Piloting Patty's Defense

Whether or not it would ultimately prove to be the "trial of the century," as some headlines proclaimed, Case No. 74-364: The U.S. v. Patricia Campbell Hearst promised to be one of the most powerful court dramas of recent years. As Federal Judge Oliver Carter opened the proceedings in his San Francisco courtroom last week, Patty Hearst's trial for armed bank robbery was already shaping up as not only the climactic episode in her still pulling personal story of kidnaping and radical politics, but also as a kind of peculiarly American legal Super Bowl. Some 200 reporters representing news organizations from as far away as Australia and West Germany were in town for the event. Court groupies and Hearst case buffs arrived from all over the country; some had taken leaves from their jobs to see as much of the six-to eight-week trial as possible.

Would-be spectators lined up before dawn in order to be among those allowed to pass through the weapons-screening device set up outside the cramped courtroom. The trial, said one lawyer-spectator, had all the elements of theater--"a script, actors, wardrobe, props." The trial should clear up at least some of the mysteries still shrouding Patty's 19 1/2 months with the Symbionese Liberation Army as Captive Patty and Comrade, willing or not, Tania Hearst. But unless and until Patty takes the stand, the overwhelming presence in the legal drama will not be the Hearst heiress herself but the man who will press her case in court: Boston Attorney F. (for Francis) Lee Bailey.

Bailey is nothing if not confident.

"The fact is it's not a difficult case," he told TIME Correspondent Joseph Boyce.

Perhaps. Patty, 21, is on trial for her part in the S.L.A.'s April 1974 robbery of $10,600 from a Hibernia Bank branch in San Francisco. In his effort to convict her of armed bank robbery--which carries a sentence of up to 25 years--Prosecutor James Browning, 42, plans to prove that she was there willingly. In response, Bailey will try to convince Patty's mostly middle-class jury of five men and seven women, only five with children of their own, that she took part in the holdup only because she had in effect been brainwashed by her S.L.A. captors during the twelve weeks since they had kidnaped her from the Berkeley apartment that she had shared with Steven Weed. If Bailey is successful, it will be the first time in the U.S. that a jury has ever been persuaded that a defendant did not have criminal intent because of having been brainwashed.

When the trial opened, the courtroom was jammed with 100 reporters in a box facing the jury, some 90 spectators and assorted attorneys, aides and badge-wearing U.S. marshals posted along the walls and aisles. Patty Hearst, wearing a beige pin-stripe pantsuit and salmon nail polish, sat near Bailey at the defense table.

Prosecutor Browning rose to make his opening statement.

In flat tones and almost metronomic cadences, he explained to the jury in minute detail how, among other things, they would be shown film of the bank robbery and hear witnesses who saw a gun-toting girl announce, "This is Tania Hearst." Browning also cited Patty's machine-gunning support of S.L.A. comrades four weeks later at a Los Angeles sporting goods store and a book manuscript prepared by Patty and Emily and William Harris, the only S.L.A. survivors, in which Patty allegedly wrote that she "began to feel sympathy" for the S.L.A. cause and eventually asked to join the group.

Then it was Bailey's turn. Wearing a charcoal gray suit, the banty, 5 ft. 7 3/4 in. ex-Marine flyer walked to the lectern, folded his arms, leaned toward the jury and, without glancing at his notes, delivered a calm, 30-minute summary of his case. There would be no denial that Patty was in the bank, he said, but he urged the jury to note that "perhaps for the first time in the history of bank robbery, a robber was directed to identify herself in the midst of the act." Patty, his argument ran, was a normal, marriage-bound college coed of 19 when she was kidnaped; her fragile teen-age will was broken during her first six to nine weeks with the S.L.A., during which she was kept in a closet and sexually abused by S.L.A.

Leader Donald ("Cinque") De Freeze.

