The Boston Stranglers

by Susan Kelly

Burnim said he hadn’t. He also testified that he couldn’t recall Albert reading any papers in his presence.

  Nor signing them.

  Burnim did have some memory of Bailey explaining to Albert the nature of an agreement with Gerald Frank. Then Troy slipped into his attack-attorney mode, pressing Burnim for a description of just how comprehensive Bailey’s explanation of the release had been. “Did you hear [Bailey] mention or explain away the word ‘perpetuity’? Yes or no.”

  BURNIM: I don’t recall that.

  TROY: “Biographical?”

  BURNIM: I don’t recall that, no.

  TROY: “Dissemination?”

  BURNIM: No, I don’t recall that.

  TROY: Did you hear him explain at all that Albert would be waiving any of his constitutional rights he had?

  BURNIM: [No response]

  TROY: Mr. Witness?

  BURNIM: I am thinking.

  THE COURT: He is endeavoring to recall.

  TROY: Well, I am not as close to him as your Honor and I can’t see that he is.

  THE COURT: Well, I am not even looking at him and

  I can tell that he is.

  TROY: I see.

  BURNIM: At this moment, I do not recall discussion concerning constitutional rights.

  TROY: Did you hear Albert DeSalvo testify today?

  BURNIM: Yes, I heard him.

  TROY: Is it true that you went to Walpole State Prison on several occasions?

  BURNIM: It is.

  TROY: Did you go there to pacify him?

  BURNIM: It depends on how you look at it. I didn’t consider it as such.

  TROY: Did you ever tell him you went there to pacify him?

  BURNIM: I do not recall telling him that.

  TROY: Did Albert ever have a conversation with you where he said Bailey was giving him the runaround?

  BURNIM: There were times when Mr. DeSalvo was suspicious.

  TROY: Did you agree with him or disagree?

  BURNIM: Did I agree with him?

  TROY: Or disagree with him.

  LYNCH: Well, I don’t understand that question.

  THE COURT: Do you object?

  LYNCH: I object.

  THE COURT: I sustain that objection.

  TROY: Did Albert DeSalvo ever tell you he couldn’t talk to Bailey?

  BURNIM: He told me at times he had difficulty speaking with Mr. Bailey.

  TROY: Did he tell you he couldn’t understand him?

  BURNIM: He also said at times he had difficulty understanding him, yes.

  TROY: Did he say he couldn’t understand why Bailey wouldn’t let him see these papers that he had him sign, that he never read them?

  BURNIM: I don’t recall him saying that.

  TROY: Well, did he say words to that effect? BURNIM: I don’t recall. He discussed the papers with me. I don’t recall whether he said anything to the effect that he couldn’t understand why Mr. Bailey wouldn’t show him the papers.

  TROY: Well, isn’t it fair to say that he constantly talked to you about getting copies of papers that he signed that he didn’t know the contents of? BURNIM: On more than one occasion he asked me for copies or to obtain copies.

  TROY: So at some time in June you were down at Bridgewater and George McGrath was there, Lee Bailey was there, and there was signing of some papers.

  BURNIM: No, I—No, that is not so. I don’t recall the signing of any papers. Sometime in June I was there with Mr. Bailey and Mr. McGrath.

  TROY: All right. I show you Exhibit Number 4, sir. [This was the designation of fiduciary making McGrath Albert’s business agent.]

  BURNIM: Yes, I have looked at it.

  TROY: That document prepared by your office, Mr. Bailey’s office, at that time?

  BURNIM: I don’t know.

  TROY: Do you know who Mr. McKay is?

  BURNIM: Mr. McKay?

  TROY: Yes.

  BURNIM: I understand he is a fictitious person, fictitious name.

  TROY: And you also understand that checks were drawn and made out in McKay’s name?

  BURNIM: I understand that was done. I do not know.

  TROY: Did you ever say to Mr. DeSalvo when he complained to you, “Why don’t you tell Mr. Bailey these things?”

