The Plodder Scores Off the Idol

F. Lee Bailey may be the matinee idol of Patty Hearst's trial, outthinking, outtalking and very often outclassing U.S. Attorney James L. Browning Jr. But for all his forensic skills, the famed defense attorney has consistently lost important legal disputes to the plodding prosecutor. Last week Bailey once again suffered more defeats than he scored victories as Patty's case moved into its final stages.

The legal sparring began with a clash between defense and prosecution over whether Judge Oliver J. Carter should allow the jury to hear the testimony of Margaret Singer, a Berkeley psychologist who is an expert at analyzing speech patterns. Bailey wanted Singer to tell the jury that Patty had been reciting her captors' words when she recorded some of her startling messages on tapes that were sent back from the underground world of the Symbionese Liberation Army. Browning, in turn, argued that Singer's kind of testimony should not be heard because of a lack of both legal precedent and "sufficient scientific reliability."

Simple Sentences. To help make up his mind, Judge Carter excused the jury and heard Singer describe the conclusions that she had reached after spending some 24 hours speaking with and testing Patty, as well as examining her letters, school papers and a tape made prior to her kidnaping. The defendant, the witness noted, had a tendency to speak in simple declarative sentences and in the present tense. Singer said that Patty's first taped communiques ("Mom, Dad, I'm O.K.") seemed to be in her own words. But the psychologist felt that Patty had not composed the belligerent "Tania tapes," in which Patty ridiculed her parents and Fiance Steven Weed, declared that she had willingly taken part in the robbery of the Hibernia Bank branch in San Francisco and declared herself a revolutionary ("I have chosen to stay and fight"). After studying S.L.A. tapes and writings, Singer decided that these particular messages were probably read by Patty from scripts prepared by Angela Atwood, an S.L.A. ideologue fond of bombast and complex phrasing, who was killed in the fiery Los Angeles Shootout on May 17,1974.

The eulogistic message sent by Tania after the holocaust sounded to Singer--because of its phrasing--as though it had been composed by Emily Harris. Singer also said that Emily and her husband William Harris had concocted portions of the "Tania interview," a lengthy question-and-answer manuscript that the trio had been preparing for use in a book about the S.L.A. During the interview, Patty called her parents "rich pigs" and told how, far from being forced to join the S.L.A., she had actually had to persuade some of the terrorists to accept her. ("After only a couple of weeks I started to feel sympathetic with the S.L.A.")

When Singer finished, Judge Carter agreed with Browning that she should not be allowed to relate her findings to the jury. Said he: "This is a field which has never been accepted before as a subject on which expert testimony can be given."

Carter later ruled in Browning's favor on another matter: a defense demand that Patty's case be dismissed because the Government had withheld evidence that might help show the defendant's innocence of the charges against her. At issue were the photographs taken by the Hibernia Bank's security cameras, which clearly showed Patty taking part in the robbery. The defense claimed that the prosecution's reproductions of the pictures left out S.L.A. Member Camilla Hall, who, Patty's lawyers argued, was pointing her carbine at the defendant. Vernon Kipping, the FBI expert who made a movie out of the pictures, testified that the exclusion was "inadvertent." He added that Hall did not seem to be covering Patty but was aiming her gun at the teller's windows. New photographs, including Hall, were shown to the jury, but Judge Carter denied the defense's plea to dismiss the indictments.

Surprise Witness. With that, Bailey rested the defense of Patty Hearst, and Browning returned to the attack in his rebuttal. The prosecutor introduced a surprise witness: Zigurd Berzins, 32, an electronics technician and operator of the "Tweeter's n Woofer" stereo shop .in San Francisco. Berzins said that he had been entering the Hibernia Bank on the morning of April 15, 1974, when he heard a "metallic" noise behind him. Turning, he saw a woman, armed with an M-l carbine, kneeling on the pavement to pick up two ammunition clips and one or two cartridges. Seconds later, said Berzins, he was ordered by another woman robber to lie on the floor of the bank and never did get a good look at the person who dropped the bullets. By his own accounts, Berzins was so shaken by the incident that at one time he told the FBI the person was Patricia Soltysik and at another Nancy Ling Perry--both members of the S.L.A. It was when he saw Patty's picture in the newspapers, Berzins said, that he decided she had been the fumble-fingered bandit.

Berzins' testimony was important because it attacked Patty's credibility, upon which her entire case depends. She had told the jury that when she entered the bank she was not carrying any live rounds other than those that might have been in her gun.

In his crossexamination, Bailey tried to impugn Berzins, wondering sarcastically how the witness could even have been sure that the person who dropped and retrieved the ammunition had been female.

Berzins said he was struck by the hands and the length of the person's hair.

Asked Bailey quickly: 'Then long hair is a clue?"

"Yes, sir."

"How long have you been in San Francisco?" asked Bailey.

There was a wave of derisive laughter from the packed courtroom, and someone shouted: "Right on!"

"You didn't see any breasts poking around the coat, did you?" asked the defense attorney.

Replied Berzins: "I wasn't looking at the breasts."

Bailey wondered why Berzins had initially misidentified the person to the FBI. At first, said Berzins, he had been nervous, but "after I had some repose, then you get the final statement."

