Friday, June 4, 2021

Lessons I Learned from F. Lee Bailey (Who Passed Away on June 3)

Early in my career, I had a ringside seat for was supposed to be a "big" trial for F. Lee Bailey, who passed away at the age of 87 earlier this week.  Reading about his career has brought back memories. 

In 1983, Mr. Bailey represented one of New Mexico's most prominent criminal defense lawyers of the time, William Marchiando, on libel allegations against the state's largest newspaper, The Albuquerque Journal.  My firm represented the Journal.  During the trial I was a mere "helper" (although I had a surprising opportunity to handle aspects of a post-trial motion).   The trial focused on an article where Mr. Marchiando's photo appeared prominently, just below a provocative headline, "Organized Crime Showing Interest in New Mexico."   

One consequence of suing a newspaper for libel is that every minute of the trial was covered by media, and that meant weeks of news coverage, a fact not lost on Mr. Bailey, who was premiering his new television show that same year, a program called "Lie Detector."

The 8-week trial took place in the southern New Mexico city of Las Cruces (on a change of venue from Albuquerque).  After 4 days of deliberations, the locally-selected jury voted, 10 to 2, that there was no defamation. The jurors included retired military, members of local farming and ranching families, and several hard-working school teachers. 

The newspaper took the position that truth was their defense, a decision that probably startled the plaintiff.  I recall hearings about admissibility of tape recordings of the plaintiff meeting with prisoners at New York City's infamous "Tombs," allegedly discussing organized crime-related "business," rather than matters pertaining to any representation of the defendants in their criminal cases.   One of the Journal's trial witnesses, via video-recording, was "Jimmy the Weasel" Fratianno, who was a confessed hitman for "the mob."  (I was flown one night, via a private jet, to conduct a pretrial interview of  "Jimmy" at an undisclosed location, one of the spookier events of my early career).  

Some of Mr. Bailey's obituaries mention his "photographic memory" and I saw that in action.  He handled direct and cross examination of witnesses without any notes, and, perhaps most impressively, would accurately quote lengthy sections of depositions when seeking to "impeach" a witness, again without any paper in his hand.  His oratory was delivered with a deep voice that had a touch of gravel in it, and he was always impeccably dressed.  

In contrast, the Journal's primary trial attorney (and my boss), Eric Lanphere, was much less showy.  Indeed, the publisher of the paper ruefully shook his head as his attorney crossed the courtroom one afternoon during trial, trailed by a floating, long piece of toilet paper stuck to one heel.  "That's my attorney -- sort of looks like Columbo, doesn't he?," he mused.  But Mr. Lanphere also had his own talents, and the key talent was being down-to-earth, rational, and equally oriented to details, albeit not necessarily delivered from memory.

My real lessons came during preparation for the post-trial hearings. We were responding to the plaintiff's attempts to reverse the verdict, claiming there was juror misconduct (ultimately an unsuccessful effort).  My task began with interviewing as many of the 12 jurors (and the alternates) as would speak to me, to get their take on the trial and deliberations.  Along the way, I asked them what they thought of Mr. Bailey's flair in the courtroom.  Usually the juror would smile and give me an account of some especially impressive detail of Mr. Bailey's performance.

Then I would ask, "how did Mr. Bailey affect your vote in the case?"  And each juror, regardless of their vote, quickly responded that as much as they enjoyed Mr. Bailey's "tricks," (their frequent label), they knew their job was to evaluate the evidence presented by witnesses and exhibits.  The trial judge had delivered those instructions with a very firm voice. The jurors made it clear to me they weren't going to allow themselves to be swayed by the performance of any attorney.  The "facts" mattered, and mattered especially, it seemed, when presented by the more humble attorney in the room.  

https://lawprofessors.typepad.com/elder_law/2021/06/lessons-i-learned-from-f-lee-bailey-who-passed-away-on-june-3.html

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