-: SJC-13077 in the matter of Paul M. Sushchyk.
-: Okay.
Attorney Neff.
-: Good morning, Chief Justice Budd
and the honorable justices of the Supreme Judicial Court.
May I please record, my name is Howard Neff
and I am representing the Commission on Judicial Conduct
in this matter.
The matter before you today
is one of extremely serious judicial misconduct.
The hearing officer in this matter
not only found strong clearing convincing evidence
that Judge Paul Sushchyk sexually assaulted Ms. Emily Deines
on the night in question,
but she also took the exceptional and extraordinary step
of also finding that Judge Sushchyk
misled Chief Justice Casey
during his investigation of Ms Deines' complaint
and then offered testimony
during the formal hearing of this matter under oath
that was not truthful.
In her report she stated,
"Judge Sushchyk generated a statement
that he knew to be false,
and one she invented out of whole cloth a version of events
which Ms. Deines' very clear perception
of what happened to her was to be dismissed
as misimpression or exaggeration."
He admitted under oath...
Wendlandt: Counsel.
-: Yes.
-: So the argument on the other side is that
there just isn't clear and convincing evidence
of the assault that was alleged here.
What is your response to that?
-: Well, my response to that is that the hearing officer who
as you know, is a former superior court judge
with 24 years of experience making findings of fact.
-: Right, I understand that we defer
to her credibility findings.
So what is the clear and convincing evidence
of the sexual assault?
-: In this particular matter, Ms. Deines
was subjected to rigorous cross examination
by Mr. Angelini as Judge Josephson noted in her report
regarding what...
-: Right, and I guess the problem is
that under that cross examination,
she said I don't know if there were other people behind me.
I don't know if he was the only person.
And so I just need a response to the argument
that Mr. Angelini makes with regarding to
whether or not there is clear and convincing evidence
of the sexual assault.
-: To that I would answer Chief Justice Budd,
that the end of..
-: It's Justice Wendlant, I'm sorry.
There must be something that goes on with my voice.
Thank you for the interrogation.
Howard: Apologies.
-: No, that's okay.
-: To answer that question
I would say that the totality of Ms Deines' testimony
as found by chief justice...
Excuse me, as found by Judge Josephson
by clear and convincing evidence
was that she saw Judge Sushchyk approached the table,
go around a brick pillar,
appear on the right side of her shoulder right behind her,
disappeared behind her at exactly that moment,
felt someone grab her left buttock.
And then immediately thereafter
Judge Sushchyk appeared there speaking to Ms. Paskos.
So what you have in this case is..
-: So you're saying that that's enough to infer
that he did the sexual assault.
-: Well, I would agree.
What you have here is a case of direct
and circumstantial evidence.
You have testimony from which a reasonable inference
can be drawn that it was Judge Sushchyk
who is indeed behind Ms. Deines
and the only person directly behind Ms. Deines
at the time that her buttock was assaulted.
And if you're looking for any corroboration of that,
Judged Ms. Deines On May 20th, 2019 statement
to Chief Justice Casey admits that he came
into momentary contact of a lower portion
of Ms. Deines' body on the night in question.
-: All right.
And what if I think that the evidence of the...
What do we make of the evidence of the whiskey flask?
Is that relevant?
How do we weigh that?
-: In this matter both the hearing officer
and the commission..
Well, the hearing officer made findings that
that did not amount to misconduct.
The commission in its report adopted
the hearing officer's findings
that that did not amount to misconduct.
-: So this case is really about the assault
and the failure of the written statement?
-: This conduct is the sexual assault
and the misleading and the lying.
I would suggest that the relevance of the flask is,
as you may recall, Chief Justice Casey
saw Judge Sushchyk earlier in the evening
on the same day that this assault occurred.
Judge Sushchyk appeared tired,
not as energetic as Chief Justice Casey was used to,
had red eyes.
Judge Sushchyk subsequently showed up
at this table full of probate and family court employees.
