by Susan Kelly
TROY: Well, do you know if he saw Albert peruse it? BAILEY: I don’t know what he saw. I would assume he saw what I saw.
TROY: Do you know whether or not he heard you explain the content of the document?
BAILEY: No, I don’t. I know he was within earshot. TROY: What is earshot, Mr. Bailey, how many feet in distance?
BAILEY: I don’t think I need decide that. I would say three feet is definitely within earshot, and what the outer limits are I cannot calculate.
TROY: How far away was Mr. Burnim?
BAILEY: Oh, three feet.
TROY: Three feet?
BAILEY: It was a very small room.
Bailey didn’t recall discussing the Bridgewater guards with Albert on the occasion of the signing of the release. He also said that the document hadn’t been folded when Albert had put his name to it and that he had fully explained to Albert what compensation he could expect to receive from Frank under the terms of the agreement. Some $18,443.52 had been paid out so far. Troy asked where that money had gone. Bailey said that fifteen thousand dollars had gone to George McGrath “for the benefit of DeSalvo” and the rest had gone to Albert’s brother Richard.
“Mr. Bailey,” said Troy, “who is Robert McKay?”
BAILEY: Robert McKay is a fictitious name. In this case.
TROY: Sort of a straw?
BAILEY: What’s that?
TROY: Sort of a straw.
BAILEY: Well, I don’t know that he is a straw. The name is fictitious.47
Troy inquired again as to the whereabouts of the fifteen thousand dollars. Bailey replied that “it was deposited in [his] account and used in part for expenses relating to DeSalvo; in part it was given to his brother Richard.”
Bailey was actually keeping ten thousand dollars in reserve in case he ended up having to pay the reward he’d offered for the safe capture of Albert after the latter had fled Bridgewater in 1967. Two clerks in the uniform store in Lynn where Albert had surrendered to the local police had claimed the bounty. Bailey had understandably refused to pay, and the shop attendants sued him. Happily, the suit came to nothing, thus relieving Albert of the necessity of footing the bill for his own arrest.
Troy then produced a copy of a letter purportedly written by Albert on April 21, 1968. It read:
Dear Mr. Bailey:
Why do you give me the runaround when I asked you to show me all the papers you had me sign? I am asking you for the last time, I want to see and have a copy of all what [sic] I have signed by this coming weekend. PS: Wrote last week. My letters are not being answered.
Bailey didn’t know if he’d ever received an original of that letter, nor did he recall Albert ever asking “in those terms” to furnish him with any copies of contracts. He believed he recognized Albert’s signature on the paper Troy showed him. He couldn’t say that the actual handwriting of the letter was familiar to him.
Returning to the subject of the release, Troy asked if Gerold Frank had been in the Bridgewater vicinity at its signing. Bailey thought that Frank was in the Boston area at the time, because the lawyer had flown the author up from New York himself. He did recall that Frank certainly hadn’t been admitted as a visitor to Bridgewater that day to witness the signing. He couldn’t remember if the writer had been waiting in a car outside the institution for Bailey to return with the document.
Again, Troy pressed Bailey on the circumstances of the signing of the release.
TROY: Was Burnim looking out the window for the guards?
BAILEY: Not that I recall.
TROY: Did you make a statement “sign it quick, before the guard comes?”
BAILEY: Did who ever make such a statement?
TROY: You.
BAILEY: To whom?
TROY: Albert H. DeSalvo.
BAILEY: Not that I recall, no.
TROY: Never?
BAILEY: No.
Troy, who had been circling his prey, suddenly pounced: “Do you know if it is a violation to have an inmate sign a document while they are inmates at Bridgewater?” Said Bailey, “Yes, I know whether or not it is a violation in my judgment to have an inmate sign a document for his lawyer.”
