F. Lee Bailey was for many years a renowned criminal-defense attorney who represented clients such as the Boston Strangler, Patty Hearst and O.J. Simpson. Whenever there is a high-profile, politically charged criminal case — like the current cases against the Baltimore police in the Freddie Gray incident — I think of a chapter in Bailey’s book “For The Defense.” In that chapter, Bailey recounts the case of Ernest Medina, who was charged with murder for the My Lai massacres during the Vietnam War. Bailey believed that the prosecution case against Medina was weak (Medina was eventually acquitted), but he recognized the value of a public trial to calm the public furor. Bailey wrote as follows:
“And although I firmly believe that unless a strong pretrial case is made out a trial should not ensue, because of the tragic consequences that attach to any trial proceedings, there are rare and unusual circumstances where perhaps it is best that a trial be had in the public view, so that the result can be laid to some impartial body like a jury, instead of to bureaucratic or other manipulations.”
Bailey’s chapter on the Medina case has a superb explanation of the differences between civilian criminal courts and military courts. Bailey was a Marine lawyer for a few years, and he viewed military courts as much superior to civilian courts. He said that military jurors don’t fall for the emotional appeals that often mar the judgments of civilian jurors. He wrote: “… if I were innocent, I would far prefer to stand trial before a military tribunal … than by any court, state or federal.” He also wrote: “… the greatest single attribute of the military system is its painstakingly careful pretrial screening procedure — which does, in fact, eliminate most innocent men from ever going to a full-fledged court-martial.” In other words, no weak evidence indictments of “ham sandwiches,” show trials or grandstanding prosecutors — the accused have greater protections in the military justice system than in the civilian system.
I once mentioned Bailey’s ideas to an older attorney friend, who then noted a lecture he had attended during law school given by the radical left-wing lawyer William Kunstler. Quite counterintuitively, Kunstler also said that he regarded military courts as superior to their civilian counterparts, for the same reasons that Bailey did.
I hadn’t read that chapter in “For The Defense” for 40 years until recently — it’s quite remarkable and worth pondering as the Baltimore cases proceed.
John R. Webster, of Plymouth, is a consultant.