For whatever reason felt it was appropriate to display
in whatever manner he displayed
whether it was removing it a little or a lot from his pocket
that he was carrying around
his own personal flask of hard liquor,
I'd suggest that goes to his state of mind where it was at,
his judgment, and could be an explanation
for why he behaved the way he did toward Ms. Deines.
-: And how do we weigh that in terms of the punishment
that's being recommended?
-: Well, in this case I would say the court has a precedent
for how it deals with cases of sexual misconduct
and sexual harassment by judges.
And that's the SD's matter, where this court imposed
the strongest possible constitutional sanction available.
Here Judge Sushchyk to borrow from judge Josephson's report
and Ms.Sushchyk statement during the hearing
in this matter, Judge Sushchyk conduct
did not cross a murky line.
His conduct was so far over the line.
-: Meaning the line was not murky, right?
-: Line was not murky.
His conduct was so far over the line
that I would suggest it renders him permanently incapable
of commanding the respect and authority necessary
to resume his judicial office.
-: Attorney Neff.
What weight do you give the fact that the judge found
that the hearing officer found that the judge lied
or made misrepresentations in his first response?
-: I'm sorry, Justice Cypher.
-: What weight is it in this analysis?
How much weight should we give the fact
that the judge affirmatively lied
during the investigation and before the hearing
and then change the story at the hearing?
-: Well, in the commission's report to this court
the misleading of Chief Justice Casey
and even the false testimony under oath
are characterized as aggravating factors
for the court to consider
because those are particularly given the way in which
those fact patterns of all could not really possibly
have been part of the formal charges.
Having said that
issues of a judge failing to be forthright
and provide honest information to achieve justice
in an investigation and issues of a judge
who under oath gave testimony that was not truthful,
are at least...
Well, are serious enough to merit the same type of sanction
I'd suggest, we're proposing for the sexual assault
against Ms. Deines.
-: You think the sanction request would be the same
if you didn't have the misleading statement.
-: Absolutely.
I think either the sexual assault against Ms. Deines
renders unfit or remain on the bench
or his decision to mislead Chief Justice Casey
and lie under oath.
Either of those...
Kafker: In every case?
-: Actions amount to reasons that he can't serve as a judge.
-: I'm confused by that.
So you're saying that in every case before the commission,
either one of those would be enough
for the ultimate sanction which is removal from office?
That you always do that?
That this level of misconduct, meaning
a single action like that always results in that.
Is that right?
I'm just curious 'cause unlike the hearing officer,
you have sort of a broad understanding
of what the commission has done historically in all their...
And you have reductions of response for misconduct.
So either one of those things
as opposed to the combination is enough?
But under your historic, the way you've interpreted
the commission's disciplinary,
'cause no one knows it better than you, right?
You've been there how many years?
-: Over 15 now.
-: So, I just wanna make sure of that
'cause it seems to me the combination
is compelling particularly if we have deliberate lying,
but you have always imposed the ultimate sanction
for this kind of single action like this?
-: In my experience we have, yes.
-: Can I follow up with you on that attorney Neff
because one of the other cases that cited
I believe in one of your briefs talks about the OUI,
and I'm not necessarily saying that
what we're talking about here isn't serious,
but I know prior to this,
that you were in the district attorney's office,
and you know that whatever this charge would be
would be a misdemeanor, right?
And misdemeanor charges prior to this for other judges
have not resulted in the ultimate sanction
that you're now requesting of the court.
Again, I'm not minimizing the specific found conduct here,
but I'm saying that at the end of the day
it would be a misdemeanor charge
and there've been other judges that have pled guilty
to misdemeanor charges that are still practicing,
that are still presiding.
-: Well, I would agree with you
that that has indeed been the case.
However, I would disagree that those cases
bear sufficient resemblance
to the very serious misconduct at issue
in this particular complaint before the court
for the commissions decisions in those matters
to be relevant in any decision this court makes.
It also speaking generally...
-: Is that because it was a clear line,
it was at a court event?
How do you come to the conclusion
to Justice Georges' question?
Howard: Can you tell me which part of?
-: I'm sorry.
Howard: Can you repeat the question?
-: Yes.
So you said that those cases, the OUI misdemeanor cases
are not comparable period, full stop.
