22 sincerely. Go ahead, Mr. Egbert. It's too 23 important to cut it short. Take your time. 24 MR. EGBERT: The question as framed, Judge, 0076 1 by Judge Lopez was not -- and this is important both 2 for the Court and frankly the public to 3 understand -- the content of the question and the 4 import of the question was not how would he rate 5 this case, 1 to 10, in all the world of cases. It 6 was, how does this case rate, 1 to 10, in the world 7 of child sexual assault cases. That's what was 8 being asked. And it was taken out of context by the 9 Commission. It was taken out of context on often 10 occasions on attacks on Judge Lopez. But the fact 11 of the matter is what she was saying and did say is 12 the following: 13 She first asked him, how many cases in the 14 whole have you brought in the child sexual assault 15 unit. So that's the universe that we're talking 16 about. And he brings the figure down to about 100 17 cases. And she says, "And of those 100 cases in 18 terms of the facts of this case, on a scale of 1 to 19 10, where would you put this case?" 20 In other words, in terms of child sexual 21 assault cases, where does this one fit? Not what 22 was portrayed in the media, Oh, this is a low-level 23 crime as compared to walking your dog on the street 24 or malicious destruction or whatever. In the realm 0077 1 of these very serious cases -- there's no child 2 sexual abuse cases that aren't serious. In the 3 realm of these very serious cases, where does this 4 one fit, and on the factors that one considers when 5 fitting them there. 6 And she heard Mr. Deakin's response, and 7 she believes that he was calling it a 10. That was 8 her interpretation of what he was saying, and a 9 rational interpretation of what he was saying. 10 Whether she was right or wrong is almost irrelevant, 11 but that was what she heard when he said "10" and 12 didn't give any other number and basically went 13 through the crime. That's what she testified to, 14 and of course, that's what she said in her response. 15 She then said that Mr. Deakin was 16 disingenuous. "I find you to be disingenuous." Why 17 did she say that? Well, because, Judge, in the 18 scheme of sexual assault cases involving children 19 and the like, this case was, whether in the 20 guidelines or the factors in the guidelines or in 21 human experience, a lower level case. 22 Why was it? Well, unlike in the Estrada 23 case, for example, the victim had not been sexually 24 brutalized through penetration or with any organ 0078 1 member. If you recall, there was no penile 2 penetration, there was no oral penetration, there 3 was no conduct other than -- and I don't diminish 4 it -- other than the supposed sucking on the 5 screwdriver and finger. And that is a far cry, as 6 we know, from penile or vaginal penetration. 7 And it was not a repeated case. In many 8 cases where a child is sexually abused, we know from 9 cases like Estrada and others, it involved repeated 10 sexual crimes over a period of time with lack of 11 reporting. 12 Unlike in the Calixte case, there had been 13 no nonsexual physical brutalization. What I mean by 14 that, there were no beatings and the like and there 15 was no brutalization in that regard. And unlike 16 both Calixte and Estrada, this case did not involve 17 the obtaining of sexual favors from positions of 18 trust and the like, parents or guardians and the 19 like, which has been a well-known curse of the 20 criminal justice system. 21 According to the unrebutted psychological 22 assessments of the offender, you had unlikely to be 23 a recidivist, not likely to be a pedophile suffering 24 from these various disorders, and having no other 0079 1 involvement with children in terms of a sexual 2 nature and the like and that he had complied with 3 all these various matters for probation, making him, 4 let's say, a different kind of offender than the 5 norm. 6 And so whatever you may say, Judge Lopez's 7 statement that in her mind, in terms of child sexual 8 assault cases, that this was at a low level was both 9 correct and warranted and not meant to be demeaning 10 and not meant to be insensitive to anybody, 11 including most especially the victim or their 12 family. Because even though it was, in her opinion, 13 a low-level crime in that realm of crimes, it was 14 both a serious and important crime for the victim 15 and for society. 16 But what happened then? What happened then 17 is she turns, after saying "I think you're 18 disingenuous" or "I find you disingenuous," she 19 turns and she says, as is her right as the judge of 20 the Court, "I will hear from defense counsel." 21 Now, after all the conduct of Mr. Deakin 22 and Ms. Joseph, after everything that had gone on in 23 the past, after all their playing with the press and 24 the newspapers and the like, after all that had gone 0080 1 on, you would think that they would have sat down 2 and obeyed the Court's order, but he did not. And 3 he testified that he knew he was disobeying the 4 Court order, that he knew it when he did it and he 5 consciously decided to do it. 6 And why did he decide to do it? To defend 7 his honor. Well, he had no right to defend his 8 honor there. He has no right to defend his honor -- 9 he has a right to zealously advocate for his client. 10 He has no right to defend his own personal honor at 11 that time. He can ask for a hearing. He can ask to 12 see the Court. He can ask for whatever. But he was 13 told to sit down and to hear from defense counsel so 14 the proceedings could go on. And he refused, and he 15 jacked this thing up, and she exploded and she was 16 wrong. She was wrong. She has said she's wrong. 17 But she's not wrong in a vacuum. This 18 Judge of 14 years, without a prior complaint, is not 19 wrong in a vacuum. When you look at some of the 20 cases that have been cited to you over time, 21 particularly the Brown case, for example, which is 22 the most resent demeanor kind of case that we have 23 found. In that case Judge Brown, who we all know 24 and have a great deal of respect for, Judge Brown 0081 1 was on his third bite of the judicial conduct apple. 2 He had been previously sanctioned twice and had just 3 one month before this event of In Re Brown signed an 4 agreement of sanctions to never do it again. 5 So, clearly, this is not Judge Lopez. And 6 Judge Brown's conduct of coming after, shall I say, 7 using words to a particular litigant that were 8 inappropriate weren't justified in any way. There 9 was nothing to lead up to that conduct. There was 10 no conduct by the person but walking in the door 11 with a case that led to that diatribe. 12 This was a case with history, where the 13 lawyers had taken after the Judge, who had 14 threatened the Judge, and who had disrespected the 15 Judge publicly and the like. So that simply cannot 16 be taken out of the mix. 17 But she was wrong, and she has said she was 18 wrong. How many times must she say it for 19 Commission counsel to finally get it? Commission 20 counsel confuses and refuses to see when someone 21 says, Yes, I was wrong, but explains the 22 circumstances of how it came to be, to explain her 23 wrongfulness and to understand how it happened. 24 That's how it happened. As the story that I've just 0082 1 told you, that's how it happened. And she exploded. 2 I wonder how it feels for Judge Lopez to be 3 the only judge that ever yelled at a lawyer in a 4 courtroom of the Commonwealth of Massachusetts, 5 because you would think that's what it is. We all 6 know better. It doesn't excuse it. It doesn't 7 excuse it, but it does put some perspective on it. 8 And it also puts perspective on it when you realize 9 that she is 14 years without a complaint. 10 As evidence of the fact that she was both 11 capable to continue to hear the case and permit the 12 Commonwealth to be heard, once she realized that Mr. 13 Deakin then later wanted to speak on another matter, 14 she not only permitted him to speak but found in his 15 favor as to various conditions which he was seeking. 16 And then, as they say in Glocamora, it hit 17 the fan. And there was this mixture of dislike of 18 her sentence and use of this one-minute clip of 19 video to make a point. 20 Did you ever have videos in your court, 21 Judge, or in all the courts in the Commonwealth? 22 One second of a judicial life where she screams at 23 this prosecutor and, man, if you watch television, 24 then you can close your eyes and do it by heart. 0083 1 And the fact of the matter is that there 2 was nothing wrong with her sentence. It was a 3 correct sentence and a lawful sentence. Some may 4 disagree with it. Many who disagreed with it were 5 never really given the fact of what led to it in her 6 decision. 7 But that doesn't matter, again. Chapter 8 211 C, Section 4, tells you it doesn't matter. You 9 just have to sit here right now, Judge, and say to 10 yourself the following: Was Judge Lopez biased in 11 this sentence? I suggest to you that the answer is 12 crystal clear. 13 Well, after September 6th the Commission 14 now wants to allege that -- well, basically a couple 15 of things: One, that Judge Lopez is a liar, that 16 their witnesses tell the truth, Joseph and Deakin, 17 and that Judge Lopez lied and provided false 18 information to Ms. Kenney at the judicial 19 information office to, one, disseminate or see to it 20 that wrongful information got disseminated, or two, 21 to issue a false press release, or three, to somehow 22 protect her to the public. And I know I'm talking 23 in a broader sense. 24 Well, first of all, Judge Lopez hadn't done 0084 1 anything wrong, besides yell at the prosecutor. She 2 hadn't done anything wrong. Judge Lopez wasn't 3 afraid of her sentence at the time, no more than 4 she's afraid of it now. She thought it was the 5 right thing to do then. She thinks it's the right 6 thing to do now. So she wasn't afraid or attempting 7 to get information out there to justify her 8 sentence. 9 Look what she was trying to do and what was 10 going on. Do you remember the word "sensitivity," 11 "insensitive"? It came out through this, "I didn't 12 want to be portrayed as insensitive," and "I didn't 13 want the public to understand his sentence as 14 insensitive." 15 What did she mean by that? What she meant 16 by that is -- she wasn't responding to nothing. She 17 was responding to the hysterical newspapers and talk 18 shows that were showing up on her doorstep, calling 19 her house and people calling her house, calling her 20 a spik and a Jew lover and her husband a Jew-loving 21 spik and the like. 22 And the Commission and counsel expected her 23 to be acting absolutely with her head square on her 24 shoulders during a time like that, careful with 0085 1 every word and careful with every thought and able 2 to consider and sit back and calmly deal with this 3 situation? Come on. She's a judge, but she's a 4 human being. Her children threatened, people got -- 5 my God, it should be a lesson to us in what not to 6 do in terms of dealing with our public officials, or 7 we'll never have any. 8 Object all you want, but that kind of 9 conduct does nothing but create chaos and create 10 chaos in the mind of a woman who cares for her 11 family and her children and her husband. 12 But she had nothing to hide or disseminate. 13 And in fact, in her conversations with Ms. Kenney, 14 you'll note that Ms. Kenney was pretty much around 15 the pike -- she was the essence of an honest 16 witness. And she kept saying, "I don't recall all 17 this stuff." She was really -- she didn't help me 18 too much, whatever. But that's all right. She said 19 she couldn't remember. 20 And she was really quite clear that there 21 were bits and pieces of conversations that she had 22 with Judge Lopez. She took bits and pieces from 23 those conversations, couldn't remember all of them. 24 I asked her if she recalled talking about 0086 1 the psychological report, for example. She said, "I 2 don't recall that." And I asked around, "Does that 3 mean no or does that mean, no, you don't know one 4 way or the other?" You know, "Do you recall this or 5 that?" "No," she said, "I don't remember one way or 6 the other." 7 And really there's not a large difference 8 or much difference between what Judge Lopez says and 9 she says they all talked about. They talked about 10 the facts of the case, who said what, what the 11 background of the defendant was, why she gave her 12 sentence. What do you think she'd be talking to 13 Kenney about? She'd be talking to Kenney about, 14 "Joan, all these people screaming and yelling, 15 here's why I gave the sentence the way I did. I 16 didn't think this guy was a pedophile. I had these 17 reports. I didn't think he was this. In the 18 guidelines and the factors that judges consider, 19 this case was not on the high level of sexual 20 assault cases. It was on the lower level of sexual 21 assault cases." 22 Imagine the conversation, Judge. You know, 23 they want to take people's memory of one word and 24 say, "Aha it's a lie." Imagine what the 0087 1 conversation would have had to have been. "Joan, 2 here's what happened. Here's why I did it. Here's 3 what I was thinking," and all of that. 4 And, Judge, they hold out to you -- the 5 Commission's whole aspect of this case is, "Aha. 6 She said 'guidelines' and she was lying, lying, 7 because when she went before the Commission on 8 deposition, she tried to explain it." She said, 9 "Well, I wasn't thinking of the actual guidelines. 10 I was thinking of factors according to the 11 guidelines, those kinds of things. And I thought 12 the press release" -- you will recall what she said 13 at deposition -- "I thought the press was materially 14 accurate, and it was okay for a press release." 15 Now, think of the sequence of events in 16 trying to determine whether or not she was lying and 17 whether or not that makes sense. The press release 18 says "appropriate level of sentencing guidelines." 19 Commission counsel gets her in a deposition and asks 20 her about that statement. All she had to do to 21 avoid all of this last 30 pages of this judicial 22 conduct complaint was say, "Yes, I was talking about 23 the guidelines," period. Period. Nothing anyone 24 could have done. They could have argued about her 0088 1 interpretations of the guidelines, they could have 2 said, Well, it's higher than that or lower than that 3 or upside down or down from that. Nothing. There 4 wouldn't have been a word anybody could have said. 5 But instead, she was honest. Instead, she 6 said, "Look, I didn't mean the guidelines 7 themselves. I meant these factors and all the 8 things I thought about and all of this and the like" 9 in trying to explain it to them. 10 And what do they do? They take their 11 explanation, which she simply could have said -- if 12 she were a liar, she could have simply said, "Hey, I 13 said the guidelines. I meant the guidelines." Bam. 14 But, no, she chose to explain it to them 15 honestly, and they indict her for it. That's what 16 you get. She's before a Commission investigation 17 supposedly -- that's supposed to be fair and honest. 18 She gives them appropriate, honest answers, and now 19 they say she's a liar because of what she said in 20 the press release. It's an outrage. 21 This whole concept that she spoke to Joan 22 Kenney to encourage misleading public comment is 23 built on straw. Ms. Kenney testified clearly she 24 wasn't going to make any public comment in this 0089 1 case; she wasn't permitted to. Maria Lopez could 2 have told Joan Kenney that the victim had twelve 3 legs and four arms and the defendant flew in from 4 Mars and all this occurred, and Joan Kenney wasn't 5 going to say anything publicly, because as she told 6 you under oath that her conversations with Judge 7 Lopez were confidential, period. And the only 8 matters which would be released is if Judge Lopez 9 told her to release anything. And the only matters 10 Judge Lopez gave her the okay to release were this 11 one, singular press statement. 12 Now, it doesn't make a lot of sense, does 13 it, that if Judge Lopez's whole purpose in talking 14 Joan Kenney was to get all -- disseminate all this 15 information, this wrongful information out there to 16 encourage misleading public comment, if that was her 17 purpose, she probably should have been smart enough 18 to tell Joan Kenney it's okay to repeat it. 19 Part of this relates to this document -- 20 I'll try not to belabor it -- but this document that 21 the Commission filed about all of Judge Lopez's 22 statements. This was a press release. It wasn't a 23 sentencing memorandum. It wasn't a full statement 24 of everything Judge Lopez knew. It was a press 0090 1 release. 2 Now, in the first instance the Commission 3 says she's a liar, a liar, when she testified, "This 4 was my first press release." Liar. Why? "Because 5 her personal life is immersed in the media." In 6 other words, translation, her husband owns the 7 Phoenix. Okay? And that's what this Commission 8 bases a statement that somebody's a liar when they 9 say, this is my first press release, because her 10 husband owns the Phoenix. 