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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
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