F. Lee Bailey: The Defense Never Rests
F. LEE BAILEY, the bristling, flamboyant defense lawyer, once had a retreat in Marshfield, Massachusetts. Bailey didn’t believe in retreat; he came out with legal guns blazing and he wasn’t the sort of man to spend much time puttering around any house. But when he puttered anywhere, it was at this home in Marshfield.
He bought the home in 1966, and put a lot of money into it — an outdoor pool, an indoor pool, plus a helicopter pad and some heavy-duty snow removal equipment, so he could take off in his helicopter at a moment’s notice. Helicopters interested Bailey, and in 1971 he rather impulsively bought a struggling helicopter company, Enstrom Helicopter, even though Enstrom was based in Menominee, Michigan, 850 miles from Marshfield.
He was determined to make a lot of money and that meant getting, and winning, high-stakes legal cases. It also meant courting the media, dishing dirt with reporters, giving them juicy stories to tell. This leaking to the press sometimes invaded the privacy of Bailey’s own clients, but he felt he had to do it in order to help those clients win their case, and to build up his own practice and reputation.
He wanted men in deep legal to trouble to say to themselves: ‘I need F. Lee Bailey.’
Bailey also had a highly ethical and idealistic side, though it didn’t come out much when he was engrossed in legal battle.
He was born in 1933, in Waltham, Massachusetts, into a middle-class family. He did well in school and got into Harvard. He thought in those days of becoming a journalist, or trying to write The Great American Novel. But he was restless in college, yearning for a more physically strenuous life. So after two years at Harvard, he dropped out and joined the Marines, where he became a jet fighter pilot.
When the Marine Corps ran out of lawyers, Bailey was pressed into service as a sort of lawyer. He started working on cases, and was surprised how much he enjoyed it. So when he left the Marines, he applied to law school. He finished first in his class in the Boston University Class of 1960.
From the start, he wanted a solo practice, working only for himself. He was a loner and embraced his solitary nature. He knew he’d get the blame for cases he lost but he didn’t mind because he’d also get the credit when he won a case — and he intended to win a lot more cases than he’d lose.
Bailey claimed to be totally unconcerned with popularity. If a fellow defense lawyer complained to Bailey about being unpopular, Bailey would say, ‘Anyone who defends people charged with a crime will be unpopular. You can’t worry about being unpopular. Anyone who does criminal cases, especially a defense lawyer, will live in controversy all his life.’
In time, he seemed to grow addicted to controversy.
From the start, Bailey was intensely competitive, and very observant — studying law books, studying his clients, the prosecutors, the judge, the jury… Bailey did an enormous amount of preparation before facing the other side in any legal dispute. He worked 18 or 20 hours a day when he was on a case. In 1971, when he published his memoir, he called it “The Defense Never Rests.”
He also had no compunction about using technicalities to protect his clients from prosecution. When people accused Lee Bailey of frustrating the workings of the justice system, he’d retort, ‘I didn’t make the ground rules.’ He felt a lawyer had not only the right but the DUTY to use every tool available to him.
As far as that went, F. Lee Bailey felt the Founding Fathers had been very good on the rights of the accused — but ever since, ambitious politicians, knowing a vote-getting issue when they saw one, hungry to get re-elected, had been chipping away at the rights of the accused.
He felt that a governor who refused to commute a wrongful death sentence for fear the commutation would hurt his political career was no better than a hitman, a trained killer.
“Can any of you seriously say the Bill of Rights could get through Congress today?” he’d ask. “It wouldn’t even get out of committee!” Bailey was sure that many Americans did not believe a man was innocent until proven guilty. Especially in the 1960’s, when the norms of society seemed to be going all to pieces, Bailey felt many Americans believed ‘If the cop who arrested him says the man’s guilty, that’s good enough for me.’
Bailey felt they were daring him “Prove your client is innocent!’ and Bailey would remind people, in a testy voice, that in the United States the defense lawyer doesn’t have to prove a damn thing; it’s the prosecutors who have to prove the man guilty.
Bailey was fascinated by the nuances of jury selection. He loved to read the faces, body language and biographies of potential jurors, and guess which of them would most sympathize with his client. If Bailey had a strong case, he always wanted a smart jury. If he had a weak case, he wanted an emotional jury.
He also thought it was foolish to think that in time a trial brought out “the truth, the whole truth and nothing but the truth.” He would readily admit that he was trying to get only a selective rendering of the truth put down on the record — but, he’d quickly add, so was the prosecution.
Bailey said that most Americans thought that perjury was rare in court cases, but that he’d seen perjury in every major trial in which he’d worked. When people raised an eyebrow at that, he would argue: ‘Perjury is useful and almost never punished — so why shouldn’t it be common?’
In 1966, F. Lee Bailey defended Dr. Sam Sheppard, an Ohio man who claimed that “an intruder” had murdered the wife Dr. Sheppard was cheating on, as she slept in her bed — an intruder who, with no clear motive, somehow got into the Sheppard house without making their dog bark, killed Mrs. Sheppard, and knocked Dr. Sheppard unconscious so that he couldn’t describe him.
But then, said Dr. Sheppard, he managed to recover consciousness and even to chase the intruder down to a lake where they grappled again, before the intruder escaped and Dr. Sheppard lost consciousness again. The police were properly skeptical. They figured Dr. Sheppard killed his wife so he could live in peace with his mistress, got covered with a lot of his wife’s blood and went down to the lake to wash it off.
