F. Lee Bailey is one of the most iconic criminal defense lawyers of all times, with a career spanning six decades. He has been immortalized on screen twice:
American Tragedy, 2000 (portrayed by Christopher Plummer)
The People v. O.J. Simpson (portrayed by Nathan Lane (whom most of us remember for his unforgettable performance as Albert in the Birdcage).
Such is the roll call of notorious cases he has defended that many of his clients have defined popular perception of criminal justice, and been the subjects of books, globally successful TV series (The Fugitive), and movies.
From Sam Sheppard (The Fugitive), to the Boston Strangler, to American heiress Patty Hearst, to O.J. Simpson (arguably, his and his fellow high-flying attorneys’ most famous case), Bailey’s skill at representing high profile defendants has entered the public consciousness in a way few others have, to match the stature of much-loved fictional lawyers such as Atticus Finch, Perry Mason, Mick Haller (The Lincoln Lawyer), Jake Tyler Brigance (A Time to Kill) and Lt. Daniel Kaffee (A Few Good Men).
Yet he considers one of his greatest courtroom triumphs the acquittal of Ernest Medina in the notorious case of Mỹ Lai Massacre, the Vietnam war crime.
Justice in a US military court
Mỹ Lai marks one of the darkest moments of the Vietnam War, with the killing of several hundred South Vietnamese civilians on March 16, 1968.
The massacre was covered up for close to two years until the bodies were discovered and the resulting media coverage sparked global outrage. A number of officers were charged, one of whom was Captain Medina, a company commander of infantry.
Medina was court-martialled in 1971 for willingly allowing his men to murder non-combatants. The captain denied all the charges and claimed that he never gave any orders to kill Vietnamese non-combatants.
Medina strongly denied killing anyone (nor ordering the killings of any civilians) at Mỹ Lai, in fact, with the exception of a young woman whom, he believed, was a threat to him.
(According to personal and eye-witness testimonies, Medina was searching a location where an armed enemy presence had been indicated by smoke signals. He found the woman unarmed and apparently dead. As Medina was walking away, he saw her move and, in one account, a “glimpse…of something in her hand.”
Medina immediately spun around to shoot her two or three times. An investigative report of the Armed Services Subcommittee of Congress, 1970, states the following:
“His explanation of the circumstances surrounding that shooting suggests that it was not a wanton act, but rather a reflexive, self-defensive action by a soldier under the pressures of a combat situation.”)
The captain was not present at the moment of the Mỹ Lai killings, which would have played a role in his acquittal of all charges – but, Bailey points out, bad intelligence was also a contributing factor to the mass murder itself.
However one chooses to view it in retrospect, Medina was fortunate to have Bailey, a former United States jet fighter pilot himself, as a defense attorney.
Bailey is a staunch believer in the ethics of military courts and military prosecutors in particular:
“One is more likely to get justice in a US military court than in a US state criminal court. This is because army prosecutors are never elected, but appointed.”
When I put it to him that an overwhelming number of United States prosecuting attorneys are inevitably motivated to hand down multiple indictments and to get as many convictions as possible, he says this is his “biggest gripe with the politicizing of US criminal justice.”
“Prosecutors ought to be appointed on a case-by-case basis, as they are, for example, in the UK, not elected.”
Guilt and innocence; acquittal v. clearance
A universal premise underpinning the criminal justice system in the United States and most developed countries is that everyone, guilty or not, is entitled to legal representation. Defense attorneys have a different approach to clients – Bailey’s is the absolute requirement that he be told the truth.
Establishing whether a person is telling the truth or not rests on multiple factors, not least the attorney’s extensive experience, the evidence (or lack thereof) and, to some extent, the use of a polygraph when appropriate. The latter is contentious because a polygraph test, in essence, measures one thing: anxiety.
“All these physiological measures are simply associated with fear and anxiety”, Leonard Saxe, a psychologist at Brandeis University says. “And people are anxious sometimes when they’re telling the truth, and they can be not anxious sometimes when they’re lying. The more practiced you are at lying, the less anxiety is associated with it.”