11 We have sunk to levels in this case that 12 are beyond any dimension fathomed when this 13 Commission was statutorily authorized. She would 14 have been better off if she gave a sentencing 15 memorandum. And when you go back, Judge, and you 16 read the Commission's statements about how she lied 17 about what she could and couldn't say, you'll say -- 18 if you read them carefully, you'll see that what 19 she's saying is, in all occasions, back in 20 deposition and here, there's a confusion. You can't 21 say publicly that which is not public or in the 22 public record. You can put anything you want in 23 your findings and anything you want in your 24 sentencing memorandum, as long as it's based on 0091 1 something that's before you, and then it becomes 2 public. 3 And there was this whole confusion of those 4 events. And so that's why we went through this 5 exercise in the press release of adding in what you 6 can say in a press release versus in a sentencing 7 memorandum, because they're different. 8 Now, sure, would she have been better 9 served now, as we look back on it, to have written 10 out a ten-page press release with all -- strike 11 that -- a ten-page sentencing memorandum with all 12 her thoughts and all her reasons and the reports? 13 Yes, she would have. 14 But she was being onslaughted with opinion. 15 She was being told by Judge DelVecchio, "Stay away 16 from the press. They'll kill you." She was being 17 told by her lawyer, "Don't do anything." She was 18 being told by her husband, "Hey, it's the press. 19 Get out there and do it." She was being told by her 20 friends, "You've got to do something." 21 What was she to do? What was she to do? 22 So she let this press release go out. It was, as 23 she says, materially accurate. It was, yes, good 24 enough for a press release. It gave the concept and 0092 1 tone of what this was about, and it in fact was 2 true. 3 Now we take this press release and pick it 4 apart word by word and call it a lie and charge her 5 with lying and giving false information. It is 6 beyond comprehension to me. 7 Did she think the case was pending? Was it 8 pending? There's law everywhere. Take a 9 jurisdiction, I'll find you some law. 10 Unfortunately -- how are you supposed to act? If it 11 were a criminal case, it would be easy. Dismissed, 12 whatever. Void for vagueness -- if it was a 13 constitutional challenge, void for vagueness. Don't 14 be so sure it won't be a constitutional challenge at 15 some point. 16 But we're talking here about misconduct, 17 not mistake. So the first thing you have to ask 18 yourself is, do you know the law and did you know it 19 back on whatever date before you started this 20 hearing on a pending case. Did you know about the 21 Bruzzese decision in the SJC? Did you know about 22 the Georgia Advisory Committee? The answer is, no, 23 you didn't, of course, and none of us did. 24 And so what we were acting upon was our 0093 1 common sense understanding and her judicial 2 understanding of what a pending case was. Judge 3 Lopez -- and it's probably the law. The law is 4 argued beautifully in the briefs by both sides. I'm 5 not going to try to recreate it here. 6 But I am going to say this: If you didn't 7 know what it meant, you didn't know what it meant, I 8 didn't know what it meant, they didn't know what it 9 meant, Judge DelVecchio didn't know what it meant, 10 did she have at least a right to maintain, I've 11 finished my sentencing, the guy's on probation, this 12 case is not around anymore, it's over? That's Judge 13 DelVecchio's stated position under oath, it's not 14 pending. That's Judge Lopez's position. 15 And why else should she be entitled to the 16 benefit here and to show that it is not clear and 17 convincing evidence of a violation? Well, I know 18 Judge DelVecchio testified that each judge is 19 autonomous and they're responsible for their own 20 decision. But, you know, when you're sitting around 21 with your Chief Judge and the head of the Public 22 Information Office in the SJC, and you're a 14-year 23 or five-year or six-year Superior Court judge, and 24 the Chief doesn't say, "Hey, this case is pending, 0094 1 you can't issue this" -- in fact, he's making mark- 2 ups on it -- and Joan Kenney doesn't say, "You can't 3 issue this," it goes to her good faith in her 4 understanding as to whether or not this was a 5 pending case. It goes to whether or not she thought 6 she was right and was acting in accordance with the 7 law and the like. 8 And I leave for a better day whether or not 9 the case is pending or not pending and the like. 10 But I think, without regard to any of it, her 11 conduct was not proven to be misconduct by clear and 12 convincing evidence in that regard. 13 Can we take a five-minute break? I'm 14 getting close to wrapping up. 15 HEARING OFFICER DAHER: That would be fine. 16 (Recess) 17 HEARING OFFICER DAHER: Mr. Egbert. Pick 18 it up, Mr. Egbert. 19 MR. EGBERT: Thanks, Judge. 20 Two quick comments on the interaction of 21 Ms. Kenney and Judge Lopez and what you should take 22 from that and what the Commission has done. And now 23 is a good time for me to bring up this document that 24 the Commission filed, this inconsistent statements 0095 1 or lies document. And I assure you I have no 2 intention of going through it piece by piece, which 3 we have in full response, my office. And I think 4 you know that the way we responded is by including 5 what we thought was appropriate. 6 But the very first example in the book 7 relates to Ms. Kenney, and it should be emblazoned 8 in the Court's memory as, quite frankly, what the 9 Commission has done here is an attempt to play with 10 the transcripts and the facts in this case, which is 11 unheard of in the most highfalutin civil trials for 12 trillions of dollars, not where we're supposed to be 13 basically in a search for some understanding of the 14 conduct of a judge. 15 But in the first -- the very first portion 16 the Commission cited to you, they told you that 17 Judge Lopez told Joan Kenney -- that she lied to 18 Joan Kenney and that she told Joan Kenney that the 19 boy was not kidnapped. And they say to you that you 20 should then find that Judge Lopez is a liar because 21 Joan Kenney -- because Judge Lopez told her that the 22 boy was not kidnapped. 23 And they put in a section of the transcript 24 that reads as follows: "Judge Lopez told you this 0096 1 was not a kidnapping; isn't that right?" by Mr. 2 Ware. "Answer: That's correct." 3 "So your best recollection is those were 4 her words without qualifiers; is that correct?" Ms. 5 Kenney: "Yes." And left out -- and had the gall to 6 leave out the rest of her testimony, where she says 7 the following, and answers the following 8 questions -- I asked her the following question. 9 "Judge Lopez didn't use half a sentence. She didn't 10 say, 'This wasn't a kidnap.' You've testified 11 continuously, what she told you is, it wasn't a 12 traditional kidnap, that the boy got into the car 13 willingly, correct?" Ms. Kenney answered, "Yes." 14 "That's what she said, correct?" "Answer: Yes. The 15 implication was he wasn't snatched off the street 16 and kidnapped; he got into the car willingly." 17 She was asked, "He got in willingly? He 18 was not snatched off the street by the arm or 19 something, correct?" She answered, "Correct." 20 "Question: Or by gun point, whatever the case may 21 be? Answer: That's correct." 22 So in an attempt to get you to make a 23 finding that Judge Lopez lied to Ms. Kenney and told 24 her that it was not a kidnap, when of course the 0097 1 fellow had pled guilty to kidnap, and to simply not 2 provide you with the appropriate transcript 3 references where she clearly says what Judge Lopez 4 was saying to her was it was not a kidnap in the 5 traditional sense, meaning he wasn't snatched of the 6 street by force, is a fraud. It is fraudulent 7 lawyering. It is fraudulent advocacy. It is 8 something that you would think that the Commission 9 on Judicial Conduct would not stoop to in order to 10 try to obtain a conviction here, so called. 11 It is replete in their filing of those 12 matters. I am not going to go through every one. 13 We have filed, as you know, a 150-page response. 14 But I would ask that you consider, when they do 15 their PowerPoint presentation, that you make sure 16 when you're being shown transcripts on that 17 PowerPoint or matters on that PowerPoint, that 18 you're not being misled by halves and quarters of 19 the transcript. And this is replete throughout this 20 document. 21 With regard to Judge Lopez and Ms. Kenney, 22 you should know there's this whole issue of what did 23 Jay Greene say -- the Jay Greene event, let me call 24 it. Well, the evidence in this case is clear: The 0098 1 only thing that Judge Lopez knew that Jay Greene 2 would say is what he told her, and that is that all 3 the time in the street, I think he said, that Ebony 4 Horton was flamboyant, was known around the streets, 5 Ebony Horton was, and that he, Greene, did not think 6 she was a danger to children or a pedophile. 7 That's what he told Judge Lopez. And Judge 8 Lopez had every expectation that when she gave Joan 9 Kenney that number, that that's what he would tell 10 Joan Kenney. Now, what he told Joan Kenney, 11 according to Joan Kenney, is I'm sure what he must 12 have told her. But Judge Lopez would have no way of 13 knowing that, first of all. And based upon what we 14 now see of Jay Greene and his failure to testify 15 here, his prior deposition transcript where he said 16 he never talked to anybody, the level unfortunately 17 of what he might say at any given time is 18 unfortunately of some consequence. 19 But one thing Judge Lopez said in her 20 deposition and in these proceedings, which ought to 21 ring out, she said, "Look" -- she was asked, "Did 22 you talk to people, friends and whatever, about this 23 case?" And she said, "Yes." What person wouldn't? 24 The press is in her front door and everything else, 0099 1 a lot of people speaking out of turn. 2 And then the Commission asked her, "And 3 what was your major discussion?" And just as she 4 said here and she said everywhere else, "I didn't 5 want anybody to think I had released a predatory 6 pedophile." That's all she cared about. She has 7 been a judge that has been involved in sentencing 8 all her life, and the one thing she didn't want the 9 community to think was that she was involved in 10 releasing a predatory pedophile. 11 And so why is Jay Greene of consequence to 12 her, as she said in her own testimony and 13 deposition? Because it gave her some reassurance 14 that, when a cop on the beat who knows everybody 15 there, who knows Ebony Horton, who's a tough cop, at 16 least had a reputation as such, when he says he's 17 not a predatory pedophile, it assisted Judge Lopez 18 in her mind that she had judged it right in that 19 particular matter, as she was getting her brains 20 beat in from every corner at every question. 21 The next area, so-called, is the alleged ex 22 parte conversations with Goldbach and Leahy. I'll 23 treat those shortly. They've been briefed quite 24 well. Simply not ex parte contacts in the sense of 0100 1 the rule. They're not about any adjudicative 2 matters. They're not such that it would affect any 3 rulings or orders and the like. The case was not 4 pending. All of that harassment of all that was 5 been provided to the Court. 6 But bring it down to a more -- a simpler 7 level, if I may. Goldbach says she was not asked or 8 enticed to give any statements about the sentence. 9 Judge Lopez said she called Leahy and told him to 10 get out there and defend the sentencing, the process 11 of the institution. Mr. Leahy, the head of CPCS, 12 he's an institutional person with an institutional 13 drive and bent, both legislatively and otherwise. 14 What's wrong with it? Joan Kenney 15 testified that these things happened. She asked the 16 Judge, "Who should I call for you to be out there 17 and be surrogates?" That was her testimony. It's 18 the Commission that has said, you can't do 19 indirectly what you couldn't do directly. Well, by 20 the same token, this is clearly permissible, this 21 indirect kind of getting the surrogates to speak on 22 these procedural matters and matters of 23 institutional fairness, and it was perfectly 24 appropriate here. 0101 1 And as you cut the line -- and I guess here 2 is what I would say, but I don't want to spend a lot 3 of time with it. As you cut the line and look at 4 the Commission's filing, they're desperately trying 5 to find a way to make this bad, something nefarious, 6 to make it all full of these people would be 7 indebted to her now because they talked to her or 8 some such nonsense -- it's to defy judging and to 9 defy the integrity of the judiciary. 10 If our judiciary of the Commonwealth of 11 Massachusetts cannot be trusted to read a lawyer's 12 name in the paper saying something about him and be 13 trusted to act without bias in the next case with 14 him and be trusted to act and not give away the 15 store because some lawyer said something nice about 16 them, then who's kidding who? 17 That's the concept that they're under. 18 They basically said, she can't ever sit down with 19 any lawyer who might appear in the Superior Court at 20 any time, have lunch, have dinner, give pleasantries 21 or whatever; our judges aren't expected to do that. 22 And I suggest, if Your Honor please, when you look 23 at the Goldbach contacts and the like, you will look 24 at them from the same perspective. 0102 1 The last allegation, the so-called pattern 2 allegation, ends with Ms. Beaucage and the call to 3 Ms. Beaucage. We'll treat the call first for what 4 it is and then talk about this pattern. And I 5 confess I do not understand the Commission's filing 6 about how Judge Lopez was lying when she said she 7 called Ms. Beaucage because she was concerned that 8 the complaint was a phony. They say she's lying 9 about that. 10 What possible reason would she have to call 11 Ms. Beaucage if she wasn't trying to confirm her 12 identification and her reality, so to speak? She 13 didn't call and say, "I'm Judge Lopez. Look out." 14 She didn't have somebody else calling for Judge 15 Lopez, which probably would have been more 16 intimidating. She simply called and said, "Hi. Is 17 this Angela Beaucage?" "Yes." "Nice to speak with 18 you." 19 Now, is eleven o'clock at night -- should 20 she have called at eleven o'clock at night? I don't 21 know. People call me at eleven o'clock at night and 22 I get angry. But is that judicial misconduct? I 23 mean, she called her to find out if she really 24 exists. And that's exactly the way Ms. Beaucage 0103 1 took it, by the way, when she testified. If you 2 look at her testimony on my cross, she said she was 3 pleasant, she was polite, nonharassing, 4 non-intimidating. It seemed to her to be a 5 confirmatory phone call. That's what it was. 6 By the way, she wasn't intimidated, hurt, 7 upset or anything else until she went into the other 8 room and looked at the call waiting and said, "Oh, 9 it's Judge Lopez." How was she supposed to know 10 that she had call waiting and that she would take it 11 like that? 12 This is trumped up. But more importantly, 13 this is what the Commission puts together and says, 14 Aha, this is the pattern, because somehow this isn't 15 related directly to the Horton case. 16 Well, when you read the record, I think 17 you'll see that Judge Lopez had every right to be 18 nervous and concerned about some of the complaints 19 she was getting. She made a call, which was not 20 wrong, was not intimidating, there was nothing wrong 21 with it. Somebody took it wrong. 22 But really -- it's interesting. I want you 23 to go back, Judge, and look at our brief and one 24 aspect of it, and that's where we ask you to 0104 1 reconsider this ruling that you made on what 2 happened before the deposition where they go off the 3 record with Ms. Beaucage, where she comes out and 4 says -- they're asking about the case. Mr. Braceras 5 was there. And then they go off the record. And 6 come off the record, and her first words without 7 asking or being asked a question are, "Intimidated." 8 And when you look at that, it must give you pause to 9 wonder what on earth goes on in those, quote, 10 investigative depositions. 