O. J. Simpson and Reasonable Doubt with F. Lee Bailey

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ABA Law Student Podcast

O.J. Simpson and Reasonable Doubt with F. Lee Bailey

05/23/2017

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Intro: Welcome to the official ABA Law Student Podcast, where we talk about issues that affect law students and recent grads. From finals and graduation, to the bar exam and finding a job, this show is your trusted resource for the next big step. You are listening to the Legal Talk Network.

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Chris Morgan: Hello and welcome to another edition of the ABA Law Student Podcast here on Legal Talk Network.

I am Chris Morgan, Governor of the ABA Law Student Division’s 12th Circuit and a 3L at the Gonzaga University School of Law in Spokane.

Our show today is sponsored by the American Bar Association’s Law Student Division, and in this monthly podcast we cover topics of interests to you, law students and recent grads. We hope this show is a trusted resource for all of our listeners.

For this show, F. Lee Bailey, Jr., of Bailey & Elliott Consulting is our guest. Mr. Bailey is a graduate of the Boston University School of Law and has represented a number of notable clients over the years, including Sam Sheppard, George Edgerly, and of course O.J. Simpson.

He has also authored a number of legal books and served his country as an officer in the United States Marine Corps.

Welcome to the show Mr. Bailey. We really appreciate you coming on to chat with us.

F. Lee Bailey, Jr.: Thank you.

Chris Morgan: So to help introduce you to our listeners I want to start by talking just a little bit about kind of what drove you to pursue a career in the legal profession. So it sounds like you left Harvard to join the military and then decided to go to law school after that.

F. Lee Bailey, Jr.: I am sure it sounds that way, but that’s not exactly true. I left Harvard because my grades weren’t very good, and I thought the draft board was looking at me with great interest, and so rather than be drafted I joined the Naval Flight Training Program in order to become a Navy pilot.

Once I became a pilot, and I must point out that at Harvard I was a major in English, I wanted to be a journalist and I wanted to write the great American novel, but once I was in the Marine Corps they quickly ran out of lawyers, and one day the commanding officer called me in and said, you are the new Legal Officer. I said what are you talking about, I haven’t finished college, I don’t have any degree? He says in the Marine Corps the volunteer system is alphabetical and you are new Legal Officer, here is the book, go read it and you will be in court next week.

So I was a good officer, I obeyed orders, I read the book. I went to court. I prosecuted a guy, convicted him. I felt so bad I said I won’t be prosecuting any more. I will do defense cases.

I developed an affinity and a taste for that kind of work, and when I was offered the chance to have a career in the Marine Corps, I said no, no, I have to get out and go to law school, because I am going to be a good trial lawyer, but if I don’t go to law school they won’t let me in the courtroom. That’s how that evolved.

Chris Morgan: So then you go over to Boston U and you graduate from law school there at Boston University. Did you open your own shop there in Boston and was it exclusively a criminal defense firm when you first started out?

F. Lee Bailey, Jr.: I opened a shop before I ever graduated. My attendance record at Boston U was I think the worst in the history of the school. I had been thoroughly briefed by a number of very good trial lawyers that I had met in the service that if I wanted to be a trial lawyer law school wasn’t going to be of much help, and that turned out to be true. So I cut lots of classes and went to court and sat with lawyers trying cases and watch them perform or fail to perform, which was the more common, and began to get a sense of what was needed.

Meanwhile, I kept very good grade point average and the Dean used to call me in every now and then and said your attendance is terrible. If you weren’t the valedictorian, we would throw you out. I said I get that. So I continued to get good grades.

Chris Morgan: All right. So I have to ask you about some of these high profile cases that you have handled. One of your earlier cases you defended Sam Sheppard, who was a doctor accused of killing his wife. What was it like to defend a client all the way up to the US Supreme Court that early in your legal career?

F. Lee Bailey, Jr.: Well, the fact is I did not. Sam Sheppard was tried and convicted in 1954; I was still flying jets all over the skies of North Carolina, burning up lots of government fuel, which was then very cheap. I get out, went to law school.

(00:05:04)

I had meanwhile become one of the few lawyers in the country who developed an affinity for the polygraph, commonly known as the lie detector, and got called into a capital case, I mean electric chair case when I was one month by the bar to cross-examine a polygraph alleged expert; actually he was a phony. And I kind of tore him a new in the courtroom. The defendant said I like that, I want you to finish the case for me. I did. He was acquitted, and after that my plans to become a personal injury lawyer were sidetracked.