In other words, a polygraph test can sometimes be correct, and sometimes be wrong. When accused of an actual crime, many people understandably become anxious, even if they’re innocent.
A polygraph would tell you what your client believes and then, there is the fine distinction: “You can ask the wrong question, or the right question in the wrong way, and the client may fail the test”, says Bailey.
Bailey is a mesmerising raconteur and peppers his narrative with colourful examples of cases he has defended in order to make a point.
I ask him a loaded question: does a client’s wealth predetermine the outcome?
Another fine distinction follows: “With money and a fine legal team, one can escape justice, but one would never regain one’s original status”. Plus, there is a “difference between being acquitted and being cleared” – two different concepts, both in law and in terms of perception.
In fact, Bailey maintains, the average, unremarkable wage earner stands a better chance of being acquitted by a jury of his peers than a famous defendant – whose notoriety might work against them, and whose wealth might make the jury resentful.
Absolute poverty equals no access to adequate defense, on the other hand, which is why most death row inmates are indigent, represented as they are by under-skilled and overworked public defenders, and often pleading guilty to more than the crimes they have committed.
His most memorable triumphs
Given the huge notoriety of many of his clients and cases, I ask what he considers to be his other most memorable triumph.
He precedes his answers by making yet another fine distinction: different defense techniques can lead to an equally favorable outcome.
While the Ernest Medina/Mỹ Lai massacre is clearly significant to him personally, his first choice of a memorable triumph is predictable enough: it is the one that put his name up there on the map of celebrity lawyers, at a time when the notion didn’t quite exist in the public psyche, and earned him the iconic status, as well as lead to one of the most popular TV series ever, a movie, and a follow-up series re-make, The Fugitive.
In 1954, Sam Sheppard was charged with the second degree (no intent to kill) murder of his wife. As the trial began, the then Ohio prosecutor, John J. Mahon, was running for a seat on the Cuyahoga County Court (Mahon won his seat, and served until his death on January 31, 1962).
Sheppard’s attorney, William Corrigan, was not an astute defense lawyer, says Bailey – not only was his client convicted but all appeals were rejected – until, that is, Bailey took over upon his predecessor’s death. His petition for a writ of habeas corpus was granted on July 15, 1964, by a United States district court judge who called the 1954 trial a “mockery of justice”; at a subsequent retrial in 1966, Sheppard’s conviction was overturned.
On the role of the media
The Sheppard case gathered massive media attention even before hitting the big screen.
There are, says Bailey, “different degrees of stridency in the media”, depending on whether the crime was violent or not and the existing notoriety of defendant and victim. The media is more vocal in the United States than it is in Europe and “it is my responsibility to bring narrative back to neutral status”, he says, when clients are tried in a court of public opinion, especially if a case is publicized at national rather than local level.
Enter O.J. Simpson
Interviewing F. Lee Bailey and not mentioning that case is impossible.
So firmly embedded in the public consciousness is the case that there is hardly a person in the world who doesn’t have a firmly held opinion on O.J.’s guilt or innocence.
So unequivocal is Bailey about O.J.’s innocence that his oft-repeated assertion on the subject hangs somewhat incongruously as if in a vacuum, besieged by public opprobrium and jocular vitriol.
Bailey accepts that acquittal did nothing to clear O.J. Simpson’s name. There are, he says, a number of reasons for this, not least the fact that “no favorable to O.J. story will ever be published in the US.”
“There was a complex prejudice, of which race is a part, that hurt him during the trial.”
That, combined with largely negative press (the media claimed, incorrectly at the time, and among other things, that O.J. confessed to the murders), made up the mind of most Americans and put paid to the acquittal (in fact, O.J. Simpson lost the subsequent civil case against him).
Bailey himself has never made a secret of the fact that he likes Simpson who, he says, has always acted with equanimity in the face of adversity and never complained about his reversal of fortune.
