Now We're Talking | F. Lee Bailey

I don’t think he’s defending Trump. Alan likes to take the unpopular side of a legal question and drive it home. He also hasn’t seen any action in quite a while and likes to be controversial. But nothing in his base philosophy would compel him to be a fan of this president.

I had lunch with Alan recently, and I got the impression that he thinks you can’t commit obstruction if you’re the president. I don’t think that’s ever been settled, but it’s true that the Justice Department will not indict a sitting president. So the real question is whether you could prosecute him after he leaves office. I think the presumption should be that you can. Nixon clearly resigned in the face of a threat that he would go to jail after his impeachment.

I think he was being very conservative. He could have decided that obstruction occurred even if it couldn’t be prosecuted. But I think he had a deal with William Barr. Their relationship is well known, and I think Barr said to Mueller, “If you only go so far, I’ll support it.” Mueller believed that if he laid out the evidence, Barr would be the one to say it was obstruction, and he plainly feels double-crossed now.

I don’t know, but it’s very strange that a guy who, long before he was considered to be a candidate for attorney general, wrote a very extensive paper saying why there is no case. I mean, I wish I could have selected the prosecutors that I opposed from a list of candidates who didn’t think they had a case. That thing had a big odor to it.

I think she may have overstated it, but only slightly. When you’re a public official giving testimony before Congress, it’s not enough to give a narrow answer that conceals the truth. You have to be forthcoming. What Nancy was saying is, “You were not forthcoming, which is tantamount to lying.” And indeed it is. Many people have been convicted in federal court for withholding. It’s treated the same as lying.

Well, yes and no. The media has illuminated some of the imbalances in the way people of different races are treated in criminal law, so they deserve credit for that. On the other hand, the press has grown more cynical. The reliance on lawyers who purport to be experts, when they wouldn’t be allowed in traffic court—that just cheapens the process. The audience gets a short encapsulation of a tricky day in court and comes away with the impression it was the gospel. The television networks are particularly irresponsible. Mark Fuhrman, an acknowledged felon, is now hosting a TV show ^[3] “Step into the mind of America’s most controversial detective,” the advertising language coos. for that paragon of balance, Fox. But Jeffrey Toobin is no better. ^[4] Toobin is a legal commentator on CNN, as well as a staff writer for The New Yorker.

Well, first of all, Jeffrey doesn’t have any legal experience. If he tried any cases when he was an assistant U.S. Attorney in Brooklyn, no one can find them. There has never been a great lawyer who, when he had the youth and wit to be a good trial lawyer, retreated into the media full time. So his credentials are in question. He was also tried for stealing files from Lawrence Walsh, who was the special counsel investigating Iran-Contra. ^[5] According to reporter Michael Isikoff, “Toobin was caught having absconded with large loads of classified and grand jury-related documents” while working as a young prosecutor on the Iran-Contra investigation in 1991. He was not charged with stealing the documents, but he did appear in court to defend his use of them in a book he was writing.

It’s not just that he gets the facts wrong. Jeffrey interviews you and then he publishes whatever looks best for himself. He will say whatever he wants to say, whether it’s true or not. ^[6] In response, Toobin said, “Lee was a great trial lawyer and raconteur. The trajectory of his career, and his life, is sad.”

I think if you decide to descend into the murk that is criminal law, you carry an obligation to try and beat back the presumption of guilt. Let’s face it: When people are accused, we don’t have the thought, “Oh, he must be innocent.” Quite the reverse. So when the prosecution begins to paint the defendant as an 800-pound gorilla in the press, you have to speak up. Saying “no comment” isn’t going to win many cases. Even if you do win before the jury, your client is never going to be treated neutrally again if you lose in the press.

Yes, it’s terrible. People assumed he was guilty, and his reputation couldn’t be resurrected.

It’s not my belief. It’s a fact. He was completely innocent.

No, he didn't have domestic violence allegations.

Well, Nicole called the cops several times. On one occasion, they got into a physical fight—I think it was on New Year’s—and she wound up with some bruises. He said she started it, and she probably got the best of it. Nobody bothered to photograph him. But he knew that was wrong. He went in and pled guilty and did community service. All the other allegations came from Fuhrman, who said he went there one time and O.J. had busted the windshield of her Mercedes, which he had given her, and that story is true to an extent. Nicole liked to screw around a lot.