The newspapers were having a field day with the case, and the Cleveland Press had incendiary headlines almost daily. So rather than argue the facts, or try to defend Dr. Sheppard’s story, F. Lee Bailey played the “My client was denied due process” angle. He argued before the U.S. Supreme Court that the Sam Sheppard trial was a circus, and this carnival atmosphere was terribly unfair.
To anyone who knew F. Lee Bailey, who knew how he courted the media, feeding juicy tips to reporters, it was grating to see him complain about the circus atmosphere, and about a case ‘being tried in the press.’ But the Supreme Court agreed with F. Lee Bailey. In 1966, they ordered a new trial for Sam Sheppard, and this time Dr. Sheppard was declared not guilty. It meant the world to Sam Sheppard, and it was also a huge victory for F. Lee Bailey.
When people asked Bailey how he could live with himself, helping these bad guys get away scot free, he would smile and say, “My fees are sufficient punishment for anyone.”
In 1967, Bailey defended “the Boston Strangler” Albert DeSalvo.
A couple of years later, he defended Army Captain Ernest Medina, the man whose troops committed the notorious My Lai massacre in 1968. The question was ‘How much responsibility did Captain Medina bear for what his men had done?’ Bailey not only got Medina off, but when Medina left the Army and wasn’t sure what kind of job he could find, Bailey hired Medina to work at Enstrom Helicopter.
He also did a kind and somewhat uncharacteristic thing when his personnel manager at Enstrom Helicopter lost first her husband to an early death, and then her insurance money to an unscrupulous brother-in-law. Bailey not only recommended against a law suit but took the time to talk to this good woman’s daughters, then about 9 and 10 years old, explaining to them the sad and heavy legacy of a lawsuit between two sides of a grieving family.
The clients kept getting bigger, the cases more notorious and Bailey wealthier. But he never stopped being afraid that he’d embarrass himself, do a bad job in the courtroom. The fear was always there. Bailey advised young lawyers about fear that “You have to throw it in a corner. Constantly.”
In 1976, F. Lee Bailey defended Patty Hearst. At first, Bailey was just going to be a single member of her large defense team, but he soon became the dominant lawyer, the one who crafted the legal strategy and spoke to the press.
The Hearst case was one that he lost. Patty Hearst was the newspaper heiress abducted by a radical group called the Symbionese Liberation Army, abused and turned into a criminal. Despite Bailey’s efforts, Hearst was convicted both of armed bank robbery and also of using a firearm to commit a felony. Perhaps stung by her conviction, she wrote in her memoir that Bailey seemed to her drunk when he made his closing argument on her behalf. Bailey called that ridiculous.
In 1995, F. Lee Bailey helped defend O.J. Simpson in his infamous double-murder case. Johnnie Cochran was O.J.’s principal lawyer — but Bailey saw himself as a very important figure for the defense. Bailey could see that L.A. police officer Mark Fuhrman had devastating evidence against O.J. It was in many ways an open-and-shut case. So Bailey decided the key was to show that Fuhrman was a liar. His gut told him that Fuhrmann was the kind of man who called blacks “n_____ers” — and was too proud and stubborn to admit it.
So Bailey cross-examined Fuhrmann and got him to insist, under oath, that he’d never used the word “n___er”. Then Bailey played a tape recording of Fuhrman using the word. And then Bailey admonished the jury to remember at all times that Mark Fuhrman was a liar and a racist, and therefore nothing he said could be trusted, especially when the defendant was a black man. Any evidence he might offer was tainted.
Bailey was pleased when O.J. Simpson was acquitted, but displeased that so many people blamed him for it. He said he’d never known there were quite so many rednecks in the United States until O.J. was acquitted.
Bailey often complained of the endless travel required for a first-rate defense lawyer. He’d tell people that he’d been to every major city in America, and a lot of minor cities, too, and fantasized about a life with no travel at all. Like many New Englanders, as he got older, Lee Bailey enjoyed going down to South Florida, soaking up the sun, staying warm. He opened an office in West Palm Beach and started making an effort to get legal cases in Florida.
Bailey was married four times. Each of his wives had to accept the fact that her husband was married to his career, loved being in the spotlight, and couldn’t be an attentive husband.
In the late 1990’s, Bailey got into serious legal trouble. While working for a wealthy French drug dealer, Bailey negotiated a plea deal in which the government got the drug dealer’s assets. The problem was, in lieu of a fee, F. Lee Bailey had already helped himself to many of those assets — without making that clear to the government. He then made things much worse by trying to cover up what he’d done.
Bailey was cited for contempt of court, and in 2000 was imprisoned for 44 days before his brother could raise the money to spring him from jail. After he got out, Bailey was disbarred — both in Florida and in Massachusetts. He passed the Maine bar exam, but the state denied his application to practice law in Maine.
So he went to work in Yarmouth, Maine as a business consultant, making a modest living, wondering what might have happened if he’d become a journalist or tried seriously to write the great American novel. He had no desire to slow down and called retirement “a bad word and a good way to die.”
F. Lee Bailey died in Georgia on June 3, 2021, at the age of 87. He’d look back over his life and say, “The limelight is a very mixed bag.” But F. Lee Bailey never backed down. Near the end, he said, “If you’re waiting for me to throw in the towel, you’re not going to see it.”