Obituary: F. Lee Bailey, Lawyer (87)

Photo: F. Lee Bailey during the murder trial of O.J. Simpson in 1995. His withering cross-examination of a Los Angeles police detective was considered a key to Mr. Simpson’s acquittal.Credit…Ted Soqui/Sygma, via Getty Images

With theatrical courtroom flair, he was involved in a host of notorious criminal cases, including those of the Boston Strangler and a Vietnam War massacre.

03 June 2021 | Robert D. McFadden | New York Times

F. Lee Bailey, the theatrical criminal lawyer who invited juries into the twilight zone of reasonable doubt in defense of Patricia HearstO.J. Simpson, the Boston Strangler, the army commander at the My Lai Massacre in Vietnam and other notorious cases, died on Thursday in Atlanta. He was 87.

His son Bendrix confirmed the death, in hospice care, but did not specify the cause. He said his father had been in poor health in recent years and living in Georgia to be near another son, Scott.

Mr. Bailey flew warplanes, sailed yachts, dropped out of Harvard, wrote books, touted himself on television, was profiled in countless newspapers, ran a detective agency, married four times, carried a gun, took on seemingly hopeless cases and courted trouble, once going to jail for six weeks and finally being disbarred.

But to a generation of Americans who grew up with courtroom dramas on television, he was the stuff of celebrity legends: an audacious, larger-than-life defender in the traditions of Clarence Darrow and Edward Bennett Williams, producing lawyerly entertainment long before Court TV or reality television shows.

He did not always win, however. He failed to keep Patty Hearst, the kidnapped publishing heiress, out of prison for her role in a bank robbery. He lost his insanity defense of the confessed Boston Strangler, Albert DeSalvo, and could not save himself from contempt of court citations, humiliating handcuffs and disbarment in 2001 for misappropriating millions.

By then, however, his reputation had long been secured with triumphs that began soon after his law school graduation in 1960 with the Torso Murder Case. George Edgerly, a Lowell, Mass., auto mechanic, was accused of dismembering his wife and dumping her parts in a river. He had failed a lie-detector test, complicating the defense. But when the lead lawyer had a heart attack, Mr. Bailey took over and, raising the specter of reasonable doubt, won an acquittal. (Edgerly was later convicted in another murder.)

Mr. Bailey gained national attention in 1966, when he succeeded in reversing the murder conviction of Dr. Sam Sheppard, the Ohio osteopath whose case inspired the television series and movie “The Fugitive.” Dr. Sheppard had been convicted in 1954 of bludgeoning his wife but steadfastly claimed that he had been knocked out in a struggle with the killer after he returned home to discover the body.

The reversal by the United States Supreme Court, on grounds that jurors had been unfairly exposed to sensational publicity, led to a second trial in which Mr. Bailey cast new light on the evidence, discredited a key prosecution witness and delivered a masterful closing. Dr. Sheppard was acquitted, and Mr. Bailey was hailed in The New York Times as “easily the shiniest new star in the criminal law field.”

He was a riveting courtroom performer, a stocky badger-like man with a cleft chin, intimidating blue eyes and a widow’s peak that refused to recede with the rest of his hairline. He had the ventriloquist’s trick of directing questions at the witness box but throwing his points at the jury box. He had an actor’s voice, by turns bullying, cajoling, sarcastic or sympathetic, searching for seams of doubt. Under his reductions, a prosecutor’s “fact” could be whittled down to a probability, then to a mere possibility or just a silly idea.

Mr. Bailey in a news conference in Cleveland in 1965 with Dr. Sam Sheppard, left, who was convicted of murdering his wife. Mr. Bailey succeeded in having the conviction reversed. Credit… Associated Press

Mr. Bailey in a news conference in Cleveland in 1965 with Dr. Sam Sheppard, left, who was convicted of murdering his wife. Mr. Bailey succeeded in having the conviction reversed.Credit…Associated Press

Behind every performance lay enormous preparation: a gathering of facts by his private investigators, hours of legal analysis, all crammed into the encyclopedic Bailey memory, and finally the smooth, tightly controlled presentation in court — a Q. & A. forming a narrative that might save a client’s life.

