﻿WEBVTT

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<v ->SJC-13077 in the matter of Paul M. Sushchyk.</v>

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<v ->Okay.</v>

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Attorney Neff.

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<v ->Good morning, Chief Justice Budd</v>

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and the honorable justices of the Supreme Judicial Court.

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May I please record, my name is Howard Neff

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and I am representing the Commission on Judicial Conduct

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in this matter.

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The matter before you today

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is one of extremely serious judicial misconduct.

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The hearing officer in this matter

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not only found strong clearing convincing evidence

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that Judge Paul Sushchyk sexually assaulted Ms. Emily Deines

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on the night in question,

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but she also took the exceptional and extraordinary step

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of also finding that Judge Sushchyk

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misled Chief Justice Casey

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during his investigation of Ms Deines' complaint

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and then offered testimony

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during the formal hearing of this matter under oath

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that was not truthful.

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In her report she stated,

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"Judge Sushchyk generated a statement

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that he knew to be false,

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and one she invented out of whole cloth a version of events

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which Ms. Deines' very clear perception

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of what happened to her was to be dismissed

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as misimpression or exaggeration."

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He admitted under oath...

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<v Wendlandt>Counsel.</v>

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<v ->Yes.</v>

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<v ->So the argument on the other side is that</v>

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there just isn't clear and convincing evidence

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of the assault that was alleged here.

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What is your response to that?

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<v ->Well, my response to that is that the hearing officer who</v>

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as you know, is a former superior court judge

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with 24 years of experience making findings of fact.

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<v ->Right, I understand that we defer</v>

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to her credibility findings.

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So what is the clear and convincing evidence

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of the sexual assault?

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<v ->In this particular matter, Ms. Deines</v>

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was subjected to rigorous cross examination

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by Mr. Angelini as Judge Josephson noted in her report

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regarding what...

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<v ->Right, and I guess the problem is</v>

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that under that cross examination,

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she said I don't know if there were other people behind me.

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I don't know if he was the only person.

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And so I just need a response to the argument

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that Mr. Angelini makes with regarding to

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whether or not there is clear and convincing evidence

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of the sexual assault.

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<v ->To that I would answer Chief Justice Budd,</v>

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that the end of..

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<v ->It's Justice Wendlant, I'm sorry.</v>

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There must be something that goes on with my voice.

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Thank you for the interrogation.

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<v Howard>Apologies.</v>

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<v ->No, that's okay.</v>

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<v ->To answer that question</v>

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I would say that the totality of Ms Deines' testimony

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as found by chief justice...

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Excuse me, as found by Judge Josephson

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by clear and convincing evidence

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was that she saw Judge Sushchyk approached the table,

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go around a brick pillar,

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appear on the right side of her shoulder right behind her,

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disappeared behind her at exactly that moment,

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felt someone grab her left buttock.

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And then immediately thereafter

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Judge Sushchyk appeared there speaking to Ms. Paskos.

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So what you have in this case is..

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<v ->So you're saying that that's enough to infer</v>

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that he did the sexual assault.

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<v ->Well, I would agree.</v>

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What you have here is a case of direct

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and circumstantial evidence.

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You have testimony from which a reasonable inference

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can be drawn that it was Judge Sushchyk

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who is indeed behind Ms. Deines

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and the only person directly behind Ms. Deines

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at the time that her buttock was assaulted.

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And if you're looking for any corroboration of that,

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Judged Ms. Deines On May 20th, 2019 statement

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to Chief Justice Casey admits that he came

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into momentary contact of a lower portion

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of Ms. Deines' body on the night in question.

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<v ->All right.</v>

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And what if I think that the evidence of the...

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What do we make of the evidence of the whiskey flask?

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Is that relevant?

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How do we weigh that?

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<v ->In this matter both the hearing officer</v>

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and the commission..

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Well, the hearing officer made findings that

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that did not amount to misconduct.

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The commission in its report adopted

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the hearing officer's findings

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that that did not amount to misconduct.

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<v ->So this case is really about the assault</v>

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and the failure of the written statement?

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<v ->This conduct is the sexual assault</v>

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and the misleading and the lying.

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I would suggest that the relevance of the flask is,

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as you may recall, Chief Justice Casey

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saw Judge Sushchyk earlier in the evening

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on the same day that this assault occurred.

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Judge Sushchyk appeared tired,

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not as energetic as Chief Justice Casey was used to,

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had red eyes.

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Judge Sushchyk subsequently showed up

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at this table full of probate and family court employees.

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For whatever reason felt it was appropriate to display

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in whatever manner he displayed

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whether it was removing it a little or a lot from his pocket

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that he was carrying around

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his own personal flask of hard liquor,

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I'd suggest that goes to his state of mind where it was at,

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his judgment, and could be an explanation

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for why he behaved the way he did toward Ms. Deines.

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<v ->And how do we weigh that in terms of the punishment</v>

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that's being recommended?

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<v ->Well, in this case I would say the court has a precedent</v>

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for how it deals with cases of sexual misconduct

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and sexual harassment by judges.

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And that's the SD's matter, where this court imposed

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the strongest possible constitutional sanction available.

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Here Judge Sushchyk to borrow from judge Josephson's report

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and Ms.Sushchyk statement during the hearing

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in this matter, Judge Sushchyk conduct

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did not cross a murky line.

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His conduct was so far over the line.

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<v ->Meaning the line was not murky, right?</v>

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<v ->Line was not murky.</v>

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His conduct was so far over the line

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that I would suggest it renders him permanently incapable

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of commanding the respect and authority necessary

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to resume his judicial office.

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<v ->Attorney Neff.</v>

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What weight do you give the fact that the judge found

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that the hearing officer found that the judge lied

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or made misrepresentations in his first response?

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<v ->I'm sorry, Justice Cypher.</v>

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<v ->What weight is it in this analysis?</v>

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How much weight should we give the fact

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that the judge affirmatively lied

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during the investigation and before the hearing

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and then change the story at the hearing?

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<v ->Well, in the commission's report to this court</v>

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the misleading of Chief Justice Casey

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and even the false testimony under oath

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are characterized as aggravating factors

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for the court to consider

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because those are particularly given the way in which

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those fact patterns of all could not really possibly

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have been part of the formal charges.

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Having said that

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issues of a judge failing to be forthright

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and provide honest information to achieve justice

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in an investigation and issues of a judge

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who under oath gave testimony that was not truthful,

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are at least...

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Well, are serious enough to merit the same type of sanction

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I'd suggest, we're proposing for the sexual assault

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against Ms. Deines.

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<v ->You think the sanction request would be the same</v>

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if you didn't have the misleading statement.

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<v ->Absolutely.</v>

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I think either the sexual assault against Ms. Deines

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renders unfit or remain on the bench

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or his decision to mislead Chief Justice Casey

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and lie under oath.

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Either of those...

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<v Kafker>In every case?</v>

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<v ->Actions amount to reasons that he can't serve as a judge.</v>

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<v ->I'm confused by that.</v>

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So you're saying that in every case before the commission,

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either one of those would be enough

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for the ultimate sanction which is removal from office?

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That you always do that?

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That this level of misconduct, meaning

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a single action like that always results in that.

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Is that right?

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I'm just curious 'cause unlike the hearing officer,

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you have sort of a broad understanding

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of what the commission has done historically in all their...

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And you have reductions of response for misconduct.

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So either one of those things

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as opposed to the combination is enough?

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But under your historic, the way you've interpreted

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the commission's disciplinary,

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'cause no one knows it better than you, right?

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You've been there how many years?

