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Authors: Susan Kelly

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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 here [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.
Burnim said he hadn't. He also testified that he couldn't recall Albert reading any papers in his presence.
Nor signing them.
Burnim did have some memory of Bailey explaining to Albert the nature of an agreement with Gerald Frank. Then Troy slipped into his attack-attorney mode, pressing Burnim for a description of just how comprehensive Bailey's explanation of the release had been. “Did you hear [Bailey] mention or explain away the word ‘perpetuity'? Yes or no.”
B
URNIM
: I don't recall that.
T
ROY
: “Biographical?”
B
URNIM
: I don't recall that, no.
T
ROY
: “Dissemination?”
B
URNIM
: No, I don't recall that.
T
ROY
: Did you hear him explain at all that Albert would be waiving any of his constitutional rights he had?
B
URNIM
: [No response]
T
ROY
: Mr. Witness?
B
URNIM
: I am thinking.
T
HE COURT
: He is endeavoring to recall.
T
ROY
: Well, I am not as close to him as your Honor and I can't see that he is.
T
HE COURT
: Well, I am not even looking at him and
I can tell that he is.
T
ROY
: I see.
B
URNIM
: At this moment, I do not recall discussion concerning constitutional rights.
T
ROY
: Did you hear Albert DeSalvo testify today?
B
URNIM
: Yes, I heard him.
T
ROY
: Is it true that you went to Walpole State Prison on several occasions?
B
URNIM
: It is.
T
ROY
: Did you go there to pacify him?
B
URNIM
: It depends on how you look at it. I didn't consider it as such.
T
ROY
: Did you ever tell him you went there to pacify him?
B
URNIM
: I do not recall telling him that.
T
ROY
: Did Albert ever have a conversation with you where he said Bailey was giving him the runaround?
B
URNIM
: There were times when Mr. DeSalvo was suspicious.
T
ROY
: Did you agree with him or disagree?
B
URNIM
: Did I agree with him?
T
ROY
: Or disagree with him.
L
YNCH
: Well, I don't understand that question.
T
HE
C
OURT
: Do you object?
L
YNCH
: I object.
T
HE
C
OURT
: I sustain that objection.
T
ROY
: Did Albert DeSalvo ever tell you he couldn't talk to Bailey?
B
URNIM
: He told me at times he had difficulty speaking with Mr. Bailey.
T
ROY
: Did he tell you he couldn't understand him?
B
URNIM
: He also said at times he had difficulty understanding him, yes.
T
ROY
: Did he say he couldn't understand why Bailey wouldn't let him see these papers that he had him sign, that he never read them?
B
URNIM
: I don't recall him saying that.
T
ROY
: Well, did he say words to that effect? B
URNIM
: I don't recall. He discussed the papers with me. I don't recall whether he said anything to the effect that he couldn't understand why Mr. Bailey wouldn't show him the papers.
T
ROY
: Well, isn't it fair to say that he constantly talked to you about getting copies of papers that he signed that he didn't know the contents of? B
URNIM
: On more than one occasion he asked me for copies or to obtain copies.
T
ROY
: So at some time in June you were down at Bridgewater and George McGrath was there, Lee Bailey was there, and there was signing of some papers.
B
URNIM
: No, I—No, that is not so. I don't recall the signing of any papers. Sometime in June I was there with Mr. Bailey and Mr. McGrath.
T
ROY
: All right. I show you Exhibit Number 4, sir. [This was the designation of fiduciary making McGrath Albert's business agent.]
B
URNIM
: Yes, I have looked at it.
T
ROY
: That document prepared by your office, Mr. Bailey's office, at that time?
B
URNIM
: I don't know.
T
ROY
: Do you know who Mr. McKay is?
B
URNIM
: Mr. McKay?
T
ROY
: Yes.
B
URNIM
: I understand he is a fictitious person, fictitious name.
T
ROY
: And you also understand that checks were drawn and made out in McKay's name?
B
URNIM
: I understand that was done. I do not know.
T
ROY
: Did you ever say to Mr. DeSalvo when he complained to you, “Why don't you tell Mr. Bailey these things?”
B
URNIM
: Yes. Well, I made such a statement to him, yes.
T
ROY
: Did Albert say to you, “He don't listen to me.
I can't understand him. When he comes in here I freeze up. He's like God.”?
B
URNIM
: He has made such a remark, yes.
T
ROY
: Did you ever say, sir, “Well, I used to think he was God, too”?
B
URNIM
: I don't recall saying that.“
50
Garrity refused to let Ames Robey testify, saying that the doctor's views concerning Albert's competence and any adverse psychological impact the Strangler movie might have on him would be better aired at a trial than at a hearing such as this. Troy was not happy with the ruling, not the least because he'd brought Robey back to Boston at his own expense. All he could do was object. Garrity noted the objection—and overruled it.
George McGrath, who was scheduled to testify next, hadn't appeared in the courtroom yet. That being the case, Troy asked for a short recess so he could take his ulcer medicine. Garrity granted the request, one of the few of Troy's he
did
grant.
 
 
Under questioning by Troy, George McGrath told the court that he had visited Albert many times at Bridgewater, with and without Bailey and Burnim, and couldn't recall
51
if Gerold Frank had ever accompanied them. He didn't remember any exact dates, although he did recollect “being at Bridgewater when Albert DeSalvo signed a paper or two.”
Troy showed him the release. McGrath said he'd seen it, although whether for the first time when Albert signed it he couldn't say. He hadn't helped to draft the document—that had been done by Bailey and the attorney for the New American Library.
Bailey, of course, had earlier testified that he had nothing to do with the drawing up of the release.
McGrath said he'd never seen Albert read the papers. He also had “no specific memory” of hearing Bailey explain the document to Albert, a statement that undermined Bailey's previous comment that McGrath and Burnim must have heard him giving this explanation since they were sitting only three feet away at the time.
McGrath went on to say, “We wrestled very seriously—that is, I did—with the question—the ethical question, I being [Albert's] guardian, of whether a man who had assumedly committed very serious crimes, should profit personally as a result of [their] exploitation... and I came to the conclusion... that it would be possible for this to happen under very controlled conditions, and those would involve the exclusion of any material benefit to Albert by the proceeds.”

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