11 You have permitted the Commission to go 12 last. I haven't quarreled with your ruling in that 13 regard and I'm not going to. I don't care. I'll go 14 when I'm told to go. 15 But I would caution you, frankly, the way I 16 would caution the jury, and that is that going last 17 is not the freedom to misspeak and it is not the 18 freedom to mislead. And going last, because it's 19 the last word, doesn't mean it's the right word. 20 Mr. Ware is a fine lawyer. He will make a fine 21 presentation, I'm sure. 22 But I would ask the Court, based upon all 23 of what's gone on in this case, to keep an open eye 24 and an open ear, as I know you will, and to 0105 1 consider, as you're sitting here today and as you 2 sit through these proceedings, have you ever thought 3 that there would be a proceeding like this of its 4 length, tenor and duration for something that wasn't 5 corruption, that wasn't dastardly abuse of office, 6 that wasn't bribary, extorsion or fixing cases or 7 using one's influence in a case in a wrongful manner 8 to thwart our criminal justice or judicial system? 9 Did you ever think in a million years we 10 would be here talking about a case where Judge Lopez 11 screamed at a prosecutor for a minute after much 12 justification and that now we can quibble and 13 quarrel and wink and twink about her press release 14 after days and thousands of dollars? 15 I ask you, Your Honor, no matter what you 16 do, to keep this in perspective. And I know you 17 will make your fact findings based on the real 18 world, not some fanciful world, on the real record, 19 not some misrepresented record. And I ask you to 20 consider, as you do, the woman who sits before you, 21 all that she has accomplished and done, in asking 22 yourself what did she mean when she said this, and 23 what did she mean when she said that, and what was 24 she trying to accomplish, and the many things she 0106 1 has accomplished. 2 I'm satisfied, Your Honor, that you have 3 spent obviously the time and given us the patience 4 to listen to us to make these determinations. I'm 5 equally satisfied that you will be as time consuming 6 and spend as much detail as you always have. 7 What I'm less than satisfied in is that the 8 system which is in place in judicial conduct cases 9 is a good one or a fair one or an intelligent one, 10 quite frankly. 11 But I ask you to not worry about that. 12 Simply look at what has been put before you and ask 13 yourself whether or not the Commission has proved to 14 you by clear and convincing evidence that this Judge 15 has committed misconduct in any way. Think about 16 that. Think about that. Think about, if I find a 17 little something, what do I do with it. Think of 18 this: in the scheme of what has occurred in this 19 courthouse, the blasphemy of the Commission asking 20 for the removal of this Judge. 21 Remember, not months ago there was a case 22 before the Supreme Judicial Court of the 23 Commonwealth, In Re Markey. A judge used his 24 judicial position to deliberately interfere and 0107 1 intercede in a case to affect the outcome of a case 2 in front of another judge. And that judge suffered 3 a short suspension. Now think about that when the 4 Commission on Judicial Conduct wants you to remove 5 Judge Lopez for yelling on tape. Thank you, Your 6 Honor. 7 HEARING OFFICER DAHER: Thank you, Mr. 8 Egbert. 9 Mr. Ware, we can pick it up at 1:30, a very 10 short break? Is that okay? 11 MR. WARE: It's really your choice, Your 12 Honor. My own preference would be just to skip 13 lunch, but I'm going to obviously defer to the 14 Court. 15 HEARING OFFICER DAHER: We'll take a 45- 16 minute break, until 1:30, and I'll go as long as you 17 need to today. 18 (Luncheon recess) 19 20 21 22 23 24 0108 1 AFTERNOON SESSION 2 HEARING OFFICER DAHER: Mr. Ware, you may 3 proceed. 4 MR. WARE: Thank you, Your Honor. May it 5 please the Court. 6 First, Your Honor, let me respond to some 7 of Mr. Egbert's preliminary comments and to make 8 clear that at this juncture the Commission has not 9 and does not intend to recommend, quote, removal of 10 Judge Lopez. That is not the position of the 11 Commission at this stage of the game. 12 The Commission intends to look at this 13 Court's findings, intends to look at the entire 14 record, and will make its own independent judgment 15 with respect to what sanction, if any, is 16 appropriate, based in no small part on what you 17 decide based on the evidence before you. 18 That is different from saying, as counsel, 19 we have presented you with a range of alternatives 20 based on the evidence as we see it, evidence which 21 obviously is not binding on you and does not purport 22 to speak for a Commission which has not yet had a 23 record presented to it for action. 24 I can say, however, that no one takes 0109 1 pleasure in being here in this courtroom on behalf 2 of the Commission. This is not a task to which 3 anyone would look forward. It is not a proceeding 4 to which the Commission looks forward. I'm sure 5 it's not a proceeding or a further proceeding to 6 which this distinguished Court looks forward. 7 To the extent Mr. Egbert has represented or 8 referred to argument that the Judge is, quote, in 9 contempt of the Commission, I don't know what that 10 means. I don't know where it comes from. The 11 Judge, of course, has an absolute right to defend 12 herself here, and I think there's no greater 13 testimony to that fact than that we've been here 14 since November 18, 2002, over a number of weeks in a 15 vigorous, heated debate about the facts in this 16 case. 17 The Judge has had every opportunity not 18 only to testify, but to present witnesses, and I can 19 only presume that this Court will take a 20 dispassionate view of that evidence. 21 And with that, let me turn to the evidence, 22 because I think a good deal of what Mr. Egbert has 23 said has filled in the gaps with his own opinion and 24 with a number of characterizations, as distinguished 0110 1 from the evidence. And to me, the most important 2 evidence in this case is the testimony of Judge 3 Lopez. She is the individual who knows what went 4 on. She is the individual who made decisions with 5 respect to what she would do, beginning on August 6 1st, running right through November 1, 2002 -- 7 excuse me, 2000. And so her testimony, to me, takes 8 on not a disproportion, but a high proportion, a 9 high importance in this proceeding, and that's why 10 we have given it tremendous weight in the documents 11 which we filed before the Court. 12 On August 1st, Your Honor, there's no 13 dispute that there was a plea conference. And I, 14 too, will go through this chronologically for ease 15 of everyone's understanding. That plea conference, 16 by the testimony, lasted somewhere between 10 and 20 17 minutes. That's it. On the high end, 20 minutes. 18 On the low end, 10 minutes. 19 This was in the First Session of Suffolk 20 Superior Court. For those of us who have been 21 there, it's a busy session, not a deliberative 22 session. It is largely a negotiation of what's 23 about to happen. And the Commission does not 24 contend that in that proceeding the Judge did not 0111 1 afford the district attorney an opportunity to 2 express her views. 3 The Judge disagreed with those views. The 4 Judge announced the sentence. And the Judge, Judge 5 Lopez, here has made a heavy point of the fact that 6 as of August 1st, it was all over. She has said it 7 repeatedly. She made a sentencing decision on that 8 occasion. She never changed it. And as will be 9 evident in a moment, but as has been said repeatedly 10 by Mr. Egbert and in the testimony itself, the rest 11 was a matter of form, according to the Judge. The 12 district attorney requested a sentence of 8 to 10 13 years, based on sentencing guidelines, based on the 14 facts of the case as she understood them and 15 articulated them. 16 We now know that this social worker's 17 report, which was proffered to the Judge, and on the 18 basis of which the Judge said she made her decision, 19 is a pretty flimsy document. I'm not saying that 20 the Judge knew all of that at the time, although the 21 Judge did testify before you that she had experience 22 with such reports, that she had seen many of them 23 before. And plainly on its face, this was a 24 document generated by an employee of the defense 0112 1 counsel, from CPCS. 2 I think Mr. Egbert is right. We're not 3 here to question whether the Judge could in fact 4 impose that sentence. She did. And I'm not here to 5 test whether that is the appropriate sentence or an 6 inappropriate sentence. 7 But in the course of that, the Judge also 8 made a number of comments. The testimony is largely 9 undisputed that she said something to the effect 10 that she knows transgendered people. Ms. Joseph 11 testified that she said, "I have a house in 12 Provincetown. I know these people. They're not 13 violent." Mr. Goldbach testified slightly 14 differently, saying, "The Judge did say something 15 about knowing transgendered people." 16 So on whatever basis the Judge made this 17 decision, it's apparent that what she had before her 18 was some argument, a four-page social worker's 19 report, which we now know was prepared at the Nashua 20 Street -- or following one meeting at the Nashua 21 Street jail in 1999 by a social worker for the 22 defense counsel. 23 According to Mr. Egbert, the heart of this 24 case begins on August 3rd with the press release 0113 1 issued by the District Attorney's office. That is 2 the touchstone, the foundation stone, the linchpin 3 of this entire defense argument here that the 4 District Attorney's office was retaliating against 5 Judge Lopez, that they were engaged in a reprisal, 6 an offensive strike against this Judge. 7 A fundamental question unanswered, however, 8 is why. Of the thousands of cases the office 9 prosecutes and of the hundreds of cases they've had 10 before Judge Lopez, many of which have resulted in 11 probation, what is their motivation for picking this 12 one case out of the hat on the basis of which to 13 seek reprisal? And more extraordinarily, why is it 14 that a young prosecutor, who necessarily would 15 jeopardize her career in doing so, would single out 16 this case to, quote, retaliate against Judge Lopez? 17 And if you look at the very first page of 18 the briefs filed on behalf of Judge Lopez, the word 19 "retaliate" appears repeatedly. The entire thrust 20 of the Judge's defense here is, "I am a victim. I'm 21 a victim of the District Attorney's office. I've 22 been victimized by that District Attorney's office. 23 They were out to get me. They conspired to do so. 24 Deakin and Joseph made an affirmative decision. The 0114 1 district attorney's office ginned up a press release 2 to infuriate me and drew me into a circumstance in 3 which I had no choice but to discipline them in the 4 way that I did." 5 So let me draw the Court's attention to 6 that press release, Exhibit 7, which I have put on 7 the monitor. 8 First of all, what's notable here is the 9 headline, "Boston Man Expected To Plead To Child 10 Kidnapping, Sexual Assault." That's the headline. 11 Nothing about transgendered persons, nothing about 12 dressing like a woman. The headline, the 13 attention-grabber from a District Attorney's office 14 is factual in nature. It is specific to a type of 15 crime; namely, that a Boston man is expected to 16 plead to child kidnapping and sexual assault. 17 Now, this press release has been treated by 18 the defense as if, literally and in other ways, as 19 if it's some kind of criminal act on the part of the 20 District Attorney's office, when in fact, not only 21 is this release not unethical; it is an exercise of 22 appropriate judgment and discretion by a public law 23 office. 24 Like every other public law office and 0115 1 agency, the District Attorney's office has limited 2 resources. It's entitled to feature to the public 3 what kinds of cases it is prosecuting, what kinds of 4 crimes will result in retribution from that public 5 law office, what law enforcement efforts our 6 taxpayer dollars are being used to enforce. Not 7 only is this not unethical, it is an entirely 8 appropriate message to the public about what that 9 office is doing. And there is nothing, nothing 10 whatsoever unethical about this press release. And 11 yet the Judge here purports to claim that this is 12 somehow unethical. 13 And there's discussion about Rule 3.8 and 14 so forth in the briefs. Suffice it to say at this 15 point, since this can be debated in writing, those 16 rules go to a circumstance in which there may be a 17 jury trial and whether or not a prosecutor says 18 something which could taint a jury. 19 This is not a jury trial. This is a guilty 20 plea. This kind of press release occurs all the 21 time, whether in federal court or in state courts 22 across the country, and moreover, is in fact the 23 judicial use and appropriate use of that office's 24 resources to announce to the public what kinds of 0116 1 crimes are being prosecuted; and for that matter, to 2 give notice to those individuals in the community 3 who may be tempted to engage in that kind of conduct 4 that indeed, they'll be prosecuted. It is a good 5 thing, not a bad thing. 6 Now, Judge Lopez says, Well, what's really 7 wrong with this press release is that it refers to, 8 quote, a transgendered person who appears as a 9 woman. Again, entirely factual, not inflammatory 10 language. I don't think it's the first time the 11 public has heard a description of an individual as 12 transgendered. Since this man's name is Charles 13 Horton, it's no secret that if he's transgendered, 14 he would appear as a woman. And in fact, obviously 15 when he was in court for the public to see in a 16 public proceeding, that was apparent. 17 So what is the problem here? This is two 18 days too early? That does not make the press 19 release unethical or improper in any way, shape or 20 form. 21 And I think what is important to understand 22 here, Your Honor, is that the use of this as the 23 building block for the conspiracy by the District 24 Attorney's office is fundamentally flawed. It isn't 0117 1 such a building block. There is nothing wrong with 2 it. There is, of course, the issue Judge Lopez 3 would put to you, which is, did Leora Joseph inspire 4 this press release. And I'll turn to that in a few 5 moments. But while we have this on the screen, I 6 ask you to note that it purports to be from Mr. 7 Borghesani. 8 Now, Mr. Borghesani was on Judge Lopez's 9 witness list, not ours. It's Judge Lopez who chose 10 not to call him, presumably because he didn't have 11 anything to say that she wanted to hear. But the 12 more important point here is that this press release 13 features specifically the head of the press office. 14 The district attorney's office is a big 15 organization. It has a specifically unambiguous 16 structure as to how public relations and public 17 information is to be handled. 18 The notion that a 30-year-old assistant 19 district attorney, one of hundreds, has the 20 authority to issue press statements is ludicrous, 21 and it's inconsistent with the evidence. Both 22 Deakin and Joseph have testified -- and of course, 23 we have the District Attorney's manual -- that in 24 fact, they have no such discretion and that what 0118 1 happened here was the following of channels, and 2 that those channels were scrupulously observed. 3 Until this trial, Judge Lopez never took 4 the position that this press release was unethical. 5 In fact, she took the contrary position. And she 6 testified before the Commission, when asked about 7 the press release, as I've put up now on the screen, 8 that there is nothing inappropriate, nothing 9 unethical about the press release. 10 She said it that time. I'm sure she would 11 say today that she disagreed with it. She didn't 12 think that attention should be drawn to an 13 individual who was transgendered, even if he was a 14 criminal defendant. Fair enough. 15 But the point is this whole notion of the 16 press release being unethical or inappropriate is 17 part of a trial epiphany in this case. When the 18 Judge testified in October of 2001, a year before 19 trial, at what our Supreme Judicial Court considers 20 analogous to a grand jury proceeding, her testimony 21 was, "There is nothing unethical, nothing 22 inappropriate about this." In fact, she notes that 23 the District Attorney's office, among other things, 24 is headed by a political office and that there are 0119 1 reasons for these kinds of press releases. 2 I think that's significant, Your Honor. 3 And I think it substantiates that the Judge is being 4 situational in her ethics, her own ethics about this 5 press release. It is not a building block of 6 anything in this case. 7 On August 4th, when the parties appeared in 8 court, much has been said about media frenzies, 9 circuses and so forth. If you actually go back and 10 look at the testimony in this case, Your Honor, 11 there was no media frenzy; there was no circus. 12 The literal testimony about the press that 13 was at the Suffolk County courthouse on August 4th 14 is as follows: Ms. Goldbach saw nothing whatsoever, 15 did not see a camera poked in the face of the 16 defendant's mother. Her testimony, at most, is she 17 heard some yelling. That's what Ms. Goldbach 18 testified to. 19 The testimony of the assistant district 20 attorney is there was one camera in the courtroom, 21 no different than the camera that's before us now. 22 Hardly a media circus. 