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<v ->Over 15 now.</v>

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<v ->So, I just wanna make sure of that</v>

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'cause it seems to me the combination

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is compelling particularly if we have deliberate lying,

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but you have always imposed the ultimate sanction

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for this kind of single action like this?

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<v ->In my experience we have, yes.</v>

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<v ->Can I follow up with you on that attorney Neff</v>

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because one of the other cases that cited

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I believe in one of your briefs talks about the OUI,

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and I'm not necessarily saying that

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what we're talking about here isn't serious,

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but I know prior to this,

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that you were in the district attorney's office,

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and you know that whatever this charge would be

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would be a misdemeanor, right?

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And misdemeanor charges prior to this for other judges

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have not resulted in the ultimate sanction

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that you're now requesting of the court.

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Again, I'm not minimizing the specific found conduct here,

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but I'm saying that at the end of the day

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it would be a misdemeanor charge

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and there've been other judges that have pled guilty

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to misdemeanor charges that are still practicing,

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that are still presiding.

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<v ->Well, I would agree with you</v>

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that that has indeed been the case.

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However, I would disagree that those cases

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bear sufficient resemblance

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to the very serious misconduct at issue

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in this particular complaint before the court

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for the commissions decisions in those matters

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to be relevant in any decision this court makes.

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It also speaking generally...

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<v ->Is that because it was a clear line,</v>

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it was at a court event?

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How do you come to the conclusion

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to Justice Georges' question?

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<v Howard>Can you tell me which part of?</v>

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<v ->I'm sorry.</v>

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<v Howard>Can you repeat the question?</v>

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<v ->Yes.</v>

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So you said that those cases, the OUI misdemeanor cases

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are not comparable period, full stop.

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Can you tell me why?

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Is it because this was a clear line that was crossed

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at a court event?

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What is it that makes this different than the OUI?

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<v ->I think even a casual review of this statistics</v>

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of how criminal matters are resolved

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throughout the various district and municipal courts

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of this Commonwealth would show you that

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when a court is addressing at least a first offense

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drunk driving case, the sentence imposed

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and the way that it is dealt with,

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it is dealt with this seriously,

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but it is not dealt with nearly as harshly as for instance

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a case brought before the court alleging

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ending sentence assault and battery on a person over 14.

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<v ->So you're explaining the sort of the details</v>

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but is it because there was a victim,

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it's at a court event, it's a clear line?

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What is the difference?

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<v ->Well, it's a good question.</v>

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If there was a variation of the fact pattern

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and this is really just a hypo

262
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and there's no precedential value to rely on here,

263
00:14:29.822 --> 00:14:32.122
if a judges OUI case, and I have to be careful

264
00:14:34.680 --> 00:14:37.150
because as I mentioned in the brief,

265
00:14:37.150 --> 00:14:40.210
all of our egregious positions referenced

266
00:14:40.210 --> 00:14:45.210
in Mr. Angelini's brief have terms that require

267
00:14:45.680 --> 00:14:49.360
that we not publicly comment on their terms.

268
00:14:49.360 --> 00:14:51.968
So I wanna be general.

269
00:14:51.968 --> 00:14:55.360
<v ->I think we want you to talk actually not by name.</v>

270
00:14:55.360 --> 00:15:00.210
But what kinds of offenses are the ones?

271
00:15:00.210 --> 00:15:04.240
'Cause again, we're trying to evaluate the continuum

272
00:15:04.240 --> 00:15:08.710
of punishment that you have the capacity to do.

273
00:15:08.710 --> 00:15:12.840
So we're without talking about specific cases,

274
00:15:12.840 --> 00:15:16.550
so much as specific criminal activity

275
00:15:18.980 --> 00:15:20.750
as Justice Wendlandt just pointed out

276
00:15:20.750 --> 00:15:25.483
whether it's engaged in at work or out of work,

277
00:15:27.370 --> 00:15:30.670
whether it involves other court employees.

278
00:15:30.670 --> 00:15:32.510
Those are the types of...

279
00:15:32.510 --> 00:15:35.910
It doesn't sound like it matters to you.

280
00:15:35.910 --> 00:15:37.150
<v ->Well, it always matters.</v>

281
00:15:37.150 --> 00:15:42.150
But with like with every human experience and mistake,

282
00:15:45.738 --> 00:15:50.270
there are always different factors and facts and issues

283
00:15:50.270 --> 00:15:53.350
in play that the court have..

284
00:15:53.350 --> 00:15:56.140
Excuse me, not the court, that the commission

285
00:15:56.140 --> 00:16:00.510
has to look at in connection with trying to come up

286
00:16:00.510 --> 00:16:02.100
with the right result.

287
00:16:02.100 --> 00:16:03.300
And...

288
00:16:03.300 --> 00:16:05.600
<v ->So it isn't as you said earlier,</v>

289
00:16:05.600 --> 00:16:08.563
the single action it's the totality?

290
00:16:10.270 --> 00:16:11.103
Or isn't it?

291
00:16:15.463 --> 00:16:18.780
<v ->I'm not how to answer that other than to say</v>

292
00:16:18.780 --> 00:16:21.800
that I would respectfully suggest

293
00:16:21.800 --> 00:16:25.560
that a sitting judge at the probate and family court

294
00:16:25.560 --> 00:16:28.360
who's at a work-related conference,

295
00:16:28.360 --> 00:16:30.650
who sexually assaults an employee

296
00:16:30.650 --> 00:16:33.260
of probate and family court

297
00:16:33.260 --> 00:16:38.260
by grabbing her left buttock, is serious enough

298
00:16:38.800 --> 00:16:43.800
and so far over the line that there's no need

299
00:16:44.670 --> 00:16:49.670
for the commission to muse or consider

300
00:16:49.680 --> 00:16:54.580
or wrestle with whether or not the ultimate sanction

301
00:16:54.580 --> 00:16:55.510
is appropriate.

302
00:16:55.510 --> 00:16:56.887
And as I said..

303
00:16:58.540 --> 00:17:01.540
<v ->Can I like to switch you 'cause I know we're over already.</v>

304
00:17:02.739 --> 00:17:06.520
To me it was very critical that the judge found that,

305
00:17:09.500 --> 00:17:12.320
meaning hearing officer found that the judge

306
00:17:12.320 --> 00:17:15.970
walked back his statement and admitted he lied.

307
00:17:15.970 --> 00:17:19.870
Can you walk me through what the judge...

308
00:17:19.870 --> 00:17:23.480
'Cause Mr. Angelini's brief, doesn't read that way.

309
00:17:23.480 --> 00:17:26.280
So do you have the transcript in front of me?

310
00:17:26.280 --> 00:17:27.780
Do you know where?

311
00:17:27.780 --> 00:17:29.780
I haven't read the whole transcript yet.

312
00:17:31.096 --> 00:17:34.310
What does he say that basically admits

313
00:17:34.310 --> 00:17:36.690
that he made this statement up?

314
00:17:36.690 --> 00:17:39.303
And is it ambiguous or is it clear cut?

315
00:17:40.705 --> 00:17:45.490
<v ->He does make a statement, which I would characterize</v>

316
00:17:45.490 --> 00:17:50.490
as not credible or believable,

317
00:17:51.390 --> 00:17:56.390
which is that facing the serious allegation

318
00:17:57.300 --> 00:18:02.100
of sexual misconduct with 10 days to reflect

319
00:18:02.960 --> 00:18:05.610
on what he was gonna reduce to paper

320
00:18:05.610 --> 00:18:07.400
after first being confronted

321
00:18:07.400 --> 00:18:11.023
with this allegation of sexual misconduct,

322
00:18:12.670 --> 00:18:17.670
he reduced to paper a factual scenario.