Her captors were "crazy people" who were "decidedly serious that they could overthrow the United States of America through terrorist tactics." After she was frightened into submission, she also became convinced that the FBI would kill her if she tried to escape--a conviction, Bailey went on, that was only hardened by then Attorney General William Saxbe's remark that Patty should be regarded as "nothing but a common criminal." At the moment she was captured by FBI agents last September, Bailey continued, "her terror mounted to the point which is probably the highest a human being can stand, and she became incontinent." As they listened to Bailey's presentation, Patty's mother Catherine and sister Vicki, sitting next to Randolph Hearst in the first spectator bench, wept quietly.

The prosecution then began to present its film and witnesses. One of them was Bank Guard Edward Shea, 68, who testified that one of the women in the robbery pointed a gun at him and said, "The first person who puts up his head, I'll blow his motherf--ing head off." Then in the crossexamination, Bailey flashed a bit of the style that is his trademark. He asked the guard who it was who had threatened him.

Shea: Nobody threatened me.

Bailey: I thought someone said they were going to blow your motherf--ing head off.

Shea: I thought she said it to the general public.

Bailey asked that the film of the robbery be run so Shea could identify the woman who had snarled the threat. First, Shea pointed to Nancy Ling Perry; then, obviously confused, he pointed to the third girl in the robbery, Camilla Hall. When Shea mumbled a response to a later question, Bailey asked him what he had said.

Shea: Your voice is too low.

Bailey: Do you have a hearing problem?

Shea: Yes.

Bailey: Did you have a hearing problem the day of the robbery?

Shea: Yes.

It turned out that Shea's hearing problem was so bad that he had had ear surgery to treat it.

When his turn to present Patty's case comes, Bailey will have some surprises. One of them will be testimony from a convict who served with Cinque at Vacaville Prison; he will testify that the "Field Marshal" was an avid reader in prison of books on thought control. But the critical testimony in Bailey's case will be that of three defense psychiatrists, among them Yale Psychiatrist Robert Jay Lifton, an authority on wartime brainwashing of American prisoners of war. Bailey's experts have talked extensively with Patty and will testify that she was "broken" by her captors and could never have formed the criminal intent necessary to be convicted of a crime. It scarcely seems likely that the jury would find Bailey's brainwashing argument persuasive if they do not get to hear about Patty's experience in her own words. But, as the trial began last week, Bailey insisted that he had not yet decided whether he would put the pale, fragile-looking girl who is the central figure in his biggest case on the stand.

Perhaps she could not yet take the strain.

Making that critical choice--and readying her for the ordeal if she does testify--is what a top lawyer is paid for.

Randolph Hearst can afford any lawyer in the country, and after his daughter was captured on Sept. 18, he wrestled with the question: Whom to choose? Top trial lawyers are a highly strung, individualistic, often egomaniacal breed. While there are numerous sound, solid criminal attorneys--the Watergate trials abounded in them--the superstars with stage-center courtroom genius are few. Percy Foreman, 73, of Houston is, some colleagues say, a bit past his prime. Richard ("Racehorse") Haynes, 48, also of Houston, may assume Foreman's mantle some day, but most legal handicappers rate him as not yet at top stride. Hearst felt he had only two real choices, and he called the pre-eminent U.S. trial lawyer first.

Edward Bennett Williams of Washington, D.C., says he declined the case mostly because he was not sure he would have a free hand. That left Bailey. He is not an attorney for all seasons and all cases. "I wouldn't go near Bailey in a complicated commercial fraud case," says one lawyer who has worked for him.

Moreover, in the past few years he has been occupied with personal legal troubles. But ever since he burst to fame with the Sam Sheppard case in 1966, he has been superb for one particular kind of case. When the charges are spectacular and well publicized, when a confident prosecution force is pulling out all the stops, when most of the public thinks the defendant guilty, virtually every lawyer and court buff who have seen him in action agree that no one else can top F. Lee Bailey.

In every case Bailey takes, his offensive starts long before the trial. First he does his own "poor best" to counter official and leaked versions of the prosecution's case. Boston Prosecutor John Gaffney, who has faced Bailey in court several different times, explains that another aim is to "make the public--and presumably his potential jury--familiar with his planned defense so they will ultimately be more comfortable with it in court."