23 Maybe it's true that a camera was put in 24 the face of Mr. Horton and his mother as they 0120 1 attempted to get off an elevator. That's just too 2 bad. He is a criminal defendant in a public 3 proceeding. The press is entitled to take his 4 picture. And if he doesn't like it, maybe he 5 shouldn't commit the crime. But it doesn't make a 6 media circus. And it didn't interfere in any way 7 whatsoever with anything that was going to be going 8 on in the courtroom, because it didn't occur in the 9 courtroom. 10 The courtroom had one camera, and there's 11 not a shred of evidence in this case to the 12 contrary. So this notion of media circuses or 13 frenzies as having caused disruption in the 14 proceedings is a creature of tactics in this 15 litigation. It's not what the evidence says. 16 With respect to what occurred on August 17 4th, what we know is that almost immediately, when 18 Ms. Goldbach, the defense lawyer, saw the cameras -- 19 the camera in the hallway, the camera in the 20 courtroom, whatever, and realized that the camera in 21 the courtroom was there for the Horton matter, she 22 requested a conference. She was emotional about it. 23 When the parties went into the lobby to see 24 Judge Lopez, there was no reasoned discussion, What 0121 1 can we do about this. There was no reasoned 2 discussion about how can we solve the problem or 3 whether indeed there was a problem. The evidence is 4 consistent that what happened in the lobby was that 5 the Judge began excoriating the assistant district 6 attorney, Ms. Joseph; from the inception began, in 7 Ms. Joseph's words, to attack her. 8 Now, maybe at another point Ms. Joseph, 9 regarding the Estrada case, fine; she overstated it. 10 I will concede that. There's no question that based 11 on the audiotape, she wasn't yelling. All well and 12 good. Maybe she was too emotional. Maybe she was 13 overwrought. I don't know. And the evidence 14 doesn't tell us. 15 But the more important point is, the fact 16 that she overstated it doesn't change what occurred 17 on August 4th, because that testimony is unrebutted 18 and is confirmed by Anne Goldbach and the Judge, 19 that she said, "You belong in the suburbs. You are 20 mean. You are cruel." 21 Now, I, too, have been in this profession a 22 good many years; and to my way of thinking, that's 23 not a professional review. That is not the way in 24 which responsible judges deal with what they 0122 1 perceive to be problems. And had Judge Lopez truly 2 thought that this plea was in jeopardy of not 3 occurring or that one camera in the courtroom would 4 somehow be disruptive, the Judge could have raised 5 that with counsel and had a discussion about, for 6 example, changing courtrooms or continuing a case, 7 none of which occurred. 8 Rather, the evidence is, the Judge got 9 immediately into an accusatory frame of mind, made 10 highly personal comments to the assistant district 11 attorney and announced that she was going to 12 continue the case; and for good measure, when Ms. 13 Joseph was leaving the lobby, said to Ms. Goldbach, 14 "Maybe we should continue this case to a date when 15 Ms. Joseph is on vacation." 16 I don't think that represents a 17 professional, dispassionate consideration by an 18 experienced Superior Court Judge of a basis upon 19 which a case should or might be continued. Rather, 20 it indicates a judge already out of control or a 21 judge who is in fact biased, either against Ms. 22 Joseph as an individual, because of her prior 23 experience, or the District Attorney's office in 24 general, because she's infuriated that attention was 0123 1 drawn to this case at all. 2 In either event, the Judge had an 3 obligation to do something about that. If the Judge 4 had a bias to which she's entitled, fine. But it 5 was her obligation to disclose the bias and to do 6 something about that, which is to say, request that 7 someone else handle the case from the District 8 Attorney's office, which ultimately, in effect, she 9 did by forcing Mr. Deakin to handle the matter; or 10 for that matter, handing off the case to another 11 judge, sending the case to another session, if not 12 for the plea conference, since that had already 13 occurred, to take the plea itself. All of this 14 could have been done in a dispassionate, 15 professional way. 16 One of the ironies here of touting the 17 incident with Judge Russo is that, in fact, that's 18 exactly what Judge Russo did. Judge Russo did not 19 issue a bunch of personal findings excoriating David 20 Deakin for unprofessionalism, telling him he 21 belonged in the suburbs, faxing off a press release 22 to the Boston television stations and trying to 23 embarrass him. 24 What did he do? He did what any 0124 1 professional person or judge would do. He picked up 2 the phone. He called the district attorney, and he 3 said, you know, "I've got a problem with this guy 4 and I want to correct it." Now, whether Judge Russo 5 was right or he was wrong, whether he correctly 6 perceived what Mr. Deakin was doing or, as Mr. 7 Deakin says, "I didn't say that" -- or at least he 8 didn't intend that, we don't know. 9 But the fact is Judge Russo had the 10 presence, the dispassion, the fairness, the 11 professionalism to handle the matter in a 12 professional way, not in an emotional way, 13 exhibiting bias and underscoring to the public that 14 the judge could not promote confidence in the 15 integrity of the judiciary; but rather, through her 16 court order, dragged the entire proceeding into the 17 mud and into personal comments about the assistant 18 district attorney. 19 It is not evidence, Your Honor, but it's 20 intuitive as human beings that when, as a 60-year- 21 old man, I deal with a 30-year-old lawyer, I have to 22 cut that lawyer some slack. I have to have some 23 understanding about the fact that that's a younger 24 individual who has a long career. I would expect a 0125 1 judge with 14 years experience to take the same 2 factors into account. I would expect that judge, if 3 truly distressed on a professional level about an 4 assistant district attorney, I would expect that 5 judge to handle that in a professional way which 6 could be constructive for that assistant district 7 attorney and improve that district attorney's habits 8 or course of conduct as she goes forward in her 9 career. 10 What I would not expect is what Leora 11 Joseph got in this case, which was an excoriation, a 12 whipping, a personal embarrassment by Judge Lopez, 13 who was in a bullying position. Obviously the 14 contest between a Superior Court Judge and a 15 30-year-old prosecutor is not a fair fight. 16 Judge Lopez did not call Ms. Joseph into 17 her chambers and on a one-on-one basis say, "You 18 know, I don't like the fact that the press was here. 19 That bothers me, and I want you to level with me 20 about what went on." That could have happened. It 21 did not happen, and it did not happen, because this 22 judge chose not to be a professional but to be 23 personal and to be unprofessional. And that is the 24 essence, Your Honor, of bias. 0126 1 With respect to Ms. Joseph's role in the 2 press release, Your Honor, the evidence here is that 3 she did what office policy requires; that is to say, 4 she went back from the lobby conference with Judge 5 Lopez, she reported events to her supervisor, Mr. 6 Deakin, and that supervisor took the issue up the 7 chain to Elizabeth Keeley and eventually to Mr. 8 Borghesani. Obviously, the decisions for a 9 prospective press release were made at a more senior 10 level. 11 And I remind the Court that the Judge's 12 theory of retaliation doesn't square with the 13 evidence here, because Ms. Joseph testified that way 14 back in December of 1999 or January of 2000, the 15 original Superior Court arraignment in the Horton 16 case in January of 2000, that Mr. Borghesani 17 button-holed her at that time and said, "I know 18 you've got this case, but I want you to keep me 19 posted on it." 20 So the fact that in August of that same 21 year Ms. Joseph went back to her office and reported 22 to her superior and raised the question whether 23 press attention is appropriate is entirely 24 consistent with what she had been asked to do and is 0127 1 entirely consistent with what any young professional 2 prosecutor would be expected to do. 3 The attack on Ms. Joseph, I would suggest 4 to the Court, is entirely unsupported and 5 unjustified by the Judge. She harkens back to the 6 Estrada case. And she says that on the basis of 7 that Estrada case, she had animosity at some level 8 about Ms. Joseph and that that gave rise to her 9 attitudes on August 4th. And she points in 10 particular to the Eileen McNamara article. And I 11 asked the Judge in the course of her testimony 12 whether or not she viewed that article as a comment 13 that Ms. Joseph had been unethical, and she said 14 that she did. 15 I've put on the monitor a bit of testimony. 16 "And you characterized that column as representative 17 of Ms. Joseph's criticizing you or your sentence, is 18 that so? Answer: In making what I deemed to be 19 inappropriate and probably unethical comments to the 20 press." 21 Now, Judge, we went over at some length the 22 McNamara column, and I certainly invite the Court to 23 look at it again and look at it at your leisure. I 24 don't intend to do that. I will say that this 0128 1 labored dissection of the McNamara article, as it 2 appeared in Judge Lopez's brief, is ludicrous. That 3 dissection purports to find ghosts around every 4 corner in that article. 5 And yet in fact, the article is no more 6 than a comment by the District Attorney's office, a 7 comment in which Ms. Joseph was requested by that 8 office to sit for an interview. She took a 9 precaution of being accompanied by a more senior 10 person in that office, and she did nothing in that 11 article to personally criticize Judge Lopez. 12 Is it true that inferentially it is 13 critical of the Judge's decision? Yes, I would say 14 that's true, insofar as anybody can string together 15 the fact that these were Judge Lopez's cases and 16 it's disagreeing with the sentence. If you want to 17 call that a criticism of the Judge's sentence, yes, 18 so be it. 19 But it was in no way, shape or form an 20 inappropriate comment on the Judge, her ethics, her 21 views of the world, her predispositions. It was a 22 perfectly legitimate comment to the newspaper about 23 the basis of sentencing, the theoretics of 24 sentencing, the philosophical reasons for sentences. 0129 1 A heavy point has been made by Mr. Egbert 2 and the Judge about the Estrada case and what is 3 claimed to have been an overreaching statement in 4 the course of the guilty plea by Ms. Joseph that 5 gave rise to the Judge's suspicions, ongoing 6 suspicions about her. 7 But, Your Honor, if you look at that case, 8 here is a case, just to refresh, in which a 9 11-year-old child between the ages of 11 and 15 is 10 repeatedly raped by this guy who lives in her 11 house -- stepfather or boyfriend or whatever it 12 was -- in a closed bathroom, with this man taking 13 out his penis and sticking it in this kid's mouth. 14 And the assistant district attorney referred to that 15 as "vile." Well, you know what? It sure as hell is 16 vile. It was vile then. It's vile now. 17 If anything, the assistant district 18 attorney understated the issue on that occasion. I 19 would say that is commendable restraint on the part 20 of the assistant district attorney to have referred 21 to that merely as "vile." It is far more than that. 22 I think for Judge Lopez to come before you 23 and try to use that as an illustration of an 24 overreaching prosecutor who somehow is trying to 0130 1 retaliate against the Judge, says more about Judge 2 Lopez than it will ever say about Leora Joseph. 3 That is a distortion of what is right. It is a 4 distortion of the kinds of values that good judges 5 bring to bear when they sit in judgment on people. 6 There is absolutely nothing wrong with what 7 Leora Joseph said. There is nothing wrong with 8 pointing out that the pastor, the mother, whoever 9 wanted this guy around for economic reasons -- she 10 was entitled to say, "That's a mistake. Those are 11 misplaced values, Judge. That is wrong. Stick the 12 guy in jail." Of course she should say that. She 13 owed the public that kind of representation in that 14 courtroom. 15 Mr. Egbert and the Judge, for that matter, 16 tried to say to you, Oh, well, wait a minute. This 17 wasn't the sentencing phase. This was just 18 providing a factual basis for a plea. And they've 19 made repeated -- this strained argument that when a 20 prosecutor is reciting facts for purposes of 21 sufficiency of a guilty plea, that somehow has to be 22 constrained. That's supposed to be this narrow 23 little set of facts just sufficient to get this plea 24 over the bar. That is not the legal requirement. 0131 1 Any prosecutor, federal or state, has 2 discretion to state such facts as that prosecutor 3 believes she or he would prove in the event the case 4 went to trial. To the extent that a defendant feels 5 those facts are overstated, that defendant can do 6 exactly what Mr. Horton did. He can disagree with 7 them, and the Judge can then say, Well, I'm going to 8 take into account what you disagreed with and what 9 you've agreed with. I find that there are or are 10 not sufficient facts to warrant this guilty plea. 11 So this artificial notion that the 12 prosecution should not have said something is not 13 reality. It is not a legal requirement. This is 14 not the Judge's province. She can say what she 15 wants. Mr. Egbert can say what he wants. The 16 prosecution's burden -- the prosecution's discretion 17 is to decide what evidence they would proffer were 18 the case to go to trial. That is not Judge Lopez's 19 discretion. And the prosecution has wide latitude 20 to articulate such facts as they believe are 21 appropriate, the obvious check being the defendant 22 can disagree with them. 23 Again, I think what's important here is, 24 this is a distortion by the Judge of what went on in 0132 1 the Estrada case. It is a distortion of what the 2 prosecution's right is. There was absolutely 3 nothing wrong with what this young prosecutor said. 4 I turn, if I may now, to the August 4th 5 findings. And the Court may recall the testimony 6 here that what happened on the afternoon of August 7 4th preceding these findings was that Mr. Deakin 8 himself went to the courthouse. 9 Not mentioned this morning by my colleague 10 is the fact that the first thing Mr. Deakin did was 11 ask for a meeting with the Judge. He asked to see 12 her in the lobby. And he told us that the reason he 13 did that was that he hoped to get the temperature 14 down. He wanted to diffuse what was obviously 15 already a circumstance out of control, based on the 16 comments that the Judge had made to Leora Joseph 17 earlier that day. 18 Judge Lopez refused. She would not see him 19 with or without defense counsel. She would not 20 permit a professional exchange about the 21 differences. Rather, the Judge let the parties stew 22 for a few hours in the courtroom. When the last 23 matter had finally been called, Mr. Deakin went to 24 the clerk and said, "Hey, what about this case?" 0133 1 Finally the Judge came out. She considered 2 the case. Statutorily she was required to make 3 certain findings because of its continuance. I 4 think, truth be told, in candor, she was mad as hell 5 at the prosecution that they were forcing her to 6 make those findings and said so. "You'll get your 7 findings." 8 And she wrote these findings out, no doubt 9 in extreme anger, anger generated that morning, 10 anger generated because there was a camera, anger 11 generated because the Judge believed she was right 12 in the sentence that she had decided upon for Mr. 13 Horton. And she saw this as creating a problem. 14 But the fact is there is no way to look at 15 those findings and not to conclude that a good deal 16 of emotion surrounded the Judge in which she got 17 caught up as she wrote these findings. 18 The Judge, when she came out, indicated, 19 improperly, that she was too busy to hear the 20 matter. That plainly was not correct. Fine, she 21 had 18 bails. So be it. But the fact is the Judge 22 did have time to do the findings and fax them off by 23 4:00. No question she had the time. More 24 importantly, she had already continued the case in 0134 1 the morning in the lobby. She announced immediately 2 she was going to continue the case. 3 So to come out on the bench and announce on 4 the record that she was doing this because she was 5 too busy is plainly not candid. It's plainly not 6 the truth about what the Judge was doing or why she 7 was doing it. 8 In these findings, Your Honor, the Judge 9 has agreed that she intended them to mean that the 10 District Attorney's office had acted unethically in 11 this press release. And if I could, I just want to 12 put up one quick exchange, and this is simply my 13 question to the Judge: 14 "It follows... that you were saying that 15 the District Attorney's office at large acted 16 unethically in this case, isn't that so?" We were 17 talking about the findings here in the press 18 release. "And you knew that was the impact of your 19 order?" 