323
00:18:18.100 --> 00:18:20.280
<v ->I'm asking you a different question.</v>

324
00:18:20.280 --> 00:18:24.793
At the hearing, Judge Josephson says,

325
00:18:26.150 --> 00:18:29.600
she finds that he basically admitted

326
00:18:29.600 --> 00:18:32.770
that he lied to judge Chief Justice Casey.

327
00:18:32.770 --> 00:18:35.090
And I'm just trying to make sure how.

328
00:18:35.090 --> 00:18:36.780
I haven't read the statement yet.

329
00:18:36.780 --> 00:18:39.900
Do you have it in front of you that part of it

330
00:18:39.900 --> 00:18:41.790
or the transcript?

331
00:18:41.790 --> 00:18:44.060
I'm gonna ask the same question, Mr. Angelini

332
00:18:44.060 --> 00:18:48.640
'cause to me that may be the most important factor here

333
00:18:48.640 --> 00:18:50.610
that he's admitted to lying.

334
00:18:50.610 --> 00:18:51.750
You have the...

335
00:18:51.750 --> 00:18:53.570
I just would like to pin that down

336
00:18:53.570 --> 00:18:56.433
so that I understand the basis of that.

337
00:18:58.250 --> 00:19:00.730
<v ->I don't have his exact statement in front of me</v>

338
00:19:00.730 --> 00:19:04.273
at this point, but in that statement,

339
00:19:05.720 --> 00:19:09.900
his admission which I may not get correct word for word

340
00:19:09.900 --> 00:19:12.630
was that he arrived at the table

341
00:19:12.630 --> 00:19:17.120
with Ms. Paskos and others, offered to buy them drinks.

342
00:19:17.120 --> 00:19:20.030
At a certain point after doing so,

343
00:19:20.030 --> 00:19:22.540
left to go to the men's room.

344
00:19:22.540 --> 00:19:27.540
And in his written statement said to Chief Justice Casey,

345
00:19:28.400 --> 00:19:33.400
attributing my long day and my recent hip surgery

346
00:19:33.780 --> 00:19:37.810
and another medical issue and the alcohol consumed,

347
00:19:37.810 --> 00:19:42.210
I may have inadvertently come into contact

348
00:19:42.210 --> 00:19:45.203
with the lower portion of Ms.Sushchyk body.

349
00:19:46.130 --> 00:19:48.147
<v ->From my understanding, the judge says</v>

350
00:19:50.300 --> 00:19:52.977
that he walks back that statement and says,

351
00:19:52.977 --> 00:19:56.660
"I never made any contact with her body.

352
00:19:56.660 --> 00:19:57.820
I'm sure of it."

353
00:19:57.820 --> 00:20:00.080
And I just haven't read the transcript yet.

354
00:20:00.080 --> 00:20:00.913
<v ->Attorney Neff.</v>

355
00:20:00.913 --> 00:20:02.680
What was it that the part where

356
00:20:02.680 --> 00:20:04.500
I believe Judge Josephson said,

357
00:20:04.500 --> 00:20:08.950
or there was some comment that the judge was concerned

358
00:20:08.950 --> 00:20:12.040
that Ms. Deines was going to be believed

359
00:20:12.040 --> 00:20:16.480
and therefore as a prophylactic made up this story

360
00:20:16.480 --> 00:20:18.960
because he thought that she was going to be believed

361
00:20:18.960 --> 00:20:19.860
in the first instance.

362
00:20:19.860 --> 00:20:21.260
Something along those lines.

363
00:20:22.900 --> 00:20:26.040
<v ->I would answer that Judge Sushchyk's problem</v>

364
00:20:26.040 --> 00:20:31.040
was best described by judge Josephson in her findings

365
00:20:31.690 --> 00:20:34.850
after she had a chance to hear all the testimony

366
00:20:34.850 --> 00:20:39.260
including the testimony elicited by Mr. Angelini,

367
00:20:39.260 --> 00:20:42.210
where she found

368
00:20:42.210 --> 00:20:45.220
Judge Sushchyk generated a statement,

369
00:20:45.220 --> 00:20:47.190
meaning that May 20th statement,

370
00:20:47.190 --> 00:20:52.040
he knew to be false, which he invented out of whole cloth

371
00:20:52.040 --> 00:20:55.190
a version of events in which Ms. Deines'

372
00:20:55.190 --> 00:20:58.490
very clear perception of what happened to her person

373
00:20:58.490 --> 00:21:03.490
was to be dismissed as misimpression or an exaggeration.

374
00:21:04.080 --> 00:21:09.080
He admitted under oath in truth that what he wrote happened

375
00:21:09.470 --> 00:21:12.083
simply had not, to answer the other question.

376
00:21:13.390 --> 00:21:17.100
Such misdirection during the investigation

377
00:21:17.100 --> 00:21:21.210
not only evinces consciousness of guilt,

378
00:21:21.210 --> 00:21:26.210
but is wholly inconsistent with the oath of office

379
00:21:26.660 --> 00:21:29.783
and ethical conduct required of a judge.

380
00:21:35.330 --> 00:21:36.620
<v ->Everybody answered?</v>

381
00:21:36.620 --> 00:21:38.155
<v ->Well, the last thing I'd say is,</v>

382
00:21:38.155 --> 00:21:40.820
if you really are at a point

383
00:21:40.820 --> 00:21:43.550
where you're thinking about how do you weigh

384
00:21:45.060 --> 00:21:49.190
Ms. Deines statements, Judge Sushchyk's statements,

385
00:21:49.190 --> 00:21:52.310
the defense as Mr. Angelini has presented

386
00:21:52.310 --> 00:21:57.310
on behalf of Judge Sushchyk I would just say this,

387
00:21:57.860 --> 00:22:02.490
in her report, Judge Josephson

388
00:22:02.490 --> 00:22:06.230
saw through Judge Sushchyk's

389
00:22:06.230 --> 00:22:09.140
inconsistent and incredible explanations

390
00:22:09.140 --> 00:22:12.717
for what happened that day and wrote,

391
00:22:12.717 --> 00:22:14.830
"Judge Sushchyk lack of candor

392
00:22:14.830 --> 00:22:17.110
at the inception of this matter,

393
00:22:17.110 --> 00:22:19.623
undermines his credibility at hearing.

394
00:22:20.790 --> 00:22:22.520
His initial response suggests

395
00:22:22.520 --> 00:22:26.580
he did what he was accused of doing

396
00:22:26.580 --> 00:22:30.080
and sought to minimize his culpability for it.

397
00:22:30.080 --> 00:22:33.310
I do not find Judge Sushchyk testimonial denials

398
00:22:33.310 --> 00:22:37.000
of intentional contact consistent credible

399
00:22:38.050 --> 00:22:41.350
with the complaint that she was grabbed by Judge Sushchyk

400
00:22:42.770 --> 00:22:45.710
is only more believable than it's reworked denials,

401
00:22:45.710 --> 00:22:47.840
it is bolstered by them.

402
00:22:47.840 --> 00:22:50.230
I find Judge Sushchyk testimony at hearing

403
00:22:50.230 --> 00:22:54.750
as a further instance of his failure to be truthful

404
00:22:54.750 --> 00:22:56.274
in this matter.

405
00:22:56.274 --> 00:23:00.490
<v ->Attorney Neff, we can read that to rule.</v>

406
00:23:00.490 --> 00:23:03.130
Thank you for your argument.

407
00:23:03.130 --> 00:23:05.933
I'm gonna ask Attorney Angelini to step up.

408
00:23:10.179 --> 00:23:11.890
<v ->Good morning your honors, may I proceed?</v>

409
00:23:11.890 --> 00:23:12.740
<v Budd>Yes.</v>

410
00:23:12.740 --> 00:23:13.790
My name is Michael Angelini.