I believe that the bruises are correct, but that happened in 1987. ^[8] The New Year’s incident was in 1989, but she continued to report abuse to the police until at least October 1993. The murder was in ’94. You try and tie those two together and show me you’ve got a motive? I mean, that is fucking crazy.

I don't think there's any question about that. They were hit men from Colombia who weren’t very bright. They were looking for someone else. Faye Resnick was a heavy cocaine user with a heavy debt. She was living in the house until the day before, and a decision was made to kill her. The purpose of killing people who don't pay their cocaine debts is to set an example. ^[9] Resnick was a close friend of Nicole’s. When asked for comment, she wrote: “I was not a heavy user. I periodically used and wanted to stop using entirely and did. I had no debt other than a single tax bill [for alimony] that I had no idea of. … The fact is that after 25 years of maligning my character, [Bailey] continues to do so knowingly to justify why he defended a double murderer.” But when the boys went to do it, they found Nicole, and they had an argument with her on the street corner, and they drove away and went around to the back of the house, and came in and cut her up with a knife. Ron Goldman was just very unfortunate.

Not in a crowded neighborhood. It makes too much noise.

What conflict?

No, and you’ve put your finger on the only conflict. We didn’t have conflicts on the Dream Team. We worked together. We tried to fire Shapiro for being an asshole. O.J. told him, “You’re benched,” and Bob said, “Fine. I'm going out to give the public my opinion of your guilt.” O.J. knew that would be devastating before the trial, so we kept Bob aboard, but he remained a pain in the ass throughout the trial. Indeed, long after it was clear we had it won, he was trying to talk O.J. into taking a dive.

He went to O.J. on his own, without telling Johnnie Cochran and me, because he knew we’d be furious, and he said, “Look, we’re going to lose this, but I can still get you a manslaughter deal.” The idea came out of nowhere. He hadn’t even talked it over with the prosecution.

Because Shapiro had never tried a murder case. His only accomplishments in life were copping pleas and pretending that his special connections got a great deal for his clients. So the only way he could appear to be an important figure in the case was to be the guy who engineered a plea. It was desperation. It was silly. By that point, Johnnie and I wouldn’t have let O.J. plea to spitting on the sidewalk, because the prosecution didn’t have any evidence. All they had was a glove—you either tied the glove to O.J., or you didn’t, and they couldn’t.

He was outraged. He brushed Shapiro off like a fly. He said, “What the hell are you talking about?” Then he came over to complain to us. I think he wanted to punch Bob out, and he should have.

Well, it would have gotten him off the team! One of the great tragedies of this case was the number of people who turned on O.J. for various reasons. If you look at the most famous photograph from the end of the trial, it tells the story. Nearest the camera is me, with the smile of the Cheshire cat. Standing next to me is O.J. saying, “God damn right,” and showing his fists and a smile. Next to him is Johnnie Cochran saying, “No shit, Bailey was right.” And behind Johnnie Cochran is Bob Shapiro looking disgusted and heading out of the courtroom to torpedo his client and all of his colleagues. And indeed, he did so on that day, on the Barbara Walters interview. ^[10] In the interview with Walters on ABC, Shapiro blasted his colleagues on the defense. “Not only did we play the race card, we played it from the bottom of the deck,” he said, adding that he regretted working with Cochran and would “never talk to F. Lee Bailey again.”

He was trying to screw me all along. He fucked up the case on day one by giving O.J. a polygraph test that was totally impossible. You never give those under the circumstances, and he called me immediately saying, “What do I do next?” And I said, “Well, first you stop being an asshole. You call before you give the polygraph test, for Christ’s sake!” ^[11] Shapiro did not respond to a request for comment. I saw the charts before he tore them up, and they were nothing but junk. But then he asked if I would take over the preparation. He didn’t know how to prepare a murder case. He wanted to hide behind my stature, but there came a point where he could see that I had the case prepared, and he confided to his secretary, who my guys used to get drunk with on Fridays after work, that he intended to fire me at the last minute and take over the Fuhrman cross-examination. Because he knew it would be a defining event. Only problem was: Bob Shapiro couldn't cross-examine a toad.