  BURNIM: Yes. Well, I made such a statement to him, yes.

  TROY: Did Albert say to you, “He don’t listen to me.

  I can’t understand him. When he comes in here I freeze up. He’s like God.”?

  BURNIM: He has made such a remark, yes.

  TROY: Did you ever say, sir, “Well, I used to think he was God, too”?

  BURNIM: I don’t recall saying that.“50

  Garrity refused to let Ames Robey testify, saying that the doctor’s views concerning Albert’s competence and any adverse psychological impact the Strangler movie might have on him would be better aired at a trial than at a hearing such as this. Troy was not happy with the ruling, not the least because he’d brought Robey back to Boston at his own expense. All he could do was object. Garrity noted the objection—and overruled it.

  George McGrath, who was scheduled to testify next, hadn’t appeared in the courtroom yet. That being the case, Troy asked for a short recess so he could take his ulcer medicine. Garrity granted the request, one of the few of Troy’s he did grant.

  Under questioning by Troy, George McGrath told the court that he had visited Albert many times at Bridgewater, with and without Bailey and Burnim, and couldn’t recall51 if Gerold Frank had ever accompanied them. He didn’t remember any exact dates, although he did recollect “being at Bridgewater when Albert DeSalvo signed a paper or two.”

  Troy showed him the release. McGrath said he’d seen it, although whether for the first time when Albert signed it he couldn’t say. He hadn’t helped to draft the document—that had been done by Bailey and the attorney for the New American Library.

  Bailey, of course, had earlier testified that he had nothing to do with the drawing up of the release.

  McGrath said he’d never seen Albert read the papers. He also had “no specific memory” of hearing Bailey explain the document to Albert, a statement that undermined Bailey’s previous comment that McGrath and Burnim must have heard him giving this explanation since they were sitting only three feet away at the time.

  McGrath went on to say, “We wrestled very seriously—that is, I did—with the question—the ethical question, I being [Albert’s] guardian, of whether a man who had assumedly committed very serious crimes, should profit personally as a result of [their] exploitation... and I came to the conclusion... that it would be possible for this to happen under very controlled conditions, and those would involve the exclusion of any material benefit to Albert by the proceeds.”

  He reiterated that insofar as the release to Gerold Frank was concerned, he had “no recollection of Albert having—reading this or having it read to him or having the details of it explained to him in my presence.”

  During cross-examination by Lynch, McGrath told the court that he had found Albert in any general discussion of the waiver of his right to privacy for material gain to be perfectly rational and capable of grasping the principles entailed in such a waiver.

  McGrath was careful to note that he had never discussed the release itself or any of its contents with Albert.

  He also said that he had read the document but had not made any “study” of it, and that he didn’t “know the provisions of it in detail.” But as Albert’s business adviser, he had nonetheless had no seeming problem with putting his own signature to that agreement.

  McGrath was the final witness. Garrity took closing arguments. In his, Facher suggested that Albert, who was not in Facher’s opinion at all credible, was trying to wriggle out of a deal he’d entered into of his own free will and with a full understanding of its implications, by claiming now that he’d been deceived as to its meaning. His legal action against Fox and Reade was furthermore simply an effort to gouge from them, in the form of damages, the huge amount of
money he’d anticipated getting from Gerold Frank.

  Facher had implied that Albert was a liar. When it was Troy’s turn to speak, he implied the same of Bailey: “I say you take into consideration the credibility of Attorney F. Lee Bailey. Although a member of the Bar, and I find it hard and painfully so to question his veracity, I say it is a fit subject to be questioned.”

  Garrity denied the plaintiff’s request for a preliminary injunction. He expressed his intention to assign the case for trial, and as speedy a one as possible.

  Troy requested an early November date—although he would have been happy to have it be the next day.

  Garrity wanted to give Facher and Lynn adequate time to prepare. Both seemed agreeable to a November trial date.

  Civil Action Number 68-832-G did not, however, open until five days before Christmas.