Soon after Bailey entered the Hearst case, he settled on his line of defense, and the girl who had listed her employment as "urban guerrilla" when she was arrested began to acquire a new look. Gone was the braless, T-shirted image; Patty took to appearing in court wearing a pantsuit and turtleneck, or a blouse with a flowing bow at the neck.

Bailey investigators went to work retracing Patty's 591-day trail from kidnap to capture. Says Harvard Law Professor Alan Dershowitz, who is helping with the Hearst legal strategy: "Bailey is virtually the only criminal lawyer I've met who has mastered the art of pretrial investigation." Once an investigator himself, Bailey has his team visit witnesses, get photographs, collect documents, visit locales of key events--all so they can "stuff my head with enough facts for when the action starts."

Also fond--some say overfond--of technical tools, Bailey asked experts to analyze the various tapes made by Patty as Tania for signs of stress. They produced nothing he could use.

Other experts have analyzed the bank robbery film for him--to determine, among other things, whether she was showing fear.

Finally, he has had specialists give Patty a polygraph test (a favorite Bailey device); the results, he says, support the claim that she believed herself always under threat. He will fight to have those results admitted at the trial.

On his feet in the courtroom, Bailey "is absolutely without peer," says Boston Lawyer Gerald Alch, a former Bailey associate. Says San Francisco Attorney James Brosnahan, who has faced Bailey in court: "He is quick, forceful, smart and knows where he is going and how to get there. He has the quality you find in brain surgeons. He concentrates completely on technique and doesn't get tied up in emotionalism." Adds Wall Street Lawyer Joseph McLaughlin: "He has a fantastic ability to adapt to his audience, whether it's a jury, a witness or the press."

Of all the trial arts, Bailey's greatest strength is crossexamination. Says Alch: "I can watch him cross-examine a witness, and he'll lose me. If I don't know where he is going, you can bet your life the witness doesn't." One typical example came in a 1968 trial in Boston in which an eyewitness identification was important to the prosecution's case. Defense Lawyer Bailey got the prosecution witness to mistakenly name a man in the courtroom as an investigator who had interviewed him. With the witness reeling but stubborn, Bailey then brought in another man and asked if he were the investigator.

Witness: No.

Bailey: That's not the man, is it?

Witness: No.

Bailey: And you are as certain of that as you are about the rest of your testimony?

Witness: Yes.

Bailey: I have just taken his identification card from his pocket and I invite you to read it and weep.

Bailey's team--longtime friend and associate J. Albert Johnson, 42, two associate lawyers and three or four private investigators--amassed large loose-leaf notebooks for the Hearst trial that total more than 500 pages. They are indexed by witness and cross-indexed by subject. The night before a witness is to appear, Bailey memorizes that section, then almost never uses notes.

All the information is vital for crossexamination, says Bailey, "because you will continually open doors and you'd better damn well know what's on the other side. This is the reason we waste so much time learning things we will never use. At least we will never be confronted by the unexpected."

F. Lee Bailey has always liked to know, almost viscerally, what he is talking about. At Harvard, where he was an undergraduate for two years (and thinking about becoming a writer), he assigned himself a short story on what it feels like to commit suicide by running a car engine in a closed garage. So he decided to find out for himself, drove his car into his garage, closed the door and waited. He discovered that a would-be exhaust-suicide gets sick to his stomach--at which point Bailey hastily halted his experiment.

The same answer might have been somewhere in a book, but the young Bailey was much too impatient to fumble around for it in a library. He was, in fact, an indifferent student, despite a 172 I.Q. (according to an application to MENSA, the New York-based genius club). Recalls his younger (by seven years) brother Bill, also a lawyer: Lee was known around their home town of Waltham, Mass., less as a brain than as "the kid who would do something when everybody else would chicken out."

One early escapade was a lengthy "safari" around a neighbor's farm in a 1932 Chrysler he had bought for $50. Bailey gleefully knocked over trees, bulldozed bushes and savagely tore up the soft turf; for years afterward he talked about the special joy he had had "bulling through the elephant grass." Restless, obstreperous intelligence runs in his family. One grandfather liked to sit in a dark closet playing chess over the telephone without a board in front of him. Bailey's mother founded and ran a successful children's nursery, while his father, a newspaper ad salesman, had trouble holding jobs because he could not refrain from telling his employers how to run their businesses.