20 "Correct." 21 So here is the Judge agreeing -- not my 22 words, not my characterization -- that she intended 23 with this order to accuse the District Attorney's 24 office of acting unethically. That, Your Honor, is 0135 1 wholly unsupportable or insupportable, whichever it 2 is. 3 There is no evidence that this was an 4 unethical act on the part of the District Attorney's 5 office. The Judge goes on to say -- and I'm not 6 going to put it up at the moment -- that her 7 findings were intended to say that Leora Joseph and 8 Mr. Deakin and the district attorney's office acted 9 intentionally to create a circus, acted 10 intentionally to embarrass and ridicule a defendant. 11 There is no evidence whatsoever of that. I 12 think if you take a step back at this juncture, Your 13 Honor, and you think about what kinds of findings 14 would a responsible Superior Court Judge need to 15 make on a continuance -- I mean, this labored 16 argument is made that the district attorney's office 17 could have appealed a continuance. Can you imagine 18 it? I don't care if it's theoretically possible or 19 not under some statute. No one appeals a 20 continuance. And that's what this was. 21 But more importantly, taking that step 22 back, the question here is, what in this order was 23 necessary to have a continuance? Did the Judge need 24 to make a finding that the assistant district 0136 1 attorney intentionally tried to embarrass and 2 ridicule the defendant? That didn't have anything 3 to do with the continuance, according to the Judge. 4 Did the Judge need to make a finding that 5 the District Attorney's office tried to turn this 6 into a media circus, which she says meant they 7 intentionally tried to do that? Did that have 8 anything to do with the continuance? No. These 9 were gratuitous personal slaps at the individual 10 lawyers and at the district attorney's office in 11 general. 12 I think if we could look at the findings 13 for a moment. This particular finding has been 14 labored over -- and I'm going to spend only seconds 15 on it -- the issue of calling the press in. I mean, 16 I would certainly agree that in the most general 17 sense, because Ms. Joseph was the prosecutor in the 18 case and communicated to her superior, in that broad 19 sense, she communicated the fact that the case was 20 on for a guilty plea. If you want to call that 21 "calling the press in," I suppose it is. 22 But this finding is more specific. This is 23 saying Ms. Joseph, not the district attorney's 24 office, called the press in. That's wrong. She 0137 1 reported to her superiors, and her superiors 2 followed a well-worn path, consistent with the 3 policy of that office. 4 Her finding that Ms. Joseph attempted to 5 embarrass and ridicule a defendant I think is simply 6 unjustified. It is another example of the Judge 7 being overreaching and personal in a way that she 8 simply did not need to be. If what the Judge was 9 trying to justify here was a continuance, what 10 difference does it make? How did this help? Why be 11 gratuitous? 12 If the Judge does not have a bias, why make 13 this personal attack on a 30-year-old prosecutor, 14 using her name and testifying here that she intended 15 that to mean Ms. Joseph was unethical and that she 16 did it on purpose. 17 And finally, this business of the district 18 attorney's office having sought to turn the 19 proceedings into a circus, there is no justification 20 for that. Is that because there was a press release 21 on August 3rd? Does that constitute turning the 22 proceedings into a circus? I don't think so, Your 23 Honor. The district attorney's office sends out 24 press releases every day, sometimes in anticipation 0138 1 of guilty pleas, sometimes for other purposes. It 2 does not follow inexorably from that that they're 3 trying to interfere with court proceedings or judges 4 and turn the courthouse into a circus. 5 I think also you should note the Judge's 6 language. The language is inflammatory: "circus," 7 "embarrass" and "ridicule." These aren't words of 8 dispassion and finding by a judge. They're words of 9 emotion. They're improper words for the context. 10 And that's at the heart of what went wrong 11 here. Judge Lopez got mad, lost it and made 12 findings that are highly inappropriate and harmful 13 to the people involved, serving no professional 14 purpose. 15 Importantly, the Judge then scaled up the 16 problems here. And I draw the Court's attention to 17 Exhibit 49, the press release to Channels 4, 5, 7 18 and 56. And the Court may recall the testimony, 19 which is that after the Judge wrote the findings, I 20 have contended that she labeled this a press release 21 and faxed it off to all the television stations, 22 notably at 4:00 in the afternoon, so it could make 23 the six o'clock news, and she did that specifically 24 and unambiguously to embarrass the prosecution and 0139 1 the district attorney's office. 2 Now, the Judge says, Well, wait a minute, 3 that's not my handwriting. Somebody in the 4 courthouse did that, one of the clerks or something 5 did that. I don't think that's credible, Your 6 Honor. I cannot image a clerk in any courthouse, 7 this one or any other courthouse, taking into her or 8 his own hands labeling this as a press release and 9 making some decision to fax it off to local 10 television stations. 11 It obviously didn't happen that way. I 12 don't care if it's Judge Lopez's handwriting or not. 13 It is obvious enough that the Judge gave a direction 14 to someone, "Send this as a press release to Joan 15 Kenney and tell her to fax it to the TV stations 16 right now." That's what's happened here and that's 17 what Ms. Kenney has testified to. She said, "I got 18 this. I understood it to be a press release. I 19 faxed it off to the television stations." 20 And again, Your Honor, let's step back and 21 ask ourselves whether this is consistent with a 22 judge's creating, promoting confidence in the 23 integrity of the judiciary. Why did the television 24 stations need to see this? Because there had been a 0140 1 camera in the courtroom and because the case was 2 continued? Is that why? What justified Judge Lopez 3 in faxing this out to all the media with these 4 highly personal comments in it? 5 Nothing justified that, except the Judge's 6 own sense of retribution, sanctioning the lawyers, 7 firing a shot against the bow of Ralph Martin. 8 That's what this was all about. 9 And so this had its intended effect. The 10 following day, on August 5, articles did appear in 11 the Boston newspapers. This happens to be one from 12 the Herald. It quotes directly from the Judge's, 13 quote, press release. It specifically identifies 14 Ms. Joseph. And it repeats these findings that are 15 extraneous to the continuance. 16 I think it's ironic that the Judge would 17 argue to you that the August 3rd press release using 18 the word "transgendered" is bad, is unethical, but 19 that this press release from the Judge is fine. 20 This is good stuff because it comes from a Judge, 21 but that press release that used the word 22 "transgendered" and said the defendant looked like a 23 female, that's unethical. Your Honor, there's 24 something wrong with that argument, and I think this 0141 1 court can cut through it. 2 The other contradiction in this, Your 3 Honor, is that here's a judge who tells you under 4 oath, "The whole reason I continued this case on 5 August 4th was press attention. I thought it was 6 unfair. I thought they were going to disrupt the 7 proceeding." 8 Now, we can pass the question how she could 9 come to that conclusion, since there was no 10 proceeding and there was one camera in the 11 courtroom. I don't know how the Judge could come to 12 that conclusion. We have, as I've said, a camera 13 here. I don't think it's disrupted a great deal 14 today. 15 But passing that, here's a judge that said 16 to you, "On August 4th I had to continue the case 17 because I thought the press would disrupt things," 18 or "I thought there was a media circus" or whatever. 19 And yet the Judge, in her press release, 20 goes one better. She goes way beyond the August 3rd 21 press release in terms of what she says about Mr. 22 Horton. She labels him as having a psychological 23 disorder. The district attorney hadn't said 24 anything about that. She labels him as having a 0142 1 sexual identity disorder. 2 It's the Judge herself who sticks these 3 labels on Mr. Horton's back. These are all facts 4 which at that time were confidential. No one knew 5 them. They had not yet been disclosed to the 6 public. And yet, Judge Lopez self-righteously comes 7 in here and says to you, "Oh, I had to continue this 8 thing on August 4th, this was awful," meanwhile 9 faxing to television stations her personal views of 10 psychological disorders and sexual identity 11 disorders. 12 She then scaled it up one more notch. She 13 announced to the public and the newspapers, "By the 14 way, I'm in a vicious fight with the district 15 attorney's office here; and if you want to see the 16 next round, you can all come back on September 6th." 17 And the newspaper articles in fact print 18 that. They print her findings. They print how the 19 district attorney's office has turned this into a 20 circus, "embarrass" and "ridicule." They print that 21 the next bout will be on September 6th. 22 So for the Judge now to turn around and say 23 on September 6th, "I was all worked up because the 24 press was there, because I had this history with Ms. 0143 1 Joseph" is sophistry. The press was there and 2 interested not because this was the first 3 transgendered person they had ever seen, but because 4 the Judge had put out a press release the month 5 before saying, "This is going to be a good one; and 6 if you guys want to see it, show up on September 7 6th." It's the Judge's press release that scaled 8 this case up into a major incident, and that is a 9 central contradiction in what the Judge has tried to 10 proffer to you here in this proceeding. 11 I guess a footnote here. I'm reminded, you 12 might recall as well -- let me turn to September 13 6th. 14 On September 6th we know that the Judge 15 unilaterally made a number of arrangements. I don't 16 want to over-dramatize or underscore those 17 arrangements. I would certainly agree that a judge 18 has broad discretion to manage the courthouse, to 19 manage the courtroom, to make decisions with respect 20 to security, order, television cameras. That's not 21 the dispute here. 22 All we're saying here is that this was a 23 circumstance in which the Judge hadn't been asked to 24 do any of that. There was no security issue here. 0144 1 Mr. Egbert uses the word "security." What's the 2 security issue? Is the defendant to be made secure 3 from a television camera? 4 There was no security issue. No one had 5 ever used the word "security" on August 4th. Ms. 6 Goldbach didn't even know about these arrangements 7 as they were set up on September 6th until she got 8 to the courthouse -- or I think she said perhaps she 9 got a call from someone earlier. 10 So the point is, these arrangements were 11 not for security. They were gratuitous. 12 Now, is that fatal? Is that a terrible 13 thing? No, it's not a terrible thing. But they 14 were gratuitous; and in the aggregate, when combined 15 with other solicitous efforts by this Judge for this 16 defendant, they certainly create an appearance of 17 bias. In and of themselves, they are harmless. In 18 and of themselves, she had the right to do it. But 19 the point here is private elevators for defendant 20 and defense counsel, keeping him in a separate room, 21 when no one's requested it -- the district attorney 22 is not even alerted -- it isn't that those things 23 are wrong in and of themselves, of course not. 24 The question is, how do they fit into a 0145 1 larger mosaic of the Judge's conduct over time and 2 her solicitous attitude toward this defendant? 3 That's their only import. I don't want to glorify 4 them in this argument or in our papers. 5 I will note, however, that according to the 6 evidence, as a practical matter, what happened on 7 September 6th was Mr. Horton never got the word, and 8 he walked in the front door, and nobody looked at 9 him or photographed him. He took the elevator to 10 the relevant floor and walked into the courtroom and 11 sat down. That's what Ms. Goldbach told us. So 12 there goes your security issue. 13 In addition, Ms. Goldbach testified that 14 what happened on that day was the cameras were in 15 fact observed to be photographing a different 16 transsexual -- transgendered person in the 17 courthouse. So I don't think we even have any 18 evidence in this case that the press were 19 particularly interested one way or another in Mr. 20 Horton. Obviously they were covering the case; and 21 obviously when proceedings began on September 6th, 22 they were present. 23 Importantly here, Your Honor -- again 24 stepping back -- by September 6th, about six weeks 0146 1 had elapsed since the inflammatory relationship 2 between the district attorney and the Judge on 3 August 4th. One has to wonder how it is that a 4 judge with 14 years experience didn't calm down a 5 little bit in those six weeks. How is it that the 6 Judge didn't get in better proportion the fact that 7 she was going back in on September 6th; she knew 8 there would be cameras. 9 In fact, earlier on September 6th itself, 10 she talked with Joan Kenney about entering an order 11 with respect to the press. All of this was known. 12 It was all anticipated. The Judge herself had sent 13 out her press release. Everything that happened on 14 September 6th was entirely predictable, except the 15 Judge's own conduct. Everything else was 16 predictable; that there would be cameras, that there 17 would be public attention, that the Judge had 18 personally and unambiguously invited that attention 19 with her press release. It was all set up by the 20 Judge. No surprises to Judge Lopez. 21 How is it, then, if this conduct of the 22 Judge's is said to promote confidence in the 23 integrity of the judiciary and has no appearance of 24 impropriety, how is it that this Judge walked into 0147 1 court on September 6th with yet another or perhaps 2 the same chip on her shoulder, having it in for the 3 district attorney's office. 4 There's no evidence here that the district 5 attorney's office, quote, retaliated against Judge 6 Lopez. None whatsoever. If the Judge truly 7 believed that there was an issue after August 4th, 8 why didn't she do something about it? Why didn't 9 she do what Judge Russo did and pick up the phone, 10 have someone else assigned to the case, transfer the 11 case for disposition, a host of alternatives, all 12 within Judge Lopez's control. 13 Now, as Mr. Egbert said and as I said 14 earlier, according to the Judge's testimony, the 15 sole purpose of what was to happen on September 6th 16 was to legally formalize, according to them -- Jim, 17 could I have the slide -- what had already been 18 decided on August 1st. 19 And the Judge testified to that herself. 20 "After you deliver a sentence in court" -- Mr. 21 Egbert here talking about August 1st -- "has it been 22 your experience that the arguments of counsel 23 thereafter are for form or for substance? 24 "They are for form," says the Judge. 0148 1 And repeatedly we've been treated to the 2 argument here that all the important work, all of 3 the heavy lifting happened on August 1st. September 4 6th was an afterthought -- not an afterthought, too 5 strong; but in any event, a formalistic cementing of 6 the guilty plea and imposition of a sentence to 7 which the defendant had already agreed. 8 Well, if that's true, Judge, if we take 9 Judge Lopez at her word, that the rest was form, we 10 take her at her word that the heavy lifting was done 11 on August 1st, then the Judge's questions to the 12 district attorney, "Do you suggest a female prison 13 or a male prison?" are simply to bait the 14 prosecution. They have no fundamental substantive 15 purpose. Her question to Mr. Deakin about rating 16 the case had no value in that proceeding, according 17 to Judge Lopez herself. She says, "I had done it 18 all on August 1st." 19 Why, then, if that's the case, is Judge 20 Lopez asking questions about female prisons and male 21 prisons or rating the case on September 6th? Mr. 22 Egbert argues forcefully that it doesn't really 23 matter whether Judge Lopez on September 6th was 24 right or wrong as she interpreted what Mr. Deakin 0149 1 said. That was her interpretation. That's enough. 