The Run of His Life

by Jeffrey Toobin

  Tobin confided to the young lawyer that he had been snookered. Polygraph results were generally inadmissible in criminal trials, but Tobin had blundered into allowing the jury to hear that his client had flunked a test administered by a novice examiner. It looked like the entire case would come down to whether the defense could discredit Augustine Lawlor, a local pharmacist who had volunteered his polygraphy services to the police. Tobin was tired and sick, and after speaking to Bailey briefly about the new technology, he had a question for the young lawyer:

  “Lee,” he said, “would you be willing to come into the case to cross-examine this guy Lawlor? I don’t think there’s another lawyer in Massachusetts who would recognize a lie detector if you dropped one on him. I think you could help us.”

  F. Lee Bailey had never before set foot in a courtroom, but he jumped at the chance.

  Over the years Bailey has written a great deal about his own career and about criminal law generally; his specialty—in both theory and practice—has been the art of cross-examination. His first law is a simple one: “The cross-examiner’s first task is to pin down all that the witness claims to know about the subject and all that he says he doesn’t know,” Bailey has written. “Until a witness is firmly committed to a definite statement or position, he can parry a question or sidestep it with some kind of explanation.”

  Bailey’s task, thus, was to pin down Lawlor, the polygrapher. The young lawyer brought a whole stack of books about the polygraph to the courtroom and tried to get Lawlor to concede that one of them was authoritative—which would allow Bailey to show how this beginner had violated the book’s commands. Lawlor was wise to this game and would not vouch for any of the books. But Bailey—meticulously prepared—had also found the instruction manual for the polygraph machine that Lawlor used, and the witness, trapped, had to admit that the manual did describe the appropriate procedures. Bailey promptly went on to show the jury how the witness had violated many of the manual’s commands. The weight of Lawlor’s testimony crumbled.

  One successful cross-examination does not make a career, but in fitting storybook manner, the elderly Tobin suffered a seizure shortly before final arguments in the Edgerly case. From his sickbed, he asked Bailey to give the summation.

  Bailey did, of course, and then went to a neighboring tavern to await the verdict. “I kept fidgeting and drinking Scotch,” he wrote of the scene. “I had done little boozing in the service, and I couldn’t afford liquor while I was in law school. But I drank like fourteen fishes while the Edgerly jury deliberated. Interestingly enough, the liquor had little effect on me. Perhaps it has something to do with tension. Or with adrenaline. All I know is that most trial lawyers drink. And the good ones can hold their booze.”

  The verdict came back in less than a day: not guilty. A career—and a legend—was launched.

  When Bailey told the story of the Edgerly case—as he has done in a pair of memoirs and hundreds of conversations—he lingered on his favorite part: his humiliation of the hapless Lawlor. Bailey was only sixty-one during the Simpson trial, but his heavily lidded eyes, which bore the toll of decades of drink and overwork, twinkled as he told of Lawlor’s abject surrender. Bailey didn’t spend much time worrying about whether George Edgerly actually murdered his wife. That was not Bailey’s concern. Proximity to murder can harden a conscience, and so it is with Lee Bailey. He is a consummately cynical man, with an eye only for the bottom line—legal and financial. The guilt or innocence of his clients means little to him. He once wrote, “I prefer cases that offer whopping fees and/or professional challenge.” Regularly and rancorously, Bailey has rotated law partners and wives. (He has been married four times.)

  For all his stormy and dissolute personal life, insatiable ego, and pervasive misanthropism, one fact stands out about Bailey: He invented the contemporary practice of criminal-defense law. Prior to his emergence into public view in the 1960s, criminal defense had been a vaguely disreputable (and mostly unprofitable) backwater of the legal profession. Bailey changed that. First, he understood the news media and how to manipulate the press for his ends. If Bailey did not invent the impromptu press conference on the courthouse steps, he made the practice his own. He recognized the general importance of appearance. His clothes were tailor-made, and so were his elevator shoes. His lust for the spotlight even led him into questionable ethical territory when, on some cases, he accepted as part of his fee the right to write a book about his work on a case. Bailey also engaged in the kind of exhaustive preparation for cases that, before him, had been the practice of only the best lawyers in the biggest firms. Bailey came of age when the term “superstar” first came into vogue, and he was, without question, the first legal superstar. Within a half dozen years of his debut in the Edgerly case, he had an estate south of Boston and a helicopter for commuting to work. Before he was forty years old, he boasted that he had charged a client a million dollars.