The couple separated when Lee was ten. The boy was badly hurt. He and his mother eventually began to feud, so she sent him away at 13 to a remote New Hampshire prep school, Cardigan Mountain. There Bailey pursued such enthusiasms as writing, oratory, carpentry and a bruising brand of hockey. His headmaster worried that "Lee is far too much a law unto himself."

But Bailey has told his biographer, Les Whitten, that during his first year away from home, "I was probably as happy as I have ever been."

In 1952, when he was in his sophomore year at Harvard, Bailey became bored with academe and joined the Navy. He just missed the Korean War, but found two permanent passions: flying and the law, which he considers integrally related. "If I ran a school for criminal lawyers," he wrote in his 1971 book The Defense Never Rests, "I would teach them all to fly. I would send them up when the weather was rough, when the planes were in tough shape, when the birds were walking. The ones who survived would understand the meaning of 'alone.' " Bailey had transferred to the Marines to do his jet flight duty, and wound up, by a felicitous military fluke, as his squadron's chief legal officer. He spent the last 17 months of his Marine hitch prosecuting, defending, judging or investigating military cases. On the side, he apprenticed with a civilian lawyer, a fact that helped him to talk his way into Boston University Law School after his discharge, even though he had not finished college.

Bailey graduated first in his class, despite spending much of his time watching actual trials and running a successful investigative firm servicing local lawyers. During classes he often read in apparent boredom; when his professors tried to tag him with sudden questions, he would smugly answer in minute detail, then go back to his reading. His worst grade, ironically, was on a criminal law exam--but only because he is plagued with a bad case of lefthanders' handwriting and could not finish all his answers. After that debacle, he was permitted to bring a typewriter to all his exams; even today he writes only his signature and types everything else.

Bailey's only worry about entering criminal law was that there would not be much money in it, and he did not strike it rich immediately. But he did the next best thing: he became almost instantly famous.

When he got his law degree in 1960, the headlines in Massachusetts were filled with the case of George Edgerly, a Lowell auto mechanic accused of murdering his wife and then chopping up her body. By mistake, Edgerly's ailing defense attorney had agreed to the admission of a polygraph test that an expert claimed proved Edgerly's guilt. The lawyer desperately looked around for anyone who knew enough about relatively new techniques to cross-examine the supposed expert. Bailey happened to be studying polygraphs for another client's defense. Barely three months after his admission to the bar, he got what he called "a slice of the moon." He tore apart the expert's credentials and testimony, then took over presentation of all the defense evidence and won. It was his first time in court.

A year later, a reporter asked Bailey if he would supervise a lie detector test for Cleveland Doctor Sam Sheppard, who had already been convicted of murdering his wife. Bailey agreed. To get permission for the test, Bailey mounted what became the first of his now familiar pretrial publicity campaigns. Appearing on a TV talk show, he used a lie detector to uncover the most burning secret of the day: that Johnny Carson would be Jack Paar's replacement on nighttime TV. The tactic did more for his ego than his client. The ploy hardened official resistance, and a state court declined to order the polygraph.

Undaunted, Bailey came back with a new challenge to the conviction in federal court. His argument this time was that the judge at Sheppard's original trial seven years before had failed to insulate the jury from an anti-Sheppard newspaper campaign by changing the venue, sequestering the jurors, or at least ordering them not to read press accounts. The U.S. Supreme Court, in a landmark 8-to-1 decision, agreed with Bailey, then 32, and ordered Sheppard freed or retried. At the new trial in 1966, Bailey easily won an acquittal for Sheppard.

Before long, Bailey's client list read like a Who's Who of the accused in the sensational crimes of the 1960s:

P: Anesthesiologist Carl Coppolino, acquitted of killing his lover's husband, but later convicted, despite another Bailey defense effort, of murdering his wife.

