Balloon Meets Pin

Writer Janet Malcolm’s courtroom curiosity

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In other words, the man who is born into existence deals first with language; this is a given. He is even caught in it before his birth. — Jacques Lacan

The life of the law has not been logic; it has been experience — Oliver Wendell Holmes, Jr.

Laypeople are often fascinated by the law — fascinated, and also horrified. Unsatisfactory outcomes, of which there are not a small number, are almost the least of their objections. They are frustrated by the law’s obfuscations and its inwardness, and they resent the condescension of lawyers. Lawyers, in turn, are frustrated by how much laypeople miss in their account of the culture of the courts — how much, in short, they don’t know they don’t know.

The law serves a crucial public function, but the courts often appear to operate in ignorance of that function. This is why intelligent lay commentary on the law is important. Laypeople see things that lawyers have stopped seeing and raise issues that lawyers have assumed away or given up as intractable. Their commentary aerates a closed system. Occasionally it even embarrasses the legal profession into reform.

Over the course of a long career, Janet Malcolm has brought her critical cutlery and droll jadedness to a variety of subjects, but she has returned repeatedly to the law, a field for which she lacks formal training. She is not exactly an admirer. She is fascinated by the legal process, but she deeply doubts its truth-value. For her, legal principles are shibboleths, pseudo-profundities.

In one sense, Malcolm’s disappointment with what goes on in courtrooms is universal. Even a just trial outcome leaves us unsatisfied. Human experience is too various and finally too mysterious to be captured within the rhetoric of the law. We might say that stories about the law are always genre stories, traveling down narrow pathways of received thought. Malcolm puts the case stronger still – she says that “law stories are empty stories.” For her, a trial verdict answers no questions and puts nothing right.

Malcolm’s first foray into the law, The Journalist and the Murderer, has always been treated as a book about journalism. Malcolm threw a notorious thunderbolt at her press colleagues in the book’s first paragraph:

Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible. He is a kind of confidence man, preying on people’s vanity, ignorance, or loneliness, gaining their trust and betraying them without remorse.

But The Journalist and the Murderer is also about a trial — a baroque and fascinating one at that. The defendant, Joe McGinness, then famous as the author of The Selling of The President 1968, reached an extraordinary arrangement with the legal team of a murder defendant, an Army physician, Dr. Jeffrey MacDonald: total access and total editorial control over the book, with a portion of the proceeds to defray MacDonald’s legal expenses. The result was Fatal Vision, a best-selling “true-crime novel” that laid out a damning case that MacDonald was a sociopath who had murdered his own family and devised a bizarre story to cover up his crime.

The imprisoned and aggrieved MacDonald sued for libel. His rather extraordinary claim was this: that McGinness had perpetrated a kind of “soul murder,” taking MacDonald in, offering him his friendship and his confidence, and continuing to do so even as he came to believe that MacDonald was a monster. Remarkably, the trial of MacDonald’s claim ended in a hung jury. MacDonald’s lawyer, Gary Bostwick, got the jurors to look beyond his client’s crime, drawing them into a tangled metaphysical inquiry into what a journalist owes his subject when he has decided that he will have to write things that the subject won’t like. The parties later settled, with McGinness’s insurance company making a substantial payment to MacDonald — to most observers a dubious outcome.

Malcolm is agnostic on the question of whether MacDonald murdered his family, but she finds him somehow appealing, elegant even in his self-possession; what the prosecution calls psychopathology, she regards almost as charm. But what really interests her is how over the course of the trial the jury came to feel sympathy for MacDonald — and something like contempt for McGinness, the faithless friend. Partly this was a trick of lawyering. Bostwick told the better story and seemed, in the theater of the courtroom, a more admirable man than his opponent.

Actually Malcolm is of several minds about all this. She clearly thinks Bostwick an exceptional lawyer — Bostwick later represented her when she was sued by the subject of one of her books — and she admires any display of cool professional skill. But Bostwick’s tale of friendship betrayed, while superficially appealing, ignores the realities of how journalists operate, with almost inhuman detachment. This is how they get the goods, which is what they must do. At the same time, Malcolm regards that work as morally indefensible.