411
00:23:13.790 --> 00:23:16.610
I represent Judge Paul Sushchyk.

412
00:23:16.610 --> 00:23:19.480
Let me do what I did not intend to do

413
00:23:19.480 --> 00:23:21.260
and to address this issue

414
00:23:21.260 --> 00:23:24.210
which my brother has characterized as lying.

415
00:23:24.210 --> 00:23:26.870
First of all, let me say that there is a procedure

416
00:23:26.870 --> 00:23:29.000
before the commission on judicial conduct,

417
00:23:29.000 --> 00:23:31.450
which requires that if a judge is alleged

418
00:23:31.450 --> 00:23:33.070
to have engaged in misconduct,

419
00:23:33.070 --> 00:23:35.970
formal charges may be brought against him.

420
00:23:35.970 --> 00:23:39.580
There is no formal charge here that he lied to anybody.

421
00:23:39.580 --> 00:23:41.580
<v ->Counsel, let me just say,</v>

422
00:23:41.580 --> 00:23:43.780
I think I characterized it that way before

423
00:23:43.780 --> 00:23:46.290
and I don't think attorney Neff did.

424
00:23:46.290 --> 00:23:49.330
But you can make this more clear for me.

425
00:23:49.330 --> 00:23:51.500
To me it seems pretty straightforward

426
00:23:51.500 --> 00:23:55.130
that there is a fine testimony and a finding

427
00:23:55.130 --> 00:23:58.320
that your client engaged in this conduct

428
00:23:58.320 --> 00:24:00.977
and that there were misrepresentations made about it.

429
00:24:00.977 --> 00:24:03.500
And I grant you there are no formal charges on that.

430
00:24:03.500 --> 00:24:05.333
So how has this more complicated?

431
00:24:06.260 --> 00:24:07.954
<v ->How was this more complicated than what your honor?</v>

432
00:24:07.954 --> 00:24:09.450
<v ->Than what he did.</v>

433
00:24:09.450 --> 00:24:10.817
How has it more complicated?

434
00:24:10.817 --> 00:24:12.190
Did he do this?

435
00:24:12.190 --> 00:24:14.040
<v ->The basic issue in this case is,</v>

436
00:24:14.040 --> 00:24:16.320
what if anything happened?

437
00:24:16.320 --> 00:24:19.300
This case, when we get to a statement of the moment,

438
00:24:19.300 --> 00:24:22.450
this case is (indistinct) matter of fact, but don't believe.

439
00:24:22.450 --> 00:24:25.020
<v ->Isn't that limited though because</v>

440
00:24:25.020 --> 00:24:27.490
I'm confused by what it is...

441
00:24:27.490 --> 00:24:29.500
Sorry, I apologize.

442
00:24:29.500 --> 00:24:31.460
I'm confused by

443
00:24:31.460 --> 00:24:36.460
'cause if the findings of fact she makes

444
00:24:36.550 --> 00:24:40.573
find that your client is not telling the truth,

445
00:24:41.410 --> 00:24:46.410
she makes those expressly and she relies on them heavily

446
00:24:47.440 --> 00:24:52.440
for the remedy, which is retirement from office,

447
00:24:52.940 --> 00:24:56.900
so we have to deal with both the act

448
00:24:56.900 --> 00:25:01.450
and the truthfulness issue or we're not...

449
00:25:02.400 --> 00:25:04.500
Tell me why we're not supposed to do that.

450
00:25:04.500 --> 00:25:05.513
<v ->You could do that.</v>

451
00:25:07.347 --> 00:25:10.010
I would say to you though, that there is a procedure.

452
00:25:10.010 --> 00:25:13.510
If they wanna bring formal charges against Judge Sushchyk

453
00:25:14.634 --> 00:25:16.670
for this statement, which I'll explain in a moment,

454
00:25:16.670 --> 00:25:18.060
I've tried to do that in my brief.

455
00:25:18.060 --> 00:25:20.160
Let them do it, we will defend it.

456
00:25:20.160 --> 00:25:21.130
<v Budd>But that's not the point.</v>

457
00:25:21.130 --> 00:25:22.050
<v ->But the point is.</v>

458
00:25:22.050 --> 00:25:22.883
<v Budd>Sir.</v>

459
00:25:22.883 --> 00:25:24.640
<v ->Yes, excuse me your honor.</v>

460
00:25:24.640 --> 00:25:27.740
<v ->So that's not the point here.</v>

461
00:25:27.740 --> 00:25:30.220
We're not looking at whether or not he lied.

462
00:25:30.220 --> 00:25:33.480
The findings are that he lied.

463
00:25:33.480 --> 00:25:34.313
<v Michael>Yes.</v>

464
00:25:34.313 --> 00:25:38.130
<v ->Okay. So we now have to accept those findings</v>

465
00:25:38.130 --> 00:25:40.050
unless they're clearly erroneous.

466
00:25:40.050 --> 00:25:41.170
<v ->And they are.</v>

467
00:25:41.170 --> 00:25:42.270
And let me tell you why they are.

468
00:25:42.270 --> 00:25:43.256
<v Budd>Okay. Let's do that.</v>

469
00:25:43.256 --> 00:25:44.630
<v ->Let me tell you why they are.</v>

470
00:25:44.630 --> 00:25:47.283
Because when Judge Sushchyk was presented,

471
00:25:48.280 --> 00:25:51.690
Judge Sushchyk had met this woman once in his life

472
00:25:51.690 --> 00:25:55.170
for what she described as a very short time.

473
00:25:55.170 --> 00:25:58.520
They were not known to each other, beyond that.

474
00:25:58.520 --> 00:26:02.510
He was presented by Judge Casey with a statement from her

475
00:26:02.510 --> 00:26:07.040
which is in volume one, page 95

476
00:26:07.040 --> 00:26:08.767
and in volume one page 152.

477
00:26:08.767 --> 00:26:13.030
The statement said, "I believe the person who grabbed me

478
00:26:13.030 --> 00:26:16.980
was Paul Judge Sushchyk because, one,

479
00:26:16.980 --> 00:26:19.850
he had recently come over to the table where I was seated."

480
00:26:19.850 --> 00:26:23.410
He had recently come over to the table where I was seated.

481
00:26:23.410 --> 00:26:26.017
And two, and we'll get to this later,

482
00:26:26.017 --> 00:26:27.780
"He was the only person behind me

483
00:26:27.780 --> 00:26:29.510
at the time of the grabbing."

484
00:26:29.510 --> 00:26:31.420
Judge Sushchyk was presented with that statement

485
00:26:31.420 --> 00:26:32.253
by Judge Casey.

486
00:26:32.253 --> 00:26:35.640
Judge Casey testified to this at the hearing.

487
00:26:35.640 --> 00:26:39.910
And he said you should prepare a statement in response.

488
00:26:39.910 --> 00:26:43.610
Judge Sushchyk as he said, you can read his testimony,

489
00:26:43.610 --> 00:26:45.270
went off and deliberated about this.

490
00:26:45.270 --> 00:26:46.660
He'd denied anything happened.

491
00:26:46.660 --> 00:26:50.130
He did not recall any intentional contact with her

492
00:26:50.130 --> 00:26:52.970
or anybody else, but he read

493
00:26:52.970 --> 00:26:54.560
and deliberated about that statement.

494
00:26:54.560 --> 00:26:56.640
And he remembered that sometime that evening

495
00:26:56.640 --> 00:27:00.490
as he testified to, he got up and went to the bathroom

496
00:27:00.490 --> 00:27:02.830
and came back from the bathroom

497
00:27:02.830 --> 00:27:06.750
and went through this crowd of people behind that chair.

