As Tom Corbett said to Don Bailey during his deposition in the Kimmett case, “everyone knows who you are, Mr. Bailey”. The implications and context for this comment are set forth in our November 21, 2011 “shit storm” post. The premise of this article is that everyone has an opinion of Don Bailey, too, and those opinions are greatly divergent – his clients clearly holding one, and the judges and the lawyers, at least the ones taking their cues from the judges, another. The purpose of this article, however, is not a general apologia for Don Bailey, he is fully capable of speaking for himself, and has told much of his personal story on the videos linked to his personal site, which you will find in the Additional Resources here. The purpose of this post is to discuss the public record that has been made, by identifiable judges whose names have been used throughout, and to suggest that, based upon a reasoned study of that record, it reflects a judicial effort to smear Bailey’s reputation, and ostracize, isolate, and eliminate him and the cases brought to him by his clients.
Documents that have already been linked and referenced already reflect perhaps as many as a dozen or more direct attacks by judges – Conner and Carlson most prominently – that have been highly critical, and outright hostile to Bailey. The 55 page opinion of Marty Carlson in the David Lease case is linked below, as is Don’s response, both of which are discussed at greater length below. The point is that the Carlson report sets the tone for the negativity. Oddly, however, Bailey is boldly on record throughout as claiming that every one of these censures, sanctions, and rebukes has been false – every one. That does not leave much room for conciliation, and leaves a public record of what must either be false and slanderous accusations by judges, or valid criticisms and justifications for the actions being taken against Bailey.
To understand the position that is being taken by Bailey one need only appreciate the true power of the judicial pen, and the instinctual credence we give to all things judicially-authored. Like religion and our political and social beliefs, our beliefs about our judicial system are ingrained at very early ages, and become a subconscious part of who we are, but unlike religion, politics, and the affect that geopolitical factors on our affiliations and beliefs, our learning and understanding of the courts is very common – they are generally revered as bastions of fairness and justice where disputes are resolved under the guidance of judges of wisdom and discretion. The greater majority of Americans never has any, or very little, experience with the courts, and never has any reason to learn anything other than what they intuitively know. This puts anyone who suggests further that the courts are not fair, and that judges are not wise and just, and are capable of carrying out political agendas, in the great minority from the start. That is the essential nature of the power of the judicial pen – it is an institution and tradition of core common cultural beliefs that is not popularly assailed and criticized.
The Carlson report
It is in this context that we introduce the Carlson report. Marty Carlson is not a United States District Judge – he is a Magistrate Judge, a subordinate judge who makes only recommended decisions, which require further action by a regular status District Judge. Kane was the District Judge in the Lease case. The legal intricacies of the case would require a separate article just to understand the context, but well into the case, and long after the incident at issue, Judge Kane more-or-less suggested to the other attorneys that they file a sanctions motion against Bailey – yes, judges concerned with the excess of activity on their dockets inviting more activity through sanctions motions in old cases – smacks in itself of an agenda apart from justice, and will be shown to be a pattern engaged in by other judges to silence attorneys and parties. That is what happened, and that is how the matter ended up with Carlson – it was filed with the court and referred to him for a recommendation.
The following is what is called the “report and recommendation” of Carlson, 55 pages, a recommendation for District Judge Kane to impose a $10,000 sanction against Don Bailey. This is just a recommendation, but, for some reason, perhaps related to the denigrating content, this recommendation was released through a statewide publication, the Legal Intelligencer. It was released well-before Bailey had any chance to respond, and before Kane even made any final decision on the matter – why? The Legal Intelligencer called Bailey for comment, and he asked that his response be published as well – it was not. The story was picked up by several daily papers across the state, and run. The Carlson report does not pain a flattering picture of Don Bailey – Don did reply, and that reply is provided as well. Marty Carlson’s 55 page “report” remains part of the public record that has never been qualified, retracted, or rebutted, despite the fact that it has been abundantly disavowed as a credible effort. Kane later “adopted” Carlson’s report.
The power of the judicial pen is evident – the words are direct, and they have an impact on the reader, a negative impact about the character, competence, and credibility of Don Bailey. These impressions are reasonable, but they are false, and presented to the reader deceptively. The entire premise of the 55 pages, and its raison d’etre, is that Bailey did something wrong to justify a single word of sanction – if there is no reason for the sanction, there is no reason for the effort, and the ulterior purpose becomes evident. If it’s not legitimate, it’s illegitimate, and it’s that simple.