Can you tell me why?
Is it because this was a clear line that was crossed
at a court event?
What is it that makes this different than the OUI?
-: I think even a casual review of this statistics
of how criminal matters are resolved
throughout the various district and municipal courts
of this Commonwealth would show you that
when a court is addressing at least a first offense
drunk driving case, the sentence imposed
and the way that it is dealt with,
it is dealt with this seriously,
but it is not dealt with nearly as harshly as for instance
a case brought before the court alleging
ending sentence assault and battery on a person over 14.
-: So you're explaining the sort of the details
but is it because there was a victim,
it's at a court event, it's a clear line?
What is the difference?
-: Well, it's a good question.
If there was a variation of the fact pattern
and this is really just a hypo
and there's no precedential value to rely on here,
if a judges OUI case, and I have to be careful
because as I mentioned in the brief,
all of our egregious positions referenced
in Mr. Angelini's brief have terms that require
that we not publicly comment on their terms.
So I wanna be general.
-: I think we want you to talk actually not by name.
But what kinds of offenses are the ones?
'Cause again, we're trying to evaluate the continuum
of punishment that you have the capacity to do.
So we're without talking about specific cases,
so much as specific criminal activity
as Justice Wendlandt just pointed out
whether it's engaged in at work or out of work,
whether it involves other court employees.
Those are the types of...
It doesn't sound like it matters to you.
-: Well, it always matters.
But with like with every human experience and mistake,
there are always different factors and facts and issues
in play that the court have..
Excuse me, not the court, that the commission
has to look at in connection with trying to come up
with the right result.
And...
-: So it isn't as you said earlier,
the single action it's the totality?
Or isn't it?
-: I'm not how to answer that other than to say
that I would respectfully suggest
that a sitting judge at the probate and family court
who's at a work-related conference,
who sexually assaults an employee
of probate and family court
by grabbing her left buttock, is serious enough
and so far over the line that there's no need
for the commission to muse or consider
or wrestle with whether or not the ultimate sanction
is appropriate.
And as I said..
-: Can I like to switch you 'cause I know we're over already.
To me it was very critical that the judge found that,
meaning hearing officer found that the judge
walked back his statement and admitted he lied.
Can you walk me through what the judge...
'Cause Mr. Angelini's brief, doesn't read that way.
So do you have the transcript in front of me?
Do you know where?
I haven't read the whole transcript yet.
What does he say that basically admits
that he made this statement up?
And is it ambiguous or is it clear cut?
-: He does make a statement, which I would characterize
as not credible or believable,
which is that facing the serious allegation
of sexual misconduct with 10 days to reflect
on what he was gonna reduce to paper
after first being confronted
with this allegation of sexual misconduct,
he reduced to paper a factual scenario.
-: I'm asking you a different question.
At the hearing, Judge Josephson says,
she finds that he basically admitted
that he lied to judge Chief Justice Casey.
And I'm just trying to make sure how.
I haven't read the statement yet.
Do you have it in front of you that part of it
or the transcript?
I'm gonna ask the same question, Mr. Angelini
'cause to me that may be the most important factor here
that he's admitted to lying.
You have the...
I just would like to pin that down
so that I understand the basis of that.
-: I don't have his exact statement in front of me
at this point, but in that statement,
his admission which I may not get correct word for word
was that he arrived at the table
with Ms. Paskos and others, offered to buy them drinks.
At a certain point after doing so,
left to go to the men's room.
And in his written statement said to Chief Justice Casey,
attributing my long day and my recent hip surgery
and another medical issue and the alcohol consumed,
I may have inadvertently come into contact
with the lower portion of Ms.Sushchyk body.
-: From my understanding, the judge says
that he walks back that statement and says,
"I never made any contact with her body.
I'm sure of it."
And I just haven't read the transcript yet.
-: Attorney Neff.
What was it that the part where
I believe Judge Josephson said,
or there was some comment that the judge was concerned
that Ms. Deines was going to be believed
and therefore as a prophylactic made up this story
because he thought that she was going to be believed
in the first instance.
