I had never seen F. Lee Bailey in action until he began his cross-examination of Sgt. David Rossi, the West L.A. police watch commander the night Nicole Brown Simpson and Ronald Lyle Goldman were murdered.
I knew of his reputation, of his famous cases: the victories, such as the Dr. Sam Sheppard murder case, and his defeats, most notably his inability to spring Patty Hearst, who was convicted of bank robbery and served 22 months in prison after a jury rejected her contention that she was forced to participate by her terrorist-group captors.
After that, he slipped out of the spotlight, and when he joined the Simpson defense, a lot of lawyers and reporters wondered why the “dream team” had hired a has-been.
Thus I watched the beginning of his cross-examination of Rossi with the interest that always grips me when I encounter a legend. Much to my surprise, Bailey looked sharp. So I was surprised Tuesday night and early Wednesday morning when some of the talking head attorney analysts gave him bad reviews.
An ex-prosecutor on CNN wrote him off as ancient history. At best, the analysts thought he brought to the trial something of Perry Mason, the fictional crime-solving attorney of mystery books and television. As has often happened in the Simpson case, the analysts were as off the mark as the ex-coaches who analyze basketball for the networks.
I blamed generational ignorance for part of their reaction. The lawyer analysts tend to be yuppie attorneys who work 18 hours a day, pausing only to swig from their ever-present bottles of Evian water. Their idea of recreation is disabling an office rival in a lawyers’ league softball game. They can’t believe that a 63-year-old man, with a face and body that show the price paid for a life well lived, can still handle himself in a courtroom.
As for the comparison to Perry Mason, that was pure literary ignorance.
F. Lee Bailey is no Perry Mason. Both in Erle Stanley Gardner’s books and as he was played on television by Raymond Burr, Mason was a dull workaholic who brought none of Bailey’s theatrical qualities to the courtroom. Fireworks occurred only at the end, when Mason’s detective, Paul Drake, would bring in the crucial witness and the real murderer broke down and confessed.
Putting the critical reviews out of my mind, I headed to the courthouse to watch Bailey a second day. I carried my own trial guide for the day, Bailey’s book “To Be a Trial Lawyer,” in which he instructs prospective lawyers on courtroom combat.
Bailey was wearing a white shirt, patterned tie and blue suit. His voice was gruff. He looked completely at ease at the rostrum. He smiled as he began the second day of cross-examination of Sgt. Rossi. Bailey’s tone softened, at least as much as is possible for a voice so filled with gravel. He looked friendly.
I turned to Chapter 11 of his book, “An Approach to Cross Examination.” There, I found an explanation for Bailey’s manner. He said that witnesses, having seen many movies, expect the lawyer to “come at him with a snarling attack.” Bailey tries to relax the witness so he “will be thinking to himself: ‘This isn’t so bad, after all.’ ”
As Bailey starred directly at Sgt. Rossi, he was following another piece of advice from his book: A lawyer’s “hands must be empty most of the time, and his eyes must be riveted on the witness. If he needs constantly to refer to notes and other written materials, he will sacrifice something essential: speed.”
Then Bailey’s manner changed. He wanted to know why the cops were so slow in calling in the coroner--a key element of the trial. A sneer crept into his voice. His witness was no longer a friend, but a negligent cop.
Bailey picked up a police manual and brandished it as if it were a secret document he had uncovered. It was the detectives’ job, not his, to notify the coroner, Rossi replied. Why, Bailey asked Rossi, didn’t he report to superiors that the detectives failed to comply with a department regulation requiring prompt notification of the coroner?
In his book, Bailey explained this as part of impeaching the witness. “You will not destroy him or turn him into a blathering idiot or get him to admit he may be in error,” said Bailey. “You will, if you can, give the jury reasons to have some nagging doubts.”
But Bailey didn’t always follow his own rules.
I was startled, for example, to hear him ask Rossi: “When was the first time you heard the name Ronald Goldman?” That was a clear violation of Rule 3 of cross-examination--"Do not ask questions that begin with what, when, where, why or how. Questions formulated in this manner usually invite a narrative answer and offer the witness an opportunity to talk at length and out of your control.”
Luckily for Bailey, Rossi had no desire to talk at length.
To be sure, a lot of Bailey’s questioning showed he’d been away from the criminal courts for too long. He circled around a point instead of attacking it directly. His sentences were sometimes complex and hard to follow.
He ought to turn to Page 137: “Questions must be formulated swiftly but with care. They must be clear and unambiguous, simple and not compound, in a form that is not objectionable legally and structured to elicit a yes or no answer most of the time.”
Call this practice. Spring training for a rusty pitcher. A time to reclaim old skills and practice the new ones necessary in 1995’s criminal courts. It’s practice for the big show, Bailey’s expected cross-examination of Detective Mark Fuhrman.
The defense wants to break Fuhrman on the witness stand. It wants the jury to believe the Simpson team’s contention that the cop is an evidence-planting racist. Should it occur, the duel with Fuhrman will be Bailey’s test, his chance to exhibit the skills he showed when he freed Sam Sheppard, to reclaim the reputation that was diminished after Patty Hearst, to prove that this is one lawyer who’s not ready for retirement.