Portland Observer Why Bailey lost a winable case by Clark Norton SAN FR A N C IS C O , (PNS) A few day» before the guilty verdict that left him atunned, F. Lee Bailey confided to a reporter that he might be better off loaing the Heam t rase. "If I win, every rrgrkpot criminal in the country will think I can get him off," Railey said. " If I lose, at leant other lawyers will know I did a good job.” Hut Bailey wasn't playing to a panel of lawyers; his job was to convince a jury of laymen. la w y e rs may debate the legal merits of the rase, but to this courtroom observer a layman like the jury members Bailey lost a rase he should have won. Patricia Hearst's overriding claim for acquittal was that she was a kidnap victim. She was charged solely with voluntarily participating in an armed bank robbery just two months after her brutal, terrorizing abduction; she had been out of her closet prison only two weeks. The government's evidence concerning the bank robbery alone was inconclusive. Hailey should never have let the ju ry lose sight of those basic premises. Yet Hearst was convicted, not for the bank robbery itself, as the comments of the jurors themselves attest, but for her subsequent seventeen months as a fugi tive. Proof of her intent prior to and during the robbery was not conclusive. Bather the government won its case on Hearst's activities after the robbery which the defense tried to answer with a convoluted theory of fear and “brain washing." Bailey did fight hard to keep such es post factor evidence out of the trial. But in a go for broke hearing out of the jury's presence he may have made a fatal error. Bailey put Hearst on the stand to try to convince Judge Oliver C arter that her post bank robbery actions were involun larily coerced and thus legally in admissable as evidence. But Carter didn't buy her story. Once Carter allowed the I xm Angeles evidence, Bailey felt compelled to put Hearst on the stand before the ju ry to counter the damaging testimony that she had shot up Mel's Sporting Goods Store. Having told Judge Carter in the hearing that she had acted solely from fear during her seventeen months as a fugitive, she had to stick with that story. By railing his client to testify, Bailey opened 'jp even more damaging territory to prosecution questions. One searing result was that Bailey had to advise his client to take the Fifth Amendment 42 times, against the judge's orders, to avoid incriminating herself for alleged crimes in Sacramento. And the same story that had failed to convince Judge C arter ultimately proved to be, in Prosecutor James L. Browning's words, “just too big a pill to swallow." Hearst's Extraordinary Tale Hearst asked the ju ry to believe she had robbed, fired weapons and kidnaped all out of fear of the SLA especially William and Emily Harris, to whom she ascribed almost mystical powers of con trol. H e a rs t's tes tim o n y le ft no m iddle ground. Everything she had written or spoken during her fugitive life, she claimed, had been influenced by fear of the Harrises. She kept loaded weapons in her apart ment because Bill Harris "might drop in and check up on me." She spoke of revolutionary feminism to best friend Trish Tobin after her arrest because she “thought Emily Harris was in the visiting room" (she wasn't). An autobiography she had w ritten on the lam was dictated to her by the Harrises, who forced her to reveal embarrassing inside gossip about her family. Had Bailey been able to lim it trial evidence to the hank robbery itself, Hearst's tale of duress might have held up. Bank photos were unclear on whether SLA guns were trained on her. Hut the legal concept of duress applies only to fear of immediate bodily injury or death, without chance of escape. Her later actions as a fugitive could not convincingly be explained that way. She had many apparent opportunities to escape; she was alone in a car when she sprayed the sporting goods store with bullets. HOW Syndrome Bailey found himself boxed in. Com m illed to Hearst's tale of duress, which left too many questions unanswered, he brought in three eminent psychiatrists to depict Hearst's fugitive life in terms of "coercive persuasion" and “thought re form" (popularly known as "brainwash ing"). casting the Harrises as villians. Hearst had now known why she acted as she did. the experts said. They compared her to American PO W ’s in the Korean W ar. But no matter how textbook perfect the psychiatrists' arguments, they were not enough to overcome the doubts raised by Hearst's own