Chris Morgan: So the Sam Sheppard case and the George Edgerly case in Chicago were later adapted to be into what became ‘The Fugitive’, with Harrison Ford and Tommy Lee Jones I think we are in the movie and then there was a television series as well. What was it like to see cases that you have worked on in real life retold on the screen in that way?

F. Lee Bailey, Jr.: Well, it was very interesting. The case provided the theme of ‘The Fugitive’ and the idea, because frankly was thought up by a friend of mine named Dan Melnick, but the series ‘The Fugitive’, which starred David Janssen I think, ran three or four years, was aired before the second Sheppard trial in 1966 in Cleveland. And when I picked a jury with my counterpart John Corrigan for the prosecution, none of us asked any of the prospective jurors if they watched ‘The Fugitive’, which I thought was good for me, because everybody who watched ‘The Fugitive’ knew that ‘The Fugitive’ didn’t do it.

And if Sam Sheppard was seen as the fugitive, that was a good thing putting a new jury in the box, and in fact, it worked out pretty well. He was acquitted after a very short deliberation.

But in 1954 he had been convicted and sentenced to life. I took the case seven years later. I got him out three years after that. He went to trial again two years after that, was acquitted, got his license back, and from there things kind of went downhill.

Chris Morgan: Another past client of yours, Albert DeSalvo has confessed to being the Boston Strangler, even though he was never actually prosecuted for those crimes. How positive are you that he was responsible for those murders?

F. Lee Bailey, Jr.: Well, I am very positive and so is everybody else connected with the case at this point. The cottage industry sprung up among writers who wanted to postulate that Albert was not the man, that the last of those, who was the nephew, one of the victims, had happened to work for CBS finally conceded after DNA tests were done that Albert was the man and the wannabes kind of went away.

But the tragedy in DeSalvo case is we didn’t learn anything from it. Right now we don’t learn anything from people that commit horrendous crimes. We send them away for life or execute them, but we are too, let’s say, lazy to dig into that unpleasant area and try and improve the system that is supposed to profile and spot these characters before they become lethal.

Chris Morgan: So you would suggest then as an alternative to just putting them behind bars, expanding resources for mental health courts or getting him into a place where doctors and psychologists could actually dig into what may have caused him or led him to that point as opposed to just putting him behind bars?

F. Lee Bailey, Jr.: That’s a fair encapsulation of my views. I might say incidentally that although it’s no longer in print, your listeners and viewers can get a copy of the book that sent many people to law school, I am glad to say, called ‘The Defense Never Rests’, published in 1971, and it deals with the Sheppard case and the DeSalvo case and some others, but I hope it’s informative. And in that book you will find a very strong plea and then a disappointment, because the judge who heard the DeSalvo case ordered that he be given medical evaluation, and I mean extensive, not superficial, by the state, and this state simply ignored his order.

(00:09:53)

Chris Morgan: So a couple of decades later in your career you received a call to be a part of the O.J. Simpson defense team. What were your initial thoughts after being asked to take part in that case, was it clear from the beginning that you were asked to come on for a certain role or was everyone kind of brought in and then the cross just became kind of your specialty niche within the group?

F. Lee Bailey, Jr.: No, the truth be told, I was invited to come into the case because it had originally been in the hands of a very capable lawyer named Howard Weitzman, who had been O.J.’s attorney in another much more minor matter. His civil lawyers didn’t know what they were doing, fired Weitzman and hired Bob Shapiro, because they thought Bob could make a deal to keep O.J. out of court.

Bob was a friend of mine and suddenly O.J. was getting offers from everybody in the country who had a name and who had some murder experience; Bob had never tried a murder case. He called me to join him to kind of fend off the hyenas knocking at the door. And I wound up with several assignments, one was total responsibility to prepare the case, and the other was to take Mark Fuhrman apart, because he was the only link between O.J. Simpson and the murders.

Chris Morgan: So many credit your cross of Mark Fuhrman as being one of the pivotal moments of that trial and being responsible, at least to some extent, for the ultimate resolution in Mr. Simpson’s acquittal. Can you describe what it was like going into court to confront Mr. Fuhrman that day?

F. Lee Bailey, Jr.: Yes, I had several things before me, one of which is very unusual, Fuhrman was a racist and an anti-Semite in equal doses of vitriol, but the jury was mainly made up of minorities, I don’t recall any Jewish people being on the juries. I had to get Mr. Fuhrman to lie, and if he would lie about being racist or uttering racist epithets as part of his daily vernacular, it then gave me the opportunity to tell the jury the old Latin maxim falsus in uno, falsus in omnibus, which means if somebody lies about one thing, they probably lie about everything.

