Here we introduce the story behind an anonymous memo Bailey received sometime in the 2003-05 time frame in the aftermath of the jury verdict returned in a federal court in Wilkes-Barre late on a cold and snowy Friday evening in February, 2003. Two state narcotics agents out of Philadelphia were awarded $1.5 million in actual and punitive damages against some of their superiors, including then-attorney general Mike Fisher. There was no press coverage of it, except perhaps a local blurb, yet it was a historic verdict. The verdict ultimately was taken away by the United States Third Circuit Court of Appeals, to which Fisher was appointed as the case wend its way through the courts for an inordinate number of years. The wife of then-governor, Ed Rendell, Midge, is on that court as well. Sometime after the verdict, Bailey received a memo anonymously that said “Bailey has caused a shit storm” in Pennsylvania, which was circulated through the state email, suggesting some kind of vague political agenda. Efforts will be made to locate a copy of the missive.
The short answer to the question of what role partisan politics has in this site is none. It appears that the fact that Tom Corbett is an attorney and is now our governor has led some to view our effort as a partisan attack on Tom Corbett in our Penn State post. Tom Corbett was attorney general for most of the past decade, and the attorney general is, obviously, a central figure in setting the state civil rights landscape – it is his former office that defends lawsuits against the state and its officials and employees, and his conduct is unquestionably at issue in some of what we have been discussing, but our focus is Pennsylvania, and central Pennsylvania, in particular, and the condition of the courts upon which we wish to shine light. We expect the record to speak for itself as our efforts proceed.
Central Pennsylvania, as we use that term, covers the geographic region from Fulton to York County in the south and due north to New York, with some accommodation to the east to include Lackawanna and Luzerne Counties. This is also the region covered by the United States District Court for the Middle District of Pennsylvania, which we have discussed at length in this site. Republican party politics have traditionally dominated the culture of the southern region of central Pennsylvania, through State College, and Democratic party politics have dominated the north and east. Democrats and Republicans, however, all seek and need access to the same courts, and neither party typically ever has policy objectives directed at court reform. The exclusive objective of this site, the only slogan used, is “working to provide equal justice under the law”.
“Political reform” has been discussed as an objective, and will continue to be. It may be necessary already, but the mantra we have been repeating is that the courts must first be given the chance to prove capable of disciplining themselves, and the motions to open judgment and other matters that are pending throughout the state and federal courts concerning the Don Bailey saga would still appear to provide ample opportunity for the courts to do so. The only specific politicians who have been connected to these discussions have been Pat Toomey, a Republican, and Bob Casey, a Democrat. Our objective is court reform, even political reform. It is non-partisan.
Don Bailey is, of course, a well-known lifelong Democrat, but is not believed to have run for any office since 1998, and doubtful that he plans to do so. He has said this case is about settling old political scores, but they are not his. His clients include lifelong Republicans, such as Roger Snyder, a Lancaster County Republican, and Tom Kimmett, a lifelong Republican in the attorney general’s office. Parts their stories have been shared here. Don has sued Democrat politicians and officials as well. Party affiliation is only relevant because the courts in central Pennsylvania have become instrumentalities of the political process, instead of checks on it, and that dynamic is at the heart of our study.
Nothing more clearly shows the insidious interconnectedness of party politics – both parties – to the condition of the courts than the story behind the Fisher verdict. The trial judge in the case, A. Richard Caputo, is from Luzerne County, and believed to be a democrat. He was appointed under Clinton. Fisher, Republican Attorney General, was a defendant, and United States Attorney Michael Stiles of Philadelphia, also appointed by Clinton, was earlier dismissed as a defendant, but was a witness. Bailey’s clients were two state narcotics agents who were retaliated against after getting too close to, and reporting, investigations of narcotics trafficking activities involving possible misconduct of public officials at high levels. There is an abundant public record of all of this, and, at some point, we hope to put all the evidence before you. It is there, and was presented to a jury. That jury awarded a verdict totaling $1.5 million in actual and punitive damages. Mike Fisher, now a federal judge, was held personally responsible for violating the two narcotics agents’ civil rights. It was shortly after this that the “shit storm” memo was received by Bailey. Bailey had it hanging on a wall in his office.
