IN MEMORY OF F. LEE BAILEY
(June 10, 1933 - June 3, 2021)

I was fascinated with his career, his swagger and combative style for as long as I can remember. How couldn’t I be? He dropped out of law school but yet still became a lawyer and among his first cases was the appeal, defense and acquittal of Dr. Sam Shepard, the doctor who was wrongly convicted of killing his wife whose story was the loose basis for the movie, The Fugitive. From early on, F. Lee Bailey, walked with a heavy foot leaving an impression in the legal system and society beyond. This last week, Bailey passed away at the age of 87. Despite a career that includes participation in some of the most important, notorious and high profile cases in the 20th Century, Bailey is still, in my opinion, not given his due. No case was too unpopular nor controversial for Bailey, who took on the defenses of the Boston Strangler, Sam Shepard, Curtis LeMay in the My Lai massacre, Patricia Hearst and OJ Simpson to name just a few.

I have no interest in litigating his strengths or weaknesses here. But I’ll just say that if he was on your side, he was as he was proud to say so and stay there forever. These are admirable qualities in any age but particularly so today. I write about him, in a eulogy of sorts, and I do so because many of the younger generations do not recognize his name or the shadow he cast as a young lawyer or in his career. They may know him from Simpson trial and the now well-known cross examination of the Mark Fuhrman. Few know much him about before that which is sad. Before social media, e.g., Tik ToK, Instagram, Facebook, etc. made self-promotion and advertising a thing, one had to earn the attention of the media, admiration and “following” of the public and respect of the general public. One had to actually do something – win cases, chart a new course, be innovative, etc. Bailey did all of that and was all of that. He was a household name not because of advertising or a marketing campaign but because he put himself front and center in controversy.

A few months before his passing, he graced me with an interview. I admit that I’m a bit of a legal nerd in the sense that I watch, read about and study trials. I watch TV shows about trials, read novels about trials and enjoy watching other practice the art/science that I have dedicated much of my adult life and so when Bailey agreed to be interviewed on the Killer Cross Examination Podcast, I was, I imagine, like a kid about to meet Joe Dimaggio of Yankee fame back in the day.

I could have talked with him for hours. He remembered facts from cases 40 years ago and beyond. He honestly appraised the cross examination of Mark Fuhrman, acknowledging that he got lucky when "the tapes" appeared. He admitted that his cross was planned to be a setup to create a logical contradiction in the minds of the jurors and to juxtapose Fuhrman's denials with the testimony of other witnesses who the defense planned on calling. He could have easily claimed that his cross of Fuhrman (when compared to the recordings) was intentional but he was too much of an artist to do so. When I mentioned his superb cross of Sgt. David Rossi, a textbook cross examination, he responded, "a true lawyer would know that" or something to that effect.

Near the end of my time with Bailey he eerily commented on his legacy and foreshadowed his passing. He paid me a high honor, "I can't tell describe a trial lawyer but I know one when I see one" and pointed at me. I can say the same, Lee - I don't know how to describe a trial lawyer but F. Lee Bailey, "you were surely that - a badass trial lawyer."

Rather than post a new podcast this week, we repost my interview with Bailey in his memory.

So long my friend.

John Marko, The $11,670,128.33 Dollar Man

Killer Cross Examination By Neil RockindSep 02, 2022