Tuesday April 26th, 2011

Impartial Justice

Iphigenia in Forest Hills
by Janet Malcolm
Yale University Press, 168 pp., $25.00

Janet Malcolm’s courtroom genre is not the thriller but the chiller. Rather than entice the reader with the twists and turns of legal proceedings, she throws a cold light over the enterprise. She usually enters after the drama is over: the verdicts have been rendered, juries dismissed, judgments passed. Then she finds the elements of the story on both sides that don’t fit; she picks at the loose thread in the fabric of things, and pulls until it begins to unravel. She is looking for the miscarriage of justice, the places where the system deliberately allows for deceit or withholding of information, the testimony or the evidence that could have turned the trial the other way, or just another way. In Malcolm’s hands no one is completely guilty or innocent: even those she admires get castigated when she finds out they have lied, and obvious villains are granted their moments of humanity when they express remorse or show weakness (though this does not happen very often).

That Malcolm finds heroes — or, more often, heroines — and villains in her morally complex courtroom dramas speaks to an unimpeachable integrity at the center of these works — namely, hers. Malcolm’s latest, Iphigenia in Forest Hills, differs from her earlier efforts in both its immediacy and its neutrality. It is her most impartial book. Perhaps this sense of impartiality stems from the fact that, unlike her previous legal forays — The Journalist and the Murderer (1990) and The Crime of Sheila McGough (1999) — here she is a witness to the actual trial. Her other books were forensic exercises, carefully reported and reconstructed accounts of questionable crimes and the even more questionable handling of them by the system. Malcolm is fascinated by relationships saturated by power: analyst-patient, lawyer-client, journalist-subject. In Iphigenia, she finds even more use and abuse of power than before. The cast her includes a judge nicknamed “Hang ‘Em Hanophy” for his harsh sentencing and general favoring of the prosecution, a court-appointed guardian who is a nutty conspiracy theorist in his spare time, and a family court judge whose inexplicable bias against the mother of a child leads to a devastating decision that puts the plot of Iphigenia in motion.

Before getting into that plot, it’s worth pausing to look at Malcolm’s biases and beliefs as they can be discerned from her previous works. Most significantly — though she has denied it — is In the Freud Archives (1984), an account of an upstart psychoanalyst named Jeffrey Masson that led to a ten-year libel trial in which Masson claimed that Malcolm “maliciously misquoted” him. Malcolm writes in a 1997 afterword to that book, “For ten years I had been dogged by [Masson’s] tireless pursuit of a legal remedy to his amour propre.” The case dragged on in part because she couldn’t produce the original notebook with the disputed quotations, which was later innocently unearthed by her granddaughter while playing in Malcolm’s country house. What she admits to in the trial outrages some journalists, though Malcolm insists it is common practice to run quotes together without ellipses and to use them out of context.

Her fellow journalists really were riled, however, by her next book, The Journalist and the Murderer, which recounts the trial of Joe McGinniss, author of the best-selling Fatal Vision, who was accused by the subject of his book, convicted murderer Jeffrey MacDonald, of fraud and breach of contract because he used deceptive practices in the course of gathering material. The heart of McGinniss’ defense was also an indictment of journalistic practices: he claimed that nonfiction writers lie to their subjects in order to gain their trust as a matter of course, and his lawyers planned to parade a series of well-known authors to testify to that (the judge stopped them after two, William F. Buckley, Jr. and Joseph Wambaugh). But Malcolm was even harder on McGinniss (and by extension, herself) when she wrote this famous opening to The Journalist and the Murderer: “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.” Malcolm has no doubt that McGinniss did exactly this to MacDonald. But did she also do it to Jeffrey Masson? It is possible to see The Journalist and the Murderer as a palimpsest for her own trial (even though she explicitly denies it); her own fight for amour propre has to be lingering underneath a study of journalistic integrity. It doesn’t take much of a Freudian to put the two together. Both are examinations of nonfiction character, what liberties can be taken, how hamstrung the nonfiction writer is by fact. Journalism, like the law, deals in reputation, libel, scandal. Like lawyers, journalists are both crusaders and bottom feeders, held to high ethical standards and in low regard.

Iphigenia also has a sense of amour propre at its core, as a woman, Mazoltuv Borukhova, is accused of hiring a hit man to murder her husband in order to retain custody of her daughter, who had been taken away by the state. Yet it is also instructive to view Iphigenia in terms of what Malcolm deemed the “exquisite heroine” in The Crime of Sheila McGough. McGough was a lawyer in Alexandria, Virginia, who was accused of overzealously defending her client, a con man named Bob Bailes. In McGough, Malcolm found a rare bird indeed: a naïf, a person (and a lawyer at that) with no guile or cynicism. She drove Malcolm crazy: “She is a woman of almost preternatural honesty and decency. She can also be maddeningly tiresome and stubborn.” In the book, Malcolm became an archeologist of the con man, unearthing layers of lawyers and scams and forged documents. She was convinced of McGough’s innocence, that her “legal fundamentalism,” her refusal to play the game as it is usually played, led to her wrongful arrest and conviction. Borukhova, too, is an exquisite heroine: “Everyone questioned about Borukhova expressed a primal unease that often had nowhere to go except hostility.”