  There was no shortage of clients, at any price. Two days after Bailey’s first anniversary as a member of the bar, he met Dr. Samuel Sheppard, an osteopath from the Cleveland suburbs who had been charged, like Edgerly, with murdering his wife. It was an even more sensational case—the inspiration for the television series The Fugitive—and Bailey spent half a decade winning Sheppard his freedom. Along the way, Bailey traveled on both the high and low roads, as would be his custom. To publicize his attempt to give Sheppard a polygraph test in prison, Bailey went on The Mike Douglas Show and demonstrated the technique on a comedienne. In a more exalted setting, the United States Supreme Court, Bailey successfully argued that Sheppard’s original conviction should be thrown out because of excessive pretrial publicity. While Sheppard’s case was moving through the system, Bailey also represented Albert DeSalvo, the admitted “Boston Strangler.” (The court in the DeSalvo case rejected Bailey’s argument that DeSalvo should be committed to a mental hospital rather than a prison. DeSalvo was eventually murdered in prison in 1973.) Bailey also won an acquittal for Dr. Carl Coppolino when he was charged with poisoning his lover’s husband in New Jersey—but even Bailey couldn’t help this doctor when he was charged with, and convicted of, poisoning his wife in Florida.

  Bailey’s lust for the spotlight—and cash—led him astray in the years after his initial fame. In 1973, he was indicted in a federal mail fraud conspiracy case in Florida, along with his former client Glenn Turner, whose motivational business, known variously as Dare to be Great and Koscot Interplanetary, turned out to be little more than a Ponzi scheme. (Characteristically, Bailey was tempted into working with Turner because the entrepreneur promised the lawyer a new Learjet as his fee.) Thanks to the efforts of his lawyer, Alan Dershowitz, Bailey managed to have the case against him dismissed. After the Turner fiasco, Bailey represented Patricia Hearst, the newspaper heiress, in the case that arose out of her kidnapping by the Symbionese Liberation Army. Bailey’s performance was much criticized, and Hearst was convicted of bank robbery. In 1982, Bailey was again charged with a crime, drunk driving, and his friend Robert Shapiro successfully represented him at his San Francisco trial. Not coincidentally, the abuse of alcohol has been a leitmotif of Bailey’s professional life. The first line of Bailey’s 1975 memoir reads, “Heavy trials make me thirsty.” He has long dismissed friends’ advice to cut back. “It’s my fuel,” Bailey has said.

  For all his faults and traumas, Bailey continued to try cases throughout the 1980s and 1990s and, for the most part, try them very well. Indeed, of all the lawyers on either side of the Simpson case, Bailey not only had the most experience trying murder cases, he had conducted the most recent murder trial as well. In March 1994, Bailey won an acquittal for one Paul Tanso, charged with a double murder in Boston’s North End. Bailey’s bravura cross-examination of Tanso’s ostensible accomplice marked the turning point in the case. His trademark had not changed since John Tobin summoned him from obscurity almost forty years earlier. For all his fame, Bailey has never been an especially theatrical courtroom performer. He is, ra
ther, a master of preparation. Endlessly, meticulously, remorselessly, Bailey investigates the facts—or hires those who do.

  Immediately after he was retained by O.J. Simpson the week after the murders, Shapiro called Bailey. He treated Bailey with a deference befitting the elder lawyer’s exalted history as a defense attorney, but there were tensions from the outset, too. Shapiro couldn’t help but enjoy the change in status between them. Twelve years earlier, Bailey had favored Shapiro with the assignment of defending him in the drunk-driving case. Now Shapiro had the kind of case that once would have gone to Bailey as a matter of course. When Bailey appeared on the Simpson case’s quasi-official forum, Larry King Live, on June 24 to announce that he had joined the defense team, his choice of words reflected the possibility of future trouble between him and Shapiro. “We are close friends,” Bailey said of Shapiro. “I’m the godfather of Bob’s oldest child.… I also want to make perfectly plain the fact that he is the lead counsel in this case, and I am consulting with him.”

