Friday, June 04, 2021

Guest post by Roy Black about F. Lee Bailey

 BY ROY BLACK: David invited me to write a few words about my old friend Lee Bailey and at first I hesitated but decided I owed it to Lee to tell his story. Francis Lee Bailey Jr., who for some reason preferred F. Lee Bailey, captured the imagination of all the young criminal defense lawyers back in the 60's and 70's. Some even adopted the affection of initializing their first name in homage to Bailey. Bailey did things differently right from the start. He didn’t undergo some type of apprenticeship, but instead started with a bang – an unbelievable string of major trial successes. Just one year out of law school he took on the case of Dr. Sam Sheppard who had just been convicted of killing his wife in a trial surrounded by outrageous poisonous publicity. Bailey took it all the way to the Supreme Court and Sheppard v. Maxwell, 384 U.S. 333 (1966), became a landmark ruling reversing Sheppard's conviction in an 8-1 decision because of the "carnival atmosphere" of the trial. Tell me another lawyer who beats that career start.

And it got better. Sheppard became the inspiration behind "The Fugitive" hit television series and later into The Fugitive film starring Harrison Ford. I don’t have the space to go into all his trial best hits but I suggest you read about the trials of another doctor, Carl A. Coppolino. It became the best book on trials I have ever read, No Deadly Drug by John D. MacDonald. Most of Bailey's examinations and arguments are completely reproduced and are a golden resource for young criminal lawyers. A must read.

One side effect of following Bailey's career was the number of great books it spawned. This is long before youtube videos and trial lawyer dvds full of practice tips. When I was a PD I learned trial advocacy by reading about trials in books. Of course I read all of Bailey’s 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) but there were plenty of others. I read them so often the pages began to fall apart. I wanted to be like Bailey. All the books and articles he and others wrote on his trials was 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 as marginalia in the books. 

Then the OJ Simpson case hit the national consciousness. 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 from King Tut's tomb, cratered legal careers.

Bailey was given the toughest assignment of the OJ trial, the cross-examination of LAPD detective Mark Fuhrman. Bailey intensely questioned Fuhrman and at the time I thought he hadn't really damaged him. Little did I know. By the end of the trial the defense unearthed further evidence corroborating Lee’s cross and caused the utter destruction of Fuhrman's credibility. Fuhrman and Lee’s cross became the focal point of Johnnie Cochran's fabulous final argument, especially the controversial Hitler comparison. It was Bailey's work that made this possible. The OJ trial crosses we still remember are Fuhrman by Bailey and Wong by Barry Sheck.

But this fabulous career came to a crashing end.

No matter what the obits say Lee Bailey died the day he was disbarred by the florida bar.  Once florida disbarred him Lee lost his reason for being. He was a trial lawyer and lived for the battle. He couldn’t survive as a non-combatant. During his last ditch effort to get re-admitted in Maine he told me he was gearing up to defend a criminal case for a police officer and he felt like a young lawyer again. Yet Maine decided it was bound to follow florida's lead and ended the dream of a comeback. The great career was finished.

Lee spent thousands of hours teaching at bar CLE courses throughout the country. He never turned them down. Even during the Patty Hearst trial he took a weekend off to teach a course. But when he needed help with the bar all he got was a knife in the back. None of the great names showed up for him. We criminal lawyers are treated with disdain all the way to the bitter end.


Anonymous said...

Never understood why he was disbarred and not admitted to Maine Bar. Never convicted of a crime and he purged the contempt. The government certainly din't like him - he was indicted in MDFLA on that "Dare to b Great" case- and the government fell flat on its face. The Shapiro explosion was incredible - greed and jealousy. What a waste of talent.

Anonymous said...

In April 2000 as an AUSA I had a muti -defendant white collar indictment and one of the defendants was a CPA, who provided multiple false financial statements and tax returns for the straw buyers in the case.

F. Lee Bailey came into the case late to represent the CPA. When he called me in the office and my secretary told me she had , " F. Lee Bailey on the line", I of course said to myself , "oh sure". When I picked up the phone his voice gave it away it was the real Lee Bailey. He was cordial and we set up an office appointment and told him I would send him open discovery of everything I had and we could discuss the matter later on.

He showed ups at our office and of course the office staff was a twitter that F. Lee Bailey was in the office. We got down to business very fast and he told me to call him Lee and not "Mr. Bailey". I went over our case and how I intended to prove it and he asked very pertinent questions along the way and was open and very smooth. He was as gracious as any defense lawyer could be under the circumstances and professional with me. I told him to call me if he had any questions.
A few weeks later he called and asked if I would meet with him and his client and go over our case with them. I agreed . After that meeting he said he would call me. He did call ,we set up another meeting with his client to discuss a possible plea . During our plea discussion he was passionate and tough doing his job, but always in a professional way. We struck a plea deal and set it down for a change of plea.
At the change of plea as the judge went through his questions it was apparent the CPA was balking and not answering the judges questions truthfully as to his culpability. The judge looked at me and I told the Judge we could not go forward unless the CPA admitted his role in the offense. Lee Bailey sensing the plea was about two fall through, stood up and told the judge, " our ostrich defense at trial would be he put his head in the sand and didn't ask any questions and thats not going to make it in federal court" and then asked his client some questions that brought him back to reality and the CPA admitted his role in the offense and satisfied the judges inquiry. Lee Bailey saved his client that day without question.
F.Lee Bailey was one of those lawyers I read about in law school, I still have one of his books on bookshelf, he was a great lawyer and it was sad to see how his career ended. said...

As a young lawyer, he wrote a 2-volume treatise on Criminal Defense Law I'm the 70s.
He was disbarred by Disciplinary Committee where squat lawyers who have never been in a courtroom, and no doubt goaded by AUSAs with revenge on the mind, some way, some how.

Robert D. Gifford said...

Lee Bailey was a force of nature with a voice that was tempered with cigarettes and strong drink (his appearance in Smirnoff ads drew him trouble with the bar at the time). He recognized that for attorneys to become great trial lawyers, it was a process of experience, reading about the great trials, and even watching lessons from cinema of great cross-examinations. He understood the public perceptions that needed to be addressed (his example: "Lizzie Borden was acquitted"). His books (e.g. "For the Defense," "The Defense Never Rests," and even "How to Protect Yourself Against Cops in California and other Strange Places") are worth the read.