Janet Malcolm on Trials

Janet Malcolm wrote three books centered on criminal trials: The Journalist and the Murderer, The Crime of Sheila McGough, and Iphigenia in Forest Hills. Each of the characters — two women and one man — at  the center of these books is, by any metric, strange, and each seems to be judged guilty by a jury at least in part because of that strangeness. To some extent, our legal system’s insistence upon treating jurors as “reasonable” people facilitates the convictions. Instead of the unbiased forum for the consideration of serious charges, courtrooms look more like kabuki theatres, in which simplified stories are inflected with stylized routines and technicalities that baffle the uninitiated (among whom defendants figure prominently). Attorneys take great but not exactly invisible pains to appear to address witnesses straightforwardly, but, again not invisibly, they intend their every move to sway the jurors by force of something other than plain argument. Malcolm herself appears to be unaware of our “adversarial” system’s origins: as late as the early Fourteenth Century, lawyers and judges, working in what seem to have been improvised booths in the vast hall that still stands next to the Houses of Parliament, concerned themselves exclusively with what would strike us as pre-trial maneuverings.

No witnesses, no jury, no laymen of any kind, not even the plaintiffs and defendants. Just legal professionals, arguing among themselves. We can’t tell how any of the recorded cases came out, because that was of no interest to the lawyers.  It was  assumed that when the juries, who were also the witnesses (yes!) were asked the one question that the lawyers and judges had settled on, the result was foregone. A very different world, but its spirit still breathes in our courtrooms. Malcolm captures this spirit in a passage in The Trial of Sheila McGough:

Lawyers are, for good reason, afraid of judges, and they will do almost anything to stay in their favor. Clients come and go, but judges go on forever. Thus, in every trial, a little drama is played out, side-by-side with the big one — the drama of propitiation of the judge by the lawyers. Much of the secondary drama takes place during sidebar conferences, when the lawyers drop their masks and antagonism and behave like schoolboys in front of the teacher, vying for her favor and seeking to impress her with their nice behavior toward each other. (112-13)

In the old days, of course, very few people “went to law” — launched a lawsuit — and all those who did shared the quality of being rich. Plaintiff and defendant alike belonged to the landed élite. Lawyers and judges were either the poor relations of rich families or the sons of prosperous bourgeois who could afford educations. Either way, professionals shared the values of their clients. It was a climate in which everyone more or less understood everyone else — just as everyone with a decent seat at Wimbledon pretty fully understands what is going on astride the nets. Criminal law was prosecuted by a separate apparatus of circuit courts, and rarely embroiled people of substance. As the power of the state and the wealth of the nation increased, more middling people found themselves tangled in legal proceedings, but no matter how the pursuit of justice was transformed by slow evolutions, it did not even begin to abandon the presumption of familiarity (that everyone in a courtroom understands the routine) until the Twentieth Century.

Today, only lawyers, courtroom staffers, and journalists such as Malcolm know what is really going on in a trial. To say that this disturbs Malcolm would be a great understatement. Although she contrives to appear calm, she is actually, to be colloquial, pretty ticked off. She herself was a defendant once, and almost lost millions of dollars, personally, because, in her innocence, she was working from the wrong script. I will come back to that. Her anger becomes more palpable as she proceeds through the writing of the three books.

It may be that, in fact, she is not very angry with the legal system in the first of these books, which never directly places Malcolm in a courtroom. She is concerned with another game, the one that she describes in the famous opening lines of 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.

She proceeds to describe  journalists as con men, who feign interest in their subjects in order to earn their trust — which they proceed to betray. The “action” in this book is densely complicated; suffice it to say here that Malcolm’s subject is not the convicted murderer, Jeffey MacDonald, but the journalist Joe McGinnis, whom MacDonald retained (on the advice of his attorney!) to write an “inside” account of MacDonald’s defense that, when burnished into a best-seller (McGinnis had written one), would persuade Americans of his innocence, whatever happened in the courtroom. McGinnis, who changed his mind about MacDonald during the proceedings, did not write that book, but another, damning one instead. So MacDonald, from prison, sued McGinnis. When things began to look bad for McGinnis — who had never informed MacDonald of his change of heart, not even in letters claiming to be his friend — the case was settled. Malcolm took it all in, and, without making a fuss about her belief that MacDonald was probably guilty (of killing his wife and children), she convicts McGinnis of egregious malpractice as a journalist. Nobody, in The Journalist and the Murderer, seems to know the routine.