It is worth wondering if Malcolm also sees herself as this kind of exquisite heroine, a truth-teller wrongfully accused and barely acquitted, still guilty in the minds of some of her peers of misrepresenting her subject and, worse, judging her fellow journalists and finding them morally reprehensible. She is still not above taking potshots at her own profession: in Iphigenia, she quotes De Tocqueville’s observation that “the hallmark of the American journalist is a direct and coarse attack, without any subtleties, on the passions of his readers; he disregards principles to seize on people, following them into their private lives and laying bare their weaknesses and their vices.” She notes that trials provide a particularly good chance for a journalist to practice his craft, as the words of lawyers practically write their stories for them. Trials are just venues for competing narratives, much like the ones journalists write, designed to sway judges, juries, and public opinion. The best story is usually the one that wins — not necessarily the truth.

Iphigenia in Forest Hills takes Malcolm’s exquisite heroine notion to a messy, unclear place. For Borukhova is no Sheila McGough, a woman Malcolm was convinced was doggedly telling the truth even as the truth became a liability to her. Malcolm sticks closely to the evidence in Iphigenia, which includes records of cell phone calls between Borukhova and the man who shot her husband, Mikhail Mallayev; the testimony of a court-appointed guardian for Borukhova’s daughter, Michelle, named David Schnall; and context about the Bukharian Jewish community where the characters all worked and lived. Because the book was written as the trial happened, though, Malcolm is more of a participant-observer than in the past. She has transformed herself from archeologist to anthropologist. As usual, she’s on the side of the victims, if she can only figure out who the victims are, as she suspects it’s not only the dead Daniel Malakov who has suffered a tragic fate here: surely Borukhova must have suffered as well to have committed such a terrible crime?

The crux of Iphigenia is the story of the marriage of Borukhova and Malakov, most of which Malcolm learns from their families after the trial. It was an intense romance spoiled by the arrival of their child, almost as if she was a punishment for their perfect love, which relatives describe as too passionate. (Much is made of the way they danced together. One of Malakov’s relatives tells Malcolm, “It just wasn’t a dance you would do in front of people. You could do it in a bedroom or in a nightclub in Manhattan. You just don’t dance like that here.”) Like every love story, and every trial, there are two sides to the marriage, its disintegration, and the eventual fight for custody of Michelle. Borukhova accuses her husband of physically abusing her and sexually abusing their daughter. Malakov counters that Borukhova turned Michelle against him and his family. They end up in court, where Malakov is astonishingly awarded primary custody. So Borukhova hires Mallayev, one of her patients (she is a physician), to kill her estranged husband. At least, this is the narrative the prosecution would have you believe, and the story that wins out: Borukhova and Mallayev are both convicted of murder in the first and second degrees.

Yet the evidence is ambiguous and troubles Malcolm. Most suspicious is the law guardian, Schnall, appointed by the court to represent Michelle’s interests during the custody fight and then during the murder trial, when he testifies against Borukhova. This man is supposed to be an expert, to clear up confusion, yet he turns out to be a low-rent lunatic, engaged with all kinds of conspiracy theories and fringe ideas. His questionable sanity drives Malcolm to do something she has never done before: intervene in the story. She calls one of the defense attorneys, Stephen Scaring, and reports on her interview of Schnall, motivated by a sense that this man cannot be trusted to perform his duties given his state of mind. Scaring brings a motion to cross-examine Schnall again based on Malcolm’s interview, “concerning his mental health and in particular whether he suffers from paranoid and/or delusional beliefs or perceptions which may affect his reliability and credibility as a witness.” But Judge Hanophy denies the motion, seizing on the most benign of Schnall’s beliefs and pronouncing him perfectly fit. Malcolm does not comment on this, just quotes from the trial transcript, but the point is clear: a man with a bias and questionable mental health was allowed to be a witness for the prosecution. Judges, in Malcolm’s world, are no more impartial than readers. They are fickle, easily swayed, prejudiced (consciously or not), difficult to persuade even with the right evidence. Juries, unsurprisingly, are the same way. Given human fallibility, how is truth supposed to triumph?

Malcolm emerges from the trial and her excursions into the Bukharian community with a story, but the truth, as they say, is still out there. Perhaps because the principle characters — Borukhova, Mallayev, and Malakov — are always seen from a stubborn distance (Malcolm did not interview the two defendants, and of course it would be impossible to speak to the victim), Iphigenia never really comes alive the way Malcolm’s other chillers do. The reader is left with a sense of uneasy ambiguity, which might, after all, be the intention. “She couldn’t have done it and she must have done it,” Malcolm writes. Iphigenia is all the more chilling because of this unsettled feeling. It is impossible to tell if justice has been served or horribly miscarried.

Lisa Levy is a writer in Brooklyn. Her book on modernism and biography, We Are All Modern, is forthcoming from FSG.

Mentioned in this review:

Iphigenia in Forest Hills
The Journalist and the Murderer
In the Freud Archives
The Crime of Sheila McGough
Fatal Vision