That was not precisely the question Troy had asked. He let it pass for the moment.48
The proceedings continued, with Troy quizzing Bailey on Albert’s 1967 trial and the publicity generated thereby; Albert’s hypnosis at Bridgewater, which had taken place at Bailey’s instigation in order to elicit from Albert more details of the stranglings; Albert’s interrogation by John Bottomly; and Bailey’s putative interest in the Strangler movie—Bailey denied that he had ever been offered money by the filmmakers for the use of his name. Then Judge Garrity announced that he had been advised that members of the media, toting camera equipment, were gathering in the corridor outside the courtroom. He reminded those present that it was illegal for any photographs to be taken or recordings to be made of the present proceedings.
Under cross-examination by James Lynch, Bailey expanded on his previous testimony: that Albert was aware of and agreeable to the deal with Frank as well as fully comprehending of its terms, and, further, that Albert had endorsed the plan to have the money he received from Frank entrusted to “Robert McKay.” Bailey didn’t think Albert had ever objected to the publication of the Frank book, although he had wanted one anecdote in it deleted because he viewed Frank’s version of the incident as inaccurate and insulting.
Bailey did say that late in 1967 or early 1968, Albert had asked him to see about halting production of the Strangler movie, and inquired whether it would be possible to void the contract with Frank.
I said no, I think that it [the release] is perfectly good, and that a lawsuit would not win you, and he said, “Well, I have been told that if I were to claim that I had a bad memory or I didn’t understand it, that I might have it put aside and then they couldn’t put out the movie.” I asked him who told him that, and he said an attorney. I said, “Who was it?”
Judge Garrity interrupted: “Well, we don’t need any names, I don’t suppose. He had counsel. I don’t think the identity of the attorney is important. He said he had been told. What else?”
Bailey continued: “I said, ‘Albert, the only way that could be done is if Mr. McGrath would get up and tell a false story about the circumstances surrounding this document. Would you expect us to do that?’ He said, ‘No, I wouldn’t.’ That was most of what was said about the breaking of the release during that conversation.”
“Sometime thereafter,” asked Troy, “did you cease to be Mr. DeSalvo’s attorney?”
“Yes,” answered Bailey. “This summer.”
“When, sir?”
“This summer.”
It was in fact in July that Albert had discharged Bailey.
Questioned by Jerome Facher, Bailey told the court that he’d informed Albert that he’d read the script for the Strangler movie, and that while it wasn’t particularly accurate, it was fairly sympathetic to Albert—perhaps even more so than the book. He also testified that Albert had many times between 1966 and 1968 inquired about the progress of the publication of the book and the filming of the movie and what monetary returns he could expect from both.
On redirect examination, Troy picked up this question of finances. Bailey revealed that in addition to the ten thousand dollars he was holding in reserve in case he had to pay the reward, he had charged an additional ten thousand dollars to Albert’s account. George McGrath had submitted a bill in that amount to Bailey for his services on Albert’s behalf. Bailey had the request for reimbursement in his files.
“Sure,” said Troy. “Now, was Mr. McGrath court-appointed?”
“Yes,” said Bailey.
“Did you feel that the money should come out of DeSalvo, right?”
Bailey didn’t respond.
“Yes or no,” Troy persisted.
“What was the question?” Bailey asked.
“You feel the money that McGrath should have earned should come out of
DeSalvo, is that correct?” Troy repeated.
“That is not my judgment to make,” Bailey said.
“Well, I am asking you, sir,” said Troy. “Do you feel the money should come out of DeSalvo? Yes or no?”
“Out of his estate, yes.”
“Before or after you get your fee?”
“It doesn’t look like I am going to get my fee,” Bailey replied. “So I haven’t had to reach that decision.”
“Well, are you not worried about it?”
“I am not happy about it, but I am not all broken up—”
“But you are not happy about it,” Troy nudged.
Troy’s question about McGrath’s fee was a pertinent one. McGrath had received a court appointment to serve as Albert’s guardian, which meant that he would be paid by the Commonwealth, not by his client. But after McGrath had been removed as Albert’s guardian—at Bailey’s urging—he continued to serve (or so Bailey told the court) as Albert’s informal business adviser. Perhaps part of the bill for ten thousand dollars McGrath sent Bailey reflected this consulting work.