Media portrayal notwithstanding, Bailey maintains that if one looked at the facts and evidence, it would be clear that Simpson “could not have committed the murder.”
He was, says Bailey, the quintessential black kid from the ghetto who took to heart the advice that his only way to success was through sports or entertainment, and had the good fortune of excelling at the former.
His second and unrelated conviction in 2007 for burglary was a set-up, according to Bailey – O.J. had been led to believe he still had the right of ownership to his personal memorabilia that he had previously been auctioned off. In an altercation with Alfred Beardsley, a memorabilia dealer, Simpson and his accomplices recovered the collection of items. O.J, as the instigator, ended up the only one going to jail, however.
O.J. Simpson remains, to this day, a controversial, divisive and often comical figure in the annals of American criminal history, his name prompting countless tongue-in-cheek jibes. It is a vivid example of being acquitted but not cleared, maintains Bailey, because “no such mechanism exists in a criminal court.”
The Netflix series, according to F. Lee Bailey
The People v. O.J. Simpson had a star cast, led by Cuba Gooding Jr. as O.J. himself.
How did the main participants in the legal drama fare?
“Robert Shapiro was memorably and correctly portrayed by John Travolta as a celebrity attorney who had never tried a murder case but was drafted in to try and fix things. I was the next ‘dream team’ attorney to be drafted in. Nathan Lane’s portrayal of me was better than Christopher Plummer’s in American Tragedy, in which I came across as a grumpy old man.”
(A grumpy old man Bailey is patently not, even 15 years on).
“Lane did a good job as an actor, articulating my best cross-examination lines with panache and getting Mark Fuhrman to admit to lying on the stand. Alan Dershowitz, who is the youngest ever Harvard law professor, was well portrayed by Evan Handler and Johnny Cochran, a charismatic speaker and a successful advocate for black minorities, by Courtney B. Vance.
“Cochran was an effective manager of the ‘dream team’ and while both he and Dershowitz initially thought Simpson was guilty, both changed their minds as the case unfolded.
“Robert Kardashian, played by David Schwimmer, was not a practising lawyer (he reactivated his license in order to visit Simpson in jail) and always thought his erstwhile friend innocent until he was paid $50K by CBS to voice doubts about his innocence.
“Marcia Clark, the prosecuting attorney was nasty and unprofessional; Lance Ito was not a good judge, nor entirely impartial (his wife was in the police force).
“The series as a whole presented the characters in a fair light, but did not present the facts fairly and should be seen as entertainment. If anything, it shows that American advocacy is in a mess.”
Other major criminal cases
I ask F. Lee Bailey to comment on more recent cases that have garnered international attention and whether he would have done a better job representing the defendants.
Harvey Weinstein, whose historic sex offenses and conviction gave rise to the #metoo movement, was a “classic casting couch abuser”, says Bailey, whose fall precipitated that of many others, more or less guilty of not getting explicit consent from their accusers. Weinstein was both “unrepentant and an unsightly defendant” and, in the face of overwhelming evidence, no lawyer could have done better. The same is true of the Jeffery Epstein case, he says, whose repercussions have spread like cancer on two continents and impugned the reputation of some very big names, including that of his friend Alan Dershowitz.
The Joaquín “El Chapo” Guzmán case presented the same type of overwhelming evidence that no attorney, however brilliant or astute, could have argued against.
“There are cases that no one can win and then, there are cases that even a law student can win.”
What has changed in the world of criminal justice since Bailey’s first case in 1954?
In 1954 cases were “tried by ambush”, he says, and at the time a defense attorney was not allowed to see so much as his client’s supposed confession, never mind a copy of an autopsy. Bailey takes pride in lobbying for improving discovery, something that has since become a cornerstone of criminal trials.
How does he want to be remembered?
“As a guy who drove hard to get the truth, dealt honorably to get the facts out, and helped justice work effectively.”