Broward Circuit Judge Dennis Bailey will receive a public reprimand after violating five canons of the Code of Judicial Conduct by mistreating two attorneys in a felony criminal trial, the Florida Supreme Court ruled in a per curiam opinion Thursday.
The reprimand is scheduled for June 5 at 9 a.m.
The Judicial Qualifications Commission brought ethics charges against Bailey in December 2018, accusing him of being intemperate with Fort Lauderdale public defenders Gustavo Javier Martinez and James Allen Foretich when presiding over State v. Genesis Espejo.
The JQC’s investigative panel found Bailey got frustrated with the lawyers as they tried to argue the same objection in a sidebar conference.
“When one of the attorneys tried to help his colleague articulate a point during the sidebar, Judge Bailey repeatedly attempted to quiet him by saying, ‘One lawyer at a time,’ ‘Only one lawyer argues,’ followed shortly thereafter by, ‘You have a hard time understanding me? Two lawyers can’t argue one argument,’ ” JQC Chair Krista Marx wrote in her findings.
Bailey later described the conversation as “white noise” to investigators, who found the judge inappropriately had one lawyer physically removed before the jury. According to the high court justices, there was no standing order that only one attorney per side could argue a point.
Bailey allegedly then gave the defendant 45 minutes to file a motion to disqualify him — a motion he branded legally insufficient and denied, along with a motion for mistrial.
The JQC suggested the subsequent not-guilty verdict could have stemmed from sympathy for the defense lawyers. But Bailey argued the opposite at a JQC hearing, claiming it proved the incident hadn’t affected the jury.
Defense lawyers Martinez and Foretich had tried to remove Bailey earlier in the case for allegedly being condescending and sarcastic, and for reprimanding one of them for whispering in co-counsel’s ear at a hearing.
Bailey’s lawyer Michael E. Dutko of Dutko & Kroll in Fort Lauderdale said his client is pleased with the decision and looks forward to moving on.
“Prior to going on the bench Judge Bailey was a very experienced litigator. While on the bench he’s presided over many jury trials very efficiently and has gained favorable comments and praise from defense attorneys and prosecutors alike,” Dutko said. “In this situation, he simply was a bit less patient than he should have been with a young, inexperienced assistant public defender.”
JQC attorney Alex Williams did not immediately respond.
Bailey agreed to a public reprimand in a December 2018 stipulation, which said he’s undergoing stress management courses, “so that in the future he is better equipped to handle stressful situations, and does not resort to knee-jerk reactions.”
The high court found Bailey violated canons governing patient, dignified and courteous behavior, as well as integrity, independence and the promotion of public confidence in the judiciary.
The court aligned itself with certain findings by the JQC, one of which said, “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 Espejo trial. Yet he chose not to utilize any of them.”
But the justices steered away from a “more severe” sanction because Bailey admitted his actions were inappropriate and intemperate, apologized and complied with the JQC’s investigation.
“We see no reason to do anything different here,” the opinion said.
Bailey was elected to the bench in 2014 and has no disciplinary history as a judge or during his 28 years as a trial lawyer — 10 of which he spent serving as an assistant state attorney.
Read the full court opinion: