F. Lee Bailey

December 23, 2014 F. Lee Bailey

Representing the damned is damn hard enough, but then this life rewards you with a swift uppercut to the stomach. This is one reason why I am an existentialist. The most depressing legal ruling of 2014 (and the list is long) proves this point. The Maine Supreme Court issued a 59-page screed denying Lee Bailey’s re-admission to the bar, this is on the scale of throwing LeBron out of the NBA. Unless a deus ex machina miraculously descends his legendary career as a trial lawyer is over.

Francis Lee Bailey Jr., who for some reason preferred F. Lee Bailey, captured our imagination back in the 60s and 70s. Many young lawyers adopted the affection of initializing their first name in some type of homage to Bailey.

Our careers have intersected over the years – for me, always to the better. I count Lee as a good friend. I am saddened by his disbarment and exile from the profession he loves. He is one of the old school trial lawyers who reveled in the courtroom battles. I guess that is archaic today.

When I started practicing law, Lee Bailey was the epitome of the hard-bitten street-wise criminal lawyer. The guy who made prosecutors cringe. Many thought it was Edward Bennett Williams, who was a great trial lawyer, but he represented the rich and privileged in the federal courts. For public defenders like me, who toiled in the far less prestigious inner city criminal courts, the old scuffed courthouses filled with shabby courtrooms, Bailey was our man. He feared no man and we took our swagger from him.

Bailey started with an unbelievable string of major trial successes. Just one year out of law school, he tackled the conviction of Dr. Sam Sheppard. Sheppard had been found guilty of killing his wife and Bailey pushed his appeal all the way to the Supreme Court. In Sheppard v. Maxwell, 384 U.S. 333 (1966), the court issued a landmark ruling reversing Sheppard’s conviction in an 8-1 decision because of the “carnival atmosphere” of the trial. Not a bad career start.f lee 6

Sheppard became the inspiration behind “The Fugitive” hit television series and Bailey took full advantage of this at the retrial, using “The Fugitive” as a trial theme. Bailey: “Everybody knew ‘The Fugitive’ was Sam Sheppard, and everybody knew ‘The Fugitive’ was innocent. So I think I went in with a presumption of innocence really working for once.” Sheppard was acquitted, but unfortunately died four years later.

One side effect of following Bailey’s career was the number of great books it spawned. This is long before YouTube and dvds full of practice tips. Of course I read all his practice manuals. His best were the early ones co-authored with Henry Rothblatt: Investigation and Preparation of Criminal Cases (1970); and Successful Techniques for Criminal Trials (1971). Back in the 70s, I used them often. His later books regurgitated some of the same material, but I read them anyway. I wanted to be as good as Bailey.

While studying the Sheppard case, I read Paul Kirk’s books on crime scene investigation: The Crime Laboratory (1965) and Crime Investigation (1965). And supplemented with Paul Holmes, Retrial: Murder and Dr. Sam Sheppard (1966). Kirk had worked on the Manhattan Project then decided to take on forensic investigation. Bailey hired Kirk to analyze the crime scene evidence and to examine every detail in the Sheppard house where the murder took place.

Kirk’s analysis of the bloodstain evidence became the catalyst for an acquittal. The Cleveland coroner had identified a bloodstain on a pillow as coming from a scalpel obviously connecting it to Dr. Sheppard. Kirk proved that the stain wasn’t from a scalpel, but rather by bending the pillow with a fresh bloodstain in two. That simple observation was a game changer.

Next on Bailey’s agenda was another doctor case, Carl A. Coppolino, which was very similar to Sheppard’s. Coppolino was accused of murdering his wife and his paramour’s husband. The prosecutors said that the doctor injected his murder victims with succinylcholine chloride. The problem was that an overdose of the substance is hard to detect because it is found naturally occurring in the body. The prosecution brought in the famed New York City Medical Examiner’s Office and their toxicologist, Charles Umberger, who devised a special test to find evidence of the drug in the corpses.

Coppolino was acquitted in New Jersey of killing his lover’s husband, but was convicted of second degree murder of his wife in Florida. There were a lot of pioneering experiments done by the Chief Medical Examiner Milton Helpern, and Umberger, who found components of the drug in her liver and brain. Bailey tried to refute the findings by calling in medical witnesses, but the New York toxicologist’s findings proved to be the final nail in the coffin for the doctor. Years later, the tox findings were rejected by the toxicology community, but this came far too late for Coppolino and Bailey.

Naturally, Bailey appealed the verdict, especially since Coppolino was convicted only of second degree murder, which is defined as murder without premeditation. As Bailey argued, it is impossible to poison someone without premeditation. The verdict was obviously a compromise, yet the appellate court refused to reverse it. Coppolino v. State, 223 So.2d 68 (Fla. 2nd Dist 1969).

One of the best true crime books, “No Deadly Drug,” by John D. MacDonald, intricately describes both trials. Most of Bailey’s examinations and arguments are completely reproduced, and are a golden resource for young criminal lawyers. It is a must read.

All the books and articles he and others wrote on his trials were  just one way his career had a significant impact on young aspiring criminal lawyers. They were far better than the measly one criminal law course available then in law school. I spent many hours dissecting his cross examinations and trial strategy, writing my conclusions in the margins of the books. Reading about the Coppolino case caused me to hunt for and find other texts like Legal Medicine: Pathology and Toxicology (1954) by Milton Helpern, the medical examiner, and Charles Umberger PhD, the toxicologist, from the Coppolino trial. It is an exhaustive text on autopsies, full of helpful photographs and diagrams. My copy is quite beat up, but the 1,350 pages sit in an honored place in my library.

f lee 3Lee took on Albert DeSalvo, charged in the “Boston Strangler” killings that terrorized the city in the 1960s, and made a deal to save his life. He won the acquittal of Army Capt. Ernest Medina in his 1971 court-martial for the My Lai Massacre during the Vietnam War. My Lai was a hot political issue right in the middle of the war. Despite all the nationwide protests, Bailey won the case.

Bailey headed the defense for Patty Hearst, perhaps one of the most bizarre criminal case of the 20th century. She was kidnaped by terrorists, because she belonged to a prominent, wealthy family, sexually and mentally abused, and turned into a member of the gang. She then participated in bank robberies. Bailey’s strategy was to show that Hearst had been brainwashed and suffered from the Stockholm Syndrome, which causes victims who become totally dependent on their captors to become sympathetic to them. Under Bailey’s theory, Hearst was never a voluntary member of the SLA or free agent. He argued throughout the trial that she did only what she had to do to stay alive during the time.f lee

Hearst was convicted but later received a presidential pardon.

Then the OJ Simpson case. Lee was brought in by his old friend and colleague Bob Shapiro. For some reason the case caused them to hate each other. Bob became the major adverse witness against Lee in the federal contempt case and the Florida Bar disbarment action. The intense publicity, televised mayhem and brutal backlash of the OJ trial, like the curse of King Tut’s tomb, cratered legal careers.

OJBailey was given the toughest assignment of the OJ trial – the cross-examination of Detective Mark Fuhrman. Bailey intensely questioned Fuhrman, and at the time, I thought he hadn’t damaged him. Yet by the end of the trial, further evidence destroyed Fuhrman’s credibility and he became the focal point of Cochran’s final argument, especially the controversial Hitler comparison. It was Bailey’s cross that made this possible. A great cross reverberates across the entire scope of evidence and takes on a life of its own. The crosses we remember today are Fuhrman by Bailey and Wong by Barry Sheck. Masters like Lee are important to the development of young lawyers. Following his career, then reading “No Deadly Drug,” then getting the medical examiner’s book were all critical to advancing my knowledge of the forensic sciences.

I don’t think he has been given sufficient credit for his contributions to many organized Bar associations. Bailey spoke at thousands of bar seminars all over the country – without charge. Ironically, one criticism leveled against Lee in the aftermath of Hearst’s conviction was that he foolishly took a weekend off during the trial to teach a promised bar seminar in Las Vegas. Yet when he needed a break, the bar gave him the death penalty. This is one reason I don’t participate in bar events. There is no loyalty. They should be embarrassed that they did not come to his assistance. Bar associations are like the government. They are not immoral or moral they are amoral and quickly forget the contributions you so freely give them. Lee, while they won’t thank you, history will.

And at 81, he hasn’t slowed down. Even though he lost his bid to practice again, he still published a new book on cross-examination – “Excellence in Cross-Examination,” with co-author, former law partner, and now judge, Kenneth Fishman. Bailey told the press in Maine that one reason he sought readmission to the bar was because he would start a master-level legal skills course specifically for practicing lawyers to learn the “fading profession” of trying a case in court. The genuine masters like Lee and Gerry Spence dedicate time and resources to training the next generation of trial lawyers.

How Lee got in trouble is a cautionary tale. Even the toughest, most experienced lawyer can be jackpotted. He made a deal with the government, which was bound to end badly. He boldly entered into the swamp of cooperation and forfeiture to save his client, an international drug trafficker, from a life sentence. In an effort to create “extraordinary cooperation,” Lee made a deal to give all the client’s wealth to the government in exchange for a decent sentence. Bailey agreed to hold money and stock for the client in “trust” for the government until all the offshore businesses and assets were sold and only take a “reasonable fee” out of it.

Plea agreements have become as complex as a securities public offering, and drafting one, especially in a tax or financial case, requires specialized input. Without any written guidelines, a difference of opinion arose between Lee and the government over what was “reasonable.” A federal judge had the final say, and we know which way that would go. Big surprise that it all ended in disaster. The man who protected everyone else didn’t protect himself.

Lee is not willing to bend enough to convince the Maine Supreme Court. The Maine opinion sets out a road map on how not to get re-admitted. Footnote 1 is telling. The Maine Board of Bar Examiners made a finding that “Bailey made several unwarranted attacks on judges who have ruled against him as well as on the Department of Justice.” The opinion goes on to note that Bailey “filed a pleading with the Tax Court in which he alleged that The Florida Bar, the Department of Justice, and the IRS conspired to violate his constitutional rights.” Did they really expect the man who spent his professional life challenging and defeating the government and hostile judges to capitulate without a fight?

I smiled when I got to page 45 of the slip opinion. The court quoted extensively from Pat McKenna, the premier PI and ever-loyal friend, who did all he could to supply the human reasons why Lee acted as he did. But unfortunately, even Pat couldn’t do enough to satisfy them.

If Lee had swallowed his pride, became humble, and accepted his medicine like a good boy, with a heartfelt mea culpa, perhaps the court would have been merciful. But did one expect a warrior like him to cave in so easily? Even with his law license at risk? Lee stayed true to form and was taken out on his shield, bloody, but with his pride intact, unwilling once again to capitulate to the bureaucrats.