When Bailey had concluded his testimony, Albert returned to the stand for cross-examination by Lynch, who was endeavoring to show that Albert had not only heartily approved of the filming of the Strangler movie but had even enjoyed friendly relationships with some of its principals, including director Richard Fleischer. Albert was evasive and defensive under Lynch’s questioning, and did not acquit himself particularly well, taking refuge in rambling circumlocutions rather than delivering the kind of straightforward answers he had to Troy. It is possible he feared a trap. Indeed, Ames Robey, who had been summoned to testify by Troy from Michigan, where Robey was currently the director of the Center for Forensic Psychiatry in Ann Arbor, felt that Albert was now presenting some of the classic symptoms of paranoia. Then again, Robey also considered Albert to be “a bullshit artist par excellence” as well as a chronic manipulator. Perhaps the truth of Albert’s condition lay somewhere in the middle.
Lynch asked Albert if he’d made a leather wallet as a gift for Richard Fleischer. Albert said he hadn’t. Lynch produced a copy of a letter to Albert from Fleischer thanking him for the wallet.
Following the afternoon recess, Judge Garrity announced that Detroit was leading, three to nothing, in the World Series. Lynch continued chipping away at Albert’s credibility. He entered as an exhibit a friendly letter Albert had apparently written to Phillip DiNatale, in which Albert seemed to assure DiNatale that he’d get him two free tickets to the Strangler movie when it opened. Albert claimed the tickets in question were ones to a basketball game.
In trying to conceal his contacts with Fleischer and DiNatale, Albert irretrievably damaged his believability as a witness. And the irony is, he would have been far better off admitting sending the wallet to Fleischer. He was a man who was easily led and easily swayed, and he was dazzled by powerful and glamorous people. To be on a first-name basis with a Hollywood figure like the director would have enthralled him—and it was a fact that could have been used to illustrate how easily Albert could be influenced and even programmed to do whatever a stronger personality wanted him to do.
Albert, the con man, was as simple as a baby to con.
The final bit of legal business for the day was the private screening of a print of The Boston Strangler for the judge and the attorneys, to be held at a location away from the courthouse. Troy asked that Albert be permitted to view the movie. Garrity said no. Troy asked that Ames Robey be permitted to view it. Garrity said no.
Albert was led by a marshal back to the holding cell in the courthouse where he would spend the night. Garrity adjourned the session until the following morning. Then he and the lawyers piled into the three cabs that had been waiting to drive them to the screening room.
The first day of high-wire acts in the Burnim and Bailey circus had drawn to a close.
16
The Burnim and Bailey Circus, I
One of the witnesses who had been due to testify at the October 1968 hearing was John Bottomly. He never did; urgent business called him to London a few days before the hearing started. (He returned to the United states the day it ended.) He did, however, provide an affidavit stating that he had obtained for Twentieth Century-Fox a release of privacy granted by the former Irmgard DeSalvo on behalf of her and her children. (“One could suspect there might have been a conflict of interest here,” Tony observes dryly of Bottomly’s role in this negotiation.) Bottomly also stated that to his knowledge Albert had never been declared incompetent to handle his own business affairs.
“Well, that’s just not true,” Tony says today.
And of course it wasn’t. That Bottomly could make such a claim in view of the fact that he himself was party to the arrangement whereby George McGrath was made Albert’s guardian precisely because Albert was deemed incompetent to handle business transactions is simply staggering.
The affidavit, which was notarized by James Lynch, was entered as an exhibit at the 1968 federal court hearing.
On Friday, October 11, Jerome Facher resumed the cross-examination of Albert. If anything, Albert’s performance was even worse than it had been the previous day. He claimed to be unable to understand Facher’s purpose in asking him about any agreements he might have struck with Gerold Frank. He was vague about dates. He denied discussing money with Bailey.