  King asked why Bailey had waited to announce that he was part of the defense team.

  “Simply because my recommendation, with all the sniping that someone has been sponsoring, saying Bob Shapiro couldn’t handle this case—which I think is silly, because, when I was in trouble, I hired him, and he won my case. And he is the only lawyer in the country allowed to have my name on his letterhead. I thought it would be best to let the case proceed down the road a little bit, until it was firmly established that he had control. He has. He’s handled it brilliantly.”

  In fact, there had been very little sniping about Shapiro’s abilities until Bailey raised the issue on the air that night. As for the purported drama about when to make Bailey’s announcement, Bailey invented that issue as well. His entire presentation had the air of a man protesting too much; by defending Shapiro, Bailey demeaned him.

  Still, Bailey had been giving Shapiro very specific advice since the day he was retained. From his days as a private investigator during law school, Bailey never lost faith in their value. He urged Shapiro to have his own investigators chase down any favorable leads in the case before they grew stale. In comparison, Shapiro had little experience with private eyes (besides Bill Pavelic, whom he had engaged earlier), so he deferred to Bailey on whom to hire and where to send them. Bailey didn’t hesitate with his first suggestion: Hire Pat McKenna and send him to Chicago.

  McKenna—an affable and hardworking native of that city—lived near Bailey’s adopted home of West Palm Beach, Florida, and the two men had occasionally worked together on cases in the past. On hearing from Shapiro and then Bailey, McKenna got himself on the first flight to Chicago to learn what he could about Simpson’s brief stay there in the hours after the murders.

  McKenna found a chaotic scene at the O’Hare Plaza—Chicago cops, Los Angeles detectives, a swarm of reporters from around the world, not to mention agents from the United States Secret Service who were preparing for an imminent visit by President Clinton to the hotel. Working an old connection with the Chicago police, McKenna managed to find a couple of people who had seen Simpson when he arrived in the city on his red-eye flight from L.A. These witnesses reported that O.J. seemed in relatively good spirits. His demeanor, it seemed, was not that of a killer. It was from tiny threads like these that McKenna—and Bailey—believed reasonable doubt could be knit.

  McKenna traveled on to Los Angeles, where the scene at Shapiro’s office seemed peculiar in another way. After the intense activity of the prelim, Shapiro had resumed the more sporadic work habits that were his custom. He sent his colleagues cryptic memoranda. For example, on August 18, Shapiro dispatched the following message to all the investigators: “Goldman was fired; allegedly, from the California Pizza Kitchen for giving a customer a free Coke. I will follow up on this.” When Shapiro was in his office, the investigators often found him autographing photographs of himself with a gold pen. Shapiro’s on-again, off-again presence left his nineteenth-floor office suite, nominally the nerve center of the case, directionless. Part of the reason was friction among the personnel. Shapiro had hired his own investigators, chief among them Bill Pavelic, who had brought the Fuhrman file to the defense’s attention. The prickly former LAPD detective did not enjoy outsiders like McKenna treading on his turf. The problems were exacerbated when Shapiro, again at Bailey’s suggestion, hired another investigator, John McNally. A gruff ex–New York City cop, McNally had worked with Bailey for more than twenty years. McNally took an immediate dislike to Shapiro and his media-friendly ways. Shortly after McNally arrived, he was looking through some unopened boxes of discovery material when, to his astonishment, he saw a man wandering around the office taking pictures of everyone. It was Roger Sandler, the ubiquitous photographer for Time and Life. Confidential documents were everywhere, and McNally wanted to throw him out, but Shapiro had given Sandler free rein.

  Not wishing to intrude, and preoccupied with his own cases, Bailey initially spent little time in Los Angeles and heard only the complaints of McKenna and McNally. Bailey’s one-on-one relationship with Shapiro remained close, and when he was in L.A., Bailey stayed at the Beverly Hills home of Shapiro’s best friend, Michael Klein. Bailey tried to mollify his investigators as best he could and brought in another protégé, Howard Harris, a database specialist whose mission was to computerize the voluminous files in the case. At one point, McKenna saw Shapiro only once over a period of several weeks, and that was when he went to Shapiro’s house to install his son’s computer. “Don’t worry,” Bailey told his investigators when they complained about Shapiro. “He just has a different style than we do. He’s really very bright.” For his part, Bailey mostly remained in Florida, although he did arrange for the first volume of his memoirs, The Defense Never Rests, to be reissued in paperback. A cheerful new blurb was added to the cover: “O.J. Simpson’s Acclaimed Defense Attorney Re-Creates His Most Famous Wife-Murder Cases.”

