Steven H's Reviews > The Truth about the O.J. Simpson Trial: By the Architect of the Defense

BAILEY CONTINUES DEFENDING SIMPSON, AND MAGNIFYING HIMSELF

Francis Lee Bailey Jr. (1933-2021) was an American criminal defense attorney, who was involved in number of high-profile cases—most notably the O.J. Simpson case.

As far as containing ‘insights’ from a person involved in the Simpson trial, this book is far inferior to those by Johnnie Cochran, Marcia Clark, Christopher Darden, etc. Much of the earlier sections of the book contain Bailey’s ‘wisdom’ about every aspect of trials (thereby supposedly demonstrating that he knew far more than anyone else involved in the trial… except perhaps Johnnie Cochran). And the last parts of the book contain large verbatim quotations, with little or no commentary from Bailey. (Was he getting exhausted, by this point? He died in hospice care the year the book came out.)

Of course, the Simpson case is now more than 25 years past; Simpson lost the civil trial, and spent about ten years in prison for armed robbery and kidnapping. So why did Bailey write this book? Probably for money; he owed millions in back taxes, and he’d been disbarred in Florida and Massachusetts—and he was denied a law license in Maine, to where he’d moved, and started up a consulting practice. Anyway, let’s move on to the book itself.

In the first chapter, he states, “At the request of [Robert] Shapiro, I entered the O.J. Simpson case… two days after the homicides. I have frequently asked myself what I might have done differently in those earliest days had I joined the defense team as lead counsel, rather than as an adjunct… Most certainly, my investigators would have discovered much earlier that the lead detective in the case, Mark Fuhrman, filed a lawsuit years before that effectively labeled him as a racist, a liar, and a malingerer. A further inquiry would have upended a veritable cornucopia of impeachment materials, history has shown. But I wasn’t in a position to call the shots in the early days of the case.” (Pg. 3)

Upon hearing that Shapiro was “trying to get Simpson tested on the polygraph,” he says, “I was quite taken aback by this news… that he was attempting to subject O.J. to a polygraph examination two days after the murder of his ex-wife. One of the critical aspects of administering a reliable polygraph test is that it not be given to a surviving marriage partner hard on the heels of the traumatic loss of the spouse… the results are wild and inconclusive… Bob wanted to use the prestige of a polygraph test conducted by a former high ranking LAPD examiner… because he believed that if the results were favorable for Simpson, they could be used to slow the momentum of the detectives who were advocating Simpson’s arrest. Shapiro’s sense of urgency was justified in part because no one likes to give polygraphs in a jail facility… I asked to speak to the examiner [who] told me that the charts were wild and ragged, which is exactly what one should expect when testing a subject who was in an agitated state of mind. I strongly suggested that the test be terminated and that it be run another day somewhere down the road even though that retry might very well have to be in a Los Angeles County jail facility… Shapiro grabbed the paper charts which record the responses of the suspect and left the office building… I later saw the charts in Shapiro’s office… In my opinion, they were unreadable. When ordered to produce them in the later civil trial, Shapiro said he had destroyed them.” (Pg. 4-6)

He recalls that on June 18, “I got another call from Shapiro… he said, ‘it looks like they have Simpson’s blood everywhere, along with Nicole’s---and we don’t have a shot in this case, so please explore an insanity defense.’ What I didn’t then but would soon find out, this kind of unpredictable, uninformed, half-cocked behavior became Bob’s way as the case progressed… It developed, however, that the blood evidence that Shapiro claimed was ‘everywhere’ would prove to be all but meaningless.” (Pg. 7-8)

Of Simpson’s interview with detectives Vanatter and Lange, he comments, “From a defense point of view, it was flawless. Simpson was convincing in maintaining that he knew nothing about the crimes… At trial, this transcribed statement became a hot potato. The defense desperately wanted the jury to hear it because it showed a still-bewildered ex-husband whose answers… were completely nonincriminating… However, the statement was turned away by Judge Ito, who ruled that basically the account was fundamental hearsay.” (Pg. 48-49)

About moving the trial from “a sterile, all-white community” to downtown, he suggests, “I also suspect that [Vince] Garcetti knew his evidence was weak. The fact that any jury selected from downtown would be heavily minority and, presumably, anti-law enforcement, would give him a handy excuse should the case result in an acquittal.” (Pg. 67)

He records that he said to Shapiro, “I have heard a report about a contract you signed obligating me to try the case, a contract that pays you a million dollars for OUR services. Since you have received half of that already, I am wondering what part of it you have set aside as my share?’ Shapiro responded in a heartbeat, ‘You get nothing. You are a mere volunteer in this case.’” (Pg. 77)

He says of Simpson’s ‘If I Did It’ book, “the bizarre, fictionalized version of Simpson’s ‘hypothetical’ confession to the murders of Nicole Brown Simpson and Ronald Goldman. Although it was pulled from circulation almost immediately, and its editor fired, the book hurt Simpson badly in the public eye.” (Pg. 93)