Something along those lines.
-: I would answer that Judge Sushchyk's problem
was best described by judge Josephson in her findings
after she had a chance to hear all the testimony
including the testimony elicited by Mr. Angelini,
where she found
Judge Sushchyk generated a statement,
meaning that May 20th statement,
he knew to be false, which he invented out of whole cloth
a version of events in which Ms. Deines'
very clear perception of what happened to her person
was to be dismissed as misimpression or an exaggeration.
He admitted under oath in truth that what he wrote happened
simply had not, to answer the other question.
Such misdirection during the investigation
not only evinces consciousness of guilt,
but is wholly inconsistent with the oath of office
and ethical conduct required of a judge.
-: Everybody answered?
-: Well, the last thing I'd say is,
if you really are at a point
where you're thinking about how do you weigh
Ms. Deines statements, Judge Sushchyk's statements,
the defense as Mr. Angelini has presented
on behalf of Judge Sushchyk I would just say this,
in her report, Judge Josephson
saw through Judge Sushchyk's
inconsistent and incredible explanations
for what happened that day and wrote,
"Judge Sushchyk lack of candor
at the inception of this matter,
undermines his credibility at hearing.
His initial response suggests
he did what he was accused of doing
and sought to minimize his culpability for it.
I do not find Judge Sushchyk testimonial denials
of intentional contact consistent credible
with the complaint that she was grabbed by Judge Sushchyk
is only more believable than it's reworked denials,
it is bolstered by them.
I find Judge Sushchyk testimony at hearing
as a further instance of his failure to be truthful
in this matter.
-: Attorney Neff, we can read that to rule.
Thank you for your argument.
I'm gonna ask Attorney Angelini to step up.
-: Good morning your honors, may I proceed?
Budd: Yes.
My name is Michael Angelini.
I represent Judge Paul Sushchyk.
Let me do what I did not intend to do
and to address this issue
which my brother has characterized as lying.
First of all, let me say that there is a procedure
before the commission on judicial conduct,
which requires that if a judge is alleged
to have engaged in misconduct,
formal charges may be brought against him.
There is no formal charge here that he lied to anybody.
-: Counsel, let me just say,
I think I characterized it that way before
and I don't think attorney Neff did.
But you can make this more clear for me.
To me it seems pretty straightforward
that there is a fine testimony and a finding
that your client engaged in this conduct
and that there were misrepresentations made about it.
And I grant you there are no formal charges on that.
So how has this more complicated?
-: How was this more complicated than what your honor?
-: Than what he did.
How has it more complicated?
Did he do this?
-: The basic issue in this case is,
what if anything happened?
This case, when we get to a statement of the moment,
this case is (indistinct) matter of fact, but don't believe.
-: Isn't that limited though because
I'm confused by what it is...
Sorry, I apologize.
I'm confused by
'cause if the findings of fact she makes
find that your client is not telling the truth,
she makes those expressly and she relies on them heavily
for the remedy, which is retirement from office,
so we have to deal with both the act
and the truthfulness issue or we're not...
Tell me why we're not supposed to do that.
-: You could do that.
I would say to you though, that there is a procedure.
If they wanna bring formal charges against Judge Sushchyk
for this statement, which I'll explain in a moment,
I've tried to do that in my brief.
Let them do it, we will defend it.
Budd: But that's not the point.
-: But the point is.
Budd: Sir.
-: Yes, excuse me your honor.
-: So that's not the point here.
We're not looking at whether or not he lied.
The findings are that he lied.
Michael: Yes.
-: Okay. So we now have to accept those findings
unless they're clearly erroneous.
-: And they are.
And let me tell you why they are.
Budd: Okay. Let's do that.
-: Let me tell you why they are.
Because when Judge Sushchyk was presented,
Judge Sushchyk had met this woman once in his life
for what she described as a very short time.
They were not known to each other, beyond that.
He was presented by Judge Casey with a statement from her
which is in volume one, page 95
and in volume one page 152.
The statement said, "I believe the person who grabbed me
was Paul Judge Sushchyk because, one,
he had recently come over to the table where I was seated."