And that’s the way I went after Fuhrman. He had been educated in special training sessions conducted in a grand jury room not to say no if he was asked whether or not he used a racial epithet. And I knew I had to somehow get him into a frame of mind where he would ignore that advice and lie.

And I did, and he lied, and at the time I had no knowledge of them, but I did have a bucketful of witnesses who heard him used that language, were ready to testify, and suddenly my chief investigator Pat McKenna turned up with these audiotapes of Fuhrman using that foul language everyday of his life, at least as far as the tapes were concerned. But the only time in my life I saw the chief witness for the prosecution pleading guilty to perjury in open court during the trial.

Chris Morgan: As you are watching it then, I don’t know how much of the series that you have seen over the last several months, you were depicted by actor Nathan Lane in the FX series at least, did anyone from FX or did Nathan himself reach out to you prior to when that show began filming to kind of get your take on the case?

F. Lee Bailey, Jr.: No, none of them did, because each of the shows very frankly were slanted to slake the public first for more and more evidence that O.J. was guilty, and that has been the general trend, except among African-Americans, who take a different view almost ever since the verdict came in. He has learned more than any client I have ever did about the damnation of an acquittal.

As to the three series that have aired so far, one had some very good acting in it, but the storyline was simply not true and not faithful to any of the real facts in the case. Nathan Lane, who played me, did a great job I thought and pinpointed the high moment of Fuhrman’s cross-examination when I said to him, anybody who came to this courtroom and said you used that word would be a liar, wouldn’t they? And he said yes. I said all of them? And he looked and he realized that he had been had. But he said yes, and so that opened the door for almost anything that contradicted him.

(00:15:10)

But by and large the most popular of the series that won all the awards made a fool out of Shapiro, a harridan Sarah Paulson, who played the prosecutrix, but she did a great job in acting; by and large all the actors did a good job, they just weren’t speaking the truth.

Oddly enough, I spoke to Nathan Lane, I said, Nathan, why didn’t you ever call me before you finished this thing? And he said we were told not to. It was thought you were too sympathetic to the defense. That is not honest journalism by a long shot.

Chris Morgan: So in real life while you are in the middle of the case, aside from all the dramatizations and everything that’s gone on in the years since, what was it like working with so many big personalities on the defense team, it sounds like you and Shapiro may have had somewhat of a falling out over the last couple of decades?

F. Lee Bailey, Jr.: Bob and I had a total falling out in that case, because I found out he had signed a document that charged O.J. $1 million for defense and asserted that Shapiro would provide my services as part of the contract. He did not notify me of that. When I found it out by accident, he told me, oh, you are just a volunteer, and he had lost control of the case to Johnnie Cochran anyway. So I would say that effectively ended any friendship we might have had.

Chris Morgan: Is it true that while we were getting to the last couple of weeks of the trial, before the jury goes out for deliberations, it’s been said that prison guards were actually getting autographs from O.J. while he was still incarcerated, to your knowledge, is that accurate?

F. Lee Bailey, Jr.: It is, but it wasn’t two weeks before the end of the trial. I will tell you exactly how I learned of that, it was a very poignant moment. When the jury announced it had a verdict, Johnnie Cochran was up in Wine Country, so the judge postponed the opening of the envelope with the verdicts, two verdicts in it until the following morning at 10 o’clock.

Johnnie came running back from Napa Valley. O.J.’s secretary called me and said, would you go down and show O.J. that you think everything is going to all right, because a lot of people were saying, including Shapiro, he is going to be convicted. And she said O.J. will be comforted because he respects what you tell him.

So I went down to the jail and was confronted by NBC on the steps. And they said how come you are so confident you have got an acquittal? I said because I have been around this system longer than anybody else in the case. I am seeing two signals and I know that they may not be guilty.

I walked into the jail, met O.J., who was beaming from ear to ear, and then I said, O.J., you have got an acquittal out there, but you seem to know that without any advice from me, why is that? He said, because every guard in this jail has asked me for an autograph and let me know that it would be their last chance, that’s kind of a clue.

Chris Morgan: So the two signals that you just mentioned that made you think before the verdict was read that O.J. was going to acquitted, were those signals general principles of trial and trial work that you picked up along the way or were they two particular signals, if you don’t mind sharing with us, that kind of pushed you that direction?

F. Lee Bailey, Jr.: No, I am happy to share them with you, because I think they are very useful to those who will practice law in the aftermath of my career. The first was that the jury had been sitting there for nine months. I predicted they would get a verdict in one day and everybody thought I was a hopeless radical.