498
00:27:06.750 --> 00:27:09.830
And inadvertently had inadvertent contact with someone

499
00:27:09.830 --> 00:27:12.503
sitting in that chair whom we assume with Ms. Deines.

500
00:27:13.640 --> 00:27:18.570
What he later learned was that Ms. Deines claimed

501
00:27:19.410 --> 00:27:21.893
that this did not occur when Judge Sushchyk

502
00:27:21.893 --> 00:27:23.340
come to the table.

503
00:27:23.340 --> 00:27:24.173
That this occurred...

504
00:27:24.173 --> 00:27:25.950
Excuse me, that this in fact occurred

505
00:27:25.950 --> 00:27:27.370
not later in the evening,

506
00:27:27.370 --> 00:27:29.990
but when he first came to the table.

507
00:27:29.990 --> 00:27:33.580
And that when he went to the bathroom and came back,

508
00:27:33.580 --> 00:27:35.140
if he inadvertently touched somebody

509
00:27:35.140 --> 00:27:36.730
it was definitely not Ms. Deines

510
00:27:36.730 --> 00:27:40.850
because according to her testimony, she left 10 minutes

511
00:27:40.850 --> 00:27:43.150
after finishing her beer and after he arrived.

512
00:27:44.190 --> 00:27:48.580
So he does not say as my brother has said

513
00:27:48.580 --> 00:27:50.760
and does not say I lied.

514
00:27:50.760 --> 00:27:51.770
I misstated.

515
00:27:51.770 --> 00:27:54.460
We're talking about two very different circumstances.

516
00:27:54.460 --> 00:27:56.720
And the one which is covered by his statement

517
00:27:56.720 --> 00:27:58.860
does not involve Ms. Deines.

518
00:27:58.860 --> 00:28:01.810
And he never, never, never has acknowledged

519
00:28:01.810 --> 00:28:04.210
any intentional contact with anybody.

520
00:28:04.210 --> 00:28:08.110
<v ->Does this statement say that it was Ms. Deines?</v>

521
00:28:08.110 --> 00:28:09.880
<v ->No, he assumed it was Ms. Deines.</v>

522
00:28:09.880 --> 00:28:11.400
Well, he may, but,

523
00:28:11.400 --> 00:28:13.530
it could not have been because she had left

524
00:28:13.530 --> 00:28:15.390
by the time he'd gone to the bathroom.

525
00:28:15.390 --> 00:28:16.470
<v ->Excuse me, counsel.</v>

526
00:28:16.470 --> 00:28:19.460
Who does the statement say he touched?

527
00:28:19.460 --> 00:28:20.293
<v ->Somebody is sitting in that chair.</v>

528
00:28:20.293 --> 00:28:21.453
<v ->Okay.</v>

529
00:28:22.680 --> 00:28:24.560
<v ->Somebody sitting in that chair.</v>

530
00:28:24.560 --> 00:28:26.780
That's the beginning and end of this

531
00:28:27.860 --> 00:28:29.590
with respect to the lying.

532
00:28:29.590 --> 00:28:32.240
The basic issue, which gets us here,

533
00:28:32.240 --> 00:28:36.000
the charge by the commission is simply based

534
00:28:36.000 --> 00:28:39.190
not on any fact, but on a belief.

535
00:28:39.190 --> 00:28:44.090
A belief by Ms. Deines that this was judge for two reasons.

536
00:28:44.090 --> 00:28:46.320
One, he had recently come to the table

537
00:28:46.320 --> 00:28:49.260
which we know he had not according to her later testimony.

538
00:28:49.260 --> 00:28:52.530
Her later testimony was he was arriving at the table.

539
00:28:52.530 --> 00:28:54.645
And then she says,

540
00:28:54.645 --> 00:28:59.130
"He was the only person directly behind me

541
00:28:59.130 --> 00:29:00.387
at the time of the grab."

542
00:29:02.190 --> 00:29:04.140
She has no idea who was behind her.

543
00:29:04.140 --> 00:29:06.493
<v ->Well, counsel, can I interrupt you on this one point</v>

544
00:29:06.493 --> 00:29:08.850
Because it relates to another argument

545
00:29:08.850 --> 00:29:12.310
that you make in your brief that I like you to touch upon.

546
00:29:12.310 --> 00:29:16.390
So in this case, Judge Josephson has a hearing

547
00:29:16.390 --> 00:29:17.730
where she's both...

548
00:29:19.380 --> 00:29:21.620
She's the finder of fact.

549
00:29:21.620 --> 00:29:24.590
And under the clear and convincing standard,

550
00:29:24.590 --> 00:29:29.040
you're advocating that it's not enough

551
00:29:29.040 --> 00:29:32.020
for the finder of fact, just to believe a witness

552
00:29:32.020 --> 00:29:35.240
irrespective of whether there's any corroboration.

553
00:29:35.240 --> 00:29:37.700
And that's not been the case, right?

554
00:29:37.700 --> 00:29:39.360
Where if you've got a...

555
00:29:39.360 --> 00:29:41.890
He said she said case it defined her fact

556
00:29:41.890 --> 00:29:43.760
can choose to believe one and not the other,

557
00:29:43.760 --> 00:29:45.890
without any other corroboration.

558
00:29:45.890 --> 00:29:49.740
But you're asking the court to now take a position

559
00:29:49.740 --> 00:29:52.180
where we require corroboration.

560
00:29:52.180 --> 00:29:54.060
But let me just be pointed at one thing.

561
00:29:54.060 --> 00:29:54.893
<v Michael>Yes your honor.</v>

562
00:29:54.893 --> 00:29:56.630
<v ->Assume that we don't follow you,</v>

563
00:29:56.630 --> 00:29:58.900
that we leave the law as it is,

564
00:29:58.900 --> 00:30:02.830
that the credibility assessment can be,

565
00:30:02.830 --> 00:30:04.440
If you think it's a jump ball

566
00:30:05.477 --> 00:30:08.127
and it happens to go against you, that that's enough.

567
00:30:09.770 --> 00:30:11.695
<v ->We're not talking about a jump ball.</v>

568
00:30:11.695 --> 00:30:12.528
<v Georges>Why not?</v>

569
00:30:12.528 --> 00:30:15.030
<v ->The finder of fact is required to find facts</v>

570
00:30:15.030 --> 00:30:17.810
based on evidence, not based on belief.

571
00:30:17.810 --> 00:30:21.280
<v ->Well, perhaps, as attorney Neff laid out,</v>

572
00:30:21.280 --> 00:30:26.051
there were influential pieces in the circumstantial case

573
00:30:26.051 --> 00:30:31.051
that led the finder to find that this was Judge Sushchyk.

574
00:30:31.223 --> 00:30:32.730
<v ->There were no inferential pieces</v>

575
00:30:32.730 --> 00:30:34.543
which deserve any attention.

576
00:30:35.880 --> 00:30:38.880
The role of this court is to correct mistakes made

577
00:30:38.880 --> 00:30:40.220
by the lower court.

578
00:30:40.220 --> 00:30:43.660
And in order for there to be a basis for finding facts,

579
00:30:43.660 --> 00:30:45.510
for determining the credibility of witness,

580
00:30:45.510 --> 00:30:46.910
there needs to be some facts.

581
00:30:46.910 --> 00:30:48.570
Mr. Neff said it.

582
00:30:48.570 --> 00:30:53.463
She claims she saw Judge Sushchyk walking in her direction.

583
00:30:54.350 --> 00:30:56.850
She claims she has no idea who was behind her.

584
00:30:56.850 --> 00:30:57.683
She admitted it.