He had recently come over to the table where I was seated.
And two, and we'll get to this later,
"He was the only person behind me
at the time of the grabbing."
Judge Sushchyk was presented with that statement
by Judge Casey.
Judge Casey testified to this at the hearing.
And he said you should prepare a statement in response.
Judge Sushchyk as he said, you can read his testimony,
went off and deliberated about this.
He'd denied anything happened.
He did not recall any intentional contact with her
or anybody else, but he read
and deliberated about that statement.
And he remembered that sometime that evening
as he testified to, he got up and went to the bathroom
and came back from the bathroom
and went through this crowd of people behind that chair.
And inadvertently had inadvertent contact with someone
sitting in that chair whom we assume with Ms. Deines.
What he later learned was that Ms. Deines claimed
that this did not occur when Judge Sushchyk
come to the table.
That this occurred...
Excuse me, that this in fact occurred
not later in the evening,
but when he first came to the table.
And that when he went to the bathroom and came back,
if he inadvertently touched somebody
it was definitely not Ms. Deines
because according to her testimony, she left 10 minutes
after finishing her beer and after he arrived.
So he does not say as my brother has said
and does not say I lied.
I misstated.
We're talking about two very different circumstances.
And the one which is covered by his statement
does not involve Ms. Deines.
And he never, never, never has acknowledged
any intentional contact with anybody.
-: Does this statement say that it was Ms. Deines?
-: No, he assumed it was Ms. Deines.
Well, he may, but,
it could not have been because she had left
by the time he'd gone to the bathroom.
-: Excuse me, counsel.
Who does the statement say he touched?
-: Somebody is sitting in that chair.
-: Okay.
-: Somebody sitting in that chair.
That's the beginning and end of this
with respect to the lying.
The basic issue, which gets us here,
the charge by the commission is simply based
not on any fact, but on a belief.
A belief by Ms. Deines that this was judge for two reasons.
One, he had recently come to the table
which we know he had not according to her later testimony.
Her later testimony was he was arriving at the table.
And then she says,
"He was the only person directly behind me
at the time of the grab."
She has no idea who was behind her.
-: Well, counsel, can I interrupt you on this one point
Because it relates to another argument
that you make in your brief that I like you to touch upon.
So in this case, Judge Josephson has a hearing
where she's both...
She's the finder of fact.
And under the clear and convincing standard,
you're advocating that it's not enough
for the finder of fact, just to believe a witness
irrespective of whether there's any corroboration.
And that's not been the case, right?
Where if you've got a...
He said she said case it defined her fact
can choose to believe one and not the other,
without any other corroboration.
But you're asking the court to now take a position
where we require corroboration.
But let me just be pointed at one thing.
Michael: Yes your honor.
-: Assume that we don't follow you,
that we leave the law as it is,
that the credibility assessment can be,
If you think it's a jump ball
and it happens to go against you, that that's enough.
-: We're not talking about a jump ball.
Georges: Why not?
-: The finder of fact is required to find facts
based on evidence, not based on belief.
-: Well, perhaps, as attorney Neff laid out,
there were influential pieces in the circumstantial case
that led the finder to find that this was Judge Sushchyk.
-: There were no inferential pieces
which deserve any attention.
The role of this court is to correct mistakes made
by the lower court.
And in order for there to be a basis for finding facts,
for determining the credibility of witness,
there needs to be some facts.
Mr. Neff said it.
She claims she saw Judge Sushchyk walking in her direction.
She claims she has no idea who was behind her.
She admitted it.
I've put this in my brief,
that anyone of the crowd behind her
and she admitted there was a crowd of people there
and that behind her was a passageway.
-: But isn't there...
There's a duration of the grab as well.
It's not...
She says, is there a duration of the grab or is 15?
-: This occurred between five, 10 or 15 seconds.
-: But that's...
So hold, you just came like this, just give me a second.
-: If she's...
Again, the judge finds she's credible
so that somebody grabbed her for five to 15 seconds, right?
Michael: Right.
-: One, 1000, two, 1000, three, 1000.