P: Albert DeSalvo, the apparent Boston strangler, convicted of robbery and various other offenses but not of the killings.

P: Four alleged plotters in Massachusetts' $1.5 million "Great Plymouth Mail Robbery," all acquitted.

P: Captain Ernest Medina, acquitted of Army charges that he ordered and participated in the My Lai massacre.

Many of Bailey's 1960s clients could pay him little or nothing. But, as he candidly concedes, their cases brought him other clients with substantial bank accounts. Bailey's fees are not as fat as some reports have suggested. In fact, his associates complain that the give-no-quarter Boston attorney gets embarrassed when it comes time to talk money with a client, so they usually do it for him. Bailey's firm has never charged a criminal defendant more than $200,000. One source close to the defense says the bill for the Hearst defense may not climb much beyond $100,000 in fees, $75,000 more in expenses.

During his halcyon years, Bailey's annual income was clearly healthy though--enough to satisfy his addiction to flight and gadgetry with such items as a twin-engine Turbo Commander turboprop and a Beechcraft. He also keeps a helicopter, built by his own company (Enstrom Corp. of Michigan), on his 78 1/2-acre spread in Marshfield, Mass., 30 miles south of Boston. His 17-room house there is equipped with indoor and outdoor swimming pools and nearly every form of 20th century electronic communication short of his own hot line to Moscow. The gray-carpeted lair in his office in Boston, which he rarely visits, is known throughout Boston legal circles as the "throne room."

There are three steps at the entrance; a panel of Klieg lights is mounted above the master's desk for press conferences.

For all of his early success, Bailey has been having a hard time in recent years. In fact, the Hearst case represents something of a comeback try for him, and he needs a convincing victory in Judge Carter's courtroom almost as badly as do Patty and the Hearsts. His problems have been a result of the same zeal that brought him his triumphs. In 1968, Bailey angrily wrote the New Jersey Governor charging that a murder prosecution of a Bailey client would be based knowingly on perjured testimony, then carelessly distributed the letter so widely that it swiftly leaked to the press. Though the client was eventually acquitted, Bailey was suspended from practice in New Jersey for a year and censured by the Massachusetts Bar. He also overextended himself, writing--and vigorously promoting--two bestsellers, hosting a TV interview show, and serving as nominal publisher of Gallery, a copy-kitten rip-off of Playboy. He even made plans to play himself in a movie, The Sam Sheppard Story. Suddenly, things began to sour. The movie never got off the ground, the TV show was canceled and he left Gallery. His helicopter company was slow to lift off (it only recently began to make money), and an airport he bought near his home was on its way to losing $200,000. Most serious, he was charged with fraud in two of his outside enterprises. One case was soon dropped, but the other charge nearly dropped Bailey.

He had become an admirer of Glenn Turner, the Koscot cosmetics huckster from Florida, and became his lawyer and adviser. The Government charged Bailey also made speeches endorsing investments in Turner's franchises. When the law came down on Turner for conspiracy to defraud investors, Bailey was indicted too. The evidence against Bailey was thin, but he had to abandon virtually everything else and spend $350,000 and two years fighting the charges, which were eventually dropped after an eight-month trial in Florida ended in a hung jury in 1974. Although Associate Johnson kept the Boston office open, the Bailey firm all but withered away; new business fell by 80%, and young associates left to find other jobs.

Bailey's firm has come back since the Turner charges were dropped and is now operating in the black. His colleagues insist that he has mellowed somewhat since the Florida battle--and his subsequent marriage to his third wife Lynda, 28. He and British-born Lynda, a stewardess supervisor, met at a restaurant in Detroit, where Bailey was trying a case. When he first saw her she was sitting at a table with one of his associates reading a paperback novel. Bailey walked up to the table and grumped, "Forget that trash and read something worthwhile." He threw down a copy of The Defense Never Rests. As Lynda tells it: "I had never before heard of Lee Bailey. I called him a proper cocky bastard. He fired back a comment and we got into a little battle."