So they came in the first morning that they were allowed to talk about the case, the case went to them on a Friday, Judge Ito was too busy to let them deliberate on the weekend, despite the fact that they were locked up. So the first morning, mid-morning, I was giving a speech in Redondo Beach and the lawyer who had the duty, Carl Douglas, called me on the phone and he said, Lee, what do I do, the jury has a question? I said what’s the question? They want to know if the limo driver saw O.J. in his headlights that night after he parked in front of the gate? I said fine, make sure they read all his testimony and just not some snippet.

(00:20:08)

So the judge ordered, they listened to all the testimony. They got to the point in the driver’s testimony from the transcript out on the park where he was asked, did you see anyone walk through the headlights while you were sitting there? He said no, I never did, and I was watching closely, hoping somebody would let me in the gate.

At that point the jurors got up and walked out. They had no permission from the judge. They obviously had been in there to convince one juror that your recollection was bad, theirs was good. Much more important, within three minutes they asked for the verdict forms; the verdict forms as to both Nicole and Ronald Goldman had guilty, guilty of second degree murder and not guilty. Within eight minutes the forms were returned to the clerk. That’s enough time for 12 people to agree and the paperwork to get done to click not guilty on both. That’s all the time there was.

So those two signals told me beyond doubt that they had ordered to acquit O.J. on both counts. His source of course was equally reliable, because the guards always know what the verdict is the minute it’s agreed upon, and they were the ones telling O.J. you are going home man.

Chris Morgan: Wow. So we have had Marcia Clark and Carl Douglas both on the show in the last several months, and I have to ask this question, because I really do think generally the American public tends to struggle with a misunderstanding of the burden of proof and what exactly proof beyond a reasonable doubt means. There is not necessarily an innocent verdict, it’s either guilty or not guilty. So as part one of this question, I guess, what is your definition of proof beyond a reasonable doubt; and two, do you think then that the jury got it right here in this case?

F. Lee Bailey, Jr.: Well, let me do the second question first. The jury got it right and they still think that they got it right, and they have said so recently during interviews, some of which were triggered by the TV programs that were aired in 2016.

I have struggled throughout my career to deal with reasonable doubt in a way that layman would understand, because jurors are almost always layman, although occasionally a lawyer finds his way into the jury panel. I have heard it defined by judges, lawyers, scholars and others across the country, at the end of the day all we know is that there are several levels of proof necessary in the legal process.

First is a colorable case, if you file a complaint in civil court, your case better be colorable; that is appear to have some merit or it goes out.

The second is the burden of proof in a civil case, a preponderance of the evidence which translated means a probability that one side is more likely to be correct than the other.

Next, which is used in fraud cases and other cases, some gravity is clear and convincing evidence, which means you should be quite sure that this guy is wrong before you condemn him.

And the highest level between clear and convincing, an absolute certainty, which is an elusive standard we would probably never reach, is beyond a reusable doubt. I have always defined that to juries as a doubt that has any reason behind it and that you suspect might keep you awake nights in the future, if you will ignore it now and it comes back to remind you later that you ignored it. If a lawyer can effectively get a jury to follow a reasonable doubt standard to follow it, you will win most of these cases.

Incidentally, not as the throwaway, but because I was trained in the military, I have a strong affinity for their system of justice, military officers who comprise almost all military juries, except for you, were enlisted men are invited and do participate, military officers are disciplined to follow orders, reasonable doubt means you must acquit people you think really did it, because you have a doubt, it’s a tough standard. Military juries generally do follow it; civilian juries really don’t.

(00:25:06)

Chris Morgan: Thanks. So bringing the discussion back to law students who are in school right now and even young attorneys who have recently graduated and are out in the real world, what advice, if any, would you give to those who aspire one day to be high quality defense attorneys?

F. Lee Bailey, Jr.: Well, I don’t have any advice for those who are interested only in being defense attorneys, but for anyone who wants to be a trial lawyer, which in my view is the most important group of any in the bar, because at the end of the day when all stops are out and all else has failed, you have to go to court, and when you go to court, if you have a good trial lawyer, your chances of winning are greatly improved; if you have a bad trial lawyer, you could be as innocent as Snow White and still lose.

I therefore think that that fast fading cadre of specials needs to be revivified and shored up. I have two books that I would strongly encourage any aspirants who may want to be trial lawyers and you have to give this decision a lot of thought, to look at; one is the one I wrote in 1971 called ‘The Defense Never Rests’. It was a bestseller and is still very widely read.

