To: Judicial Council of the Second Circuit
Attn: Clerk of Court
United States Court of Appeals
Thurgood Marshall, U.S. Courthouse
40 Foley Square
New York, NY 1007
October 16, 2018
Re: Complaint of Misconduct
Statement of Facts
I am the pro se, non-attorney, plaintiff in the matter of Theresa Bailey v. New York Law School, Anthony Crowell, Barbara Graves-Poller, David Schoenbrod, and Ella Mae Estrada, Case no. 16-CV-04283. The case is ongoing in the Southern District of New York, Daniel Patrick Moynihan Courthouse. Judge Cott was to preside only over discovery disputes. My complaint was earlier submitted to the State of New York Commission on Judicial Conduct located at 61 Broadway (I have been notified that the Commission’s limited jurisdiction does not extend to Magistrate Judge Cott). That complaint has been shortened and submitted to you in accord with the Council’s submission guidelines.
The substance and allegations of my legal case are relevant to my complaint, and for that reason are briefly described herein. Judge Cott, while presiding over discovery disputes, gave his unsolicited opinions of the parties’ respective positions, and his opinions demonstrated bias, prejudice, and hostility towards me and my claims. (The Court is notified that I intend to appeal Judge Cott’s ruling. However, due to a medical condition, that appeal has been delayed and is not presently available for reference with this complaint.)
I was physically assaulted at New York Law School by a white male student visibly under the influence of a powerful drug, outside of the women’s restrooms during evening class hours in October 2014. I reported the student and filed a Title IX complaint with the school. Their response and handling of my complaint denied me the criminal legal process which I would have elected and intend to receive. I reached out to the Mayor’s office, White House, Office of Civil Rights at the Board of Education, the Legal Disciplinary Committee, the Manhattan D.A., and filed a police complaint related to the incident. April 2016, I filed this lawsuit, pro se and in forma pauperis.
July 11, 2018, I appeared before Judge Cott for a discovery conference, and it was agreed that the parties would attend a settlement conference on July 19, 2018, before Judge Cott. Judge Cott decided that the parties would not submit written statements outlining their positions, a common practice in settlement conferences which tends to aid settlement talks. (Omitting this practice of having pre-settlement statements in advance set the framework for what occurred at the July 19 conference.)
July 11, I notified Judge Cott that defense counsel Michael Volpe lied to the court on record that day and earlier to move discovery to the magistrate. (Volpe stated he had turned over discovery, and that a magistrate judge was necessary for the defendants to get discovery. Volpe had not returned discovery but was desperate to ensure that I – the pro se plaintiff – did not get the discovery I requested.) Judge Cott told Volpe that he could get what he needed from me in a deposition and then lectured me on the costs of depositions. I objected to the Judge’s plan to do away with written discovery requests, because depositions are expensive and defense counsel should be made to comply with the lawful discovery request submitted in accord with the Rules governing discovery. (I will at a later date file a separate complaint naming Volpe and law firm Venable to the appropriate oversight body.)
July 19, 2018, I arrived for the settlement conference. I prepared a pre-settlement statement, which I intended to read, despite Judge Cott omitting the practice. I am not an attorney; my health has been deteriorating since the date of incident, and from April 2016 to present my labor now includes my own legal representation, so, it is essential for me to memorialize all significant terms in writing to ensure that they are expressed. During the conference, all offers between parties were communicated through Judge Cott. Two adolescent or young teenagers (a black male, who arrived late, and an Asian female) accompanied Judge Cott for the duration of the conference, which lasted over 6 hours (no settlement resulted).
Once the defendants were shown to an adjacent room, Judge Cott indicated that I could begin. I began to read my prepared statement of terms on which I would settle. I hadn’t completed two sentences when I was hastily interrupted by Judge Cott: what’s your [settlement] number, he stated gruffly. Start with a number and we go from there, he said. I replied: my number is determined by the terms of settlement; the terms would dictate my number. he said: no, give me a number. So, with no terms on the table—other than that the case would be ended if we settled today—I reduced my damage amount in half and gave the answer of $2.5 million. He and his two aids left the room.
Judge Cott returned with defendants’ offer of $13K. I answered that their offer was laughable and highlighted my July 11 conference statements of concern that a settlement conference could be fruitless unless defendants intended to have serious settlement talks.
