Bailey, Francis Lee

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Bailey, Francis Lee

The career of attorney F. Lee Bailey is a celebrated one. Few criminal defense lawyers have earned as much success or notoriety as the tough-talking former Marine lieutenant, known for winning what have often been considered hopeless cases. Early in his career, Bailey built a reputation for fastidious attention to detail as an investigator who could ferret out the minutiae needed to acquit his clients. His cross-examination style—long on hard-hitting machismo—earned him comparisons to some of the twentieth century's most noted lawyers. By his mid-30s, he had won a string of victories in shocking, nationally publicized cases, including an important U.S. Supreme Court ruling on Pretrial Publicity. His books on law became bestsellers, but controversy followed his criticisms of the legal system and his sometimes risky defense strategies. In 1994, he joined the defense team in the trial of O. J. Simpson for the murder of Nicole Brown Simpson and her friend Ronald Lyle Goldman.

Bailey might never have become a lawyer if he had not dropped out of college. Born in the Boston suburb of Waltham, Massachusetts, on June 10, 1933, he was the son of an advertising man and a schoolteacher who founded a large nursery school. In his teens, Bailey excelled at Kimball Union Academy, a prep school, and won a scholarship to attend Harvard in 1950. His goal was to study English. Yet academia could not hold him for long; he wanted adventure. Dropping out of Harvard at the end of his sophomore year, he enrolled in the Navy flight-training program and eventually joined the Marines, where he at first flew jet fighters. Soon Bailey had switched gears and was defending accused service members as part of the legal staff at the Cherry Point Marine Corps Air Station in North Carolina. Military life would leave its mark on him. More than forty years later, he would write articles about jets for Flying magazine and, while defending Simpson, would say that he had spoken with a witness who was a veteran, as one Marine to another.

The experience of fighting courts-martial convinced Bailey to become a lawyer in civilian life. Leaving the service with the rank of second lieutenant, he entered Boston University Law School, which admitted him on the strength of his considerable Military Law practice. Once again, his ambition could scarcely be satisfied in books, and the precocious student founded a private detective agency. The firm did fieldwork to help attorneys prepare their cases, and Bailey claimed to devote sixty hours a week to this endeavor alone. It paid off: he handled some two thousand cases, honed his skills as an investigator, and later sold the agency. The long extracurricular hours did not stop him from finishing, in 1960, at the top of his class with the highest grade point average in the school's history.

Bailey next studied the lie detector at the Keeler Polygraph Institute in Chicago, a tool much used in the courtrooms of the era. The skill he acquired there led to his first job, at age 27, as a polygraph expert hired by the defense in a highly publicized Boston trial, the Torso Murder case—so named because prosecutors charged the defendant, George Edgerly, with dismembering his wife and dumping the pieces of her body in the Merrimack River. Edgerly had failed a lie detector test, making the case difficult for the defense. Bailey was hired to help turn the case around. When the lead attorney suffered a heart attack, Bailey took over the case and won an acquittal for the defendant. His victory in the Edgerly case was the first of several in high profile cases over the next decade. Most notable was Bailey's role in the murder appeal of Dr. Samuel H. Sheppard, who had been convicted of second-degree murder in the bludgeoning death of his wife, Marilyn Sheppard. In 1966, Bailey helped convince the U.S. Supreme Court that the trial judge had erred in not shielding Sheppard from pretrial publicity, thus denying him a fair trial—establishing an important new standard for defendants' rights (Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600). He subsequently cleared Sheppard.

"Those who think the information brought out at a criminal trial is the truth, the whole truth, and nothing but the truth are fools."
—F. Lee Bailey

The Sheppard case launched Bailey's career. Not only was he now proven in court, he was also attaining celebrity status. News magazines extolled his skills at cross-examination, with Life Magazine saying in 1967 that he was "methodical and relentless, boring in and tunneling under his prey like a determined badger." Frequently, comparisons to the fictional television character Perry Mason cropped up, which Bailey resented; just as often came comparisons to the great criminal defense lawyer clarence darrow, which he did nothing to discourage. Preparation and analysis were Bailey's most renowned legal skills, yet what brought him public attention was his talent for theatrics. His style was swaggering: he could thunderously tell a courtroom that the charges against his client were "10 pounds of hogwash in a five-pound bag" or declare that he had just won a "thumping acquittal." He viewed litigation as "the true substitute for gladiatorial combat." By the time the ABC television network gave him a slot in 1967 on the program Good Company, where he chatted up celebrities, he was himself a household name. His 1971 book, The Defense Never Rests: The Art of Cross-Examination, became a bestseller. Several legal, nonfiction, and fiction books followed.

For Bailey, fame was a double-edged sword that brought both attention and criticism. Often sought out by the news media for his opinions, he used their interviews as soapboxes from which to call for legal reforms. He argued that criminal defense attorneys needed several additional years of training; held that fewer frivolous lawsuits would tie up the courts if the U.S. legal system were to imitate the more rigorous British one; and, on the lecture circuit, even suggested that crime could be prevented by making it illegal for people to carry more than $500 at a time. He also simply liked the limelight: as the equally famous attorney Melvin M. Belli recalled, he and Bailey once stood at a bar betting each other $5 over who would be recognized first. Not all of Bailey's pronouncements met with praise; his outspokenness was sometimes seen as grandstanding. Ironically, for the attorney who had won Sheppard, he was criticized by the Massachusetts Bar Association for saying too much outside of court, and in 1971, the Supreme Court of New Jersey barred him for a year from practicing law there for similar reasons.