In the third and last of her courtroom books, Iphigenia in Forest Hills, Malcolm’s anger surfaces — if only to show a telltale fin — whenever the judge, Robert Hanophy, or the Guardian at Law, David Schnall appear in the narrative focus. Schnall was the court-appointed guardian of Michelle Malakova, a little girl whose mother, Mazoltuv Borukhova, was charged and convicted of hiring an assassin to shoot Daniel Malakov, Michelle’s father. Hanophy, nicknamed “Hang ’em Hanophy,” is a judge in his mid-seventies who appears not to believe that criminal defendants are presumed innocent until proven guilty, and Malcolm presents him as so  indisposed to accommodate them and their attorneys that it’s hard to believe that he could oversee a fair trial. Judge Hanophy made the news when, appealing Borukhova’s conviction, Alan Dershowitz claimed that he had rushing closing arguments to suit his vacation plans. Malcolm shows him doing exactly that. Schnall is a creepy lawyer with no discernible qualifications for representing the interests of children, a qualification not, to Malcolm’s disgust, required for the job of Guardian at Law. In Malcolm’s tragic view, Schnall is the actor who sets in motion the hearing that awarded custody of Michelle to her father, after her parents’ divorce, making of her the little Iphigenia whom Borukhova sought to avenge, allegedly, by hiring a hit man. The tale of Iphigenia in Forest Hills is brainless in the sordid way of all family breakdowns. Far from alleviating the misery, the wheels of justice appear to exacerbate it.

It is The Crime of Sheila McGough, the second of Malcolm’s courtroom books, that from time to time I re-read with relish. Malcolm tells us that she was invited by McGough, a convicted criminal, to tell her story, and this is what Malcolm does, even though she found McGough maddeningly talkative and somewhat simple-minded. McGough almost certainly did nothing illegal, Malcolm assures us. (She is no more than three microns away from deleting the “almost.”) McGough went to jail because the legal establishment in Northern Virginia found her maddening, too, and declined to save her from herself. The crime of Sheila McGough is that she she violated the first ethical rule of practicing law: instead of zealously defending the interests of her client, she did so overzealously — so much so that she could be framed as a co-defendant.

Poor Sheila McGough, as I can’t help think of her, had the idea, in her late thirties, of going to law school. Until then, she had had a successful career in corporate publishing, but she had reached the highest perch that would be open to her, and, feeling unfulfilled, she decided to go to the newly established law school at George Mason University. She didn’t realize until it was too late that no substantial law firm would consider hiring a graduate of this academy, and she fell back on the only opening: criminal law. In the absence of a Public Defender’s office in Northern Virginia, she set herself up as a sole practitioner. No lawyer in history can have needed the support and guidance of working with experienced partners as much as Sheila McGough. They don’t teach everything in law school; what she seems to have learned about the practice of law was just about nothing.

Again, the action is dense; once again, there are two trials. As a result of the second one, Sheila McGough is sent off to prison for three years, having been convicted of hypothecating funds in an escrow account. Again, Malcolm is not present at either trial, and spins her story out of interviews with the people involved. This time, however, all the people involved, aside from a handful of low-lifes, are lawyers and judges. Some of them are sympathetic to McGough — but not sympathetic enough to take up her cause. I was a bit baffled by the connection between McGough’s decision not to take the stand and the omission from the trial of a piece of evidence that would have exonerated her, but McGough, who had developed a persecution complex by the time she met Malcolm, and regarded the Prosecutor as a monster, excused them as “private lawyers with a busy practice.” One of these private lawyers, Mark Rochon, all but charges McGough, in a conversation with Malcolm, with malpractice: she should have known that was going to be “thrown into the maelstrom of criminal defense.”

What draws me to The Crime of Sheila McGough is the pong of sexism. Something very like sexism is  evident in the condescension of lawyers and judges; the fact that she is an unmarried woman who (still!) lives at home with her parents is tacitly held against her, as if she is “too nice” to do the dirty work of criminal practice. It is hard to imagine an American male in her position — not that a man would enjoyed more sympathy and protection from the judges and so on but rather that such a man, almost certainly, would have been pushed off the schoolyard by his fellows. His unsuitability would have impressed colleagues and judges alike. With a righteous woman such as Sheila McGough, it is different: it is impossible for me to read about her, or to read Malcolm’s extended transcripts of her conversations with the woman, without thinking of Joan of Arc — and without suspecting that McGough saw herself as Joan of Arc. She would bring justice wherever it was needed. Well, thanks to her conviction, she can’t practice law anymore, so there won’t be any of that in the future. Was she the victim of sexism? I can’t see that. What I see is that she suffered for playing a part that the legal establishment could not understand or, in the end (its patience exhausted, as Malcolm says), tolerate. She was like a spectator at Yankee Stadium who’s expecting to see tennis.

