research was

Independent of West and Singer, I had some first-hand knowledge of this subject. ("brainwashing") In addition to serving as CIC officer on the aircraft carrier USS Yorktown in the late fifties and early sixties, I had served as a member of a military court based in the Far East.

Although I was skeptical about an experienced lawyer like Bailey using such a defense, I couldn’t be sure. Later I learned that Bailey had acquired exclusive book rights to Patty’s trial along with money, lavish accommodations at the four star Stanford Court Hotel in San Francisco, etc. This meant there had to be a trial so he would have a book (and this issue became another part of Patty’s later appeal). Ironically, Judge Carter told me a number of times that if Patty would just plead guilty to a single count of the charges, he would give her straight probation and she would never spend a single day in prison. This would not have been an unusual sentence at the time for any young woman with no prior criminal record of any kind and who had clearly not planned this robbery and had personally not taken any money or hurt anyone. But without a trial there would be no book and possible movie rights!

I am troubled by the post hoc, ergo propter hoc element. Yes, Bailey received $100,000 for his services, and yes, he was housed at the Stanford Court (I met one of his associates, Tom May, there). He also had an agreement from Hearst not to compete re a book contract. Mrs. Hearst, herself, complained about how "Bailey wants to try cases, and Browning wants to be a federal judge." But, the issue is: To what extent did that corrupt Bailey's judgment?

Bailey had Patricia's account and also the West-Singer report, plus Singer's conclusion Patricia had not authored the tapes (now known unequivocally to be true). The Government could produce no experts of stature (the Kozols are friends of Castro, and Joel Fort doesn't even have a psychiatry letter attached to his M.D.). Bailey had photographs of the robbery showing SLA members training guns in Patricia's direction, and he knew relatively early on that the photographs had been altered -- by the Government's agents -- to remove some of these images. There was no certainty that he would have to try any of the after-conduct other than, perhaps, actions surrounding the admissions made to Tom Matthews. If I were a lawyer in that position, I wouldn't be in any hurry to plea bargain.

There was more that Bailey didn't know: In addition to altering the films, the Government's employees also changed the key ballistics report, and in a way which at minimum disguised exculpating evidence. They also at least tolerated the significant editing of the account of Tom Matthews, to remove Hearst's belief (and possible justification for resisting "arrest") that the police were plotting to kill her. There is the real probability (if not certainty) that Browning suborned perjury from Eden Shea (to shore up Ziggy Berzins), and there can be no doubt that the suppression of the material surrounding Tony Shepard's account was deliberate (Judge Orrick really gets the booby prize for that one). Finally (in my opinion), all of these shennanigans were justified by the Government's lawyers under the perceived need to protect the Attorney General, who recall had compromised his own legal integrity re the Opsahl murder -- had Hearst been acquitted of Hibernia, Saxbe might have been looking at liability for Opsahl..

A lot of that happened in the Nixon Administration.

Bailey had some problems arise in his own camp (Patricia did not always help herself). Certainly, he was blindsided by the Olmec figurine, which was miscatalogued at Patricia's arrest and in a way that disguised what it was. Only when the Harrises mentioned it in New Times did it even come to the attention of Browning and his staff. And Browning really was able to capitalize on it to make Patty out for a liar.

Bailey was blindsided by the inexplicable reversal in Carter's self-incrimination rulings, which resulted in Hearst having to take the Fifth Amendment. (Here, failure to develop the entrapment elements, infra, counted double.) People say he gave an uninspired final argument, but perhaps he knew that, because of the Fifth Amendment pleas, the trial already was lost.

Finally, Bailey could not have anticipated ahead of time that Carter would inject fatal error into the instructions (given at the very end of the trial). Carter failed to distinguish between the level of duress that would excuse bank robbery and the level which would excuse buying cat food at the store. And how is one to evaluate these instructions as they apply to what happened at Mel's? Does such not depend upon what actually happened at Mel's, and where the actual legal liability resides? And to the extent facts are suppressed or not developed, how can any juror be expected to apply the correct standard, even if he knows it?

In short, focusing on Bailey this way is another attempt to create a simple answer which ignores all the key issues: This was a crooked case infected with hopelessly compromising legal error -- the legal error alone merits reversal, even today (in the absence of the pardon). Bailey had every reason to believe that Patty would win; there was no reason ahead of time to believe she would have been convicted and therefore no reason to plea bargain.

As for Lunde's opinion re "brainwashing," it simply is incorrect to say that Patty's defense to the crime charged was "brainwashing." It was not. Bailey made it clear the defense was duress -- they forced her to help rob the bank at gunpoint, and to give credibility to the "Tania" tape. "Brainwashing" was brought in to explain what happened afterward. This is a key distinction. Lunde was, indeed, a consultant to the Court, but he apparently is not all that knowledgeable re what happened after he left the case. Since the foundation of his opinion has no foundation, it is hard to credit it at all.

I do not mean to imply by this that Bailey was without fault -- he certainly failed to drive the entrapment issue home in even the most rudimentary form necessary for cutting off much of the later evidence. And most certainly he (and all of us) missed Carter's fatal judicial error on appeal. But, on the last of these, I'm just as guilty as Bailey. Does that mean I have been perverted by promises of book contracts and money? If so, where are they?

The fact is that I would never betray Patricia for such crass reasons, and I think it is presumptuous to assume a lawyer with a legal obligation to the welfare of the client would do otherwise. Lunde needs far more evidence to make his case, and until he produces it, I don't think his conclusions deserve much notice.

P.S. So glad to know that you weren't on that bridge!

Last updated August 20, 2007