  Robey went home to Michigan. He would return to Boston at Troy’s behest in December.

  17

  The Burnim and Bailey Circus, II

  Ames Robey, sixty-six, the son of a prominent Boston family, received his undergraduate degree from Harvard and his medical degree from Boston University. Certified by the American Board of Psychiatry and Neurology, he was a Special Fellow in Psychiatry and the Law at the Law-Medicine Institute of Boston University. He has taught at Harvard, Tufts, and the University of Michigan. As a forensic psychiatrist, his job has been to probe the ugliest and most convoluted recesses of the criminal mind. He has come face-to-face with the worst demons spawned in the cesspool of the id—serial killers, mass murderers, and homicidal rapists.

  He is a tall man with a dry wit and an ironic perspective on the criminal justice system of which he was so long a part: “I used to think when I first got into this business that the courtroom was a place where there was a search for truth, and that it was honest and people told the truth and were sworn to do so. It took me a couple of years to have that fiction bashed out of me and to begin to learn that it’s a battle between two knights on their chargers, with lances, in full armor, the referee to make sure they don’t commit a foul. Charging down the lists, hoping to be awarded the victory, which might be somebody’s head. If it happens to be the head of the poor defendant, why, that’s really of little significance.”

  Robey was the first witness to take the stand on December 20, 1968, when the matter of Albert DeSalvo versus Twentieth Century-Fox Film Corporation and the Walter Reade Organization came to trial in the U.S. District Court. Judge Garrity again presided. Appearing for Fox was Robert W. Meserve, temporarily filling in for James Lynch. Jerome Facher was still representing Reade.

  At stake was the two million dollars for which the plaintiff was suing the defendants.

  One of Troy’s first questions to Robey was whether the doctor thought that Albert, while at Bridgewater, had possessed “sufficient mental capacity” to engage in business dealings. Robey replied that in his opinion Albert at that time hadn’t the ability to handle any transaction more sophisticated than the purchase of a candy bar or batteries for his transistor radio. In any event, the point was moot because Bridgewater regulations prohibited the inmates from entering into any kind of financial negotiation involving more than small change. “No one is allowed to have money,” Robey declared flatly. Nor, he continued, was any patient at the hospital allowed “to make any public statements, to sign any papers, to make any recordings, or to do any of this sort of thing without having it cleared through the institution. The guards, the superintendent, the Medical Director, myself at the time [of Albert’s incarceration from 1964 to 1966], are, I suppose it is really more ex officio, but we are their guardians, and all this material must be cleared through us. Indeed, if the guards notice anything of this sort, they are under orders to immediately stop the process and bring the whole situation et cetera to me or to Mr. Gaughan, the Superintendent.”

  “Is it fair to say,” Troy inquired, “that nothing was ever presented for your perusal as far as a contract is concerned with Albert DeSalvo and Gerold Frank?”

  “That is correct,” Robey replied. “Nothing was presented.”

  “And if it was signed there at Bridgewater during the period of time that Albert was there,” continued Troy, “then it would be a violation of the regulations of the institution, is that correct?”

  “Yes, sir,” Robey said. “It would be.”

  Meserve and Facher objected and were overruled.

  Asked Troy: “Did Attorney F. Lee Bailey ever discuss the possibility of Albert signing a contract with you, or was it ever brought to your attention?”

  No, Robey said, not before the fact of the signing.

  Troy then showed Robey a copy of the release and asked him if he’d ever seen it. Robey said he had.

  “In your opinion,” asked Troy, “was Albert DeSalvo able to understand the nature and quality of the transaction or grasp its significance or have the capacity to execute such an instrument?”

  “Well, Mr. Troy,” Robey replied, “I will have to give you really two answers to this. In October of this year, I went to the Walpole State Prison, where he is presently held, having seen the contract at that time for the first time myself, and went over in detail with him not only words in it but context, so the two-fold answer would be that, first, just in terms of his educational background, disregarding for the moment, any evidence of mental illness, it was my opinion and certainly was my opinion, based on my previous knowledge when I was at Bridgewater, that his educational background alone would not have allowed him to understand even the wording and the consequences of this, but further, the degree of mental illness would totally abort his ability to appreciate its significance.”