Soon after the Sheppard case, Mr. Bailey was called to Bridgewater State Hospital in Massachusetts, which housed sex offenders and the criminally insane. Albert DeSalvo, an inmate, told Mr. Bailey that he was the Boston Strangler who had raped and slain 13 women from 1962 to 1964, supposedly providing details only the killer could know. Mr. DeSalvo, facing unrelated rape and assault charges, was not yet suspected in the killings, and Mr. Bailey agreed to represent him.

At the 1967 trial, he took a risk and raised the confession, trying to show that his client was insane, but a judge ruled it inadmissible, and Mr. DeSalvo was convicted, found sane and sentenced to life in prison. “Massachusetts just burned another witch,” Mr. Bailey said.

Doubts about the case lingered for more than 40 years as legal experts and writers insisted that Mr. DeSalvo was not the strangler. There was no evidence to support his confession, no one was ever tried for the killings, and Mr. DeSalvo was murdered in his cell in 1973 by other inmates.

But in 2013, DNA found in the home of the strangler’s last victim, Mary Sullivan, and long kept in storage was linked to DNA taken from a water bottle used by a nephew of Mr. DeSalvo’s. On the basis of a possible DNA link between uncle and nephew, a judge ordered Mr. DeSalvo’s remains exhumed for tests. They established a certain link between him and Ms. Sullivan. The results did not prove that Mr. DeSalvo was the Boston Stranger, however — only that he had most likely killed Ms. Sullivan, the authorities said.

In 1971, Mr. Bailey defended Capt. Ernest L. Medina in a court-martial over one of the Vietnam War’s most notorious atrocities, the 1968 massacre of 104 South Vietnamese villagers in what had become a flash point in the antiwar movement. The captain was charged with killing a woman and allowing his men to slaughter villagers. Mr. Bailey said that his client had shot the woman in an “instinctive battlefield reaction,” and that he had not known that his troops were out of control until it was too late.

The captain was acquitted. Of 26 men charged in the massacre, only Lt. William Calley, a platoon leader, was convicted of murder. (Lieutenant Calley ultimately served slightly more than three years of house arrest and barracks confinement.)

In the 1976 case of Ms. Hearst, who had been photographed with her Symbionese Liberation Army captors in a 1974 San Francisco bank robbery, Mr. Bailey argued that she had been brainwashed and had gone along to save her life. He called 71 witnesses, including Ms. Hearst, but she was convicted and went to prison for 22 months. She sued Mr. Bailey for incompetent representation, but dropped the suit after President Jimmy Carter commuted her term.

Mr. Bailey in 1975 during the trial of the heiress Patricia Hearst. He ultimately failed to keep her out of Mr. Bailey in 1975 during the trial of the heiress Patricia Hearst. He ultimately failed to keep her out of prison for her involvement in a bank robbery. Credit…Associated Pressprison for her involvement in a bank robbery.  Credit… Associated Press

In 1977, Mr. Bailey, a master of turning simplicity into complexity, successfully defended a racehorse veterinarian, Mark J. Gerard, from two felony charges in a notorious racetrack fraud at Belmont Park. The defendant was accused of switching two look-alike horses — a top 3-year-old, Cinzano, for a long shot, Lebon, that the New York Times sports columnist Red Smith said “couldn’t beat a fat man from Gimbels to Macy’s.”

The switch produced 57-to-1 odds, and Mr. Gerard won $80,000. But the strands of the case proved too hard for prosecutors to untangle in Nassau County Court on Long Island, and Dr. Gerard, who had tended Secretariat and Kelso, got off with a misdemeanor and a few months in jail. “The record,” an appeals court said, “reveals a factual scenario that might have been authored jointly by an Alfred Hitchcock and a Damon Runyon.”

In 1995, Mr. Bailey was part of the “dream team” of lawyers — Johnnie L. Cochran Jr., Alan M. Dershowitz, Barry Scheck and Robert L. Shapiro — who defended the former football star O.J. Simpson against charges that he killed his former wife, Nicole, and her friend Ronald L. Goldman in a ferocious knife attack. The prosecution case seemed overwhelming, but Mr. Bailey’s cross-examination of Detective Mark Fuhrman was widely considered a key to acquittal.