We were no more than 25 minutes into the conference at this point. Judge Cott returned with defendants’ second offer: $25k, all defendants (current and pending/on appeal) released, dismissal with prejudice, and no disparaging comments could be made about any defendant including the entire law school. The judge began to attest immediately that $25K was a good amount of money, and the offer was good. I sat in stunned silence considering both the defendants’ offer and the judge’s declining temperament. Due to the judge’s frustrated appearance I informed him that I didn’t believe a settlement would be possible: the defendants didn’t intend to have a serious negotiation and the judge clearly didn’t want to be there. Judge Cott asked: “do you work?” Me: no. Him: “Pass the bar and get a job.” Even if this made it to trial, it wouldn’t be heard in 2018, probably not for a long time, and it’s a “big IF it makes it.”
Judge Cott then began to recite the defendants’ denials to my claims (I was earlier denied the opportunity to present strengths of my case from my settlement statement). He asked where and what sources of evidence I could produce to disprove their assertions. I replied that if no settlement resulted, the evidence would be produced through the proper legal channels, in discovery and through a jury trial, and with an appeal if needed. Judge Cott was insistent on getting the evidence out of me to adjudicate the case himself at that exact moment without a jury. He rolled his eyes, at other times opened his eyes wide as if I better read his thoughts through his expression and comply; his aids grunted, sighed, and laughed periodically. Judge Cott turned the settlement conference into an interrogation and prosecution of my motives and me personally.
I was talking as fast as I could to complete a sentence and answer him before he would next interrupt me. He persisted in asking who and where the information will come from, in an interrogation-like manner, as if the point was to break me under his pressure. Between repeated shouted, argumentative questions, Judge Cott inserted unsolicited opinions on a range of issues in my case (irrelevant to the settlement): anonymous sources can’t refute claims…who will come forward to support your claims…the defendants won’t pay a dime of the judgment, they have insurance coverage. He yelled questions and opinions and demanded answers in an argumentative and combative manner. He pushed himself away from the table (when I attempted to answer – as if he was rising to leave) then he would lean in to the table to yell questions and statements back at me. He moved his arms in a variety of angry gestures: gripping the table, throwing his hands back and open in exasperated motions, so that I began to watch his hands to know if and when his angry hands would move towards me.
These were movements, tone, gestures, and demeanor of a person who couldn’t cope well with his emotions in the present situation. I am a woman in court because I was physically assaulted by a man who was then seeking to enter legal profession, and multiple lawyers employed by a law school decided that if they retaliate then I would be pressured into voluntarily giving up my rights—this was a nightmare for me being trapped in a room with a man of Cott’s temperament. I was trapped in a room with a raging white man cloaked in judicial robes while his two idiot-aids made sound effects and then dutifully followed after him. He hadn’t even reached the peak of his performance at this point.
Judge Cott continued: he wouldn’t allow such a circus [my claims, my case] in his courtroom and he didn’t believe Judge Ramos would either. He insisted that the defense was generous and cooperative: they even offered to help me get a job, he reasoned. This was his pitch to me: I should return to a location where I was physically assaulted, retaliated against, subject to sexual harassment, stalked and harassed online in coordinated efforts between law school faculty and students. And he did it all in a combative, interrogative, and prosecutorial manner while expressing his unsolicited opinions which are extremely prejudicial. He continued: “I believe that you believe that something happened to you. I believe you really believe that.” Then he dismissed me for lunch.
When I returned, we went several more rounds much like the above. Exhausted and desperately needing to be safe, far away from the angry male judge who had subjected to me conduct which I have ended romantic engagements over, I gave $95k as my final, take-it-or-leave-it figure. The defendants came back with $45K. I rejected it, and I apologized for wasting the Court’s time. Judge Cott asked again if he could make a last effort, and I agreed.
The judge returned with an offer of $50k, dispersed in a single payment to be made by September 1, with an added condition: in addition to not making disparaging statements about the defendants in the future (which was always on the table), I must also erase any past comment or depiction of the defendants or defense counsel—which I would never agree to. I said: I’m sorry. I can’t do this. I could never agree to erase any part of my experience, history, or my fight for justice. My claims pre-date #MeToo. I have a well-documented history of fighting against gender-based violence before the movement began and will always preserve that legacy. I fought for justice before it was a trend, before it was supported and cool, and I could never erase that history.