  “When you say the degree of mental illness,” Troy pressed, “will you explain to the Court which portion of the mental illness you are talking about?”

  “Yes, sir,” Robey said. “Mr. DeSalvo shows in his [personality] structure and as part of this whole schizoid or schizophrenic—chronic undifferentiated schizophrenic pattern, he has shown consistently a tremendous insecurity and a need to identify himself to the world as a notorious character, as though if he could not be well known for being good at something, then he would be notorious for being bad at something, and this overwhelming, compulsive confessor aspect would so distort his ability that there would be no appreciation of any consequences, because the identification of himself to the world as important would override all other considerations.”

  But suppose the wording of the release had been explained to Albert, Troy countered. “Assume that great pains, quite painfully time was taken to explain to him in detail to him by more than one person both before its signing and both after its signing. Would he be able to comprehend and understand the contract and the nature of its consequences?”

  Robey still didn’t think so. “With careful explanation, even his diminished educational background would allow him to perhaps understand the wording, if he listened, and the hypothetical question you ask that this was explained, you would also have to add the hypothesis that his mental illness would allow him to even listen except solely to the issue that he would be famous, and it is my opinion, based on my experience with him and my training, that he could not by reason of his mental illness listen to anything except that he would be famous, he would be known, he would be a watchword on everybody’s lips.”

  Troy’s next effort was to determine if Albert was still suffering from a mental defect.

  “Since you came to Boston the first time for the last hearing,” he asked Robey, “did you have an opportunity to see Albert DeSalvo?”

  “Yes, sir,” said Robey.

  “Conduct a psychiatric interview with him?”

  “Yes, sir, on three separate occasions.”

  “And make certain evaluations?”

  “Yes, sir.”

  “Form an opinion?”

  “Well, an opinion as to what?” Robey asked.

  “As to his present mental status.”

  “Yes, sir.”

>   “And would he now be a person competent to engage in a contract?”

  No, Robey replied, he wouldn’t be.

  Troy had a final question. “Doctor, at the time Albert DeSalvo is alleged to have signed this contract, sometime in June, on or about the 17th of June, would his illness have prevented him from knowing or caring whether or not he signed away any of his rights civilly or constitutionally?”

  “Yes, sir, his illness would have prevented this,” Robey said. “They would have been of no concern, because the overriding concern above all else, perhaps fed by counsel to a degree, would have been—he would be world-renowned, and his rights at this time would be of no concern to him; not even that, their being of no concern—he would not even think of them. I am quite sure you could even say, ‘Albert, you are signing away your rights,’ and Albert would be thinking to himself, ‘Yes, but I will be world-renowned. Everyone will know of me.’ ”

  In addition to this insatiable thirst for celebrity, Robey said, Albert had another striking characteristic: a phenomenal memory. “He has absolute, complete, one hundred percent total photographic recall,” the doctor told the court. “I have only seen this in perhaps incredibly brilliant people, although they are often suspect of being a little psychotic.”

  Robey’s cross-examination by Meserve and Facher degenerated into a prolix wrangle over when Albert had been adjudged incompetent, by whom, for what reasons, and by whose standards. On several occasions the parties on both sides lost track of the questions they were, respectively, either posing or answering. Garrity had to intercede to request clarification. The dates of Albert’s various hearings and the names of the presiding judges were a particular source of confusion.

  At one point, Facher asked Robey if it were true that he’d once offered to work for F. Lee Bailey. The doctor, startled out of his professional demeanor, uttered a horrified, “Good Lord, no.”

  Robey’s testimony had taken the entire day. At the end Garrity thanked him. Robey was eager to be gone; he had a plane to catch back to Ann Arbor.

  “You may fly away, Doctor.” Troy beamed.