What we can say for sure is that courtroom performance thrills Malcolm even as she finds it ultimately without meaning. The law’s malice is what she likes best: “Evidently, to be a good trial lawyer you have to be a good hater. A lawsuit is to ordinary life what war is to peacetime. In a lawsuit, everybody on the other side is bad. A trial transcript is a discourse in malevolence.” It takes a veteran Malcolm reader to understand that she means this to be flattering.

What is lost for Malcolm in the trial process, despite its performative pleasures, is the variety and complexity of human experience. What jurors want is a morality play; what good lawyers do is give them one that allows them to exercise their indignation to the benefit of the lawyer’s client.

Metaphors of seduction are appropriate here. A trial lawyer must convince, but before he convinces, he must seduce. There is a tremendous amount of artifice in trial work, which is to say fakery, though one of the things a trial lawyer must perform is sincerity; nothing else is possible without that. A cheap lawyer wears an expensive suit in the first day of trial, hoping to project an air of respectability that he has otherwise neglected to cultivate. An expensive lawyer wears a plain, off the rack suit; she wants to connect. Malcolm understands these dynamics as though she had been covering the courts for 40 years.

The Journalist and the Murderer lingers in the mind, providing a recondite sort of knowledge, and some bitter humor, even as it provides none of the comforts of certitude. Malcolm dismantles the rhetorical edifice of the courtroom with the precision of a jewel thief. What she erects in its place is elegant but not very sturdy, a construction made somehow of ironies, demurrals, and volte faces.

In The Crime of Sheila McGough (1999), Malcolm probed the case of an obscure criminal defense lawyer who was taken in by one of her clients, a con man of no great deceptive powers, and paid for it with her law license and a short prison term. After she was released in prison in 1996, that lawyer, Sheila McGough, contacted Malcolm, claiming she’d been framed by the government as punishment for her vigorous defense of the con man, Bob Bailes. Remarkably, after examining the record, Malcolm came to agree with her:

It seems scarcely possible that in this country someone could go to prison for merely being irritating, but as far as I can make out, this is indeed what happened to Sheila McGough. She is a woman of almost preternatural honesty and decency. She can also be maddeningly tiresome and stubborn . . . What nettled the government about Sheila McGough was not her flouting of the law but her driving of it into the ground — her legal fundamentalism and literalism.

The case against Sheila McGough was not a momentous or even a complex one. Indeed a more ordinary case in the federal criminal docket could hardly be imagined, with the sole exception that the defendant was an attorney. The participants in the Bailes/McGough drama whom Malcolm interviewed seemed politely puzzled by her interest. Lawyers prefer few things ‎to talking about their cases, but why this case in particular? But it is precisely the banality of the case that gives Malcolm’s critique its potential force. She sees that if your purpose is to place the issue of trial rhetoric in high relief, the last thing you want is a remarkable or highly colored or strikingly unusual case. What you want is the typical case — the one from which you can most profitably generalize.

The facts, stated plainly, look bad for McGough. The scheme Bailes constructed is too complex and silly to recount here, but McGough benefited financially from her role in it, receiving a payment of $5,000 that looks, under the circumstances, like a payment from Bailes for her part in the scheme. Her client was self-evidently a crook, and she should have regarded any request from him with robust skepticism. As Malcolm admits, McGough’s‎ story is “lame” in every way.

Malcom’s argument is that McGough was convicted not because the government proved the elements of the offense charged but because she was intractable, insufferable, infuriating — an impediment to the smooth functioning of the courts and the tranquility of judges. The law is a cooperative enterprise, and McGough would not cooperate. She filed frivolous briefs. She put the state to laborious proof on issues to which most lawyers would have stipulated. She insisted on believing that Bailes was entitled to the presumption of innocence, not just formally but in actual fact, when the rest of the world had long since concluded that he was a crook. Lawyers have more scorn for lawyers like her even than they do for the corrupt ones. I don’t know how Malcolm knows this, but she does.

Malcolm, though, regard‎s McGough’s literalism as endearing:

She has settled into my imagination as an exquisite heroine . . . [T]he heedless selflessness that propelled her downfall has thrown into relief the radicalism of her vision of defense law as a calling for the incorrigibly loyal. When I think of Sheila, I am awed by her disdain for the disguises for self-interest that the world offers us so it can get its business done.