Judge Cott erupted in rage. He began to scream. I became very afraid. I switched to fight or flight mode. I began to look for a safe way out or anything I could use as a weapon if needed. He screamed: never in my history of being a judge have I spent my ENTIRE DAY at a settlement conference! They [defendants] brought you a good offer! They offered more than THREE TIMES the initial offer! I said: I’m sorry for wasting your time. This is a drastic change in the terms that I would never agree to. He said: NO, it isn’t! The minute the agreement was signed, you’d be in violation unless you intended to go back and erase everything you’ve said about them! I said: no, these are not the same terms. You would not have come back and expressly added that I must go back and erase any mention of them from the past. He continued: I have to leave before I do or say something I regret…maybe YOU don’t want this to be over…you just want to rant and make disparaging statements for the rest of your life! Then he departed the room in a rage.
I was alone in the room. I broke down and cried. Then, the black male aid appeared. He said: I just want to make sure you are still here. He added: I know it’s hard, but you’ll get through this. I’ve never seen anyone with such strong values. Then Judge Cott came in a calmer manner. His aids and defense counsel followed. The judge said: try to reach a settlement, if you can. You are really close. See if you can work something out where she doesn’t have to delete her history.
September 4, 2018, I was deposed by defense co-counsel, Emily Tortora, at Venable law firm. During the deposition, Tortora called Judge Cott on a speaker phone. Tortora claimed I had a hidden recording device. I stated to the judge that I was recording the deposition with my phone and that I told defense counsel I was recording when asked. Judge Cott asked why I was recording. I said that there are numerous reports of judges and lawyers editing or altering transcripts, and that as a pro se party, I wanted to be sure when I received the transcript that it accurately depicted what had in fact been stated: my recording ensured that I could trust the transcripts accuracy.
(Defense counsel kept going off the record. When I asked the reporter to go on the record, the reporter would first ask permission of defense counsel.) Judge Cott cut me off and screamed my statement back at me concerning judges and lawyers altering transcripts. He continued: “You’re not the first pro se party to take a deposition! In all my years of sitting on the bench, I have never had a party try to keep a phone on during a deposition!” At some point, I yelled back: I will not be bullied today, or any other day! Cott continued: “you cannot record the deposition! Had you told defense counsel you were going to do that, they could have gotten a court order to prevent you from recording the deposition! If you record after I’ve given this ruling, you’ll be held in contempt and violation of my order!”
September 7, 2018, I submitted an answer to defense counsel’s discovery motion (which was ruled on in favor of the defendants by Judge Cott on September 12, 2018). I didn’t make it home. After I submitted my answer, and departed the courthouse, I became medically incapacitated. The NYPD called an ambulance and I found myself in the emergency room. I wrote to Judge Ramos, informed him of my condition (I later sent the proof he requested), and notice of my intent to appeal Judge Cott’s ruling when my condition alleviates. My activities and abilities are presently limited by my condition, I must also prepare for and strengthen my body for surgery and recovery. That is why my appeal of Judge Cott’s rulings are delayed. However, the magnitude of what I was subjected to and forced to endure in the Southern District of New York by Judge Cott is also why I found it vital to have my complaint and submitted transcribed immediately.
I was forced to endure the rage, animosity, arrogance, berating and belittling of a U.S. federal judge in a U.S. civil court, as a plaintiff seeking relief from some of that same conduct. I was subjected to yelling, screaming, eye rolling, interrogation, wild gestures, insinuations about my character and motives, mocking, and a temperament showing bias and prejudice beneath the character and impartiality required of judges – again, as a plaintiff seeking relief from similar conduct. Regardless of Judge Cott’s views of me, my claims, or persons who bring similar claims to the court, I was entitled to a fair and impartial process. Instead, I was threatened and made to fear for my safety and reduced to tears in a court of law, unsure if I would be held in contempt and arrested if I left because the judge might have “regrets” over something he could do to me.
Outside of Judge Cott’s courtroom, I have had the ability to—and do—walk out when abusers of women and their allies and defenders launch tirades or threats as was launched at me by Judge Cott. I do not subject myself to such trauma or abuse. To be belittled, denigrated, interrogated, and put on trial by a judge because I exercised my right to file a legal complaint against bad-acting lawyers who mounted a defense and coverup for a white male predator who attacked me was traumatic, frightening, and beneath the office and position that Judge Cott enjoys. I am furious, heartbroken, and baffled that I was forced to suffer this treatment. I was denied the dignity and respect that all persons are entitled to in U.S. courts, and I am outraged by this. I respectfully request an investigation of my complaint against Judge James L. Cott.
Note: Theresa has not stopped fighting for justice