In 1974, Bailey faced his Waterloo when he unsuccessfully defended the publishing heiress Patricia Hearst. Hearst had stunned U.S. citizens when, after being kidnapped, she was photographed carrying an automatic weapon in a San Francisco bank heist. On trial for Robbery, she claimed to have been brainwashed by her abductors, a terrorist group known as the Symbionese Liberation Army (SLA). In orchestrating her defense, Bailey was widely criticized for the risky strategy of putting her on the witness stand, where she took the Fifth Amendment 42 times to avoid answering questions. Years after her conviction, Hearst herself blamed Bailey, arguing in a 1980 appeal that the attorney had been less interested in her defense than in writing a book about the case. The U.S. Ninth Circuit Court of Appeals ruled that "Bailey's potential conflict of interest is virtually admitted," and granted Hearst a new hearing (United States v. Hearst, 638 F.2d 1190 [9th Cir. 1980]).

After the Hearst trial, Bailey disappeared from public view for a time. Nevertheless, his reputation as "flamboyant" and a "legend" persisted and he continued to win cases. In 1982, he attracted national attention again when he beat a drunk driving charge with Legal Representation from his friend, robert l. shapiro. Bailey complained that the police had picked on him because he was famous. Soon he was campaigning publicly against what he saw as police harassment, warning, "The cops have decided to set some fierce public examples of their new hard line, probably to scare drivers into going easy on the booze." He promptly wrote a legal Self-Help book titled How to Protect Yourself against Cops in California and Other Strange Places, purporting to be a guide to avoiding unfair drunk driving convictions.

In 1994, the trial of Simpson returned Bailey to the spotlight when he and Shapiro were hired for the defense team. However, before the trial even began, the old friends engaged in a public feud. Shapiro accused Bailey of trying to destroy his credibility by leaking information to the press, comparing Bailey to a snake and demanding his removal from the case. In reply, Bailey criticized his colleague's "public outburst." According to Newsweek, Simpson admonished the two bickering attorneys, reminding them that his life was at stake. The spat died down, and, in March of 1995, Bailey cross-examined a key prosecution witness, police detective Mark Fuhrman.

Surrounded by high expectations, the cross-examination was widely portrayed as a comeback attempt for the sixty-two-year-old Bailey. He rose to the occasion with high expectations of his own, promising to "dismantle" Fuhrman. The defense had branded the detective a racist and alleged that he had planted a key piece of evidence at Simpson's estate: a bloody glove. Bailey's difficult job was to prove that Fuhrman had planted evidence and had once used the pejorative nigger; Fuhrman never conceded either point, despite several days of grilling on the stand. Prosecutor marcia clark attacked Bailey on several points, arguing that he had misrepresented what a Marine sergeant would testify to as to Fuhrman's language in the Marines and that he was manufacturing evidence with his conjecture that Fuhrman had sneaked the bloody glove to the crime scene in a plastic bag in his sock.

After Bailey's questioning of Fuhrman, several prominent legal analysts argued that he had flopped. He defended his performance in Time magazine using a comparison that recalled the earliest praises of his career: "I'm not Perry Mason; nobody is. Other lawyers whom I respect told me that given what I had to work with, it was good. Norman Mailer called me and said it was flawless. So I feel good."

In March of 1996 Bailey himself became the subject of criminal prosecution after he and the United States government had a disagreement over who was entitled to millions of dollars of stock formerly held by Claude Duboc, a drug dealer and client of Bailey. The government demanded Forfeiture of the stock, but Bailey said a plea bargain he had negotiated with the government on behalf of Duboc allowed Bailey to keep it. When Bailey refused to surrender 2.3 million dollars to the federal district court in Tallahassee, Florida, he was sentenced to six months in jail for Contempt. In August of 2000, a federal judge held Bailey in contempt of court for failing to turn over the Duboc moneys. However, the judge declined to jail or fine Bailey on the grounds that federal prosecutors failed to properly trace the money or to recover assets from Bailey. In November of 2001, the Florida Supreme Court issued a decision based on Bailey's mishandling of the Duboc stock funds that ordered Bailey to be disbarred from practicing law in Florida. In April of 2003, the Supreme Judicial Court of Massachusetts issued a unanimous decision upholding the decision to disbar Bailey on the grounds that he deliberately broke ethics rules.

In mid-2003 Bailey was traveling the country giving lectures on his career and cases. He appeared as a legal commentator on television shows such as Larry King Live, Today, and Good Morning America.

Further readings

Ash, Jim. "Bailey's Future as Lawyer Rests with State's High Court." The Palm Beach Post (August 31).

Bailey, F. Lee. 1971. The Defense Never Rests. New York: Stein and Day.

2000. "Contempt Ruling for F. Lee Bailey: He's Spared Jail in Legal Fees Dispute." Newsday (August 18).

Cross-references

Hearst, Patty; Cochran, Johnnie L., Jr.; Simpson, O. J.