Report from Birmingham

The biggest fireworks of the fifth day, the biggest surprise of the day was borne out of the resounding silence at the end. It was a spectacular display of nothing. “The United States of America will not do a redirect of this witness.”

After three days of a gauntlet-like cross examination by Siegleman’s McDonald, Hamrick’s Deen and Scrushy’s Leach, the fifth day was mostly filled up with Art Leach trying to tie up some loose ends and pin Nick Bailey down on some details. But he wasn’t giving an inch. In Bailey’s effected well-rehearsed, over-coached style as a witness, he was not going to admit his own name. If Leach were to say is your name Nick Bailey, he was likely to either say, “It may be Nick Bailey,” or “If you give me a document that shows my name is Nick Bailey, I’ll agree with you.” It was frustrating for the attorneys and painful to watch from any other vantage point. The jousting match of Leach probing and Bailey dodging reached a surreal climax in the final minutes of the cross-examination. Leach was asking him about the agents that had helped him prepare for the case, and about if he had memorized responses to give like a script. Mr. Bailey chose an unfortunate method of denying that he was coached or given scripted responses. He rattled off canned sentences, all of them the same word-for-word, over and over again. So he denied being an over-prepped scripted witness by giving scripted responses. An exasperated Art Leach finally reached back and yanked another page out of the Jim Parkman playbook. He said “Are you on any kind of medication?” The ploy drew an inevitable objection even though an external explanation seemed plausible at that point. And since Leach hasn’t been able to charm Judge Fuller nearly as well as Parkman charmed Bowdre, he was called into a bench conference—rare in this trial—and presumably given some strong cautionary language before the judge gave a “jury will disregard” charge, and Leach retook his position at the podium. This exchange points out one of the maddening and frustrating aspects of Nick Bailey as a witness. He had such a pattern of lying and he was so unwilling to admit to anything, that it was nearly impossible to gage if there was ever a time he was telling the truth. And the over-coaching was painfully obvious. For instance, Bailey could have easily admitted having some help with his testimony, because quite frankly, all witnesses in trials like this receive some help from the investigation teams, and so his unwillingness to admit the obvious cast suspicion over everything that came out of his mouth.

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