No. Chris Darden was brought into the case at the last minute because the prosecution discovered that the jury was predominantly African American. He was a token black. He was only there to influence the jury. He sat next to me at the table, and whenever he did anything, he would pass me a note, suggesting that I give him a grade for his performance. ^[12] Darden did not respond to a request for comment. I would pass the note back with a D, and we would move on. But I knew that he was somewhat in awe.

And then one day, the glove that Fuhrman said he found at O.J.’s house was on the evidence table. We had not seen the glove before. I took a look at the glove and finally woke up to the fact that the glove would be tight on me. Bear in mind, O.J. never fumbled the football for a reason. His hands were huge. So I thought we could make something of this, but it would be a lot more fun to set a trap for the prosecution. The guy most likely to step his foot in a pile of quicksand was Chris. I knew he had a short fuse, so I wandered over to him during a recess and said, “Chris, you're a good shit. But you’ve got the balls of a stud field mouse.” And he went bananas: “What do you mean by that?” I said, “That glove doesn't fit me, and it’s certainly not going to fit O.J., and if you don't ask him to try it on, I will.” He demanded of Judge Ito that the glove be tried on. That’s on the record. He said the reason that he was demanding it was because “Mr. Bailey just told me something.” You know what happened when he tried it on.

But neither was a factor with the jury. They were satisfied that Simpson could never have committed murders at 10:35 and be showered in a limousine with all the evidence hidden by 10:55, when he lived six miles away. That's what won the case.

Oh, shit no. She's the one that changed her ’do, because she didn't think she looked glamorous enough. Marcia Clark was a second- or third-rate lawyer. She didn't do a good job. She hit on everybody but Bob Shapiro, who she hated. She was shacking up with Darden, which is fine except it’s not a good idea during a heated trial, and she was wrapped up in a custody case with her husband that had her late for court and badly distracted, and she also had the vocabulary of a tank commander. She did not know how to cross-examine. I have nothing good to say about Marcia Clark. ^[13] Clark did not respond to a request for comment.

That’s all bullshit. That’s all absolute bullshit. People looking back invent things that never happened. She got treated fine. If Ito ever said anything about her skirts, which I doubt, I was not in the courtroom. ^[14] The sexist behavior toward Clark was reported widely during the trial. The New York Times described her “short skirts that even Judge Lance A. Ito has commented on,” while the president of the Los Angeles Chapter of the National Organization for Women, Tammy Bruce, sent the judge a collection of video clips in which he and Simpson’s attorneys disparaged her. “It has become rather apparent,” Bruce wrote to Ito, “that you are treating Deputy District Attorney Marcia Clark with a different level of respect than the other attorneys.” I did not attend the whole trial. I would have heard of that. Marcia Clark was an offensive woman. She called me a liar on the record. Very unprofessional. Nobody mistreated her in a way that she didn't bring upon herself. She was actually the heroine of the trial and we were the bullies, because we were so many and so legendary. And she was just poor little Marcia, with her serf as an assistant. I never saw the press give her anything I would call unfair, as I kept up with the trial, which was every day.

It infuriates me to be congratulated on “getting him off.” That is not the same as vindicating an innocent man. The American public has got its mind made up.

What killed him was that road trip to the cemetery. ^[15] By “road trip,” he means the police chase in which the California Highway Patrol pursued Simpson’s white Ford Bronco for more than two hours. Simpson later claimed that he was merely going to visit his wife’s grave in the cemetery. A lot of people assumed it was the ultimate expression of guilt, and I get blamed for prostituting my talents to “get a guilty nigger off.” I have been told that by lawyers and judges, and I find it to be disgusting.

Frequently. I’m out in Las Vegas a lot. He lives a very quiet life there. ^[16] Simpson’s life in Las Vegas hasn’t been entirely quiet. In 2007, he was charged with robbery, assault and conspiracy to commit kidnapping after he busted into a hotel room at the Palace Station. He was convicted and spent nearly nine years in prison.