This is a serious problem with “democracy” as we understand it. Our professions, our institutions, even our Constitution — they still take for granted the homogeneous mutual understanding, the “reasonable behavior,” of the late medieval bourgeoisie, a confraternity working in a very thin zone between hereditary rulers (not just kings, but everyone in the upper reaches of government) and the unlettered artisans and peasants who made up the bulk of the huge class to which members of the bourgeoisie belonged by law. When Marx and others observed that the “bourgeoisie” came to power in the French Revolution, they did not having anything like the vast American middle class in mind. Such a class did not exist even in 1850. They were thinking of the lawyers and bankers who in many cases were wealthy enough to be able to buy patents of nobility. With no aristocratic history to speak of, the United States forged blithely into its future with no real sense of its Founders’ backgrounds and expectations. They were not surprised that suave men of their own, such as Franklin and Jefferson, were so well received by high society in ancien régime Paris — but Parisians were.

To return to Malcolm’s experience in the courtroom as a party, not an observer, I will remind older readers of a notorious libel case in which Jeffrey Moussaieff Masson (né Jeffrey Lloyd Masson) accused Malcolm of manufacturing five quotations. There were two trials (a motif!). Masson won the first one on the merits, but the jury could not agree on damages, so a retrial was necessary. Malcolm won the retrial, and she tells us how she did it in the gleeful essay, simply titled “Sam Chwat,” that appears in her posthumous collection of essays, Still Pictures. Sam Chwat, a Broadway voice coach, had a sideline in trial witness coaching, and Malcolm shows how his advice transformed her performance in court — and she would underline performance — from austere New Yorker writer to colorful friend of the jury. There are two delicious details. After the second trial, jurors told Malcolm that they often speculated on the question of which scarf she would wear that day. Even better, Masson’s attorney, having substantially won the first trial, rolled out the very same questions as surefire winners at the second one; only, this time, Malcolm and her defense team had worked out much better answers. Malcolm could not possibly have devised a more eloquent way of expressing her contempt for the pieties of the courtroom.

In the third and last of her courtroom books, Iphigenia in Forest Hills, Malcolm’s anger surfaces — if only to show a telltale fin — whenever the judge, Robert Hanophy, or the Guardian at Law, David Schnall appear in the narrative focus. Schnall was the court-appointed guardian of Michelle Malakova, a little girl whose mother, Mazoltuv Borukhova, was charged and convicted of hiring an assassin to shoot Daniel Malakov, Michelle’s father. Hanophy, nicknamed “Hang ’em Hanophy,” is a judge in his mid-seventies who appears not to believe that criminal defendants are presumed innocent until proven guilty, and Malcolm presents him as so  indisposed to accommodate them and their attorneys that it’s hard to believe that he could oversee a fair trial. Judge Hanophy made the news when, appealing Borukhova’s conviction, Alan Dershowitz claimed that he had rushing closing arguments to suit his vacation plans. Malcolm shows him doing exactly that. Schnall is a creepy lawyer with no discernible qualifications for representing the interests of children, a qualification not, to Malcolm’s disgust, required for the job of Guardian at Law. In Malcolm’s tragic view, Schnall is the actor who sets in motion the hearing that awarded custody of Michelle to her father, after her parents’ divorce, making of her the little Iphigenia whom Borukhova sought to avenge, allegedly, by hiring a hit man. The tale of Iphigenia in Forest Hills is brainless in the sordid way of all family breakdowns. Far from alleviating the misery, the wheels of justice appear to exacerbate it.

It is The Crime of Sheila McGough, the second of Malcolm’s courtroom books, that from time to time I re-read with relish. Malcolm tells us that she was invited by McGough, a convicted criminal, to tell her story, and this is what Malcolm does, even though she found McGough maddeningly talkative and somewhat simple-minded. McGough almost certainly did nothing illegal, Malcolm assures us. (She is no more than three microns away from deleting the “almost.”) McGough went to jail because the legal establishment in Northern Virginia found her maddening, too, and declined to save her from herself. The crime of Sheila McGough is that she she violated the first ethical rule of practicing law: instead of zealously defending the interests of her client, she did so overzealously — so much so that she could be framed as a co-defendant.