  Through the summer, the tensions grew between the Shapiro camp (Pavelic and various part-timers) and the Bailey group (McKenna, McNally, and Harris). Their differences were partly philosophical. Bailey’s team favored a minute dissection of the government’s case. For example, McKenna and McNally—and sometimes even Bailey—repeatedly walked up and down Bundy Drive knocking on doors in an effort to locate witnesses who could contradict the prosecution’s theory of when the dog started barking (and thus when the crime occurred). In this way, Bailey hoped, they could undermine the government’s case piece by piece.

  In contrast, Pavelic favored an all-or-nothing approach and accordingly spent much of his time chasing theories about the identity of “the real killer.” Almost daily, Pavelic would return to Shapiro’s office with a breathless new theory. On June 22, for example, Pavelic sent Shapiro a memo that stated, “Rumor has it that Ron’s lover discovered his infidelity with Nicole Simpson … and killed them both.” Pavelic had many other theories, however.

  “A house burglar saw the guys who did it!” he announced one day. In his memorandum outlining this theory, Pavelic reported that he had spoken to the burglar, and he “distinctly recalled hearing one of the suspects saying, ‘slit the Nigger fucking/lovin bitch.’ ” (Unfortunately for the defense, this burglar also claimed that he had seen the murder of Polly Klaas and a hit by John Gotti.)

  “Goldman had semen in his ass, and it was a gay hit!” (The autopsy showed no such evidence, and Goldman wasn’t gay.)

  “A marcher at a Gay Pride parade saw two men covered with blood at a phone booth yelling, ‘O.J. is going to pay for what he did to us!’ ” (Too ridiculous even to consider. “You’re a fucking Martian,” McNally told Pavelic.)

  It didn’t matter to Pavelic that his theories usually conflicted with one another. His enthusiasm was boundless—as was his contempt for Bailey’s investigators. Howard Harris spent a great deal of time setting up a computer program that was supposed to give the defense team access to virtually every address and phone number in the Los Angeles area. On the day it was c
ompleted, Pavelic typed in his own name, and he was delighted when nothing came up—even though he had lived in the same house for decades.

  One day late in the summer, Shapiro invited all of the investigators to a screening of Forrest Gump held at the Beverly Hills mansion of his friend Robert Evans. Before the lights were lowered, Shapiro rose and addressed the group. “I know I haven’t been too friendly. I’ve been accused of being too aloof,” he said. “That’s going to change.”

  McNally, who loved to twit Shapiro, spoke up in response: “That’s not the problem, Bob. The problem is no one does any work out here.” Shapiro ordered the movie to begin.

  By the time jury selection was completed, McNally decided he had had enough. The last straw for him came when Shapiro told the investigators that Skip Taft, O.J.’s business manager, had told him there would have to be pay cuts all around. McNally was supposed to have received $22,500 for his work over the summer, and the bill hadn’t yet been paid. Instead of taking a pay cut, John McNally returned to New York for good.

  The tensions among the defense investigators only replicated those that had been simmering, albeit more decorously, among the defense lawyers. When Cochran had been hired, there was no question that he ranked behind Shapiro in the unspoken but real hierarchy of the defense team. Yet the issue of Cochran’s role in the upcoming trial, which had been left conspicuously unsettled all through the fall, weighed heavily on Shapiro. At one level, he never had the illusion that he could try the case by himself, and he welcomed Cochran to the team. But Shapiro all along saw himself as a sort of master of ceremonies for the defense, a notion that became increasingly untenable over time. Throughout the fall, Cochran spent increasing amounts of time at the jail with O.J., and Simpson became ever more enamored of Cochran and alienated from Shapiro—who had always loathed having to visit prisoners. Race, too, assumed ever more importance in the defense strategy, and Shapiro—notwithstanding his having launched the issue in the first place—hated confronting its incendiary aftermath.