The detective admitted that he had had no search warrant when he obtained crucial evidence at Mr. Simpson’s home, including a bloody glove matching one left at the murder scene. The defense argued, but never proved, that Mr. Fuhrman had planted the glove to frame Mr. Simpson, and Mr. Bailey broke the witness’s credibility by eliciting a denial that he had used racist language in the previous decade — a claim easily destroyed, raising the taint of racism in the prosecution’s case.

Mr. Bailey’s wrote a score of books, mostly legal texts; was the host of an ABC television show, “Good Company,” in 1967; and appeared often on talk shows and the lecture circuit. He reviewed his cases in the best-sellers “The Defense Never Rests: the Art of Cross-Examination” (1971, with Harvey Aronson) and “For the Defense” (1975, with John Greenya), and wrote about flying in “Cleared for Approach” (1977, with Mr. Greenya). His 1978 novel, “Secrets,” featured a lawyer who might have been the author.

Mr. Bailey conferred with Mr. Simpson during the 1995 murder trial in Los Angeles.Credit…Pool photo by Reed Saxon

Francis Lee Bailey was born on June 10, 1933, in Waltham, Mass., the oldest of three children of an advertising salesman, whose name he was given, and a nursery-school teacher, Grace Bailey Mitchell. He graduated in 1950 from Kimball Union Academy, in Meriden, N.H., and enrolled in Harvard but dropped out after two years to join the Navy. He transferred to the Marines and became a fighter pilot and an officer representing servicemen in courts-martial, although he had no legal training.

Discharged in 1956, he enrolled at Boston University Law School, which, because of his experience, waived entrance requirements. He was class valedictorian at graduation in 1960. During law school, he founded a private detective agency, helping lawyers with cases. He sold it later but retained its services for his Boston firm.

In 1960, he married Florence Gott. They had two sons, Bendrix, and Brian. After a divorce, he married Froma Portney and had another son, Scott. After a 1972 divorce, he married Lynda Hart. They were divorced in 1980. In 1985, he married Patricia Shiers, who died in 1999.

In addition to his sons Bendrix and Scott, Mr. Bailey is survived by his other son, Brian; a sister, Nancy Bailey; and five grandchildren.

Mr. Bailey, who often carried a snub-nosed revolver in a shoulder holster, was an avid yachtsman and pilot, flying his jet around the country to cases and meetings. He owned a helicopter-manufacturing business in Michigan, and in 1968 helped found the Professional Air Traffic Controllers Organization, the union President Ronald Reagan broke after a strike in 1981. He represented families of passengers killed when a Soviet warplane shot down Korean Airlines 007 in 1983 and in the bombing of Pan Am 103 over Lockerbie, Scotland, in 1988.

Mr. Bailey in 2014. Associated with famous defendants, he became a celebrity in his own right, writing books, lecturing widely and appearing on television.Credit…Robert F. Bukaty/Associated Press

The Massachusetts bar once censured Mr. Bailey for self-promotion, and New Jersey banned him from state courts for a year for contempt. But his worst trouble arose in Florida in 1996. He was held in contempt for refusing to surrender fees taken for defending a drug trafficker and stock left with him in escrow by his imprisoned client. A federal court said the trafficker had forfeited all his assets in a 1994 plea deal, and demanded that Mr. Bailey give them up. He refused. But after 43 days in jail, he surrendered stock worth millions and his yacht and was released. In 2001, Florida’s Supreme Court disbarred him for misappropriating the stock, and Massachusetts disbarred him reciprocally in 2003.

In 2013, Mr. Bailey’s request to practice law in Maine, where he had a home, was denied by the state, which said he had failed to show by “clear and convincing evidence that he possesses the requisite honesty and integrity.”

In 2016, Mr. Bailey filed for bankruptcy in Maine, saying he owed more than $5 million in taxes and had minimal assets, including a condo in Yarmouth, Me., with a $365,000 mortgage.

In recent years he had been running a business consultancy out of an apartment above a Yarmouth hair salon owned by his girlfriend.

Jordan Allen contributed reporting.

Robert D. McFadden is a senior writer on the Obituaries desk and the winner of the 1996 Pulitzer Prize for spot news reporting. He joined The Times in May 1961 and is also the co-author of two books. 


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