585
00:30:57.683 --> 00:30:58.840
I've put this in my brief,

586
00:30:58.840 --> 00:31:01.100
that anyone of the crowd behind her

587
00:31:01.100 --> 00:31:03.370
and she admitted there was a crowd of people there

588
00:31:03.370 --> 00:31:05.300
and that behind her was a passageway.

589
00:31:05.300 --> 00:31:06.570
<v ->But isn't there...</v>

590
00:31:06.570 --> 00:31:09.190
There's a duration of the grab as well.

591
00:31:09.190 --> 00:31:10.740
It's not...

592
00:31:10.740 --> 00:31:14.120
She says, is there a duration of the grab or is 15?

593
00:31:14.120 --> 00:31:18.580
<v ->This occurred between five, 10 or 15 seconds.</v>

594
00:31:18.580 --> 00:31:19.413
<v ->But that's...</v>

595
00:31:19.413 --> 00:31:22.123
So hold, you just came like this, just give me a second.

596
00:31:23.530 --> 00:31:24.363
<v ->If she's...</v>

597
00:31:24.363 --> 00:31:27.910
Again, the judge finds she's credible

598
00:31:27.910 --> 00:31:32.910
so that somebody grabbed her for five to 15 seconds, right?

599
00:31:33.373 --> 00:31:34.206
<v Michael>Right.</v>

600
00:31:34.206 --> 00:31:37.530
<v ->One, 1000, two, 1000, three, 1000.</v>

601
00:31:37.530 --> 00:31:38.760
That's not a...

602
00:31:38.760 --> 00:31:41.320
You can't just walk by somebody

603
00:31:41.320 --> 00:31:44.810
and grab them for five to 15 seconds, can you?

604
00:31:44.810 --> 00:31:45.643
It's hard.

605
00:31:45.643 --> 00:31:47.373
You have to be behind them.

606
00:31:48.410 --> 00:31:50.093
For that long a period of time.

607
00:31:51.240 --> 00:31:52.343
<v ->Yes, of course.</v>

608
00:31:54.000 --> 00:31:56.843
<v ->Again, I'm taking the facts that the judge could find.</v>

609
00:32:00.600 --> 00:32:03.683
Judge Sushchyk is standing next to her

610
00:32:05.140 --> 00:32:07.519
during that period of time, correct?

611
00:32:07.519 --> 00:32:09.350
<v ->No.</v>

612
00:32:09.350 --> 00:32:10.780
<v ->Again, I have a picture.</v>

613
00:32:10.780 --> 00:32:12.760
<v ->Here's the evidence if I can just summarize.</v>

614
00:32:12.760 --> 00:32:13.736
<v Kafker>I know, but I want...</v>

615
00:32:13.736 --> 00:32:16.060
<v ->She is giving her the benefit of every doubt.</v>

616
00:32:16.060 --> 00:32:18.100
She says, I saw Judge Sushchyk

617
00:32:18.100 --> 00:32:21.310
as he was walking towards the area behind.

618
00:32:21.310 --> 00:32:24.730
She says, I have no idea who was behind him.

619
00:32:24.730 --> 00:32:28.260
She says, I was grabbed by somebody in our latest iteration,

620
00:32:28.260 --> 00:32:32.350
not someone slid his hand under my left buttocks,

621
00:32:32.350 --> 00:32:34.330
lifted it and grabbed and squeezed it

622
00:32:34.330 --> 00:32:36.990
between five and 50 seconds.

623
00:32:36.990 --> 00:32:39.780
She says, I then later saw Judge Sushchyk

624
00:32:39.780 --> 00:32:42.870
talking to Ms. Paskos, who was immediately to my left.

625
00:32:42.870 --> 00:32:46.310
She says, under oath, I have no idea how long it took me

626
00:32:46.310 --> 00:32:47.920
to turn and look to my left.

627
00:32:47.920 --> 00:32:49.650
She says, I would have no idea

628
00:32:49.650 --> 00:32:51.420
how long he was speaking to Ms. Paskos

629
00:32:51.420 --> 00:32:53.010
when I turned to my left.

630
00:32:53.010 --> 00:32:56.970
She says I have no idea who was behind me at the time.

631
00:32:56.970 --> 00:33:01.060
Two independent witnesses, lawyers in the trial court,

632
00:33:01.060 --> 00:33:04.820
in this court testified under oath, I saw him walking.

633
00:33:04.820 --> 00:33:07.330
One of them, Ms. Paskos, who was directly to her left.

634
00:33:07.330 --> 00:33:09.180
I saw him walking behind it.

635
00:33:09.180 --> 00:33:12.252
He never stopped another one, Jocelyn,

636
00:33:12.252 --> 00:33:15.140
while she was talking with Ms. Deines across the table...

637
00:33:15.140 --> 00:33:16.710
<v Kafker>Hold a second, Can I...</v>

638
00:33:16.710 --> 00:33:17.543
Go ahead.

639
00:33:17.543 --> 00:33:18.630
<v ->Excuse me for raising my voice, I apologize.</v>

640
00:33:18.630 --> 00:33:19.870
<v ->Counsel, can I just...</v>

641
00:33:19.870 --> 00:33:23.130
So you're focused on some of the evidence.

642
00:33:23.130 --> 00:33:26.330
Can I just ask you, I'm gonna read you some of the evidence

643
00:33:26.330 --> 00:33:29.790
and then ask you why that doesn't lead to the conclusion,

644
00:33:29.790 --> 00:33:33.000
a supportable conclusion by clear and convincing evidence

645
00:33:33.000 --> 00:33:37.410
that in fact it was your client that grabbed her.

646
00:33:37.410 --> 00:33:38.690
Ms. Deines says...

647
00:33:38.690 --> 00:33:40.490
<v Michael>Could you keep your voice up your honor.</v>

648
00:33:40.490 --> 00:33:45.490
<v ->Ms. Deines says, "As he passed behind me, I felt him grab,</v>

649
00:33:45.990 --> 00:33:49.200
slide his hand under my left buttocks and grab me.

650
00:33:49.200 --> 00:33:51.920
And there was no one else directly behind me

651
00:33:51.920 --> 00:33:54.610
at that time that I know of, no.

652
00:33:54.610 --> 00:33:55.630
I paused.

653
00:33:55.630 --> 00:33:58.490
I paused, and then I turned around.

654
00:33:58.490 --> 00:33:59.810
Did you say anything to him?

655
00:33:59.810 --> 00:34:00.850
No.

656
00:34:00.850 --> 00:34:05.140
I saw your client behind me over my left shoulder.

657
00:34:05.140 --> 00:34:07.880
And I saw Evelyn standing next to him.

658
00:34:07.880 --> 00:34:10.200
How long did the grab actually last?

659
00:34:10.200 --> 00:34:13.830
Geez, I don't know, five, 10, 15 seconds.

660
00:34:13.830 --> 00:34:15.440
Something along those lines.

661
00:34:15.440 --> 00:34:19.290
Why couldn't somebody take that evidence, that testimony,

662
00:34:19.290 --> 00:34:21.920
and conclude by clear and convincing evidence

663
00:34:21.920 --> 00:34:24.990
that in fact was your client who grabbed her?

664
00:34:24.990 --> 00:34:26.963
<v ->Because she does not know what she testified to</v>

665
00:34:26.963 --> 00:34:30.660
as she did it under cross examination and I've included it.

666
00:34:30.660 --> 00:34:34.910
She does not know that he stopped behind her.

667
00:34:34.910 --> 00:34:36.810
She does not know if it was him who grabbed her.