But she stayed for dinner and the next day went to watch Bailey perform in court. Three days later Bailey proposed. Lynda, then engaged to marry someone else (the invitations were already out) promptly accepted.

He remains on good terms with his two former wives. When the eldest of his three sons was married last summer, all the Bailey women showed up and cheerfully posed with Lee for a group snapshot, each of them holding up one, two or three fingers to indicate their sequence in the This Was Bailey's Life marital tableau. He is a lavish Christmas gift-giver, distributing houses, cars, a house trailer and trips to his parents, wife, ex-wives, in-laws and children. But he sees few of them regularly--except for Lynda, who travels almost everywhere with him and sometimes serves as his personal secretary.

There is, however, one other group of people that he is close to, at least for the run of their cases: his clients. "He gets too close to his clients," complains a colleague. There is a big-brother tone of genuine concern when he talks about the infamous men he has defended. On the other hand, once a trial is over, Bailey is characteristically the first man out of the courtroom.

"What makes me run?" Bailey has written. "I burn, dammit, that's why. I like to run." It is the same with flying. Bailey almost never delays a flight in his own aircraft. "It goes no matter what," and the "what" may be rain, snow, ice, fog, turbulence, thunderstorm or some combination thereof. One white-knuckled regular on these flights reports that Bailey invariably ends the hairiest trips by chortling: "Well, we've defeated the grim reaper once again."

It is that intense drive that stirs the most important and complex question about Bailey. Does his kind of all-out advocacy represent a strength or a weakness in the U.S. judicial system?

Bailey has no betters at his specialty of defending those accused of heinous crime; perhaps he has no equals. But there are now many more lawyers in the criminal field than ever before because of Supreme Court decisions that dramatically expanded the right to counsel. And, taking advantage of the expanded rights of defendants, the criminal lawyers are swamping courts with every motion and maneuver conceivable--thereby increasing already heavy administrative pressures to plea bargain.

To many, change seems inevitable. Columbia Law Professor Abraham Sofaer believes that the increase of plea bargaining, no-fault insurance, smaller juries and non-unanimous verdicts are all signs of an erosion of "classical notions of Anglo-Saxon justice." Chief Justice Warren Burger seeks higher educational and other standards for those admitted to the trial bar in the hope of eliminating frivolous, time-consuming contentiousness. New York Federal Judge Marvin E. Frankel points to a much deeper problem in the procedural games that adversary attorneys play. Because they often use the rules to trample the truth, Frankel has gently proposed thinking about such startling changes as requiring attorneys to disclose anything they learn from a client that clearly bears on his guilt, encouraging judges to call their own witnesses and requiring the defendant to face a judge's questions in front of the jury--which could then draw conclusions if he exercised his Fifth Amendment privilege to remain silent.

Frankel has an ally, in spirit at least, in none other than F. Lee Bailey. While he might not endorse all of the specific Frankel propositions, Bailey is a longtime critic of the system he knows how to use so well. "We've got to start putting the emphasis on justice rather than game-playing," he says. One pet Bailey prescription is the use of a lie detector on anyone vital to a trial. Courts continue to be reluctant right up to and including the Hearst trial to admit polygraph results as evidence, because they believe their reliability has not been proved. But, Bailey says, police already commonly use polygraphs in their investigations and "will almost never prosecute a man cleared by their own test. And in the military, the polygraph is considered conclusive." Bailey believes that the real judicial resistance to the polygraph is an instinctive fear of trial by machine, which would also change much of the established ways of proceeding.

Such far-reaching changes are not going to happen in time to affect the present task in hand for Bailey--unless he manages to win the admission of Patty's polygraph results despite prosecution objections. For the most part, though, Bailey will have to go with and at the system as it is. Whatever his critics' or opponents' reactions may be, Bailey is sure to enjoy himself. He always does. Last week as the men and women of the jury first took their seats, Bailey's large, seamed face eased into a grin.

He was home again, back on center stage to do what he does best. He was ready to pounce, to soothe, to explain, to cajole, to denounce, to plan, to think. Ready to fly.

This file is automatically generated by a robot program, so viewer discretion is required.