I cannot share Malcolm’s admiration for her “exquisite heroine.” McGough waxed on to Malcolm about the solemnity and importance of her work as a criminal defense lawyer. Unfortunately it is precisely this kind of lawyer who is least likely to be an effective advocate and most likely to break down under the burden of their clients’ woes. What you want in a lawyer is not the one committed to your cause but the one committed to their own; in short, the lawyer with something to prove, about their intelligence, about their will, about their toughness. I do not contend that the practice of law is wholly incompatible with our finer feelings, but such feelings in any great quantity ultimately are an obstacle rather than an aid to success. This is perhaps not the Atticus Finch story, but it is the true story of the law. Malcolm’s legal romance is a luxury most defendants cannot afford.

Whether Sheila McGough intended to aid Bob Bailes in the theft of his victims’ money, or was simply extremely careless in the performance of her duties only McGough herself can possibly know for sure. The jury drew a reasonable inference about McGough’s state of mind from her conduct, the kind that juries are asked to draw every day. Malcolm is equally entitled to her epistemological doubts, though those doubts are largely irrelevant. The criminal justice system worked in this case, in the limited sense that it restored a measure of order to society and a measure of dignity to the defrauded victims. That is about as much as we can or should ask it to do. The rest is in the wind.

In Iphigenia in Forest Hills, Malcolm took on her first murder trial. It was one containing enough of the bizarre and the grotesque, and perhaps just enough basis for doubt about the outcome, to have attracted the attention of the New York tabloids, with whose reporters Malcom shared benches in the Queens County Courthouse.

The defendant was Mazoltuv Borukhova, a 35-year-old physician tried for the alleged contract killing of her estranged husband, Daniel Malakov, in the midst of a custody battle over their four-year-old daughter, Michelle. Malakov was executed in the middle of the day at a crowded playground where he had brought the child. The shooter, a 50-year old schlemiel with a rap sheet for fare-beating, left behind a home made silencer bearing his own fingerprints.

The evidence against Borukhova was strong, including dozens of phone calls between her and the triggerman in the weeks leading up to the shooting. After a long trial, at which she was ably represented, she ultimately was convicted. Yet Malcolm cannot quite bring herself to believe the charges against the picturesque young physician; Iphigenia in Forest Hills is a catalogue of her doubts, philosophical, epistemological, and sororal. In her view, Borukhova, “a cultivated woman,” “regal,” “a captive Barbarian princess,” was not capable of the crime. Thus did Malcolm, who warned in The Journalist and the Murderer of the coercive power of narrative, become a victim of her own narrative frame. What Malcolm surely must know is that we are all capable of murder and that Dr. Borukhova had more motive than most.

Unusually and, in Malcolm’s view, rather scandalously, weeks before the murder, a different judge in the same courthouse had awarded Malakov sole custody of Michelle, even though the girl had previously lived with her mother. In the murder trial, the state’s theory was that Borukhova had killed Malakov to regain custody of Michelle.

Malcolm treats the custody ruling as a capricious and chilling exercise of state power. She is not necessarily wrong, and yet at the same time the outcome is not especially shocking. Family court judges are invested with enormous authority, and this authority tends to magnify rather than to chasten their personal biases, their puerile irritability, and their love of the silken tent of their own power. If this judge got it wrong, he did so because judges are as weak and fallible as the rest of us. Malcolm strains to make something extraordinary, almost Kafkaesque out of an almost customary form of brutality. It also must be said that the outrageousness of the offense done to Borukhova, if not precisely inculpatory of the doctor in the murder of her husband, tends to make her motive for the crime more rather than less vivid.

Borukhova is a Bukharan Jew, a fact that Malcolm invests with runic significance. Iphigenia in Forest Hills includes much about the history and culture of the Bukharan Jews (a tiny Central Asian sect now numerous in the middle class Queens village of Forest Hills), material that is interesting and perhaps even relevant in a journalistic sense, but that obviously is of no conceivable relevance in the legal sense. Malcolm’s point, I believe, is that Borukhova’s “foreign” ways were a presence in the courtroom, by virtue of her dress, and through the testimony of ‎members of her family and those of her late husband, themselves also Bukharan.