Poor Sheila McGough, as I can’t help think of her, had the idea, in her late thirties, of going to law school. Until then, she had had a successful career in corporate publishing, but she had reached the highest perch that would be open to her, and, feeling unfulfilled, she decided to go to the newly established law school at George Mason University. She didn’t realize until it was too late that no substantial law firm would consider hiring a graduate of this academy, and she fell back on the only opening: criminal law. In the absence of a Public Defender’s office in Northern Virginia, she set herself up as a sole practitioner. No lawyer in history can have needed the support and guidance of working with experienced partners as much as Sheila McGough. They don’t teach everything in law school; what she seems to have learned about the practice of law was just about nothing.

Again, the action is dense; once again, there are two trials. As a result of the second one, Sheila McGough is sent off to prison for three years, having been convicted of hypothecating funds in an escrow account. Again, Malcolm is not present at either trial, and spins her story out of interviews with the people involved. This time, however, all the people involved, aside from a handful of low-lifes, are lawyers and judges. Some of them are sympathetic to McGough — but not sympathetic enough to take up her cause. I was a bit baffled by the connection between McGough’s decision not to take the stand and the omission from the trial of a piece of evidence that would have exonerated her, but McGough, who had developed a persecution complex by the time she met Malcolm, and regarded the Prosecutor as a monster, excused them as “private lawyers with a busy practice.” One of these private lawyers, Mark Rochon, all but charges McGough, in a conversation with Malcolm, with malpractice: she should have known that was going to be “thrown into the maelstrom of criminal defense.”

What draws me to The Crime of Sheila McGough is the pong of sexism. Something very like sexism is  evident in the condescension of lawyers and judges; the fact that she is an unmarried woman who (still!) lives at home with her parents is tacitly held against her, as if she is “too nice” to do the dirty work of criminal practice. It is hard to imagine an American male in her position — not that a man would enjoyed more sympathy and protection from the judges and so on but rather that such a man, almost certainly, would have been pushed off the schoolyard by his fellows. His unsuitability would have impressed colleagues and judges alike. With a righteous woman such as Sheila McGough, it is different: it is impossible for me to read about her, or to read Malcolm’s extended transcripts of her conversations with the woman, without thinking of Joan of Arc — and without suspecting that McGough saw herself as Joan of Arc. She would bring justice wherever it was needed. Well, thanks to her conviction, she can’t practice law anymore, so there won’t be any of that in the future. Was she the victim of sexism? I can’t see that. What I see is that she suffered for playing a part that the legal establishment could not understand or, in the end (its patience exhausted, as Malcolm says), tolerate. She was like a spectator at Yankee Stadium who’s expecting to see tennis.

This is a serious problem with “democracy” as we understand it. Our professions, our institutions, even our Constitution — they still take for granted the homogeneous mutual understanding, the “reasonable behavior,” of the late medieval bourgeoisie, a confraternity working in a very thin zone between hereditary rulers (not just kings, but everyone in the upper reaches of government) and the unlettered artisans and peasants who made up the bulk of the huge class to which members of the bourgeoisie belonged by law. When Marx and others observed that the “bourgeoisie” came to power in the French Revolution, they did not having anything like the vast American middle class in mind. Such a class did not exist even in 1850. They were thinking of the lawyers and bankers who in many cases were wealthy enough to be able to buy patents of nobility. With no aristocratic history to speak of, the United States forged blithely into its future with no real sense of its Founders’ backgrounds and expectations. They were not surprised that suave men of their own, such as Franklin and Jefferson, were so well received by high society in ancien régime Paris — but Parisians were.

To return to Malcolm’s experience in the courtroom as a party, not an observer, I will remind older readers of a notorious libel case in which Jeffrey Moussaieff Masson (né Jeffrey Lloyd Masson) accused Malcolm of manufacturing five quotations. There were two trials (a motif!). Masson won the first one on the merits, but the jury could not agree on damages, so a retrial was necessary. Malcolm won the retrial, and she tells us how she did it in the gleeful essay, simply titled “Sam Chwat,” that appears in her posthumous collection of essays, Still Pictures. Sam Chwat, a Broadway voice coach, had a sideline in trial witness coaching, and Malcolm shows how his advice transformed her performance in court — and she would underline performance — from austere New Yorker writer to colorful friend of the jury. There are two delicious details. After the second trial, jurors told Malcolm that they often speculated on the question of which scarf she would wear that day. Even better, Masson’s attorney, having substantially won the first trial, rolled out the very same questions as surefire winners at the second one; only, this time, Malcolm and her defense team had worked out much better answers. Malcolm could not possibly have devised a more eloquent way of expressing her contempt for the pieties of the courtroom.