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, includingan important U.S. Supreme Court ruling onPRETRIAL PUBLICITY. His books on law becamebestsellers, but controversy followed his criticisms of the legal system and his sometimesrisky defense strategies. In 1994, he joined thedefense team in the trial of O. J. SIMPSON for the murder of Nicole Brown Simpson and herfriend Ronald Lyle Goldman.
Bailey might never have become a lawyer ifhe had not dropped out of college. Born in theBoston suburb of Waltham, Massachusetts, onJune 10, 1933, he was the son of an advertisingman and a schoolteacher who founded a largenursery school. In his teens, Bailey excelled atKimball Union Academy, a prep school, andwon 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 flighttrainingprogram and eventually joined theMarines, where he at first flew jet fighters. SoonBailey had switched gears and was defendingaccused service members as part of the legal staffat the Cherry Point Marine Corps Air Station inNorth Carolina. Military life would leave itsmark on him. More than forty years later, hewould write articles about jets for Flying magazineand, while defending Simpson, would saythat he had spoken with a witness who was aveteran, as one Marine to another.
The experience of fighting courts-martialconvinced Bailey to become a lawyer in civilianlife. Leaving the service with the rank of secondlieutenant, he entered Boston University LawSchool, which admitted him on the strength ofhis considerable MILITARY LAW practice. Onceagain, his ambition could scarcely be satisfied inbooks, and the precocious student founded aprivate detective agency. The firm did fieldworkto help attorneys prepare their cases, and Baileyclaimed to devote sixty hours a week to thisendeavor alone. It paid off: he handled some twothousand cases, honed his skills as an investigator,and later sold the agency. The long extracurricularhours did not stop him from finishing, in1960, at the top of his class with the highestgrade point average in the school’s history.
Bailey next studied the lie detector at theKeeler Polygraph Institute in Chicago, a toolmuch used in the courtrooms of the era. Theskill he acquired there led to his first job, at age27, as a polygraph expert hired by the defense ina highly publicized Boston trial, the Torso Murdercase—so named because prosecutorscharged the defendant, George Edgerly, with dismemberinghis wife and dumping the pieces ofher body in the Merrimack River. Edgerly hadfailed a lie detector test, making the case difficultfor the defense. Bailey was hired to help turn thecase around. When the lead attorney suffered aheart attack, Bailey took over the case and wonan acquittal for the defendant. His victory in theEdgerly case was the first of several in high profilecases over the next decade.Most notable wasBailey’s role in the murder appeal of Dr. SAMUELH. SHEPPARD, who had been convicted of second-degree murder in the bludgeoning death ofhis wife, Marilyn Sheppard. In 1966, Bailey helped convince the U.S. Supreme Court thatthe trial judge had erred in not shielding Sheppardfrom pretrial publicity, thus denying him afair trial—establishing an important new standardfor defendants’ rights (Sheppard v.Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed.2d 600). He subsequently cleared Sheppard.
The Sheppard case launched Bailey’s career. Not only was he now proven in court, he wasalso attaining celebrity status. News magazinesextolled his skills at cross-examination, with LifeMagazine saying in 1967 that he was “methodicaland relentless, boring in and tunneling underhis prey like a determined badger.” Frequently,comparisons to the fictional television characterPerry Mason cropped up, which Bailey resented; just as often came comparisons to the greatcriminal defense lawyer CLARENCE DARROW,which he did nothing to discourage. Preparationand analysis were Bailey’s most renowned legalskills, yet what brought him public attention washis talent for theatrics. His style was swaggering:he could thunderously tell a courtroom that thecharges against his client were “10 pounds ofhogwash in a five-pound bag” or declare that hehad just won a “thumping acquittal.” He viewedlitigation as “the true substitute for gladiatorialcombat.” By the time the ABC television networkgave him a slot in 1967 on the programGood Company, where he chatted up celebrities,he was himself a household name. His 1971book, 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 swordthat brought both attention and criticism. Oftensought out by the news media for his opinions,he used their interviews as soapboxes fromwhich to call for legal reforms. He argued thatcriminal defense attorneys needed several additionalyears of training; held that fewer frivolouslawsuits would tie up the courts if the U.S. legal system were to imitate the more rigorous Britishone; and, on the lecture circuit, even suggestedthat 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 andBailey once stood at a bar betting each other $5over who would be recognized first. Not all ofBailey’s pronouncements met with praise; hisoutspokenness was sometimes seen as grandstanding. Ironically, for the attorney who hadwon Sheppard, he was criticized by the MassachusettsBar Association for saying too much outside of court, and in 1971, the SupremeCourt of New Jersey barred him for a year frompracticing law there for similar reasons.