2 Your Honor, that's not enough. The Judge 3 owed the prosecution -- who, after all, is the 4 lawyer for the public, the public's interest -- the 5 Judge owed that lawyer her attention and her 6 thoughtful consideration of his views. If she was 7 going to ask any question, like rating the case, it 8 was her obligation to hear him out and understand 9 him and not excoriate him by picking out one number 10 and saying, "You're being disingenuous." 11 And in any event, the testimony is 12 absolutely clear -- or the transcript, Exhibit 22, 13 is absolutely clear that Mr. Deakin's answer was 14 highly responsible, breaking down the seriousness of 15 the offense into three components and rating each 16 separately. 17 But the more important point again, if we 18 take Judge Lopez at her word that this was all form 19 on September 6th, then there's no reason for the 20 Judge to have baited the prosecution. There's no 21 reason for her to have a rating of the case at all. 22 There's no reason for her to suggest, "Do you 23 suggest a female prison or a male prison?" 24 And I think the inference you can draw as a 0150 1 fact finder is, she was posturing. She did this 2 because she perceived herself to be gaining some 3 advantage in her arm wrestling with the district 4 attorney's office, and she was herself attempting to 5 expose them in front of cameras. 6 The Judge goes on to interrupt the 7 prosecutor. Again, fatal? No. Terrible 8 transgression? No. But as part of that overall 9 mosaic, it, too, suggests a bias on the part of the 10 Judge. As I said earlier, it's the prosecution's 11 discretion which, how many, and what level of facts 12 are proffered to the Court on a guilty plea. It's 13 not the Judge's discretion. 14 There is no law that says you've got to 15 give the minimalist account of the crime. That's 16 not the case. The district attorney's office has a 17 legitimate public purpose in articulating all of the 18 facts it chooses to articulate which support the 19 pleas of guilty. They do not have to do the bare 20 minimum, as the Judge is suggesting here. 21 Indeed, that's quite an ironic argument, 22 because out of the other side of her mouth she says, 23 "You didn't tell me enough." So on the one hand she 24 argues she had a right to interrupt him and to limit 0151 1 him to just the facts that are, quote, relevant. 2 That's one argument she makes to you. 3 And then Mr. Egbert says, Well, wait a 4 minute. There's a bunch of other things you didn't 5 tell me about. So "You didn't say enough," "You 6 said too much," and "You didn't say enough." That 7 is the argument that's been made to you here this 8 morning. And the "not enough" is Mr. Deakin didn't 9 mention that this so-called threat by Horton -- and 10 I don't want to get sidetracked on that, but I will 11 observe that -- the threat, to remind the Court what 12 the evidence was on the tape, allegedly is that the 13 child says on the videotape he, Horton, said to him, 14 "I'm going to get my husband to come out here and 15 kill you if you don't shut up," in effect. 16 Now, of course, the prosecution knew -- the 17 child didn't, but the prosecution knew that he had 18 no husband. He knew that that wasn't a real death 19 threat. And I'm sure that if Mr. Deakin asserted 20 that fact for purposes of this guilty plea, the 21 Judge would have taken him to task for it. 22 Mr. Egbert also says, "Well, the 23 prosecution didn't mention that he was being dragged 24 into the car by his arm." Well, the prosecution 0152 1 didn't have to mention that because Judge Lopez has 2 testified to you that she knew it because Goldbach 3 told her on August 4th. And in Volume III, at Pages 4 126 and 127, beginning at Line 16, in effect the 5 question is, "Didn't Ms. Goldbach tell you that the 6 victim said he was pulled by the arm through a 7 window of the car?" 8 Answer from Judge Lopez: "Yes. I believe 9 she had a different version of how the kid got into 10 the car, and it involved some pulling into it, yes." 11 So what kind of an argument is this, the 12 prosecution didn't mention it, but it was already 13 out there and the Judge knew it? Then why should 14 the prosecution mention it again? The Judge knew 15 it. It was on the table. How is that a problem 16 with what the district attorney's office said? I'd 17 say, more accurately, it's a clever use or nonuse of 18 the testimony in this case by counsel. 19 As far as the third prong of what the 20 district attorney is alleged not to have said that 21 he should have said is that Mr. Horton lay on top of 22 the child. I'm not clear why that is so 23 significant, since Mr. Deakin clearly said that 24 defendant was intending to do a sexual act. The 0153 1 defendant admitted that to the police. Mr. Deakin 2 did relate that in the facts. 3 And if you look at Exhibit 22, which I'm 4 not going to do now, you will see four pages of 5 testimony there, beginning at Pages 12, Line 21, all 6 the way through Page 15, Line 22, that it's just a 7 series of fact after fact after fact, including what 8 Horton had told the police; facts which establish 9 that the child was kidnapped, that he was crying, 10 that he wanted to go home, Horton wouldn't let him, 11 that a screwdriver was put to his neck, that Horton 12 told the police he intended to do a sexual act with 13 the child. Maybe there was more to tell, I don't 14 know, but it seems to me that the prosecution's 15 discretion was appropriately used there. 16 I do not want to play the videotape at this 17 point. I think we've all perhaps had enough of 18 that. And so I turn to the argument made today and 19 actually made in the papers about Mr. Deakin's 20 refusal to sit down. And you will recall that, 21 during the course of the colloquy, the Judge is 22 yelling at Mr. Deakin, and she says something to the 23 effect, "Sit down now. You may sit down." He says, 24 "Your Honor, may I --" and she says, "You may sit 0154 1 down now or I'll have a court officer make you sit 2 down." 3 And the Judge, I must say to my 4 astonishment, argues to you that's contempt. That's 5 literally what she argues and what she testified to 6 in the trial. And I put on the monitor that 7 testimony. 8 And the Judge's position on this is her 9 instruction to the lawyer for the Commonwealth that 10 he sit down while he's trying to make a presentation 11 on behalf of the public in a criminal prosecution, 12 and she calls him disingenuous, and he fights back 13 by saying, "Your Honor, if I may, I don't appreciate 14 that." She says, "Well, that's contempt." 15 Well, Your Honor, what's contemptible is a 16 judge who would make that argument. There's nothing 17 contemptuous or contumacious about anything Mr. 18 Deakin did as a public lawyer having been called 19 disingenuous in a criminal proceeding with a judge 20 out of control. He had no obligation whatsoever to 21 cower under the lash of a Superior Court Judge who 22 has lost it. The obligation he had was to be 23 courteous and forthright. 24 And the tape demonstrates that at every 0155 1 step of the proceeding, notwithstanding the outrages 2 of the Judge, he was consistently courteous and 3 distinguished and an appropriate representative of 4 the people. That is not contempt. He has no 5 obligation to sit there and take it from Judge Lopez 6 or anybody else. In fact, his obligation is to the 7 contrary. To the extent he did not believe he was 8 disingenuous, he had an obligation to explain why. 9 He did that with courtesy, with aplomb, with 10 professionalism. And I think it's a distortion of 11 an honorable public servant's work in this case for 12 the Judge to claim to you that it's contumacious. 13 If anything's outrageous, it's the Judge's position. 14 I turn now, Your Honor, to the events after 15 September 6th. And perhaps not surprisingly, I have 16 a somewhat different take on this than Mr. Egbert. 17 First of all, Mr. Egbert talked about the 18 Judge's courage. Well, I think a judge is 19 courageous when a judge, having made findings, is 20 prepared to live with the consequences of those 21 findings. He is prepared to stand the gaff. He is 22 prepared to take whatever criticism is inherent in 23 having made such a decision. That's what good 24 judges do. They do it everyday. And I'm sure they 0156 1 don't like it. They can't strike back. They have a 2 position of great honor, but also of great 3 responsibility. 4 This is a judge who made a very, very 5 different decision. She was not courageous. She 6 engaged almost immediately in circulating the wagons 7 of public opinion, and she did that in a highly 8 improper way. And what the evidence shows here is 9 that her dealing with Ms. Kenney and the Supreme 10 Judicial Court's Office of Public Information was 11 anything but candid. She owed that office absolute 12 candor. And yet, her approach to that was, What can 13 I do to get some spin? I've got to do something 14 about my low level comment in court. 15 At that point -- this is September 7th, the 16 day after the sentencing -- the press had had a 17 field day with her having characterized the offense 18 as "low level." By the way, we can sit here and 19 debate the metaphysics of what the Judge said in 20 court until the cows come home, but common sense 21 looking at the tape will tell you that the Judge was 22 absolutely referring to the offense. And this 23 caricature of an argument today that, Well, yeah, 24 she's talking about the offense, but only in the 0157 1 context of other serious cases. All child abuse 2 cases are serious, so it's low level within this 3 high level. 4 That's not what the public understood, 5 because that's not what the Judge said, and I dare 6 say, that's not what the Judge meant, because those 7 aren't her words. That itself is a distortion. 8 In any event, her approach here was to go 9 to Joan Kenney of the SJC's Public Information 10 Office. She believed that she could use this office 11 to ameliorate the reaction to her sentence. And she 12 treated that as spin. And her testimony on that is 13 quite clear. I'll put some of it on the monitor. 14 This is the Judge's testimony before trial, a year 15 before trial to the Commission counsel. "...I 16 thought they," meaning the office of Joan Kenney, 17 "would have better expertise as to how to frame or 18 what spin to give whatever than I would..." She 19 repeats it again some pages later. "...and they 20 were giving some sort of spin to the low-level 21 statement that was in the tape." 22 And here at trial she repeated it a third 23 time. My question, "The reason you didn't want to 24 make this information known or any corrections to 0158 1 Ms. Kenney or Justice DelVecchio is that you viewed 2 this as an exercise in spin? 3 "Answer: That's correct." 4 Now, Your Honor, I would contend that 5 that's a perversion of the process; that in dealing 6 with the SJC's Office of Public Information, it's 7 not an exercise of spin. It ought to be an exercise 8 either in truth-telling or in silence. But in no 9 event did Judge Lopez have the right to spin, to 10 spin the truth. 11 And I think the central problem with spin, 12 with the Judge's use of the Office of Public 13 Information, is that if you think about it, what the 14 Judge is really saying is on September 6th I sat in 15 a courtroom. The defendant was under oath. He 16 admitted to a host of facts which I believe as a 17 judge constituted kidnapping, indecent assault, 18 assault with intent to rape a child under 14. I 19 believe what he admitted to was so serious, that 20 they constitute sufficient evidence to convict him 21 of those five felonies. That's September 6th. 22 On September 7th the Judge goes to the SJC 23 Office of Public Information, goes behind what she 24 had done in open court, says to Joan Kenney, "There 0159 1 was no kidnapping" -- I don't care if she said "No 2 kidnapping," "No kidnapping in the usual sense," 3 whatever. It doesn't matter how she characterized 4 the kidnapping. She plainly said, "The screwdriver 5 was not used as a weapon." 6 Those were false representations by the 7 Judge to Joan Kenney. Absolutely false. And more 8 distressing perhaps, more distressing than the 9 falsity of those statements is the fact that they 10 undercut the fundamental premise of integrity in the 11 judiciary. 12 She had sat in a courtroom, she had put on 13 the record evidence sufficient for the convictions 14 of these crimes. She turned around the next day and 15 tried to get the SJC's office to put out contrary 16 information. The Judge was personally undercutting 17 what she had done in open court. I cannot imagine a 18 more serious infraction of the Judge's obligation to 19 promote the integrity of the judiciary or the 20 judicial process. It is a complete perversion of 21 her responsibility. 22 And distressing as well is the fact that 23 its only purpose was for the Judge to protect her 24 own image. After all, the whole business of spin, 0160 1 the whole business that Judge Lopez wanted the 2 office of press information to put out any kind of a 3 statement was to take the heat off. That's why she 4 was doing it. And the Judge was happy to use that 5 office to spin the information. Your Honor, that's 6 the wrong use of that office. That's not a 7 permissible use of that office. It is one thing for 8 Joan Kenney to be a spokesperson, a filter of 9 information, a buffer against newspapers and 10 television stations. It's quite another for the 11 Judge to permit a statement that she knows to be 12 inaccurate to be put out into the public. And 13 that's what happened here. 14 Now, the Judge says -- the Judge has taken 15 a couple of positions. A year before this trial the 16 Judge's position at that time was, This wasn't my 17 statement, anyway. I didn't make this statement. 18 This was Justice DelVecchio and it was Joan Kenney. 19 It was theirs. It was presented to me as a fait 20 accompli. "It is not my statement," the Judge says 21 in more than one occasion on Exhibit 32. Obviously 22 the Court can read the entire transcript. 23 At trial, recognizing that that wasn't 24 going to fly, the Judge backed off that testimony. 0161 1 And when she testified here, she said, "It is my 2 statement." 3 The problem with saying "It is my 4 statement" was that a year earlier, she had already 5 pointed out the number of inaccuracies in the 6 statement, and she had already testified that she 7 never told Joan Kenney about those inaccuracies or 8 Justice DelVecchio -- the most notable one being the 9 sentencing guidelines issue. 10 HEARING OFFICER DAHER: Mr. Ware, can we 11 take a short recess at this point? 12 MR. WARE: Yes. 13 (Recess) 14 HEARING OFFICER DAHER: Mr. Ware? 15 MR. WARE: Earlier in his closing comments 16 Mr. Egbert suggested -- perhaps I'm thinking of 17 briefs -- has suggested that it's not the case that 18 Ms. Kenney only had information from Judge Lopez, 19 but in fact, what Judge Lopez was engaged in on 20 September 7th was the creation of what was to be her 21 statement. And Joan Kenney testified quite clearly, 22 as did the Judge, that she knew Joan Kenney was 23 completely dependent on her for accurate 24 information. 0162 1 Elsewhere perhaps in the briefs they have 2 argued, Wait a minute, Joan Kenney knew how to read, 3 she could see the Herald, she could see the Globe. 4 She had lots of other sources of information. 5 That's not the point. 6 The point here is Judge Lopez had gone to 7 her to prepare a statement for Judge Lopez, which 8 was to reflect what Judge Lopez knew, not what The 9 Boston Herald knew. 10 So when I asked Judge Lopez whether in fact 11 she knew during trial that Ms. Kenney was dependent 12 upon her, she says, yes, that would be her only 13 source of information. And you're entitled to 14 accept that from the Judge. She knew very well that 15 Ms. Kenney was dependent upon her. She knew very 16 well that for her to give other than candid 17 information ran the risk that the public would be 18 told something which was not true. 19 Ms. Kenney herself said, when asked by me, 20 "Other than the information you got from Judge 21 Lopez, did you have any other sources of information 22 at this time? 23 "Answer: No." 24 And that, again, is for the unremarkable 0163 1 reason that what Ms. Kenney was doing was preparing 2 the Judge's statement, which of course was solely 3 dependent on what Judge Lopez knew. 4 So for Judge Lopez to go behind what she 5 had done in the courtroom, accepting a plea, 6 listening to the defendant agree to the fact that he 7 had engaged in a kidnapping, go behind the fact that 8 the defendant had agreed that the screwdriver was 9 used as a weapon; and for her to tell Ms. Kenney the 10 contrary, is not only a distortion of the process of 11 using the Office of Public Information, but is 12 grossly improper on the part of a judge, grossly 13 improper, because the inevitable consequence of 14 anything at that point which Judge Lopez told Ms. 15 Kenney, was she knew that it could show up in a 16 public release to be sent to the newspapers. 