story. While not entirely at odds, Hearst’s tale of duress and the experts' tale of brainwashing weren't completely com­ plementary either: There are inherent contradictions between the two defenses. D uress signifies the subject fre e ly chooses to act because of fear; brain washing implies there is no free will. Instead of bolstering a clear, consistent defense version of events - centered on Hearst's own testimony and role as victim Hailey's experts actually mud died the issues. By bogging the trial down in a lengthy debate over Hearst's months as a fugitive, they shifted the jury's attention from the all important Hibernia bank robbery. Despite his problems. Bailey nonethe­ less may have been overconfident of victory. The press was raving about his courtroom skill; his opponent Browning was bumbling by comparison. On paper this looked like Hearst's easiest trial. Bailey indicated to the media he was already looking ahead to other trials, and may have overexposed his psychiatrists in order to lay the groundwork for Los Angeles, where the brainwashing de fense would be crucial. But Bailey had seriously miscalculated. His psychiatrists couldn't save Hearst from her own testimony. Prosecutor Browning was actually able to turn the concept of "reasonable doubt" into a government asset by asking the jury. Would you. as reasonable men and women, accept this story from anyone but Patricia Hearst? And if not, I ask you not to accept it from her." AU O r N o th in g Not only was Hearst's story hard to swallow, but she left the jury little room to sympathize with her if they dis believed it. She incriminated many of her former associates. She repudiated her previous avowals of love for slain SLA member W illie Wolfe by branding him a "Rapist" whom she “couldn’t stand." Yet at her arrest she still carried a Mexican figurine he had given her over a year before. Bailey’s requests for sympathy toward his client had a hollow ring of their own. His relentless cross examination of w it­ nesses though technically brilliant - may have alienated more than dazzled the jury. Bailey left a 68-year old bank guard literally shaking on the stand; opened his questioning of one middle aged man by eliciting the news that he still lived with his mother; and poked fun at homo­ sexuals. “Have you been down to Polk Street lately?" (a local gay hangout) Bailev asked one witness when the man jury. Instead, standing ey“ to eye with the jury, he delivered a bombastic and condescending lecture on their obligation to find his client not guilty. Rather than emphasize Hearst's brutal kidnaping as he had done so effectively in his opening statement Bailey chose to depict her as one who would do anything to survive. “People eat other people to survive," Bailey told the jury. The remark made Hearst seem more cannibal than victim and buttressed the view that she would among other things lie to survive. No one can say for certain whether the jury would have been swayed by another defense. But one thing is clear: Bailey should never have put Patricia Hearst on the stand if she couldn't tell a credible story. A consistent defense emphasizing her terror at the time of the kidnaping, and for weeks afterward, could have provided a good ease for diminished re sp o n s ib ility for her la te r actions. Hearst would have had to blame herself more and others less, but she would more likely have evoked sympathy from the jury. * And she would at least have retained her dignity. Instead - whatever crimes she may have committed between her kidnaping and arrest - Patricia Hearst remained as much a victim in court as she did at her abduction. H er identity had twice been snatched away and remolded: first by the SLA Thursday, April 1, 1976 kidnapers, who transformed her from college student to hostage and fugitive; then by F. L m Bailey, who turned her from the confident feminist of the Tobin tape into a quiet wisp of a woman without identity, friends or freedom. To the public, she is a criminal; to her former radical associates, a snitch. A t age 22. she has nothing left of herself. This most of all makes her a tragic figure. (E D IT O R ’S NOTE: Clark Norton, a PNS | Pacific News Service) editor, co­ vered the Patricia Hearst trial for “Roll ing Stone" magsrine and an upcoming book on the Hearst saga to be published by Bantam. I CATALOG OVERSTOCK SALE Wards Bargain Centers SPRING CLEARANCE 3 3 % -8 6 % o ff Special value LUXURIOUS WOOLEN ORIENTAL AREA RUGS 4 fi97 said he could tell males from females. But Bailey reserved his most