The trial was originally delayed, without any real cause, until after the gubernatorial election of 2002. Rendell beat Fisher to succeed Ridge. The case then sat before Judge Caputo on post trial motions for two years or so, an excessive time. On May 1, 2003, less than 3 months after the verdict, Fisher was nominated to the United States Court of Appeals for the Third Circuit, one step below the United States Supreme Court. He was confirmed and began serving on the Third Circuit in 2004. He served for a period with then Third Circuit Judge, and now Supreme Court Justice, Samuel Alito. Justice Alito has participated in three decisions that have significantly limited the First Amendment rights of whistleblowers, decisions which have impacted the cases of many Bailey clients, which we will discuss further in future posts. The Fisher case was a First Amendment/whistleblower case.
Judge Caputo eventually ruled on the post trial motions, and they were appealed to, of all places, the United States Court of Appeals for the Third Circuit, the court on which Fisher became a Judge right after the verdict. Several years later, that very court reversed the verdict of the jury, and dismissed all of the plaintiffs’ claims, with prejudice. In other words, the Court upon which the former highest law enforcement officer of the state of Pennsylvania sat, overturned a verdict of a jury of Pennsylvania citizens against him in a case where two narcotics agents’ civil rights were violated by that judge when he was their trusted attorney general. Rendell’s wife Midge, is also on the Third Circuit, as is Donald Trump’s sister, Marian Trump Barry. Barry just authored an opinion taking away another Bailey verdict, this one about half a million, in favor of a Pennsylvania State Police Trooper who was the victim of an unlawful wiretap by his superiors using PSP facilities to do it. All of this can be very easily confirmed in the public record, and will also be brought to you in future posts.
The shit storm created by Bailey is the frenzy caused by these core groups of Pennsylvania politicos, Democrat and Republican, knowing that the citizens of Pennsylvania, i.e., jurors, do not confine their judgments to political lines – there was even a Republican committeeman on the Fisher jury – and that the “good old boys” way of doing things will have consequences if exposed. The good old boys network has become so institutionally entrenched in Pennsylvania that is has become institutionally protected as a matter of perceived necessity. The federal judicial appointment process in Pennsylvania has depended upon and grown out of this network, and a connectedness to state politics. Judge Jones, for example, was co-campaign fundraising chairman with Tom Corbett for Tom Ridge, and PLCB Chairman. We, of course, appreciate the value of vibrant political activity, but where, in this resume, is the qualification to be a judge of what the founders of our country have set out as guides to protect our individual liberty? The point is that the administration of justice in Pennsylvania has been about protecting institutions and power structures, as set out in our Penn State post, and not about providing for the equal rights of the individual. Only such a system would put a proven civil rights violator, as adjudged by a jury of his peers, one step below the Supreme Court.
Bailey has shown that he will stand for the rights of the individual in the face of these institutions, and that juries of these individuals will too. As set out in our earlier posts, 25 years ago, Bailey made it clear that he will not and cannot be bought to turn a blind eye to corruption in the public sector. Twenty-five years later, he is still showing it in the courts. In a deposition of Tom Corbett conducted by Bailey in the Kimmett case, a case in which Corbett is a defendant in a corruption scandal while he was Attorney General, Bailey casually asked Corbett the introductory question “do you know who I am”, to which Corbett directly responded, “everybody knows who you are Mr. Bailey”. This is the shit storm. Much like Penn State, the institutions of the courts have much to hide, and Bailey has shown it, and threatens to show even more. That is what the disciplinary case is all about – stopping the shit storm.
* Note – We suspect that a partisan political tone may have been read into our pointed rhetorical questions asked of Corbett in connection with the Penn State scandal, and possible relationship to the 2010 gubernatorial campaign. We believe the questions were fairly suggested by the facts presented, but note that we have done some additional research, and limited further inquiry has revealed the following:
Our focus will remain on the condition of the courts. We will let others answer these broader questions.