The other is a recent book called ‘The Excellence in Cross-Examination’, and that was published by West three years ago. It is gradually making inroads through a small segment of the profession. But if you want to be a trial lawyer or think that you might, I would strongly encourage you to take a look at the first book and to look very carefully at the second one, it will tell you what kind of life you are inviting to dominate the rest of your life.

Chris Morgan: Prefacing a little bit of your second book there, ‘The Excellence in Cross-Examination’, obviously you are one of the leading authorities in that topic, both from an academic standpoint and a practical standpoint. What in your opinion, if you could share just a couple of thoughts, what makes a great cross-examination, what is that you are trying to do, aside from just discredit the witness?

F. Lee Bailey, Jr.: Yeah, I think that that is such an individualized case by case situation that no answer is meaningful. Much better is that I should tell you what I think makes a great cross-examiner.

First of all, you have to be that kind of person, and thank God America breeds new ones everyday, that has what I call CD2, Confidence, Discipline and Determination. Confidence is the belief that when you get up to speak to somebody, whether it be a jury or a crowd, they are there because they want to hear what you have to say, and you should be confident about what you have to say, if it’s of anything importance.

Now, there are phonies all over the world who make statements they don’t mean or don’t know much about, that’s not what I have in mind, I am talking about confidence, justified by who you are and what topic you are trying to bring enlightenment to.

Discipline means doing things on a regular basis. In other words, you have to by going to gym do so many reps before the muscles that you are trying to train and strengthen get the message.

Determination is the big item for a trial lawyer. Like a sailboat, you have to able to take a knock down and come back up again, because particularly if you are defending, you are going to get knocked down a lot. Most criminal defendants have done something. Most juries think criminal defendants are in court because they have done something.

So despite all the lofty standards, presumption of innocence, burden of proof, beyond a reasonable doubt, make no mistake you have the laboring oar from day one. Unless you have the ability to master the King’s English and persuade as you speak, a memory like a hawk, or maybe a whole band of hawks and the determination to keep trying until you win.

Sam Sheppard lost 11 appeals, I lost the 11^th, before I got him out, then we lost another appeal, then the US Supreme Court turned about right side up again. Those are some of the ingredients that you better have and thrive upon; otherwise, my advice is stay out of the trial court, you will have a nervous breakdown before you are 40.

(00:30:10)

Chris Morgan: Is there a moment during a case or just a case in and of itself that stands out to you, obviously you have had a very long, illustrious career, is there a favorite moment of those for you?

F. Lee Bailey, Jr.: I think there is. It is the ultimate bounty of a well-structured and well-orchestrated and well-delivered cross-examination. It occurred in a civil case. It was a lawsuit by a finder, someone who finds deals against Raytheon Company, one of the Titans of American industry over the sale of an aircraft company called Beechcraft, which Raytheon bought. This fellow claimed that he had brought it to their attention, worked to get them the deal, and then they ignored him and hired someone else.

So I took over the lawsuit for a woman, a very distinguished criminal lawyer who became a federal judge, who had been kicked out by the trial judge for talking to jurors before the trial, jurors from a prior proceeding, and so I took it over, and the president of Raytheon was my chief witness. And at the end of the cross-examination I said to him, Mr. Phillips, after all that you have told us, wouldn’t you say that your company owes my client some money, and he said it would appear that way. I have never gotten that lucky since.

Chris Morgan: Thanks for that. So before we finish up here I have one last question, just for our listeners who might want to follow up with you, how are they able to reach out to you, either on social media, email or otherwise, how might they be able to get a hold of you?

F. Lee Bailey, Jr.: I don’t do any social media. I have an email address, it is  HYPERLINK “mailto:[email protected]” [email protected]. But an easy avenue into that is the website,  HYPERLINK “http://www.baileyandelliott.com” baileyandelliott.com and appended to that website is a 50 page document explaining to all of you, but more importantly to your parents, who are probably dead wrong in this issue, why O.J. Simpson didn’t and couldn’t have murdered his wife.

Chris Morgan: All right, perfect. I just want to thank you again Mr. Bailey for taking the time to join us here today. I really appreciate it.

F. Lee Bailey, Jr.: Anything to help young lawyers.

Chris Morgan: And we appreciate that. Well, we hope you have enjoyed another episode of our show here on Legal Talk Network. We encourage you to subscribe to the ABA Law Student podcast on iTunes so that you don’t miss an episode. Also take time to rate and review us as well. You can reach us on Twitter, @abalsd using the hashtag #LawStudentPodcast.

I am Chris Morgan and thank you again for listening to the ABA Law Student podcast here on Legal Talk Network.

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