I choose clients most of the time because they're innocent. When a lawyer queried me on behalf of James Earl Ray, ^[17] The man who murdered Dr. Martin Luther King Jr. I said, “If he's guilty, I will not take his case—and I will find out if he’s guilty.” And I was told, “Forget about it. We can’t meet that standard.” But Martin Luther King was a good friend of mine, and I never could have looked the family in the face if I had contributed one smidgen toward the acquittal.

Saying that I've defended a lot of sexual cases is incorrect. I've defended very few.

Oh, well, that was not really a sexual case. That man was a very sick killer. He certainly had a little sex along the way, but that was part of the illness. I don’t consider that as the kind of case where a guy just gets horny and can’t wait for the woman to say yes.

Schmid was an appointed case.

I would not like those cases at all, and I would probably do a poor job, because I have a great inhibition for bullying a woman. I was brought up to think that was a horrible thing to do.

That’s the wrong question, “Did he give the order?” He received an order and passed it on. The intelligence section had determined that the village was emptied of civilians and gave him the order to kill everything, even the livestock. Medina passed the order to his men, as he was required to do. But he didn't know they would take it literally, shooting infants, old people, women and children. And he wasn’t present for it. Medina was a great guy.

Yes, I hired him. He was very dependable. He could give orders, and he could take orders.

No. He was acquitted of that. He did shoot a Viet Cong who aimed a rifle at him. She was female, as many of them were, but she was in uniform. ^[21] Bailey’s website describes this incident differently: “Media [sic] also denied murdering any village noncombatants, with the exception of one woman who a couple of soldiers testified that they discovered hiding out in a ditch.”

On and off, yes. We remained friends.

No, but I wrote part of his eulogy.

If I had it to do over again, I probably would.

There were groupies. Not to the extent that rock stars and athletes gather them, but there were ladies who liked to come and watch the trials and suggest a tête-à-tête afterwards. I stayed far away from them, because those kind of relationships usually result in a letter saying, “We have a child.”

It was running at great speed. There were lawyers who came to watch my cases, and judges who blocked off a section of the courtroom for their own family members to sit. I gave 10 speeches in six cities in one week, and I had to travel back and forth between courtrooms and the Boston area, so I always owned airplanes. I could never have covered the territory that I covered without private aircraft, or without being able to fly them myself.

No. When I was young, I wanted to be a reporter until I could learn enough about life to write the great American novel. Which I wound up doing much later. ^[24] The novel was “Secrets,” published in 1978, about a Boston lawyer with “a beautiful and shapely assistant” who is accused of murdering his girlfriend.

Yes, when I was very young, the Stanford-Binet test was run twice because the instructor thought the testing had been flawed. They both came out in the 165 area.

It was spotty. The classes were geared to students who had the toughest time understanding, so they were pretty boring. My mind would wander and I’d be caught looking out the window. I just didn’t go very often.

I probably did, but it was not from a contentious personality. It’s because I often thought they were wrong.

No. I left Harvard in my second year to join naval flight training.

The best four years of my life. I was a Marine pilot in a single-engine fighter.

I did fly under a few bridges, but if you don't exercise judgment, you are going to wind up very much dead.

Edgerly had opened an evidentiary door with a polygraph test that he failed. Most defense lawyers eschewed polygraphs then. They didn’t want their clients taking any tests that might show they were guilty. But I had been involved with polygraph cases in the Marine Corps. We used them in courts-martial. So when Edgerly’s lawyer went looking for someone to challenge the results of the polygraph, I was the only guy in town. We had a meeting and after 20 minutes, he said, “Look, I can never get this stuff. You go in and cross-examine the witness.” So I did. It was no great feat.

I did, but that was his incompetence. He did a terrible job administering the test. There wasn’t even evidence that the woman was dead—one of the witnesses had seen her alive long after her alleged death.

Well, yes, but they couldn’t prove it was her. The witness saw her two months after the state claimed she had died, and he knew her well. They were buddies. He was a convict, and she tended to gravitate toward them.

After I cross-examined the polygraph expert, the lawyer who hired me said, “Hey, that was pretty good. I want you to finish the case.” So I put on all the defense witnesses, then I gave a final argument with no notes. The jury liked it, and they found him not guilty.

