Bailey & the Boston Strangler

In the cases of Drs. Samuel Sheppard and Carl Coppolino, Criminal Lawyer F. Lee Bailey sought to create so much doubt about the guilt of his clients that the juries could only find them innocent. In the case of Albert DeSalvo that ended last week in Boston, Bailey chose a completely opposite strategy. He set out to convince the jury that his client was the notorious Boston Strangler, and so guilty that he must be insane.

Bailey laid his plans carefully. DeSalvo was not charged with murder: there had never been enough admissible evidence to support such an indictment. What he was charged with were armed robbery and sex crimes arising from assaults on four women, all of whom lived to testify against him. Before the trial, Bailey invited a Massachusetts assistant attorney general named John Bottomly to see DeSalvo in a mental hospital. There, DeSalvo tape-recorded confessions to the Boston Strangler murders, complete with so much detail that there could be little doubt that he had actual ly committed them. But before Bailey would allow his client to speak, Bottomly was made to agree that the confession would not be used against DeSalvo. What Bottomly was getting was the opportunity to close one of the most sensational murder investigations in Massachusetts history. What Bailey was getting in return was a substantiated record of a grisly series of murders. Having that, he then planned to call psychiatrists to cite the murders as evidence of DeSalvo's insanity. With his strategy so neatly prepared, Bailey almost casually agreed to the twelve men who were chosen for the jury. Said he blandly: "The case is so strong, I don't care about the jury."

Unnatural Acts. His confidence continued as the trial got under way. He virtually conceded the facts of the case to the prosecution and then put his psychiatrists on the stand to testify that DeSalvo was insane. They recounted tales of DeSalvo's childhood with a sadistic father and an indifferent mother.

They told of DeSalvo's own sadism, of his cruelty to animals, of his witnessing unnatural sex acts within his own fam ily. By the time DeSalvo was an adult, said the defense, "there had developed one of the most crushing sexual drives that psychiatric science has ever encountered." Between 1962 and 1964, the drive erupted into the 13 sex murders that terrified the Boston area. DeSalvo was a violent schizophrenic, said the defense experts, and he was unquestionably insane.

Donald Conn, the state's prosecuting attorney (and coincidentally, a classmate of Bailey's at Boston University Law School), admitted that DeSalvo unquestionably was a sick man, but he and the prosecution psychiatrists launched a strong rebuttal to the defense contention that DeSalvo was "a completely uncontrollable vegetable walking around in a human body." The traditional Massachusetts rule for legal insanity holds that a defendant is sane unless he is unable to tell right from wrong or is governed by irresistible impulse. Both sides conceded that De-Salvo knew that what he was doing was wrong, and the prosecution relentlessly hammered away at the fact that he had taken such thoughtful precautionary measures as wearing gloves. That, argued Conn, was hardly the act of a man driven by an impulse.

After deliberating less than four hours, the jury found DeSalvo sane and guilty on all counts. For all his earlier confidence, Bailey seemed only momentarily disappointed and quickly announced his intention of appealing. He considers the Massachusetts insanity test archaic and hopes the state's Supreme Judicial Court will take the opportunity to bring it into line with less restrictive tests now applied in a number of state and federal courts. Said Bailey: "I am glad to get a shot at that foolish law."

As for DeSalvo, the outcome made little difference to him. He seems to be have best in a rigorously structured environment, and he has repeatedly said he did not want to be freed anyway. Now, instead of being confined to a mental institution, he has been sentenced to life in prison. Though psychiatrists doubted he could ever have been made well enough to leave an asylum, he will be eligible in theory for prison parole in 26 years.

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