668
00:34:36.810 --> 00:34:38.430
She does not know who grabbed her

669
00:34:38.430 --> 00:34:40.460
despite what she said in that statement,

670
00:34:40.460 --> 00:34:42.330
and that is the crux of this matter.

671
00:34:42.330 --> 00:34:45.350
This is an allegation based on belief.

672
00:34:45.350 --> 00:34:47.630
And when we begin incriminating people,

673
00:34:47.630 --> 00:34:50.110
based upon belief rather than on fact,

674
00:34:50.110 --> 00:34:52.570
it'll be the dawn of a new and dead day.

675
00:34:52.570 --> 00:34:54.850
That is why that deserves the attention.

676
00:34:54.850 --> 00:34:56.620
She testified under oath.

677
00:34:57.690 --> 00:35:00.730
<v ->You're saying we can't believe her direct testimony.</v>

678
00:35:00.730 --> 00:35:03.680
We must instead believe her cross-examination testimony

679
00:35:03.680 --> 00:35:05.823
unless there's independent corroboration.

680
00:35:07.110 --> 00:35:09.200
<v ->I'm saying, if you were gonna give credit to a witness,</v>

681
00:35:09.200 --> 00:35:11.940
you need to listen to all the witness say.

682
00:35:11.940 --> 00:35:13.960
You can't give credit to what the witness says

683
00:35:13.960 --> 00:35:16.670
and disregard inconsistency.

684
00:35:16.670 --> 00:35:19.210
<v ->But counsel, let me stop you there.</v>

685
00:35:19.210 --> 00:35:22.970
Because even in let's just take in a criminal context,

686
00:35:22.970 --> 00:35:26.160
we know that the judges instructive the jurors

687
00:35:26.160 --> 00:35:28.800
when they go to the instruction

688
00:35:28.800 --> 00:35:30.810
on the credibility of witnesses.

689
00:35:30.810 --> 00:35:33.470
Says that they can believe all of what a witness says,

690
00:35:33.470 --> 00:35:36.433
some of what a witness says or none of what a witness says.

691
00:35:37.830 --> 00:35:41.020
Why doesn't Judge Josephson didn't have the same right

692
00:35:41.020 --> 00:35:44.680
to say, I can pick which part of the testimony

693
00:35:44.680 --> 00:35:47.030
I choose to credit and not credit

694
00:35:47.030 --> 00:35:48.680
all the parts of the testimony?

695
00:35:48.680 --> 00:35:50.730
We tell jurors that every day.

696
00:35:50.730 --> 00:35:52.020
<v ->Here's why.</v>

697
00:35:52.020 --> 00:35:56.043
You could credit testimony of a witness who see something,

698
00:35:58.560 --> 00:36:00.750
who hear something, but you cannot credit

699
00:36:00.750 --> 00:36:02.330
what the witness believes.

700
00:36:02.330 --> 00:36:04.610
<v ->What about when a witness feels something, counsel?</v>

701
00:36:04.610 --> 00:36:06.787
What about when a witness feels something?

702
00:36:06.787 --> 00:36:07.740
<v Michael>When witness what?</v>

703
00:36:07.740 --> 00:36:10.970
<v ->When they feel something, can you credit that?</v>

704
00:36:10.970 --> 00:36:12.660
That they felt it?

705
00:36:12.660 --> 00:36:13.493
<v ->Well, I suppose you do some evidence</v>

706
00:36:13.493 --> 00:36:14.860
that a witness feels something.

707
00:36:14.860 --> 00:36:15.693
You need facts.

708
00:36:15.693 --> 00:36:17.200
You can't have just belief.

709
00:36:17.200 --> 00:36:20.040
<v ->I can't believe that I'm feeling something?</v>

710
00:36:20.040 --> 00:36:20.873
<v Michael>I'm sorry.</v>

711
00:36:20.873 --> 00:36:22.240
<v ->I can't believe I feel something?</v>

712
00:36:24.376 --> 00:36:26.115
<v Kafker>By the way, there's no doubt...</v>

713
00:36:26.115 --> 00:36:27.046
<v Michael>(indistinct) question I apologize.</v>

714
00:36:27.046 --> 00:36:27.879
<v ->That's all right.</v>

715
00:36:27.879 --> 00:36:29.350
<v ->I'm confused though.</v>

716
00:36:29.350 --> 00:36:31.100
You agree there's enough evidence

717
00:36:31.100 --> 00:36:33.272
that someone groped her.

718
00:36:33.272 --> 00:36:37.763
Your fight is over who it is, right?

719
00:36:38.955 --> 00:36:40.400
<v ->I happen to think it's doubtful.</v>

720
00:36:40.400 --> 00:36:41.610
I think there's a good chance

721
00:36:41.610 --> 00:36:43.530
that nobody groped her, but listen to her.

722
00:36:43.530 --> 00:36:46.210
But put that aside, there is no evidence

723
00:36:46.210 --> 00:36:47.043
that he groped her.

724
00:36:47.043 --> 00:36:48.479
There is none.

725
00:36:48.479 --> 00:36:52.290
<v ->Can we just slow down for a moment?</v>

726
00:36:52.290 --> 00:36:56.530
What you're saying is on cross examination

727
00:36:56.530 --> 00:36:59.400
she has no personal knowledge

728
00:36:59.400 --> 00:37:04.010
as to the individual who was grabbing her.

729
00:37:04.010 --> 00:37:07.600
That's your position of what she said on cross examination.

730
00:37:07.600 --> 00:37:08.433
When you..

731
00:37:08.433 --> 00:37:09.266
Just let me finish.

732
00:37:09.266 --> 00:37:10.099
<v Michael>Yes, correct.</v>

733
00:37:10.099 --> 00:37:11.430
<v ->I know there's a lot at stake,</v>

734
00:37:11.430 --> 00:37:13.283
but it's just slow down for a minute.

735
00:37:14.410 --> 00:37:18.343
Just one month rent to you from the direct,

736
00:37:20.080 --> 00:37:23.240
isn't there clearly an inference,

737
00:37:23.240 --> 00:37:27.340
although she doesn't actually know who grabbed her,

738
00:37:27.340 --> 00:37:32.190
when you take everything that she testified to on direct

739
00:37:32.190 --> 00:37:35.440
that there is an inference available

740
00:37:35.440 --> 00:37:36.990
in the light most favorable

741
00:37:36.990 --> 00:37:39.390
and taking into account the deference

742
00:37:39.390 --> 00:37:42.360
to the hearing officer, isn't there an inference?

743
00:37:42.360 --> 00:37:47.040
Well, I saw him in this proximity when I felt this

744
00:37:47.040 --> 00:37:50.870
for five to 15 seconds, and it's a reasonable inference

745
00:37:50.870 --> 00:37:55.830
that it's him because she has personal knowledge

746
00:37:55.830 --> 00:37:57.590
that she felt something.

747
00:37:57.590 --> 00:38:00.760
And she has personal knowledge of the time

748
00:38:00.760 --> 00:38:03.260
between when she felt it and she first saw him.

749
00:38:03.260 --> 00:38:04.900
Why isn't that a reasonable infer?

750
00:38:04.900 --> 00:38:06.850
Not inevitable, reasonable.

751
00:38:06.850 --> 00:38:08.670
<v ->Because it is not a reasonable inference</v>

752
00:38:08.670 --> 00:38:11.743
if I walk from where I am to where Mr.Neff is,

753
00:38:13.020 --> 00:38:16.873
that I did something while I was on the way.

754
00:38:18.510 --> 00:38:23.470
If she had turned around and saw him as anybody would,

755
00:38:23.470 --> 00:38:25.060
well, that's a fact.

756
00:38:25.060 --> 00:38:26.260
The judge could believe that.