Stop right there. That is total bullshit. When the Edgerly jury was out, I was friendly with the press. They thought this was quite an aberration for a kid to pass the bar in November and try a capital case in January, and they treated me very well. They taught me to drink scotch, which I had never tried, while we waited for the verdict. But I have never been drunk publicly, and rarely if ever privately. You never see a report that Bailey was intoxicated when he was here or there, and I do not have a record of driving under the influence, although I was tried for it once. So that's nonsense.

I am an accomplished drinker, because I know what my rate is. If you stay within your rate, the amount is totally irrelevant. You maintain sobriety. You might test over the level of what is now allowed in Nevada—it’s point eight, which is about one glass of wine. But you can be perfectly functional if you have a good tolerance for alcohol, which I think I do.

Well, yes. But she was put up to it by a lawyer. That case is neck and neck with Simpson for the worst I ever had in my life.

It was another case that didn’t get through to the public. People at the time had very little understanding of brainwashing. It is now better-known. If you isolate someone and just pound them with ideas, eventually those ideas will set. And Patty Hearst—who was, without dispute, kidnapped and treated in horrible ways—had been brainwashed to the point that she believed her parents were disgusted by her conduct and were hoping that she would be killed. So she became afraid to do anything other than what she was told by her captors. She thought her only refuge was to hide in the fabric of the SLA. She had many chances to come forward and escape, and she did not, and the jury decided that, therefore, she must have been a criminal. They could not accept the fact that she wasn’t a criminal until she got kidnapped and the SLA turned her into one.

I think we presented it in the most stirring and persuasive detail we could have. We had four expert witnesses, two appointed by the court and two hired by me, who explained brainwashing beautifully and had seen it in a number of environments.

Wait a minute, those were one and the same.

They tried me for getting publicity. Most of the lawyers didn't understand how you could do that, but I explained, “I don't look for reporters. They come looking to me.”

Absolutely not, and in the other case, I got criticized for writing a letter to a bunch of congressmen that got published. ^[27] In 1968, Bailey sent a letter to about 150 government officials in New Jersey, accusing a prosecutor of encouraging a witness to give false testimony. When the letter surfaced in the media, a judge suspended Bailey from practicing law in the state.

Well, the outcome wasn’t affected by celebrity, because the judge threw out the case. But it was 22 months of misery, triggered by a United States attorney who thought it would be a good idea to indict me with my clients, so I couldn’t defend them. ^[29] He’s saying that the prosecutor’s only reason for charging him in the case was to stop him from representing the other defendants, who were his clients. Bailey continued to represent them, and represented himself. And I said, literally, “Fuck you, I’ll defend everybody.” And I did, and they all walked.

No, the police officer didn't know who I was. He was a rogue who arrested people without regard to whether or not they were under the influence. I pissed him off because he told me to put out my cigarette, and I brought to his attention that it was not illegal to smoke in California. So he batted it out of my hand and said, “I think you've been drinking,” and arrested me. ^[30] During the incident, Bailey refused to take three different tests that measure blood alcohol concentration. Then he found out who he had arrested, and he was in for a rough time. But it was too late to unring the bell. The fact that the accused is a celebrity generates a story, even if the story is otherwise unremarkable. I mean, look at Bill Cosby. How many guys would get front-page treatment every day for giving women drugs and sleeping with them?

Celebrity attorney does not mean good attorney. I don't think Gloria Allred even tries many cases. She's been around a long time, and she will show up very quickly, like an insurance adjuster out of an exhaust pipe when there’s a collision. She shows up whenever a woman is either being abused or says she is. But if I had to list on the fingers of both hands 10 people who I would be comfortable having defend me in a serious case, it would be difficult. They are a fading breed.

I don’t have to suffer through the indignities of sitting around a courtroom or waiting for other lawyers to argue things before I get my chance, nor do I have to get all prepared for a trial, down to the last detail, only to find out that it settles the next day because the client doesn’t feel like taking the risk of a jury verdict. So those things, I don’t miss. On the other hand, I am frequently hired as a consultant by trial lawyers and firms to review their cases and their intended approach, because they think a trial is likely, and I enjoy doing that work. As they say, “I know a thing or two, because I’ve seen a thing or two.”