That's not a...
You can't just walk by somebody
and grab them for five to 15 seconds, can you?
It's hard.
You have to be behind them.
For that long a period of time.
-: Yes, of course.
-: Again, I'm taking the facts that the judge could find.
Judge Sushchyk is standing next to her
during that period of time, correct?
-: No.
-: Again, I have a picture.
-: Here's the evidence if I can just summarize.
Kafker: I know, but I want...
-: She is giving her the benefit of every doubt.
She says, I saw Judge Sushchyk
as he was walking towards the area behind.
She says, I have no idea who was behind him.
She says, I was grabbed by somebody in our latest iteration,
not someone slid his hand under my left buttocks,
lifted it and grabbed and squeezed it
between five and 50 seconds.
She says, I then later saw Judge Sushchyk
talking to Ms. Paskos, who was immediately to my left.
She says, under oath, I have no idea how long it took me
to turn and look to my left.
She says, I would have no idea
how long he was speaking to Ms. Paskos
when I turned to my left.
She says I have no idea who was behind me at the time.
Two independent witnesses, lawyers in the trial court,
in this court testified under oath, I saw him walking.
One of them, Ms. Paskos, who was directly to her left.
I saw him walking behind it.
He never stopped another one, Jocelyn,
while she was talking with Ms. Deines across the table...
Kafker: Hold a second, Can I...
Go ahead.
-: Excuse me for raising my voice, I apologize.
-: Counsel, can I just...
So you're focused on some of the evidence.
Can I just ask you, I'm gonna read you some of the evidence
and then ask you why that doesn't lead to the conclusion,
a supportable conclusion by clear and convincing evidence
that in fact it was your client that grabbed her.
Ms. Deines says...
Michael: Could you keep your voice up your honor.
-: Ms. Deines says, "As he passed behind me, I felt him grab,
slide his hand under my left buttocks and grab me.
And there was no one else directly behind me
at that time that I know of, no.
I paused.
I paused, and then I turned around.
Did you say anything to him?
No.
I saw your client behind me over my left shoulder.
And I saw Evelyn standing next to him.
How long did the grab actually last?
Geez, I don't know, five, 10, 15 seconds.
Something along those lines.
Why couldn't somebody take that evidence, that testimony,
and conclude by clear and convincing evidence
that in fact was your client who grabbed her?
-: Because she does not know what she testified to
as she did it under cross examination and I've included it.
She does not know that he stopped behind her.
She does not know if it was him who grabbed her.
She does not know who grabbed her
despite what she said in that statement,
and that is the crux of this matter.
This is an allegation based on belief.
And when we begin incriminating people,
based upon belief rather than on fact,
it'll be the dawn of a new and dead day.
That is why that deserves the attention.
She testified under oath.
-: You're saying we can't believe her direct testimony.
We must instead believe her cross-examination testimony
unless there's independent corroboration.
-: I'm saying, if you were gonna give credit to a witness,
you need to listen to all the witness say.
You can't give credit to what the witness says
and disregard inconsistency.
-: But counsel, let me stop you there.
Because even in let's just take in a criminal context,
we know that the judges instructive the jurors
when they go to the instruction
on the credibility of witnesses.
Says that they can believe all of what a witness says,
some of what a witness says or none of what a witness says.
Why doesn't Judge Josephson didn't have the same right
to say, I can pick which part of the testimony
I choose to credit and not credit
all the parts of the testimony?
We tell jurors that every day.
-: Here's why.
You could credit testimony of a witness who see something,
who hear something, but you cannot credit
what the witness believes.
-: What about when a witness feels something, counsel?
What about when a witness feels something?
Michael: When witness what?
-: When they feel something, can you credit that?
That they felt it?
-: Well, I suppose you do some evidence
that a witness feels something.
You need facts.
You can't have just belief.
-: I can't believe that I'm feeling something?
Michael: I'm sorry.
-: I can't believe I feel something?
Kafker: By the way, there's no doubt...
Michael: (indistinct) question I apologize.
-: That's all right.
-: I'm confused though.
You agree there's enough evidence
that someone groped her.