He points out, “During and since the Simpson trial, there has been a pervasive claim by many that the ‘race card’ was unconsciously used, dealt from the bottom of the deck. To the extent that race became a major issue, the provocation rested entirely on the moral cavern brought to the table by Mark Fuhrman… By all accounts, Mark Fuhrman was a racist…But I did not feel that in the circumstances of this case, Simpson’s race was an important fact in the decision of Fuhrman to place himself at its center. After all, he had no way of knowing where Simpson was during that fateful evening or whether he might have had an unassailable alibi… I think his manipulation of the glove evidence was done for entirely different reasons: He was simply desperate to cling to some part of this hugely important murder case…” (Pg. 96-97)

He recounts, “I had the opportunity to cross-examine him. But I was hampered in my ability to put the screws to him… Judge Ito issued a ruling that was… a major blow to the defense. He stated that I could not… inquire about Fuhrman’s use of the ‘N-word’ going back more than ten years. By doing this, he neatly covered up the damning contents of the bizarre lawsuit that Fuhrman had filed … after being denied a disability pension… These findings relating to Fuhrman’s character would have been … the equivalent of tank-obliterating rockets, so blazingly did they spotlight Fuhrman’s scheming, severe psychiatric dependencies… Had these findings been presented to the jury in the form of questions to Fuhrman, he would have lost all credibility as a witness.” (Pg. 106-107)

After he asked Fuhrman whether he had used the ‘n-word’ in the past 10 years and Fuhrman denied it, he mused, “I felt that with that string of answers, Fuhrman had lied himself into a corner… Why Fuhrman, who is not a stupid man, had chosen to answer with such an absolute, all-encompassing denial still eludes me… Johnnie Cochran… put it down to Fuhrman’s arrogance. He was probably right… Before we reached the stage … where he could be recalled… He took the Fifth Amendment… Although the prosecutors were loath to admit it, their case was over, and they began desperately looking for a mistrial.” (Pg. 136, 139) He notes that the later ‘Fuhrman tapes’ “proved what we already knew about Mark Fuhrman… He was a vindictive viper---one whose head had just been lopped off by a guillotine of his own making.” (Pg. 143)

He notes, “Had a mistrial occurred, O.J. would have remained in jail. The trial costs had already become enormous, and there was not enough money to pay them out again.” (Pg. 152)

Of the blood evidence, he says, “we contended 1.5 cc of Simpson’s blood were missing. Where did that blood go?... OF the four drops found at Simpson’s estate, three were tested using the PCR method, which … is highly susceptible to contamination. We also argued these drops were inconclusive as Simpson had told police he had a minor cut after golfing that day. Therefore, his DNA in these places would be consistent… Detective Vannatter took Simpson’s reference blood sample… back to the Rockingham home… Why would a veteran detective return to a scene with evidence incriminating a suspect?... Of the blood evidence found, the Bronco appeared, on its surface, to be the most important to neutralize…. There was a trace amount of both Simpson’s and Nicole’s blood on the steering wheel… those blood samples found in the Bronco matched those of O.J., Nicole, AND Ron Goldman, which the jury had not heard before. This looked bad for O.J. because there was no way to explain how it got there other than criminally. But… We had already established … that there was a period of close to fifteen full minutes where Fuhrman roamed the Rockingham property unaccompanied… We also had a expert witness… prepared to testify that the blood stain … in the Bronco appeared consistent with a ‘smearing’ motion, a detail we felt indicated that the blood was placed there.” (Pg. 170-172) Later, he adds, “we felt there was enough murkiness surrounding the infamous sock, glove, and other evidence to raise more than just reasonable doubts in the minds of the jurors.” (Pg. 176)

After the ‘Not Guilty’ verdict, “I had no inkling at the time that a man acquitted of two murders by a jury of his peers would be held to such harsh public scrutiny… As for me, I was somewhat surprised at the vitriol heaped my way over my part in helping to dismember a racist cop, without whose perjured testimony, the trial would never have taken place. But… It comes with the job.” (Pg. 253)

Of Shapiro’s ‘race card’ comments, he states, “It had been his initial strategy to put the LAPD on trial from the moment he discovered…. Mark Fuhrman’s lawsuit… I suspect Bob’s change of heart was fueled by social fallout that he and his wife suffered within their wealthy circle of white friends and associates who felt uncomfortable with the verdict and the racial discussions it sparked at dinner parties.” (Pg. 256)

He concludes, “I wanted the Simpson case like I wanted chain of angina attacks. I had been burnt too often in California state courts… I saw the Simpson trial as an ugly experience about to happen. Further, I had never second chaired a major criminal trial before, and didn’t like the idea of committee decision… Had Shapiro remained as lead counsel, I would have snatched the reins from him early on… I had gotten myself into a lousy deal, but Johnnie Cochran’s leadership made the plight much more palatable.” (Pg. 275-276) He continues, “I cannot recall a case where a jury was so unfairly pummeled for simply doing its job and following instructions. And as a result, of course, the story has been told that Simpson got away with murder.” (Pg. 279)

This self-serving account will not make the now-deceased Bailey any money (his wives are also long-gone, and his 3 children are all middle-aged), and it reopens a lot of ‘old wounds’ for no particular purpose. He adds no new insights, and this book will mostly appeal only to those of us wanting to be ‘completists’ on the Simpson case.