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Judge reprimanded for ordering deputy to act against defense counsel

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A judge who threatened to have a defense attorney forcibly removed from a sidebar conference and then rejected a motion to recuse himself from the case will receive a public reprimand from the Supreme Court.

The incident stemmed from a felony criminal trial in April 2018 before 17th Circuit Court Judge Dennis Daniel Bailey when both defense lawyers went to the bench for a sidebar conference and, according to the Judicial Qualifications Commission report on the incident, “one of the attorneys tried to help his colleague articulate a point during the sidebar.”

Judge Bailey told the attorney “One lawyer at a time,” “Only one lawyer argues,” and “You have a hard time understanding me? Two lawyers can’t argue one argument.” As the lawyer attempted to say he meant no disrespect, the judge summoned the courtroom deputy and ordered him to return the lawyer to his seat. The lawyer immediately returned to the defense table before the deputy arrived.

The incident occurred in front of the jury, and Judge Bailey raised his voice over the “white noise” he turned on to mask the sidebar conversation when he ordered the deputy to remove the lawyer.

The other defense lawyer then moved for time to file a disqualification motion, and Judge Bailey granted 45 minutes.

According to the Supreme Court order, which quoted the JQC report, “Judge Bailey improperly denied the motion because he believed it was a ‘trial tactic’ and he could be fair to the parties. He ‘did not consider the motion from the defendant’s perspective when considering whether or not to grant it.’”

The court agreed with the JQC that Judge Bailey violated several judicial canons by not promoting public confidence in the judiciary, was not patient, dignified, and courteous to lawyers, heard a matter where disqualification was required, and did not allow attorneys to be heard as required by law.

Quoting the JQC’s findings, the court said, “It is impossible to ignore the fact that the efficient administration of justice sometimes requires judges to place restrictions on the presentation of cases or arguments; such as a one person-per-argument policy. However, such a policy should not be enforced arbitrarily, and never under the threat of physical force, in full view and hearing of the jury.

“There are tools that judges have for dealing with inappropriate conduct by lawyers: admonishment, referrals to The Florida Bar, or in extreme cases — contempt proceedings. All of these were available to Judge Bailey if he truly felt that the attorneys were disruptive during the . . .  trial. Yet he chose not to utilize any of them.

“While it is necessary for a judge to maintain order and decorum during proceedings, the evidence shows that the two attorneys were speaking respectfully to the Court during the sidebar, and were merely taking turns addressing the court, not speaking over each other. It appears that the attorneys had not breached the order and decorum of the proceedings in any way, other than aggravating Judge Bailey by working together to articulate an argument during a sidebar.

“. . . [B]y inviting physical force be visited upon an attorney making an argument during trial, in full view of the jury, Judge Bailey’s misconduct was egregious enough that it harmed the integrity of the judiciary, as well as the public’s confidence in the judicial system. . . . ”

Judge Bailey fully cooperated with the JQC, admitted his actions should not have occurred, apologized to the attorneys involved, voluntarily entered stress management counseling on his own, and had an otherwise spotless record as a judge and lawyer. The court also noted it has imposed public reprimands in the past for similar conduct.

The court acted unanimously April 11 in Inquiry Concerning a Judge No. 18-352, re: Dennis Daniel Bailey, Case No. SC18-1060.