757
00:38:26.260 --> 00:38:28.670
The inference is he was walking from here,

758
00:38:28.670 --> 00:38:31.910
I saw him later there, somebody groped me in the middle

759
00:38:31.910 --> 00:38:33.180
and I infer that it was him.

760
00:38:33.180 --> 00:38:34.670
That is not a reasonable inference

761
00:38:34.670 --> 00:38:36.590
particularly given her testimony

762
00:38:36.590 --> 00:38:38.940
that there was a crowd of people behind her,

763
00:38:38.940 --> 00:38:41.160
that this was a crowded place in a passageway,

764
00:38:41.160 --> 00:38:44.050
and she does not know who or how many were behind her.

765
00:38:44.050 --> 00:38:44.883
It could have been somebody

766
00:38:44.883 --> 00:38:47.010
in a Mickey mouse uniform behind her.

767
00:38:47.010 --> 00:38:48.350
She doesn't know.

768
00:38:48.350 --> 00:38:50.900
And there is independent testimony,

769
00:38:50.900 --> 00:38:53.203
independent testimony by two people,

770
00:38:54.230 --> 00:38:57.553
employees of a trial court who say he didn't stop.

771
00:38:58.790 --> 00:39:00.810
I think this is clearly erroneous

772
00:39:00.810 --> 00:39:02.823
by any rational standard, your honors,

773
00:39:03.690 --> 00:39:04.820
by any rational standard.

774
00:39:04.820 --> 00:39:07.640
And this whole business of a flask I won't pay attention to.

775
00:39:07.640 --> 00:39:11.220
If having a flask in your pocket and lifting it an inch

776
00:39:11.220 --> 00:39:14.060
out of your pocket as even as Ms. Deines is an offense,

777
00:39:14.060 --> 00:39:16.696
I think you should change the cannons of judicial conduct

778
00:39:16.696 --> 00:39:18.360
to make that clear.

779
00:39:18.360 --> 00:39:20.300
I suggest you respectfully,

780
00:39:20.300 --> 00:39:22.620
that if we leave this courtroom

781
00:39:22.620 --> 00:39:26.710
and you find that someone's belief

782
00:39:26.710 --> 00:39:29.491
rather than what someone observed,

783
00:39:29.491 --> 00:39:33.481
someone's belief can lead to a judge being removed,

784
00:39:33.481 --> 00:39:36.830
being removed from judgeship

785
00:39:36.830 --> 00:39:39.800
is something you should announce to the entire court,

786
00:39:39.800 --> 00:39:41.880
because all of you are at risk

787
00:39:41.880 --> 00:39:44.020
that someone will state a belief

788
00:39:44.020 --> 00:39:46.010
which is not grounded in fact,

789
00:39:46.010 --> 00:39:47.240
and will result in your removal.

790
00:39:47.240 --> 00:39:48.670
<v ->That's just not the analysis.</v>

791
00:39:48.670 --> 00:39:52.130
The analysis is what she observed.

792
00:39:52.130 --> 00:39:53.450
<v Michael>She did not observe this occurring.</v>

793
00:39:53.450 --> 00:39:54.283
<v ->Hold on.</v>

794
00:39:54.283 --> 00:39:56.370
You will understand the question better if you listen to it.

795
00:39:56.370 --> 00:39:57.403
<v Michael>Yes, sir.</v>

796
00:39:59.150 --> 00:40:00.990
<v ->The issue is not what she believed.</v>

797
00:40:00.990 --> 00:40:03.350
She testified to what she observed.

798
00:40:03.350 --> 00:40:05.660
What she believes who it was,

799
00:40:05.660 --> 00:40:07.100
I understand what you're saying.

800
00:40:07.100 --> 00:40:09.510
She testified to what she observed.

801
00:40:09.510 --> 00:40:12.630
Now, the question is, from what she observed,

802
00:40:12.630 --> 00:40:16.020
can you, not when she engages in conjecture on

803
00:40:16.020 --> 00:40:17.190
or speculation,

804
00:40:17.190 --> 00:40:21.050
what she observed, can you draw an inference

805
00:40:21.050 --> 00:40:25.200
that it was your client, and particularly in conjunction

806
00:40:25.200 --> 00:40:29.080
with statements that at best their client

807
00:40:29.080 --> 00:40:32.540
are not easily reconciled.

808
00:40:32.540 --> 00:40:34.690
<v ->You could not draw an inference,</v>

809
00:40:34.690 --> 00:40:37.160
that it was more likely him

810
00:40:37.160 --> 00:40:40.310
than anyone else who may have done this to her.

811
00:40:40.310 --> 00:40:42.490
That is an inference I suggest you respectfully

812
00:40:42.490 --> 00:40:44.560
cannot be drawn based on the facts

813
00:40:44.560 --> 00:40:46.150
you've set forth your honor.

814
00:40:46.150 --> 00:40:48.023
May I just say a word about penalty?

815
00:40:48.980 --> 00:40:49.813
May I say a word.

816
00:40:49.813 --> 00:40:50.646
<v ->Very quickly.</v>

817
00:40:50.646 --> 00:40:51.650
You spent a lot of time talking about

818
00:40:51.650 --> 00:40:52.610
whether it happened or not.

819
00:40:52.610 --> 00:40:55.370
We should probably look at that, but very briefly.

820
00:40:55.370 --> 00:40:56.203
<v ->Thank you.</v>

821
00:40:58.790 --> 00:41:02.240
I have pointed out to you that

822
00:41:02.240 --> 00:41:04.710
the Commission on Judicial Conduct

823
00:41:04.710 --> 00:41:09.220
has said the case most comparable to this misdemeanor

824
00:41:09.220 --> 00:41:13.000
if it occurred, is one involving Judge Justice.

825
00:41:13.000 --> 00:41:15.680
This is a case which has been over-tried

826
00:41:15.680 --> 00:41:17.310
by the Commission on Judicial Conduct,

827
00:41:17.310 --> 00:41:18.230
I suggest respectfully.

828
00:41:18.230 --> 00:41:21.290
And that statement to suggest that Judge Justice

829
00:41:21.290 --> 00:41:23.970
whom I don't know but about whose case I read

830
00:41:23.970 --> 00:41:28.420
had sexual liaisons with a court employee in his chambers

831
00:41:28.420 --> 00:41:30.780
for a period of seven or eight months,

832
00:41:30.780 --> 00:41:33.410
spoke directly with this person about pending cases

833
00:41:33.410 --> 00:41:35.930
in his court, intervened in a personnel matter

834
00:41:35.930 --> 00:41:37.020
involving your...

835
00:41:37.020 --> 00:41:38.600
Compare that to this case.

836
00:41:38.600 --> 00:41:42.099
And to disregard that judges of the superior court

837
00:41:42.099 --> 00:41:46.290
had been admitted to drunk driving on busy highways

838
00:41:46.290 --> 00:41:49.650
and continue to sit to this day without any penalty,

839
00:41:49.650 --> 00:41:51.630
without any sanction, without any costs.

840
00:41:51.630 --> 00:41:53.370
I suggest defies logic.

841
00:41:53.370 --> 00:41:56.380
So I have not able to be able to discuss that

842
00:41:56.380 --> 00:41:57.213
as much as I'd like

843
00:41:57.213 --> 00:42:00.670
but I draw your attention to basic elements of fairness.

844
00:42:00.670 --> 00:42:01.750
And thank you very much.

845
00:42:01.750 --> 00:42:03.033
<v ->Okay, thank you.</v>

846
00:42:03.033 --> 00:42:04.663
<v Michael>I appreciate your time.</v>

847
00:42:06.670 --> 00:42:07.720
<v ->Thank you, counsel.</v>

 