He fared much better on redirect examination by Troy. This is hardly an uncommon phenomenon in courtroom proceedings. A prosecution witness, for example, will very often appear confident and fairly relaxed and thus eminently believable under questioning by the state’s attorney, whom he perceives as an ally. That same witness, interrogated by a defense attorney, whom he on some level views as an enemy, may withdraw and turn defensive or even hostile, to the detriment of his credibility.
Troy asked Albert if he could tell the court why he had dismissed Bailey as his counsel.
“Yes, sir,” said Albert.
Because from the moment from the day of my escape, and I went out and wrote a letter before escaping why I was escaping, to expose the conditions of Bridgewater, and when I came back in, I was placed in confinement, maximum security. Now, all that time I was there I wrote many letters to Mr. Bailey to come and see me, and I finally come to the point that I threatened to fire him if he didn’t come in, and he sent me that telegram saying, “Don’t do anything till I come up,” and he sent Charlie Burnim up to pacify me. Charlie Burnim did say, “There is nothing I can do for you, Al. Mr. Bailey sent me up, like I explained, to pacify you.” But I said, “Look—all these things that is going on, I am unable to communicate with other people. He [Bailey] said I’ve got to rely on my attorney.” [Burnim] said, “I can’t help you.” Finally it came to be, after nine, ten, eleven months being locked up in one room, John [sic] Asgeirsson, my first attorney, came up and I was allowed to see him. He said, “Look, Al, I told you, you are being conditioned by your attorney, Mr. Bailey. You have been placed her to be conditioned. You watched Mr. Bailey in a month or two sign [you] in for thirteen murders.” He said, “You are being conditioned. Mark my words. I told you before, Bailey promised you he would give you a civil commitment on this trial you are going to get, and I told you he is using this as a financial gain and there is no way possible he can give you or promise you a civil commitment... So around January or February, you watch. He will come in and he will have you sign a piece of paper and say ‘I’ll see you later, Albert.’ You’ll be the first guinea to slide in.”
What gives this speech of Albert’s weight and credibility is that it echoes sentiments Asgeirsson is recorded as having expressed to the attorney general’s office in 1965.
Albert continued:
So what happened, on a Sunday morning Mr. Bailey came in, and that is when I cut my arms on a Monday.49 I saw Mr. Bailey, and he told me in private that “We got a lot of money stashed away. Remember, I told you I tried to give George McGrath some money and he wouldn’t accept it.” All these things her
e [Bailey] told me, ”that he wouldn’t touch the money because it’s too hot right now, but after you confess to these things, then we can get the money out of where it is.” But he wouldn’t explain. I said, ”Where is those contracts?” That is the reason why I asked for those contracts, if there was any, and he said there was none, and when he refused again to give me any papers or anything, I said why, if I didn’t sign anything? I asked Charlie Burnim, ”Did I ever sign for a movie?” He says, ”Look—don’t ask me. I should have got out and sold insurance, the way things are going. I’m getting out of the office anyhow.”
Troy then asked Albert why, if he’d been so displeased by Gerold Frank’s book, he hadn’t written to the author to complain. Albert answered that Bailey had told him there was nothing to be done. “I believed him to be God. And I did everything he told me.”
That Albert did have a profound, almost worshipful, regard and trust for Bailey is evident from a letter he wrote to his brother Joseph from Bridgewater on March 18, 1965.
Joe you are the only one I can trust. and my Attorney Mr. F. Lee Bailey. Don’t ever do anything before first calling or seeing F. Lee Bailey. No other person or me. He is in charge of everything.
The next witness to take the stand was Charles Burnim, who was no longer in the employ of F. Lee Bailey. It seems clear from the transcript that Burnim was uncomfortable at having to testify. He told the court that he had first met Albert in June of 1966, in a meeting room in the visiting area of Bridgewater. Burnim had been in the company of Bailey and McGrath on this occasion.
Troy showed Burnim a copy of the release and asked him if he’d ever seen it before.