Your fight is over who it is, right?
-: I happen to think it's doubtful.
I think there's a good chance
that nobody groped her, but listen to her.
But put that aside, there is no evidence
that he groped her.
There is none.
-: Can we just slow down for a moment?
What you're saying is on cross examination
she has no personal knowledge
as to the individual who was grabbing her.
That's your position of what she said on cross examination.
When you..
Just let me finish.
Michael: Yes, correct.
-: I know there's a lot at stake,
but it's just slow down for a minute.
Just one month rent to you from the direct,
isn't there clearly an inference,
although she doesn't actually know who grabbed her,
when you take everything that she testified to on direct
that there is an inference available
in the light most favorable
and taking into account the deference
to the hearing officer, isn't there an inference?
Well, I saw him in this proximity when I felt this
for five to 15 seconds, and it's a reasonable inference
that it's him because she has personal knowledge
that she felt something.
And she has personal knowledge of the time
between when she felt it and she first saw him.
Why isn't that a reasonable infer?
Not inevitable, reasonable.
-: Because it is not a reasonable inference
if I walk from where I am to where Mr.Neff is,
that I did something while I was on the way.
If she had turned around and saw him as anybody would,
well, that's a fact.
The judge could believe that.
The inference is he was walking from here,
I saw him later there, somebody groped me in the middle
and I infer that it was him.
That is not a reasonable inference
particularly given her testimony
that there was a crowd of people behind her,
that this was a crowded place in a passageway,
and she does not know who or how many were behind her.
It could have been somebody
in a Mickey mouse uniform behind her.
She doesn't know.
And there is independent testimony,
independent testimony by two people,
employees of a trial court who say he didn't stop.
I think this is clearly erroneous
by any rational standard, your honors,
by any rational standard.
And this whole business of a flask I won't pay attention to.
If having a flask in your pocket and lifting it an inch
out of your pocket as even as Ms. Deines is an offense,
I think you should change the cannons of judicial conduct
to make that clear.
I suggest you respectfully,
that if we leave this courtroom
and you find that someone's belief
rather than what someone observed,
someone's belief can lead to a judge being removed,
being removed from judgeship
is something you should announce to the entire court,
because all of you are at risk
that someone will state a belief
which is not grounded in fact,
and will result in your removal.
-: That's just not the analysis.
The analysis is what she observed.
Michael: She did not observe this occurring.
-: Hold on.
You will understand the question better if you listen to it.
Michael: Yes, sir.
-: The issue is not what she believed.
She testified to what she observed.
What she believes who it was,
I understand what you're saying.
She testified to what she observed.
Now, the question is, from what she observed,
can you, not when she engages in conjecture on
or speculation,
what she observed, can you draw an inference
that it was your client, and particularly in conjunction
with statements that at best their client
are not easily reconciled.
-: You could not draw an inference,
that it was more likely him
than anyone else who may have done this to her.
That is an inference I suggest you respectfully
cannot be drawn based on the facts
you've set forth your honor.
May I just say a word about penalty?
May I say a word.
-: Very quickly.
You spent a lot of time talking about
whether it happened or not.
We should probably look at that, but very briefly.
-: Thank you.
I have pointed out to you that
the Commission on Judicial Conduct
has said the case most comparable to this misdemeanor
if it occurred, is one involving Judge Justice.
This is a case which has been over-tried
by the Commission on Judicial Conduct,
I suggest respectfully.
And that statement to suggest that Judge Justice
whom I don't know but about whose case I read
had sexual liaisons with a court employee in his chambers
for a period of seven or eight months,
spoke directly with this person about pending cases
in his court, intervened in a personnel matter
involving your...
Compare that to this case.
And to disregard that judges of the superior court
had been admitted to drunk driving on busy highways
and continue to sit to this day without any penalty,
without any sanction, without any costs.
I suggest defies logic.
So I have not able to be able to discuss that
as much as I'd like
but I draw your attention to basic elements of fairness.
And thank you very much.
-: Okay, thank you.
Michael: I appreciate your time.
-: Thank you, counsel.