Two days of testimony have concluded in the case to “get” the law license of Don Bailey, and the lesson of the hearing is resoundingly clear – reform is needed. The first day involved two federal judges appearing before a hearing chairman/divorce attorney who may still be under federal investigation in the “kids for cash” scandal, and proving that Don Bailey was right when he charged federal judges with having meetings to “get” him. The second day was a string of Don Bailey clients who testified courageously to their personal experiences in dealing with the effects of the abuse of their attorney. Bailey’s legal assistant and two of his colleagues also added testimony. All of the testimony will be posted here when it is available.
As day two wore on, the witnesses became stronger, and the abject abuse and obstruction by the hearing chairman and the prosecutor became uglier and uglier. Although the two days (the hearing record remains open pending issues currently before the Supreme Court) proved to be vindication in most ways for the allegations that Don Bailey has made in recent years, it was a black-eye for justice, in our state and in our nation, and rather than recounting the details of the proceedings, it is the looking-forward that serves the mission of this site. Don knew he was right when he said the things he said, and those things were clear to every of the 50 or so American citizens who observed the proceedings over the past two days, and what became clear is that reform is desperately needed.
The difficulty is that the reforms that are needed are deep and systemic. The complete dominion of the Supreme Court, i.e., complete abnegation of the separation of powers doctrine, has led to an autocratic system in the state courts, and no freedom for lawyers to criticize from within. As a result, there is far too much control vested in the Office of Disciplinary Counsel, a problem exacerbated in this case by an out-of-control political operative, Chief Counsel Paul Killion.
The hearing was reduced to an embarrassing charade because the hearing was proving that the system was broken, and the behavior of the hearing examiner and prosecutor became part of the proof. The fact is that an attorney who is right about corruption in the courts has nowhere he or she can safely go because he or she is controlled by the courts alone. This is what the hearings proved as the major failing in the state system. Legislative oversight, or even a lawyer’s rights bill of sorts, is needed. The difficulty, of course, is that the Supreme Court’s complete control over the legal system derives from the Constitution itself. We will continue, however, to explore solutions.
The problem is made even more complex because there are failings in the federal system as well. In this case, however, these failings may be attributable, in part, to personalities in and around the Harrisburg legal community, state and federal, that are coming together to settle an old political score, that score being that Don Bailey had already proven that persons such as former United States Attorney and current United States Magistrate Judge Marty Carlson, and Paul Killion, were corrupt in the past too. Later posts will show how the “midnight appointment” of Marty Carlson to Magistrate Judge (federal judge) by a panel on which Paul Killion (state disciplinary counsel) served, is further playing out with the federal judges, through Chief Judge Kane, going after Mr. Bailey as well. A problem like this is easy enough to fix in the short term.
The larger problem that exists lies in the lap of your U.S. Senators, Pat Toomey and Bob Casey. Federal judicial appointments are essentially controlled by the senators from the state in which the vacancies exist – presently there are three vacancies in the Middle District that are not being filled, likely pending the outcome of these proceedings whose outcome appears pre-determined, but the fight will not be given up nonetheless. Senators Casey and Toomey have been made aware in detail of what is going on in Harrisburg right now, and we are waiting to see how the problem is addressed.
The position of federal judge is a life appointment, which respects the wisdom, discretion, and temperament that is called for from those who are appointed to serve. See Federalist No. 78. The award of such positions based upon true “merit”, intellectual merit, has been lost, and the positions are being given out as returned political favors. Judge Jones, after all, was a Liquor Control Board Chairman, and a co-campaign fund-raising chairman with Tom Corbett for former Governor Ridge, scarcely a showing of qualified experience; yet into his hands was placed one of the most important cases in a generation, Kitzmiller v Dover, a case for which Jones was heralded as great legal mind, and received worldwide acclaim. It was later shown that the greater portion of his opinion was “plagiarized”, if you will, word-for-word and typo-for-typo, from a brief of the ACLU.
We do not at this time need to take on the manner in which judges are selected, accepting merit selection as wholly workable, but there need to be standards to ensure that the decisions are indeed based upon merit, i.e., fidelity to the rule of law, and, most importantly, the standard of review, and a record of good judgment, discretion, wisdom, and integrity. Again, these issues will be developed, but for now it is time to let your Senators know that you also know that the system is broken, at least in Harrisburg, and that changes need to be made immediately.
We expect again to have transcripts of these last two days of hearings in the near future, and will keep you apprised of all developments.