17 And so I don't think I can emphasize 18 strongly enough what I have referred to as a 19 perversion of this process. Here is a judge who on 20 September 6th listens to the agreement of a 21 defendant to all of these facts -- screwdriver used 22 as a weapon, kidnapping, child crying, begging to go 23 home, testimony proffered by the district attorney 24 as to what Horton told the police, that he did 0164 1 intend to engage in a sex act, all of that; and the 2 following day the Judge goes to the Office of Public 3 Information and promptly goes behind what she had 4 done on the public record to try to undercut the 5 seriousness of the offenses in the public press. 6 That is plainly wrong. And there is no mitigating 7 circumstance. 8 Ms. Kenney was clear in her testimony about 9 what Judge Lopez told her about the kidnapping and 10 the screwdriver. There is no cute use of 11 transcripts here. Here is Ms. Kenney's testimony in 12 volume 10. "What is it the Judge told you about the 13 screwdriver and the kidnapping, as best you recall?" 14 Not a leading question. I just asked her, What did 15 she say to you. 16 "Ms. Kenney: She didn't think it was a 17 real kidnaping, and the screwdriver was not used as 18 a weapon." 19 The next day you will recall that you asked 20 whether she could be recalled to dot some Is and 21 cross some Ts. I recalled her. The question is put 22 to her again: "Judge Lopez told you that this was 23 not a kidnapping; isn't that right? 24 "Answer: That's correct." 0165 1 And she goes on to say, Those were the 2 words, there were no qualifiers, there were no 3 qualifications to that testimony. That's what Ms. 4 Kenney's sworn testimony is as to what Judge Lopez 5 told her. And that is plainly inconsistent with the 6 truth, plainly inconsistent with what the Judge had 7 done in open court on the record. 8 I think importantly, Your Honor, if indeed 9 Judge Lopez felt it was appropriate to have the 10 Office of Public Information issue a statement 11 somehow indicating that the victim was not quite a 12 victim or the crime was not as serious as people 13 might have been led to believe from what occurred 14 within open court, if you think about that, if the 15 Judge really believed that, these were not false 16 representations, wasn't it her obligation to vacate 17 the guilty plea? Here is a defendant who stands 18 convicted of kidnapping, assault with attempt to 19 rate, indecent assault on a child under 14, assault 20 and battery. These are serious felonies. 21 If the Judge somehow came convinced that 22 there was exculpatory evidence, as she claimed at 23 one point, from Detective Green, what was her 24 obligation? It wasn't to put out some spin. Her 0166 1 moral and legal obligation would have been to say, 2 you know, "There was a wrong here. I've got to 3 right it. I'm going to call in the district 4 attorney and defense counsel, and I'm going to find 5 out whether this is or isn't true." 6 So the fact that the Judge didn't do that 7 tells you something. And what it tells you is the 8 Judge didn't believe a word of this stuff. No 9 kidnapping, screwdriver not used as a weapon. The 10 defendant had admitted it in front of her. It's on 11 the record. It's in Exhibit 22 for all of us to 12 read. Rather, the Judge was engaged in saving her 13 own hide, trying to get the Office of Public 14 Information to put out a story that would make her 15 look better to the public. Planting those seeds of 16 doubt in contravention of what the Judge had done in 17 open court is plainly, plainly wrong and in 18 violation of every canon in this case. 19 The Judge also testified in her statement, 20 Exhibit 24, that the reference to "low level" in 21 court was not a reference to a lack of seriousness 22 of the offense; it was a reference to the sentencing 23 guidelines. That's what she testified to in court. 24 Now, the Judge has been all over the map on 0167 1 this particular issue. And when she testified 2 sometime ago; that is, the year before trial, the 3 Judge was unequivocal that the reference to "low 4 level" had nothing to do with sentencing guidelines, 5 nothing whatsoever. And here are a couple of her 6 answers. "It meant in the scale of 1 to 10, where 7 does this case fit. I didn't mean in terms of 8 guidelines, no." She's not talking there about 9 factors inherent in guidelines. I don't see 10 anything there about Ronan guidelines from 1981. 11 This is a flat-out statement that the 12 reference in that release was not to sentencing 13 guidelines. "That's not my statement." There, 14 again, is an example of the Judge saying Exhibit 24, 15 put out by Joan Kenney, the Judge's release of 16 September 7th, is not her statement. And indeed, 17 that was the position she took and her counsel took. 18 And if you go back and you flip through Exhibit 32, 19 you'll find a point at which her lawyer says, "This 20 was not her statement." And the Judge says it 21 multiple times. And the tactic at that time was to 22 say, "This statement, Exhibit 24, that was put out 23 by Joan Kenney was a Joan Kenney/Justice DelVecchio 24 statement. I didn't have anything to do with it. 0168 1 Yes, it was wrong. It had errors in it. It talked 2 about 'low level' as a reference to sentencing 3 guidelines. That was wrong." 4 Here she says that. "I didn't mean 5 guidelines." The reason she's prepared to say the 6 statement is wrong at that time is that she is 7 taking the position a year before trial that it's 8 not her statement anyway. So the fact that it's 9 wrong is of no moment to her. 10 She goes on in this question, You disagree 11 with the characterization that the reference to low 12 scale was a reference to the appropriate level of 13 sentencing guidelines? 14 "That's correct. That's not what I 15 intended..." 16 So again, a year before trial, the Judge is 17 saying in that statement put out by Joan Kenney, the 18 reference to the sentencing guidelines is wrong. 19 She goes on to testify that she never corrected it 20 with Justice DelVecchio and Joan Kenney. She knew 21 it was wrong, she received a draft, but didn't tell 22 them that it was erroneous, and that's why it went 23 out. 24 Now she comes to trial and the strategy's 0169 1 changed. She's made a tactical decision that saying 2 it was a Kenney/DelVecchio statement isn't going to 3 work, because it says statement -- Exhibit 24 says 4 right on it "Statement by Maria Lopez." And she 5 makes the decision that she's not going to be able 6 to back away from that statement as she had done a 7 year earlier. And so she now embraces the statement 8 and says, "Okay, it is my statement." 9 The problem with doing that is she's 10 already conceded a year earlier that it's got errors 11 in it that she didn't alert the Chief Justice to or 12 Joan Kenney. And so she comes up with this 13 elaborate fix to which you have been treated, which 14 is, Well, it's not the sentencing guidelines. There 15 aren't any sentencing guidelines. There are these 16 1981 guidelines that most of the people in the 17 courtroom are too young to remember. And there are 18 factors inherent in guidelines. That's the new 19 party line. 20 Once she embraces the statement, she has to 21 say, Yeah, I was referring to guidelines. But since 22 she's already denied that the year earlier, she 23 says, It's factors inherent in sentencing 24 guidelines. 0170 1 Now, Your Honor, that is just dishonest. 2 And it is trying to put one over on you by confusing 3 these various sentencing guidelines in pretending 4 somehow that these statements which are 5 unambiguously clear that she was not referring to 6 sentencing guidelines somehow have this hidden 7 meaning of factors inherent in sentencing 8 guidelines. 9 Judge Lopez, when she testified a year 10 before this trial, did tell us what she meant by 11 "low level." And in fact, she was quite candid 12 here. This, I suggest to you, is the truth. 13 "...the fact that I called it low scale -- look, I 14 had a bad day that day. Okay? So I called it a low 15 scale. I shouldn't have called it a low scale in 16 the scheme of things. All right." 17 Now, Your Honor, that very likely is the 18 truth. The Judge made a mistake. She got mad on 19 September 6th. She lost her cool. She labeled the 20 offense "low scale." She later regretted it. And 21 here that's what she's admitting. For reasons known 22 only to the Judge, she's completely backed away from 23 this statement in the trial and said now it means 24 factors inherent in guidelines. 0171 1 I simply submit to the Court that not only 2 is this sophistry, but it's blatantly untrue and 3 it's wrong to perpetrate it on this court, which 4 brings me to the heart of what's at issue in terms 5 of the Judge's testimony here. 6 I think it very likely that the Judge did 7 in fact just lose her temper and say something 8 ill-advised, that the offense is low scale. For 9 whatever reason, she's unwilling to admit that in 10 this courtroom. 11 After September 6th, the Judge makes a 12 series of calls to defense counsel. I won't belabor 13 them, but there is certainly a legitimate issue 14 whether the case is pending in ordinary 15 circumstances throughout a period of probation. I 16 don't dispute that. I don't want to claim that the 17 Judge should have been on notice that for a 18 five-year period of probation, she needed to 19 consider the case pending, nor do I dispute that 20 there may be many circumstances in which judges, 21 following cases, talk to the lawyers -- on their 22 own, at bar association sessions, on the street, as 23 friends, over lunch. It happens all the time. 24 There's nothing rare about it, nothing wrong about 0172 1 it. 2 What makes this case unique is something 3 quite different. And that is several things. One, 4 this was in the middle of a firestorm. The case, in 5 a very real sense, was not over. We're talking 6 about phone calls to defense counsel, No. 1, who 7 continued to represent the defendant. In fact, Ms. 8 Goldbach told us -- told you in this courtroom, that 9 she has continually represented the defendant since 10 this case in September of 2000 and represents Mr. 11 Horton today. 12 So there is an ongoing representation here 13 that isn't usual. Typically when a case is over, if 14 you have a conversation with a lawyer or I have one 15 with a judge, the representation has ended. The 16 relationship has ended. There is nothing yet to go 17 on in the case. 18 This was different. The lawyer was still 19 engaged for the defendant, No. 1. No. 2, the Judge 20 specifically retained jurisdiction. She did not 21 have to do that. She was asked to do it by defense 22 counsel and she did it. 23 She testified quite openly here that she 24 knew that what that meant is if there were a problem 0173 1 down the road that involved resentencing Horton, 2 parties would be back in front of her. That, too, 3 distinguishes it from the ordinary situation in 4 which lawyer and judge talk after a case. 5 The fact that the Judge had retained 6 jurisdiction, that is not usual in a case. It's not 7 unheard of, but it's not a run-of-the-mill 8 circumstance. 9 Third, Your Honor, there is the possibility 10 of appeal here of the conditions of probation. 11 We've cited Commonwealth against Power and another 12 case today, which I've forgotten at the moment. And 13 so, while it's probably true that it's a stretch to 14 say a case is pending for all five years of 15 probation, we're not talking about that here. We're 16 talking about the first five days after the case had 17 been sentenced. 18 And during that period of time, you'll 19 recall here that the Judge changes one of the 20 conditions of sentencing on the spot on September 21 6th. Originally, as you'll see in Exhibit 22, 22 Horton was to be sentenced to the Community 23 Corrections Program. It isn't until September 6th 24 that the Judge announces to Horton, "I'm not going 0174 1 to do that. I'm going to put you on probation." So 2 she is changing fundamentally the sentence there. 3 Now, obviously he agrees to that, because 4 he pleads guilty to it. But the law in this state 5 appears to be that for some period of time it is 6 possible to appeal the conditions of probation. And 7 certainly that period of appeal runs for at least 8 the first ten days. 9 Fourth, I would say that this case is 10 fundamentally different because of the storm of 11 protest that was ongoing and because the Judge was 12 then engaged in dealing with the case with the 13 Office of Public Information and with others. So 14 this is very unlike the average case in which 15 lawyers and judges may talk. 16 In addition, Your Honor, this was not a 17 single, ill-advised call to a defense lawyer. It 18 was a series of calls. And we know from the 19 testimony that there were two or three such calls 20 after September 6th. At least one of those calls 21 was to defense counsel's home on a weekend. That or 22 another call with defense call was one in which 23 Judge Lopez and defense counsel discussed whether 24 Judge Lopez should have legal representation, a 0175 1 lawyer. 2 All of these calls, according to the 3 testimony, involved some discussion about Mr. 4 Horton, his well-being. And while the defendant 5 here, Judge Lopez, can contend that that's not 6 talking about the case, we're really splitting hairs 7 on that one. I don't know how the Judge calls Ms. 8 Goldbach and enlists her help with the public press 9 to deflect attention from Judge Lopez without 10 talking about the case. If she means by that, we 11 didn't discuss whether he was guilty or not guilty, 12 okay. But that's not enough. This was an ongoing 13 relationship. And whether or not the case is 14 pending, the conduct is violative of at least four 15 other canons of ethics. So it's really a red 16 herring whether the case is pending and certainly 17 unnecessary to any finding the Court might make. 18 I think the notion that a Superior Court 19 Judge of this experience or any experience can call 20 defense counsel and enlist their help with the 21 public press defending what that Judge did, which 22 after all, by definition, meant saying something to 23 make the crime look less serious than it was -- why 24 else would the Judge get a benefit from defense 0176 1 counsel talking with the press? That is 2 fundamentally wrong. It's wrong because she 3 shouldn't be going to defense counsel. And it's 4 wrong because it's inconsistent with what the Judge 5 had done in open court. So here she is undermining 6 her own decisions on September 6th. 7 I would point out as well, Your Honor, on 8 the whole pending issue -- not to belabor it -- if 9 you look at Exhibit 24, which is the series of the 10 press releases, the very first line of Judge Lopez's 11 statement says, "A judge can't talk about a pending 12 or impending case." So one would think that 13 inherent in that is Judge Lopez's belief at the time 14 that the case was pending. And what she's saying 15 is, "I can't say more in this release because this 16 case is pending or impending." 17 I think also, Your Honor, that the Judge 18 finds herself in another dilemma here. If we 19 compare this effort again to the August 3rd press 20 release of the district attorney's office, how is it 21 that the Judge can say to you with a straight face, 22 The district attorney's office press release using 23 the word "transgendered" is somehow unethical and 24 wrong, but for the Judge to go to defense counsel 0177 1 and get them to make statements about how the crime 2 is less serious than what the Judge said it was on 3 September 6th, that's fine. There's an inherent 4 contradiction there. And it seems to me the Judge 5 is impaled on that contradiction. 6 The conversations with Detective Green are 7 basically in the same category. I don't see how 8 those can be brushed aside. I do not agree that 9 it's proper for a Superior Court Judge to be calling 10 a Boston cop, trying to enlist his help with the 11 press office to say something that will take the 12 heat off the Judge. 13 Again, the only information which could 14 take the heat off the Judge would be information 15 that the crime is less serious or the defendant is 16 well known or the victim isn't really a victim, all 17 of which is inconsistent, again, with what the Judge 18 had done on the public record. 19 It is plainly improper for a judge to be 20 calling an investigator in the case, particularly 21 this investigator. The Judge has treated you to the 22 argument that he was on scene and he was therefore 23 integral to the investigation. He was part of the 24 investigation. If that's true and if something goes 0178 1 wrong with this whole sentencing and there's 2 eventually any trial or probation is revoked, this 3 man could be a witness. 