scathing attacks for the prosecution psychiatrists. Rather than questioning the substance of their testimony, he unleashed vitriolic character assaults on Drs. H a rry Kozol and Joel Fort, whom he called a “psycho­ path" and "habitual liar." Bailey was much harsher on Fort and Kozol than Browning ever was on Patricia Hearst - an irony the jury may well have noted. In the end, Bailey himself became an issue, allowing Hearst's role as victim to become obscured in his own flamboyant aura. In his growing fury, Bailey seemed ignorant of how to deal with a San Francisco Bay Area jury. By branding all radicals as "crazies” and Terrorists, by ridiculing homosexuals, by criticizing Dr. F o rt’s individualistic brand of psychiatry, Bailey betrayed himself as a rude out-of- towner in this most tolerant of American cities. 4 x6’SIZE At REG. 59.88 Authentic reproductions of treasured designs, woven in Belgium of pure, durable worsted wool. Rich colors. 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A F D C , food stamps, school lunch, and public housing are totally at odds with his rhetoric about the rewards of work. Not only a re b en efits fo r m odest-incom e workers slashed almost across the board, but earnings more frequently would yield less income. This turns the work ethic on its head," stated Mitchell. In a Human Resources working paper, Mitchell released tables comparing taxes and benefits under current law and the President's proposed law. The paper reflects a comparison in Chicago. Detroit, and Seattle, showing that: • A working man with a wife and two children earning $6,000 little more than the updated property level -- would have $6,403 in total net income and benefits (food stamps and school lunch) under the P re sid en t's proposals, com pared to $5,886 under current law. • Under the President's proposals, a woman with three children in Chicago receiving AFDC . food stamps, and school lunches would have a total net income and benefits of only $5,061 if she earns $6,000. but 1300 more $5,304 - if she doesn't work at all. • Under current law. a Seattle mother of three earning $4,000 has a total net income and benefits (A F D C , food stamps, and school lunch) under current law of $6,954 compared to $5,703 under the President's proposals. • A fte r taxes and work expenses only, a working man with a wife and two children in D etroit grossing $6,000 a year has a net income of $4,815 under the President's proposals -- compared to $5,033 under current law. • If a working man in Chicago lives in public housing, gets supplementary food stamps, and his children participate in the school lunch program, a $1,000 raise to $6,000 increases his total net income and benefits by $74 under the President’s proposal - compared to $363 under current law. 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Scott, Assistant Admini­ strator for Africa, Agency for Inter national Development, told a House sub­ committee March 10th that A ID is considering a request from the In te r­ national Committee of the Red Cross for $6.4 million in additional funds to support an expanded relief effort in Angola over the next six months. Scott testified before the House In te r­ national Relations Subcommittee on In ­ ternational Resources, Food and Energy. A t the request of Chairman Charles C. Diggs. Jr. (D-Michigan), he submitted an A ID assessment of economic assistance needs in Angola following the cessation of hostilities in the civil war. "The main need in the short run," the Assistant Adm inistrator reported, “ia expected to be for humanitarian aasis tance for refugees and other war victims and for skilled personnel to re establish government services and economic life in the agricultural and industrial sectors." F urther assistance through the ICRC relief effort inaide the country or through the United Nationa High Commissioner for Refugees, which is working with the governments in neighboring countries to take care of refugees who fled the hostilities, "would, in fact, be a continua tion of our present policy," Scott told the Subcommittee. Since Ju ly 1976, when th e IC R C mounted an international disaster relief operation, the United States has provid­ ed $675,000 for disaster relief purposes in Angola. O f that amount, $600,000 was given to the ICRC, $50,000 to support other activities within the country by Church W orld Services, and $25,000 for emergency relief of w ar victims following the outbreak of fighting in Luanda last June. 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