No Sure Footing on the Moral High Ground

Awarning to participants in the murder trial of O.J. Simpson: Claim the moral high ground at your peril. It is shifting and treacherous terrain.

The prosecution's argument that the murders are the final act in a long-running drama of domestic violence is no sooner belittled by the defense than a magazine profile reveals that Simpson's lead counsel, Johnnie L. Cochran Jr., was accused in court papers by his ex-wife of becoming physically violent. Cochran denies it.

Accusations of racial animus figure prominently in the defense's strategy, and a colleague recalls an old magazine profile of the self-burnishing F. Lee Bailey in which he is quoted as using the word a Simpson prosecutor called "the dirtiest, filthiest, nastiest word in the English language."

After Bailey's long and vain attempt to make Los Angeles Police Detective Mark Fuhrman admit to decade-old racist utterances, it is all the more pathetic to learn that Bailey's own past may be blemished not just by use of the racial epithet in question, but by its use in an apparently fabricated story about one of the most accomplished Americans of all time.

The tale appeared in the May 10, 1976, issue of the now-defunct New West magazine, and was the opening anecdote of an article called "The Case Against F. Lee Bailey" by the much-admired writer Barry Farrell.

Bailey was much in the news in the spring of 1976, having just blown one of the biggest cases of his career, the bank robbery trial of kidnaped heiress Patricia Hearst. The loss of what many legal observers thought was a sure win signaled what seemed to be the slow fade of a once-bright legal star. A few days after Hearst was convicted, Farrell attended a speech Bailey gave in Los Angeles to a group of managers from the Mattel toy company.

Bailey began with what Farrell called in his article a "curious anecdote" about meeting Thurgood Marshall at Bailey's first appearance before the Supreme Court in 1966. (Bailey was arguing--successfully--that the court should overturn the conviction of his client, Dr. Sam Sheppard, convicted of murdering his pregnant wife.)

At the time, Marshall was U.S. solicitor general, the government's advocate before the high court.

This, Farrell recounted in his story, was the tale Bailey told:

". . . and Mr. Marshall, who was always a bit of a wit, came up and introduced himself, and he said, 'I understand you're the young, hotshot lawyer.' I said, 'I want to thank you, Mr. Solicitor General.' And he said, 'Well, I'm the head nigger.' And I said, 'Well, we have a gentleman up in Massachusetts who's about to replace Sen. Saltonstall and be a United States Senator, which is higher than a mere solicitor general, and he says that he's the head nigger.' And then Marshall pointed to the bench and said, 'Next time there's a seat up there, I'm going to get it. And then I'm going to be forever the head nigger.' "

Two days later, Farrell wrote, he reached Marshall in his Supreme Court Chambers and asked if the story were true:

" 'That's the most deliberate lie I ever heard,' Marshall said. . . .

". . . 'So the story is a complete fabrication?'

" 'Total,' " replied Marshall. " 'Complete. Not one word of it is true.' "

When he confronted Bailey, Farrell wrote, Bailey insisted that the story was indeed true, and suggested Farrell call a third man who was present that day. According to Farrell's account, that man--former Texas Sen. Ralph Yarborough--not only denied ever hearing such an exchange, but professed utter disbelief that Marshall would speak that way.

And that is where Farrell left it. He died in 1984, more than a decade before the "N-word" would figure prominently in a Bailey courtroom performance, this time as a way of undercutting the credibility of a police officer. (Bailey did not return my calls seeking a comment about the New West story.)

It's a curious situation. Which is the more unsettling aspect--that Bailey may have made up a story about Marshall, or that he told a story in a public speech that included the racial epithet as part of a joke?

Nineteen years ago, Farrell observed that if Bailey's anecdote about Marshall "was not only a slur, but also a canard, it seemed at least possible that (his) legend might be due for immediate review."

What sort of response to the story did New West receive? Was there an angry denunciation from Bailey? An outpouring of anger from readers? In the three months that followed publication of the story, New West published only a single letter, attributing Farrell's negative tone to jealousy of Bailey.

Last week, a front-page Wall Street Journal story about the controversy that always seems to swirl around Bailey opened with this observation: "Americans who recently named F. Lee Bailey the most admired lawyer in the country in a poll might feel differently now that they have actually watched him in action in the O.J. Simpson case."

Hard to tell. Decades of celebrity have enveloped him in a thick, protective coat.

It's the moral posturing that's wearing thin.

* Robin Abcarian's column is published Wednesdays and Sundays.

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