Bailey was being sanctioned for suing attorneys for the constitutional tort called “abuse of process” arising out of the attorneys abuse of the federal rules of procedure to harass civil rights litigants. Judge Kane had said in her earlier decision relied upon and quoted by Carlson that Bailey has done what he was supposed to do – he properly laid out his legal claim in form and substance, but his offense was that he sued lawyers and couldn’t explain why he should be allowed to – an absurd proposition. When Judge Kane said Bailey stated the elements of his claim properly under the law, she was saying that Bailey met the requirements of the applicable rules, but she went on to give Carlson leave to recommend a sanction because, although Bailey complied with “the” rules, these rules were not “their” rules. Bailey was being sanctioned for properly alleging that lawyers were abusing process in the federal courts, and every word of the 55 page effort was part of the faulty and deceptive premise that Bailey did something wrong. His response makes that clear as well.
Conner chronicles and Venesevich smear
As has been referenced in the Bailey motion to dismiss post, Judge Conner has been particularly active in the effort to get Don Bailey. We pointed out his false testimony that he was never a complainer to the Disciplinary Board, and the document that contradicted him, and his testimony, also linked here, related to yet other issues. What is not known is that before all of these issues became so prominent, Bailey sent private correspondence to the Judge, a very proper and professional thing to do, indicating that there appeared to be issues that Conner was having with Bailey, and that Bailey would like to sit and meet and “clear the air” of any misunderstandings. Conner not-so-politely declined. His ethical canons suggested he should have met with Bailey. Bailey was not aware that Conner was already a complainant to the Disciplinary Board at the time.
Related to our “power of the judicial pen” theme is the Venesevich case. The term “case law” is commonly used, and what it is the officially published decisions of courts over time – they exist to the beginning of American history, over any and every manner of legal issue and, together, become part of the “common law”. Not every decision written by a Judge becomes a “published” decision, and there is some mystery over how this process works. Regardless, these decisions usually shed some light on some prior precedent or important legal issue of intellectual merit. Along comes the Venesevich case, it is an opinion published on westlaw written by Conner. It was an unremarkable decision by Conner – throwing out another Bailey case without providing any discovery, but contained a lengthy footnote rebuking Bailey of an alleged plagiarism of case law, and accusing him of fraud, deceit, and misrepresentation. Bailey proved the accusation of plagiarism to be false, but was unable to get relief because the appeals court found it to be an unreviewable rebuke. It is now part of the permanent record, and is false.
Conner did a similar thing in the Conklin case, where he published an opinion in a procedural motion, framing the issue as whether the court’s decision to sanction plaintiff’s counsel, Attorney Don Bailey, for his unprofessional conduct in the instant matter requires the court to recuse.” Conklin v. Warrington Township, 476 F. Supp.2d 458 (M.D. Pa. 2007). This opinion talks about a history (recent history by Conner alone) of sanctions against Bailey and his alleged “unprofessional conduct”, and there was no discussion related to a pertinent legal issue. Don Bailey has had major sophisticated issues of constitutional law on all of these courts dockets frequently that have been debated honestly and competently, even arguing a case successfully before the Supreme Court; yet these slanderous attacks are all that show up in the public record. These facts lone smack of anagenda unrelated to deciding cases.
There is a concept in law enforcement called “salting the file”, which means placing information into a file deliberately to support certain points to be later needed or made. It is something an old-time prosecutor like Marty Carlson would know plenty about, and it’s what has been done with Bailey. His responses don’t make it into the public record, and he doesn’t have the same access for dissemination that the judges do. The public file has been salted with demonstrably false accusations based upon false and flawed legal premises, deceptively and deliberately, made by specific judges with a provable bias to create an impression that provides a screen behind which to conceal an agenda of protecting old political friends and power structures. That is what has happened to Don Bailey. His responses have not been provided, but have been provided here as much as possible, and the full record speaks for itself, and despite the effort we went through to explain and reveal this, we still understand resistance to crediting it. That’s the nature of the problem.
Caputo piles on
Judge A. Richard Caputo, discussed in the “shit storm” thread, has appeared to join in the public smear effort – this time including in his efforts shots at the clients of Don Bailey’s who have filed motions to open judgment. In the past 3 weeks, Judge Caputo has sanctioned Bailey in the Dave Morris case, and thrown out the motions to open judgment filed by Miles Thomas and Deborah Phillis, and these decisions have been released to an online federal research service called Leagle.com, a site which can be checked for yourselves. The site seems to focus on issues of national import, and large appellate level cases; yet in the past two weeks, Judge Caputo has 3 Don Bailey cases appear on that site – no cases had ever been referred to that site previously, and they are all either taking further shots at Don Bailey or, worse yet, at his clients for defending him and asserting that they have been mistreated because of him.
These courts are indeed proving incapable of disciplining themselves, but are at least proving that the need for discipline is clear.