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SJC-13077 in the matter of Paul M. Sushchyk.
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Okay.
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Attorney Neff.
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Good morning, Chief Justice Budd
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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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Counsel.
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Yes.
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So the argument on the other side is that
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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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Well, my response to that is that the hearing officer who
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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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Right, I understand that we defer
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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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In this particular matter, Ms. Deines
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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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Right, and I guess the problem is
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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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To that I would answer Chief Justice Budd,
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that the end of..
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It's Justice Wendlant, I'm sorry.
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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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Apologies.
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No, that's okay.
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To answer that question
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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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So you're saying that that's enough to infer
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that he did the sexual assault.
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Well, I would agree.
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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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All right.
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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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In this matter both the hearing officer
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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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So this case is really about the assault
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and the failure of the written statement?
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This conduct is the sexual assault
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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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And how do we weigh that in terms of the punishment
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that's being recommended?
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Well, in this case I would say the court has a precedent
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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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Meaning the line was not murky, right?
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Line was not murky.
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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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Attorney Neff.
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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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I'm sorry, Justice Cypher.
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What weight is it in this analysis?
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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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Well, in the commission's report to this court
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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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You think the sanction request would be the same
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if you didn't have the misleading statement.
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Absolutely.
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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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In every case?
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Actions amount to reasons that he can't serve as a judge.
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I'm confused by that.
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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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Over 15 now.
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So, I just wanna make sure of that
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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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In my experience we have, yes.
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Can I follow up with you on that attorney Neff
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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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Well, I would agree with you
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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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Is that because it was a clear line,
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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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Can you tell me which part of?
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I'm sorry.
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Can you repeat the question?
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Yes.
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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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I think even a casual review of this statistics
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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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So you're explaining the sort of the details
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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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Well, it's a good question.
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If there was a variation of the fact pattern
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and this is really just a hypo
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and there's no precedential value to rely on here,
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if a judges OUI case, and I have to be careful
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because as I mentioned in the brief,
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all of our egregious positions referenced
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in Mr. Angelini's brief have terms that require
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that we not publicly comment on their terms.
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So I wanna be general.
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I think we want you to talk actually not by name.
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But what kinds of offenses are the ones?
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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
Well, it always matters.
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
So it isn't as you said earlier,
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
I'm not how to answer that other than to say
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
Can I like to switch you 'cause I know we're over already.
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
He does make a statement, which I would characterize
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
I'm asking you a different question.
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
I don't have his exact statement in front of me
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
From my understanding, the judge says
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
Attorney Neff.
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
I would answer that Judge Sushchyk's problem
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
Everybody answered?
381
00:21:36.620 --> 00:21:38.155
Well, the last thing I'd say is,
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
Attorney Neff, we can read that to rule.
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
Good morning your honors, may I proceed?
409
00:23:11.890 --> 00:23:12.740
Yes.
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
Counsel, let me just say,
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
How was this more complicated than what your honor?
432
00:24:07.954 --> 00:24:09.450
Than what he did.
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
The basic issue in this case is,
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
Isn't that limited though because
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
You could do that.
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
But that's not the point.
457
00:25:21.130 --> 00:25:22.050
But the point is.
458
00:25:22.050 --> 00:25:22.883
Sir.
459
00:25:22.883 --> 00:25:24.640
Yes, excuse me your honor.
460
00:25:24.640 --> 00:25:27.740
So that's not the point here.
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
Yes.
464
00:25:34.313 --> 00:25:38.130
Okay. So we now have to accept those findings
465
00:25:38.130 --> 00:25:40.050
unless they're clearly erroneous.
466
00:25:40.050 --> 00:25:41.170
And they are.
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
Okay. Let's do that.
469
00:25:43.256 --> 00:25:44.630
Let me tell you why they are.
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
Does this statement say that it was Ms. Deines?
521
00:28:08.110 --> 00:28:09.880
No, he assumed it was Ms. Deines.
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
Excuse me, counsel.
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
Somebody is sitting in that chair.
528
00:28:20.293 --> 00:28:21.453
Okay.
529
00:28:22.680 --> 00:28:24.560
Somebody sitting in that chair.
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
Well, counsel, can I interrupt you on this one point
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
Yes your honor.
562
00:29:54.893 --> 00:29:56.630
Assume that we don't follow you,
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
We're not talking about a jump ball.
568
00:30:11.695 --> 00:30:12.528
Why not?
569
00:30:12.528 --> 00:30:15.030
The finder of fact is required to find facts
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
Well, perhaps, as attorney Neff laid out,
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
There were no inferential pieces
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
But isn't there...
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
This occurred between five, 10 or 15 seconds.
594
00:31:18.580 --> 00:31:19.413
But that's...
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
If she's...
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
Right.
600
00:31:34.206 --> 00:31:37.530
One, 1000, two, 1000, three, 1000.
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
Yes, of course.
608
00:31:54.000 --> 00:31:56.843
Again, I'm taking the facts that the judge could find.
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
No.
612
00:32:09.350 --> 00:32:10.780
Again, I have a picture.
613
00:32:10.780 --> 00:32:12.760
Here's the evidence if I can just summarize.
614
00:32:12.760 --> 00:32:13.736
I know, but I want...
615
00:32:13.736 --> 00:32:16.060
She is giving her the benefit of every doubt.
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
Hold a second, Can I...
638
00:33:16.710 --> 00:33:17.543
Go ahead.
639
00:33:17.543 --> 00:33:18.630
Excuse me for raising my voice, I apologize.
640
00:33:18.630 --> 00:33:19.870
Counsel, can I just...
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
Could you keep your voice up your honor.
648
00:33:40.490 --> 00:33:45.490
Ms. Deines says, "As he passed behind me, I felt him grab,
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
Because she does not know what she testified to
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
You're saying we can't believe her direct testimony.
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
I'm saying, if you were gonna give credit to a witness,
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
But counsel, let me stop you there.
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
Here's why.
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
What about when a witness feels something, counsel?
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
When witness what?
703
00:36:07.740 --> 00:36:10.970
When they feel something, can you credit that?
704
00:36:10.970 --> 00:36:12.660
That they felt it?
705
00:36:12.660 --> 00:36:13.493
Well, I suppose you do some evidence
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
I can't believe that I'm feeling something?
710
00:36:20.040 --> 00:36:20.873
I'm sorry.
711
00:36:20.873 --> 00:36:22.240
I can't believe I feel something?
712
00:36:24.376 --> 00:36:26.115
By the way, there's no doubt...
713
00:36:26.115 --> 00:36:27.046
(indistinct) question I apologize.
714
00:36:27.046 --> 00:36:27.879
That's all right.
715
00:36:27.879 --> 00:36:29.350
I'm confused though.
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
I happen to think it's doubtful.
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
Can we just slow down for a moment?
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
Yes, correct.
733
00:37:10.099 --> 00:37:11.430
I know there's a lot at stake,
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
Because it is not a reasonable inference
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
That's just not the analysis.
791
00:39:48.670 --> 00:39:52.130
The analysis is what she observed.
792
00:39:52.130 --> 00:39:53.450
She did not observe this occurring.
793
00:39:53.450 --> 00:39:54.283
Hold on.
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
Yes, sir.
796
00:39:59.150 --> 00:40:00.990
The issue is not what she believed.
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
You could not draw an inference,
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
Very quickly.
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
Thank you.
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
Okay, thank you.
846
00:42:03.033 --> 00:42:04.663
I appreciate your time.
847
00:42:06.670 --> 00:42:07.720
Thank you, counsel.