4 Now, I don't want to stretch that too far. 5 I grant that that's relatively remote, but judges 6 are in the business of being protective of people's 7 rights and the appearance of fairness. This Judge 8 had no right to compromise that potential fairness 9 down the road. 10 And finally, Your Honor, as regards to the 11 facts, anyway, I turn to the Beaucage incident. The 12 defense here really has been, "I don't know why 13 they're raising this." And I find that an 14 astonishing defense. Because in effect, what Judge 15 Lopez says to you today is "I could do this tomorrow 16 and it would be proper. I could call up any 17 complainant -- maybe I shouldn't call them at 11; I 18 should call them earlier in the day. There's 19 nothing wrong with that." 20 I don't agree with that, Your Honor. As I 21 said in our brief, in other contexts, words like 22 "obstruction of justice," "witness tampering" would 23 be thrown around. And I'm not suggesting here that 24 Judge Lopez was engaged in witness tampering with 0179 1 all its connotations, but I am suggesting that this 2 is appallingly bad judgment. And for Judge Lopez to 3 come before you and say, "Oh, no, it's just fine. I 4 don't know why Mr. Ware is even raising this point," 5 is itself appallingly bad judgment. Because as I 6 say, it amounts to an argument, "I could do it 7 tomorrow. I could call up any one of the 8 complainants whose names are here in evidence and 9 there would be nothing wrong with that, as long as 10 all I was trying to do is find out who they were." 11 There's a lot wrong with it, Your Honor. 12 And what's wrong with it is exactly what Ms. 13 Beaucage said. 14 And the argument that's made in the briefs 15 to you is, "Wait a minute, here. The Commission's 16 counsel has conjured all this up." If you look at 17 the testimony taken by Mr. Braceras, the witness 18 uses the word "intimidated" after there's been a 19 break, so he must have fed the words to her, and so 20 this is all a put-up job. 21 But, Your Honor, that totally ignores what 22 Ms. Beaucage wrote in her own complaint months 23 before she had contact with anybody from the 24 Commission. I don't believe I had even been 0180 1 appointed at that time. 2 So this notion that somehow we put words in 3 her mouth is again sophistry. It's an effort to 4 mislead you here, and it's fundamentally wrong. 5 The testimony from the witness' own 6 complaint, as you can see on the monitor, is Judge 7 Lopez said, "I am pleased to meet you" and hung up. 8 Now, the "pleased to meet you" corresponds to Sister 9 Beaucage's complaint itself, which says, "I have 10 never met this woman." And so Judge Lopez, I would 11 contend is saying here, "I am pleased to meet you" 12 because she's responding to what the complainant has 13 said in writing. She says, "I got up, I checked the 14 caller ID." Quote, "This was a disturbing phone 15 call, to say the least." 16 Well, if it's a disturbing phone call to an 17 elderly nun, why does anyone think it's disturbing? 18 It's disturbing because she doesn't know what it 19 means. She doesn't know whether it's a threat or an 20 intimidation or what it is. And it's late at night. 21 She goes on to say in her complaint that, 22 One could easily view this, quote, as a threat, like 23 "I know where you live" in the phone call. Now, we 24 had nothing to do with that. It was all carved in 0181 1 stone. It was writ before Commission counsel had 2 anything to do with this woman or ever met her. 3 So this argument to which you're being 4 treated, that somehow her testimony has been 5 tainted, totally ignores the written record; namely, 6 the complaint itself. 7 But the more fundamental point I think is 8 this, Your Honor: It cannot be the case that in an 9 administrative investigation of any kind -- and bear 10 in mind that in the Roache case, the Supreme 11 Judicial Court in this state has likened 12 Commission's counsel investigation to a grand jury 13 proceeding. That's the law here. 14 It cannot be that a judge under 15 investigation is free to start calling up the 16 complainants. How is it that a complainant should 17 be subjected to a confrontation by a judge under 18 investigation? One can imagine that going terribly 19 wrong at some point in the future. It cannot be. 20 It is fundamentally wrong. 21 We listened for several days to a lot of 22 distinguished people who came in here and told us 23 how bright, how talented, how perceptive this woman 24 is. And I'm not here to dispute that. But if that 0182 1 is so, the corollary is she was bright enough, smart 2 enough, talented enough, and with 14 years on the 3 bench, knew that it was highly improper to make this 4 phone call. Knew that. You can't have it both 5 ways -- a talented bright, smart and experienced, 6 but I can call up complaining witnesses. I don't 7 think it will wash. That dog don't hunt. 8 Now, I think Your Honor, in addition, you 9 will recall the testimony here that in fact, the 10 Judge had set up a system. She introduced Exhibits 11 H and I. Those were these letters which we were 12 told were Demoulas letters. She had set up her own 13 courthouse system to check out this very kind of 14 thing. And she had done that by having a court 15 officer make phone calls during business hours, and 16 she had taken the results of that. She didn't 17 involve herself in the least. 18 How is it, then, on November 1, 2000, with 19 the investigation pending for a couple of months, 20 the Judge takes matters into her own hands. And 21 worse yet to me, is that she comes here and says, 22 "Oh, this was fine. I could do it tomorrow. This 23 was right. I don't know why Mr. Ware is even 24 raising this with you." 0183 1 I'm raising it because it does fundamental 2 violence to the statutory and rule-making scheme 3 here. None of is of us is pleased to be in the 4 courtroom today. None of us wants this to be going 5 on. None of us wants to be standing before you 6 talking about the future of a judge. And we're not 7 here because we like this. We're here because we 8 owe it to the public, period, paragraph. 9 And one of the things the public is 10 entitled to is fairness from the judge during the 11 course of an investigation. 12 Your Honor, I'd like to turn just briefly 13 to what I think are some -- since we're there. 14 Comment has been made about the fact that I have 15 asserted in the papers the Judge's lack of candor. 16 And that's true; I have, some of it quite 17 forcefully. 18 Again, I point out that the Commission has 19 taken no position here with respect to potential 20 penalties. And naturally would not do so unless and 21 until this court makes certain findings. 22 But my role here is different. Part of it 23 is as advocate. Part of it is to bring to this 24 court's attention the spectrum of possibilities and 0184 1 the law that surrounds those possibilities. 2 One fact of life is the case law out there 3 is uniform in saying that in these proceedings, 4 judges have to be candid; that all well and good 5 that they defend themselves. And I don't diminish 6 the importance of Judge Lopez engaging the best 7 lawyers in the city, which she has, to come in here 8 and defend this case. No one could ask for better 9 representation than the combination of counsel with 10 whom this Judge has worked. Fair enough. 11 But the corollary is the Judge has to be 12 honest. She has to cooperate in the investigation 13 up to a point, not to compromise her defense. But 14 she has to be candid in her statements to you and 15 she has to be candid in her statements in Exhibit 16 32, in October of 2001, the year before this. 17 And the law is really -- this is just an 18 example of it, Massachusetts Supreme Court; "The 19 Judge was under an obligation to be completely 20 candid with the Commissioner." This is also was 21 with the Judicial Conduct Commission. That 22 obviously was fundamental to the process. 23 All of the states that considered this come 24 out the same way with respect to any absence of 0185 1 candor. And that is, that it is inevitably the most 2 serious of breaches. Regardless of any underlying 3 problem which the Judge may have faced, if the Judge 4 is not candid in the investigation and in the 5 proceedings, that is a fundamentally disqualifying 6 fact. And that's the issue that I've asked this 7 Court to look at in the course of your 8 deliberations. 9 I'm not here to say that the underlying 10 offenses, if you will, transgressions, breaches of 11 the canons would in any way justify the Judge's 12 removal. Frankly, I don't believe they would. And 13 I would not be an advocate of her removal. But I 14 think the more serious issue is if on top of that 15 you find that this Judge has not been honest in her 16 sworn testimony, either before the Commission on 17 October 2001 or before this court or both, which I 18 believe is the case, that's a horse of another 19 color. And the consequences of that are serious, 20 indeed. 21 Obviously it's up to this court to make a 22 recommendation and not up to me. But the examples 23 of inconsistency are legion, and I've spelled them 24 out at some length in our brief. I want to go 0186 1 through just a couple of them, and then I will sit 2 down. 3 In this first example, Your Honor. In 4 October of 2001 the Judge says quite clearly that 5 she wanted to continue the case because she believed 6 there would be another news story that would be 7 hotter. In other words, she was not continuing it 8 because of a full calendar. She was continuing it 9 by virtue of the fact she wanted to avoid the press 10 attention. She flatly denies that here before you. 11 That's a blatant contradiction. I don't know of any 12 other way to interpret that. 13 In this next example, Your Honor, the Judge 14 says in her response here, filed only last summer, a 15 year and a half, two years almost after this 16 investigation began, that she did not have the 17 district attorney's press release when she makes 18 these findings on August 4th. That's the 19 representation that's made. 20 Now, this isn't a response filed quickly. 21 This is a deliberate response, years after the 22 investigation began, to which the Judge must be 23 held. And yet, she claimed in cross examination, 24 somewhat to my surprise, that in fact, she had the 0187 1 findings. She had the press release at the time she 2 makes the August 4th findings. 3 Again, a blatant contradiction in the 4 testimony before you. 5 I think you are owed more, Your Honor. 6 The third one just to draw your attention 7 to, the Judge's unequivocal testimony in October of 8 2001 before Commission counsel that there was 9 nothing unethical about the District Attorney's 10 press release. Nothing unethical, nothing 11 inappropriate. And then the Judge says that the 12 district attorney's office was unethical, and that 13 the root of that here, as argued today, was the 14 press release of August 3rd. 15 And additionally, as I've been saying 16 throughout the afternoon, when it suited her in 17 October of 2000 -- excuse me, October of 2001, the 18 Judge took the position that the statement issued 19 through Joan Kenney's office was not her statement. 20 You saw an earlier example of this testimony. "This 21 is not my statement." And yet, here the Judge is 22 saying on November 2, "It purports to be your 23 statement, correct?" 24 "Answer: It is my statement," flatly 0188 1 contradicting the positions she had taken a year 2 earlier. 3 There is then testimony in October of 2001, 4 this reference to "certain facts." I asked her, 5 "What are those facts?" This was in her statement. 6 There was a reference to certain facts which would 7 change everyone's mind. I said to her, "What are 8 those facts?" She said, "I don't know." Now, she 9 was saying that because at the time she took the 10 position that this was not her statement. 11 And yet here in the trial before you, 12 you're treated to a very different answer. Now the 13 "certain facts" are everything -- from the Katz 14 report, disputed facts, the lobby conferences, 15 criminal records, a blatant contradiction. 16 And finally, I think, Your Honor, again, 17 the reference here from October 2001, where she says 18 in the statement prepared by Joan Kenney in the 19 reference to "low level," the Judge is saying on the 20 left-hand side, "I didn't mean in terms of 21 guidelines. That's not my statement," again saying 22 this Kenney document is not her statement. 23 I ask her, "So the statement is erroneous?" 24 "Answer: Correct." And the Judge goes on to say a 0189 1 couple of pages later, "The characterization of what 2 I was doing in open court, that it referred to 3 sentencing guidelines, is not accurate." That's her 4 position in 2001. 5 Here you're treated to a very different 6 version. You're treated to a version that says, 7 Well, it's not quite accurate, but it's good enough 8 for government work, good enough for a press 9 release. That's a major rewrite, a major 10 repackaging of the truth, Your Honor. 11 And finally, "Before you drafted the 12 statement" -- this is a question to Joan Kenney -- 13 "did you learn additional facts?" And she goes on 14 to say, Yes. Judge Lopez told her she did not 15 believe it was a kidnapping, did not believe that 16 the screwdriver was used as a weapon. We've been 17 over that to some extent. 18 And then when she is recalled the following 19 day, that's repeated. She says that those are the 20 Judge's exact words, insofar as she can remember. 21 Here the Judge denies that in front of you, 22 denies that testimony. 23 Now, Your Honor, I believe strongly in the 24 Judge's right to defend herself. And I'm sorry that 0190 1 the Judge is in a position in which she has to do 2 that. But Your Honor, defending oneself as a judge 3 means also observing the principles of honesty that 4 are inherent in this process. How can it be that a 5 judge who cannot tell the truth in this courtroom 6 before you can sit by as a witness takes an oath to 7 tell the truth and monitor the testimony of that 8 witness? 9 That is why all the courts of the United 10 States which have considered this have a great deal 11 of problem with this and inevitably say, If the 12 Judge hasn't been candid in a proceeding, that is 13 fundamentally disqualifying. 14 This is an example from Michigan, really 15 just saying that lack of candor is fundamentally 16 disqualifying to a judge. There's a similar 17 California case and others, and this one talking 18 specifically about deliberately false information to 19 the Commission on Judicial Conduct. 20 So again, Your Honor, with a degree of 21 sadness, I say to the Court, Unfortunately, you have 22 to consider the candor of the Judge's testimony and 23 you have to consider ultimately the consequences 24 that flow from that lack of candor. 0191 1 Thank you, Your Honor. 2 HEARING OFFICER DAHER: Thank you. We have 3 until the middle of March for any reply response. 4 March 14 for reply responses. 5 MR. WARE: May I confer? 6 HEARING OFFICER DAHER: Sure. Go ahead. 7 You want to confer with him? 8 (Off the record) 9 MR. WARE: Your Honor, at this time I'd 10 like to make available to the Court and counsel the 11 slides. 12 HEARING OFFICER DAHER: Yes. 13 MR. EGBERT: I can agree on the 21st. 14 Apparently, they want to extend the date you gave us 15 from the 14th to the 21st. That's fine. 16 HEARING OFFICER DAHER: It's okay with me. 17 That will be fine. 18 MR. WARE: Secondly, Your Honor, I have 19 available, as we have throughout the trial, copies 20 of the slides for the Court and counsel. 21 MR. EGBERT: Judge, the slides are for 22 final argument and are not part of the record, so I 23 have an objection that they be made a part of the 24 record to this Court. They've had their display -- 0192 1 MR. WARE: I'm not asking they be marked as 2 an exhibit, but just for identification. We have 3 turned over the slides throughout the case. They're 4 every bit as much available to you as the closing 5 arguments, which I understand are going to be 6 transcribed. 7 HEARING OFFICER DAHER: I'm going to accept 8 it. It's going to be of help to the Court. I 9 appreciate it. We have until the 21st, gentlemen. 10 That will be fine. 11 Do you want to add anything? 12 MR. EGBERT: The only thing I want to add, 13 frankly, is to say that they have supplied you 14 half-transcripts, which I'll call them, as they've 15 done in the past. I would just urge the Court to 16 refer to the file, which has all of these 17 transcripts. I'm not going to get up now and rehash 18 it. 19 HEARING OFFICER DAHER: I will, indeed. 20 (Whereupon, the hearing was 21 adjourned at 3:51 p.m.) 22 23 24 0193 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 XV, is a true and 5 accurate transcription of my stenographic notes 6 taken on Friday, February 28, 2003. 7 8 9 _____________________________ 10 Jane M. Williamson 11 Registered Merit Reporter 12 13 14 - - - - 15 16 17 18 19 20 21 22 23 24You have reached the final Volume of transcripts. Return to index of transcripts.