The book’s title comes from the Greek myth in which Clytemnestra kills her husband, Agamemnon, after he murders Iphigenia, their daughter, as a sacrifice to improve the fortunes of his navy. Perhaps Malcolm is suggesting that Borukhova was offered up by the Bukharan community to a somewhat hostile and uncomprehending society. This reading would explain why Malcolm thinks the history of the Bukharans is relevant to her story. But I do not think that Borukhova has been sacrificed by her community as such. Her persecutors, if one chooses to see it that way, are her in-laws, whose anger and grief are perfectly understandable without reference to cultural stereotypes, and the administrative state, which is perfectly ignorant of and indifferent to the Bukharan story.

Nor does Malcolm show that the trial serves a ritual function for the broader Bukharan community in Queens. What the trial does is place two families in opposition, that of the victim and that of the accused. Which is to say that it is like any other murder trial — as the judge (of whom Malcolm makes a taloned villain) observes, “nothing extraordinary.”

I would not want to think that Malcolm is making a point as banal as to say that we can never really know the truth of events, or that the state does violence in the name of justice. It is possible to draw inferences of this kind, however, because Malcolm does very little to establish that Borukhova has been wrongly convicted, and her assertion of this fact therefore relies more on a generic suspicion of prosecutorial motives. I prefer to think that Malcolm is motivated in Iphigenia more by intimate disgust with the performances of the prosecutor, the trial judge, and the other officeholders associated with the Borukhova case — a kind of cultivated, Woolfian disdain for the affairs of the world — than with the desire to make some sort of Zizekian gesture of radical skepticism.

But the fact remains that Malcolm believes Borukhova innocent, or at least considers the case against her to be unproven, in the face of very strong evidence to the contrary. “Everything one knew,” she says, “about life and about people cried out against the notion that this gentle, cultivated woman was the mastermind of a criminal plot.” But apparent temperament is an uncertain guide to what people are capable of when they are pushed. And surely Malcolm must understand that criminal defendants are convicted every day on far weaker evidence than what the Queens District Attorney’s Office presented. And the state’s animus against Borukhova was not mysterious in origin; the prohibition against murder is ancient and universal. At the end of Iphigenia, we are left not with a resonant myth but the simple tragedy of a dead father.

The front of the Iphigenia paperback has a photograph of Borukhova at the defense table, having her handcuffs removed by a court officer. Her striking, and in Malcom’s account, somehow unsettling beauty is a feature in the story, in part because it speaks to Mallayev’s motives in carrying out the murder, which the prosecutor suggested involved his hope that Borukhova might, in addition to paying him a modest sum, gratify him sexually. But the state’s evidence on this point was weak, and so Borukhova’s beauty remains an ambiguous element in the drama. We are inclined to think of beauty as a moving force, but here we cannot tell who has been moved or how. Perhaps Borukhova’s obscure eroticism merely allows Malcolm to fit her more easily into the role of femme fatale.

The law is and must be more prosaic than literature, more earthbound. It reflects the world in its futility and repetitiveness. Perhaps this is what Malcolm means when she says that “law stories are empty stories.” They are empty because they are underdetermined. The defendant is guilty or not guilty, liable or not liable. A verdict does not ramify complexly. What Malcolm wants us to see is the gap between the law’s claim to authority and the paucity of its heuristic power. In my experience, courtroom lawyers have very little interest in this sort of inquiry. They believe in the legal process, and in the legitimacy of jury verdicts, because not to believe is to risk their sanity. ‎

The value in Malcolm’s legal journalism lies ultimately in her exacting re-description of the law’s methods and traditions. She is like the 19th century Parisian caricaturist, Honoré Daumier, who after working as a bailiff’s assistant in his youth developed a pointed animus toward lawyers. His sketches of lawyers in courtrooms and cloakrooms are bitterly humorous, rendering avarice and vanity as physical attributes, in the process laying bare the cruelty and pretension of contemporary French society. Malcolm’s writings on the law are Daumier by different means. We do not ask of Malcolm or Daumier that they master the rules of evidence or revise the federal sentencing guidelines. We do not even ask that they be fair. What we ask is that they show us the everyday life of the law. •

All illustrations by Isabella Akhtarshenas.

Jonathan Clarke is a lawyer and critic living in Brooklyn.

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