Photo and story by Ashley Perham / Contributing Writer
F. Lee Bailey, a lawyer known for his defense of O. J. Simpson and work in other high-profile cases, spoke at MTSU in the Honors Building on Wednesday. Bailey discussed the hearings of Supreme Court Justice Brett Kavanaugh, how to be a good lawyer and his experiences in the courtroom.
Bailey started by talking about his future plans for a book on cross-examination and establishing a school at Duquesne University for trial lawyers. He called cross-examination the backbone of the trial.
“Cross-examination in the United States is not generally, particularly good,” Bailey said.
He then mentioned that one of the best cross-examiners in the United States, James Neal, came from Nashville. Neal was the chief Watergate prosecutor under Archibald Cox, and Bailey’s “first choice” for a lawyer when he needed one.
Bailey then shared some of his expertise about polygraphs. He said that not passing a polygraph does not necessarily mean that someone lied.
“It tells us whether you believe what you said or whether you have withheld something you think significant,” he said. “That’s all it can do.”
Bailey said many things can cause deception to be indicated on a test, such as if the subject thinks someone else committed the crime.
“In any he-said-she-said case, it can be an extremely valuable instrument because it is unlikely that both will pass, although it’s possible,” Bailey said. “If we can’t sort out what they thought … we can sort out whether certain things happened.”
Bailey then started on the main topic of the day, the confirmation hearings for Kavanaugh. Bailey said he watched every single moment of the hearings. The American Polygraph Association – of which Bailey is a member – was concerned with evidence of a fraudulent test that Christine Blasey Ford had taken.
Bailey said that the charts Ford’s polygraph test produced were “pretty clean.” He also said that polygraphs can work even when testing statements on events that happened long ago. He explained that Ford’s polygraph test was a statement test. In statement tests, witnesses are tested on whether a statement is true or if the witness made anything up.
Bailey said that Ford could have remembered the event, but her testimony could have had distortions and exaggerations that are “perfectly sincere.” He then discussed that when he was young, girls would resist intimacy, but it was understood that guys could push the girl.
“In my view, any of that is a stupid way to go,” Bailey said. “If you really would like to secure the personal attention of a lady and you just treat her like a queen and be very, very nice to her, she’ll either come round or she won’t. And if she doesn’t, don’t push it because the #MeToo group will suffocate you overnight.”
He continued on the theme of how women should be treated.
“Women have been pushed around seriously for far too long,” he continued. “Guys who would like to be more forward than they should are becoming afraid to do so, and they should be. That is simply a segment of our social interaction we could well do without.”
Bailey then discussed that Kavanaugh had two choices from a defense point of view. He could admit they “rolled around a bit” and that it was “not very serious conduct.” The risk to saying that the conduct was not serious was that women could be convinced it was really too serious. The other option was denying he was there.
“There is no better defense in all of the world of accusation, criminal law and outside than an alibi,” he said. “Everybody’s got to be somewhere.”
Bailey said that some fear the packing of the court with conservatives. He pointed out that everyone President Donald Trump nominated would be conservative. He also said that Kavanaugh deserves “every chance” to show that he can serve his country conscientiously and consistent with his own views.
“America is usually pretty good at giving someone a chance to perform before undermining them,” he said.
He said there was a sad aspect of the whole proceeding.
“I believe it rubbed luster from the American Senate,” he said.
In talking about the testimony of Ford and Kavanaugh, Bailey said that Ford was an excellent witness.
“I would be glad to have her in any case on any issue,” he said.
He said that Ford believed every word she was saying. On the other hand, he said that Kavanaugh let his temper get loose but that he was under tremendous pressure and still a “human being.”
He said that Kavanaugh’s speech attacking the Clintons and other Democrats had “rubbed luster” from the process and history of Supreme Court confirmation hearings. He said that some of his responses to questions would have caused him to be scolded by a judge.
Bailey said that he did not think there would be far-reaching, serious consequences as a result of this appointment.
“America has the attention span of a four year old,” he said. “They will forget and go on to something else.”
Bailey explained that it is unlikely that Roe v. Wade, the landmark Supreme Court case in which it was ruled that a women’s right to privacy extended to a decision to have an abortion, will be reversed. He said that the worst that could happen would be that the states could choose if abortions were legal. However, he said this scenario is unlikely.
Bailey concluded his lecture by naming the most important lesson he wanted to give: Do not lie. He said that the discipline of not lying lets one sleep better at night because there are no skeletons in the closet.
“Lying, lying, lying is the bane of human conduct,” Bailey said.
Afterward, Bailey took questions from the audience.
When asked about the credibility of Ford’s testimony due to the contradictory witnesses, he said that the credibility of a witness can stand alone, with or without other credible witnesses. He said the credibility is shown through such factors as responsive answers, cutting answers short, not fidgeting and making good eye contact.
“If you’re a good person, you’ll be a good witness,” he said.
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