Bailey paused dramatically, then said quietly but with seething disgust: "Yeah."

Later, Bailey fought hard to prevent the prosecution from entering into evidence any of the 1,000 or so documents, notebooks and papers, including the Tania interview, that had been seized in the Harrises' apartment when they were arrested last Sept. 18. Bailey based his objection on a ruling the day before by Los Angeles Superior Court Judge Mark Brandler, who held that material taken from the apartment could not be used in the forthcoming state trial of the Harrises because it had been seized by FBI agents who had not obtained the necessary search warrant.* Browning wanted to show the jury some of these materials, which covered the year before Patty was arrested, on the grounds that they indicated that she had actively cooperated with the S.L.A. in "casing banks" instead of having been, as she claimed, an unwilling captive of the terrorist band.

Laundry List. After considering the matter, Carter issued a Solomonic decision that gave the larger share to Browning. The fact that the Harrises' rights might have been violated by the FBI's actions had no bearing on Patty's case, Carter said, because she had no "proprietary or possessory interest" in the apartment. Indeed, he pointed out, the defendant had testified that she had never even visited the place.

Then Carter admitted into evidence a dozen pieces of evidence that the prosecutor had especially wanted to get before the jury. When asked by Browning about some of the items earlier in the trial, Patty had repeatedly cited her Fifth Amendment rights against selfincrimination 42 times in all, leaving some members of the jury visibly startled. The new material included notes in Patty's handwriting, so stipulated by Bailey, that seemed to be cryptic references to making a time bomb: the "toaster wire: 10 sec; timing device w/fuse; clock (set to minutes) or cigarette (wire in fuse)." There were also more explicit and alarming comments: "place for 'switch' car to be (just in case); lookout signal; meet to talk about shooting."

Another exhibit, bearing Patty's fingerprints although not her handwriting, was a neatly typed outline that Browning characterized as "a laundry list" of how to rob a bank. The step-by-step tips cautioned that planning the getaway could be tricky: "The first plan for the route isn't always the best." The paper called for a "final dry run," and a last-minute check of "weapons, ammo, clothing, disguise." Typed on the left side of the document was a warning: "Expect the unexpected."

Carter said he would admit the manual because it did not refer to any specific operation. But he turned down Browning's efforts to enter another document on the grounds that it was much too specific. The disputed item was a rough diagram of the floor plan of a North Sacramento branch of the Bank of America. The single sheet of paper carried a handwritten note by Patty: "saw 7 employees: 5 women & 2 men (1 young & nervous. Manager is fat & Black)."

Although the bank was never robbed by the S.L.A., Judge Carter ruled that the document should be kept out of the trial because it could be prejudicial to Patty. He feared that it could start "ringing bells" in the minds of the jurors, reminding them of a bank robbery that did occur. Long before the jury was sequestered for Patty's trial, the press had reported that a grand jury was investigating her possible connection with the raid on the Crocker National Bank in Carmichael, a Sacramento suburb, on April 21, 1975. During the robbery, one woman was killed. Said Carter: "If you talk about banks in the Sacramento area, it seems to me it is raising the flag of the homicide question." And that, he felt, might unfairly harm Patty's case in the minds of the jurors.

Trying to show that Patty had not lived in constant fear of the Harrises, as she claimed, Browning put on the stand Ronald Furgerson, an FBI cryptology expert, who testified about a communications system used by the S.L.A. that was found in her handbag on the day of her arrest. The data, written in code on a card, gave the numbers of public telephones in the San Francisco area. A similar card was found on William Harris when he was arrested. Browning argued that the Harrises would never have given Patty such secrets unless they trusted her. The code was dismissed by Associate Defense Counsel Albert Johnson as "the kind that would be used by Captain Midnight," but it took Furgerson two weeks to crack.

Bitter Clash. Browning then called Dr. Joel Fort, a San Francisco practitioner in mental health. The prosecution hoped that he would offset the eminent defense psychiatrists, who supported Bailey's contention that Patty had been coerced by the S.L.A. into helping to rob the bank. An eye-catching figure with a shaved head, Fort clashed bitterly with Bailey; at one point, the two accused each other of lying. Fort testified that he had interviewed Patty for 15 hours, studied documents on the case for some 300 hours, and even spent an hour in one of the closets where the defendant was kept. Browning then asked Fort his views on the key question of the trial: "Did the defendant participate in the bank robbery because she was in fear of her life or grave bodily injury from the S.L.A.?"

"No," replied Fort, and Bailey leaped to his feet, objecting strenuously that the witness was trying to give the jurors his opinion on "the ultimate issue of this case."

Judge Carter said he would consider Bailey's point over the weekend, and shortly afterward recessed the trial. This week the prosecution is scheduled to call Dr. Harry Kozol, a Massachusetts psychiatrist, to back up its claims that Patty was not a terrified captive of the S.L.A. Some time late this week, the seven women and five men in the jury are expected to get the case and settle down to decide whether Patty Hearst was a prisoner of the S.L.A. on the morning of the robbery--or is lying today.

* The Harrises are accused of kidnaping, armed robbery and assault with a deadly weapon--all charges stemming from events that began with a shoplifting melee at Mel's Sporting Goods store near Los Angeles on May 16, 1974. Patty is charged with the same crimes.

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