In 1974, Bailey faced his Waterloo when heunsuccessfully defended the publishing heiressPatricia Hearst. Hearst had stunned U.S. citizenswhen, after being KIDNAPPED, she was photographedcarrying an automatic weapon in aSan Francisco bank heist. On trial for ROBBERY,she claimed to have been brainwashed by herabductors, a terrorist group known as the SymbioneseLiberation Army (SLA). In orchestratingher defense, Bailey was widely criticized for therisky strategy of putting her on the witnessstand, where she took the FIFTH AMENDMENT 42times to avoid answering questions. Years after her conviction, Hearst herself blamed Bailey,arguing in a 1980 appeal that the attorney hadbeen less interested in her defense than in writinga book about the case. The U.S. Ninth CircuitCourt of Appeals ruled that “Bailey’spotential 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, hisreputation as “flamboyant” and a “legend” persistedand he continued to win cases. In 1982, heattracted national attention again when he beata drunk driving charge with LEGAL REPRESENTATIONfrom his friend, ROBERT L. SHAPIRO. Baileycomplained that the police had picked on himbecause he was famous. Soon he was campaigningpublicly against what he saw as policeharassment, warning, “The cops have decided toset some fierce public examples of their newhard line, probably to scare drivers into goingeasy on the booze.” He promptly wrote a legal SELF-HELP book titled How to Protect Yourself against Cops in California and Other StrangePlaces, purporting to be a guide to avoidingunfair drunk driving convictions.
In 1994, the trial of Simpson returned Baileyto the spotlight when he and Shapiro were hiredfor the defense team. However, before the trialeven began, the old friends engaged in a publicfeud. Shapiro accused Bailey of trying to destroyhis credibility by leaking information to thepress, comparing Bailey to a snake and demandinghis removal from the case. In reply, Baileycriticized his colleague’s “public outburst.”According to Newsweek, Simpson admonishedthe two bickering attorneys, reminding themthat his life was at stake. The spat died down,and, in March of 1995, Bailey cross-examined akey prosecution witness, police detective MarkFuhrman.
Surrounded by high expectations, the crossexaminationwas widely portrayed as a comebackattempt for the sixty-two-year-old Bailey.He rose to the occasion with high expectationsof his own, promising to “dismantle” Fuhrman.The defense had branded the detective a racistand alleged that he had planted a key piece ofevidence at Simpson’s estate: a bloody glove.Bailey’s difficult job was to prove that Fuhrmanhad planted evidence and had once used thepejorative nigger; Fuhrman never concededeither point, despite several days of grilling onthe stand. Prosecutor MARCIA CLARK attacked Bailey on several points, arguing that he hadmisrepresented what a Marine sergeant wouldtestify to as to Fuhrman’s language in theMarines and that he was manufacturing evidencewith his conjecture that Fuhrman hadsneaked the bloody glove to the crime scene in aplastic bag in his sock.
After Bailey’s questioning of Fuhrman, severalprominent legal analysts argued that he hadflopped. He defended his performance in Time magazine using a comparison that recalled theearliest praises of his career: “I’m not PerryMason; nobody is. Other lawyers whom Irespect told me that given what I had to workwith, it was good. Norman Mailer called me andsaid it was flawless. So I feel good.”
In March of 1996 Bailey himself became thesubject of criminal prosecution after he and theUnited States government had a disagreement over who was entitled to millions of dollars ofstock formerly held by Claude Duboc, a drugdealer and client of Bailey. The government demanded FORFEITURE of the stock, but Baileysaid a plea bargain he had negotiated with thegovernment on behalf of Duboc allowed Baileyto keep it.When Bailey refused to surrender 2.3 million dollars to the federal district court inTallahassee, Florida, he was sentenced to six months in jail for CONTEMPT. In August of 2000,a federal judge held Bailey in contempt of courtfor failing to turn over the Duboc moneys.However, the judge declined to jail or fine Baileyon the grounds that federal prosecutors failed toproperly trace the money or to recover assetsfrom Bailey. In November of 2001, the FloridaSupreme Court issued a decision based on Bailey’s mishandling of the Duboc stock funds thatordered Bailey to be disbarred from practicinglaw in Florida. In April of 2003, the SupremeJudicial Court of Massachusetts issued a unanimousdecision upholding the decision to disbarBailey on the grounds that he deliberately brokeethics rules.
In mid-2003 Bailey was traveling the countrygiving lectures on his career and cases. Heappeared as a legal commentator on televisionshows such as Larry King Live, Today, and GoodMorning America.
FURTHER READINGS
Ash, Jim. “Bailey’s Future as Lawyer Rests with State’s HighCourt.” The Palm Beach Post (August 31).Bailey, F. Lee. 1971. The Defense Never Rests. New York: Steinand Day.2000. “Contempt Ruling for F. Lee Bailey: He’s Spared Jail inLegal Fees Dispute.” Newsday (August 18).
CROSS-REFERENCES
Hearst, Patty; Cochran, Johnnie L., Jr.; Simpson, O. J.
