A Wall of Words: The Tintinnabulations of Legal Fictions

TAGGED AUTHORS

Errol Morris, Janet Malcolm




A Wall of Words: The Tintinnabulations of Legal Fictions by Jess Cotton

September 12th, 2013 reset - +

“When the reading experience is over, you are left, simply, with murder — and with the human messiness and futility that attends all death.”

– Martin Amis

“And I’ve found, I think, the strongest ‘or’ in language anywhere. It’s the lawyers’ phrase: as he then well knew or should have known.”

– Renata Adler 

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DICKENS, WHO BEGAN HIS career as a court reporter, was ever more partial to emotive portraits than to the art of facticity. Bleak House, for instance, is populated by a judiciary of supreme inefficiency, who run their “horse-hair warded heads against walls of words.” The reader, implicated in this warped system, has two unlikely tales from which to fathom events: Esther’s guileless, jarring earnestness or the ingenuity of the omniscient narrator. The novel, in general, seems to favor the slippery, unreliable narrator over the ingenuous. Villains, after all, often make for far more compelling characters. In such cases, the reader assumes his or her role of moral adjudicator: the more these infamous characters do protest, the more we discerning readers deem them treacherous. To “narrate” was originally a term of law, used to designate the initial statement of a trial; and much has been made of the parallels between literary and legal detectives, of the court as a spectacle wherein players compete for the juror’s attention; the juror, like the reader, is charged with sifting fact from fancy.

“The journalistic ‘I’ is an overreliable narrator,” Janet Malcolm writes in her seminal work, The Journalist and the Murderer, “a functionary to whom crucial tasks of narration and argument and tone have been entrusted, an ad hoc creation, like the chorus of Greek tragedy.” It perhaps comes as no surprise that the Greeks, who loved a good chorus, invented trial by (sizable) jury. The precedent of 12 jurors was established fictionally. In Aeschylus’ The Eumenides, the goddess Athena summons a dozen citizens to form a jury, with the colorful cast of Apollo as defendant and the Furies wielding their divine prosecutorial vengeance. Orestes, the plaintiff in question, is on trial for murdering his mother Clytemnestra, femme fatale and former wife of Agamemnon, whom she avenged for sacrificing their daughter, Iphigenia.

Malcolm’s 2011 book Iphigenia in Forest Hills, does for the legal profession what her previous disquisitions have done for journalism, biography, and psychoanalysis. Subtitled “Anatomy of a Murder Trial,” the work is a bravura dissection of the courtroom spectacle, in which no one emerges as a disinterested player. Malcolm’s style is, in many ways, a repudiation of the Dickensian sprawling, emotional critique. The closest of close readers, she is a between-the-lines interrogator; her prose is rigorously economical, which is to say, skeptical of character and the impulse to turn out narratives — even as she acknowledges their necessity. An extension of what was originally a New Yorker piece, Iphigenia probes the six-week trial of Dr. Mazoltuv Borukhova, a 35-year-old physician accused of murdering her husband, Daniel Malakov. Both were members of the tightly knit Bukharan Jewish community, originally from Uzbekistan and since nestled in Forest Hill, Queens. On October 28, 2007, Malakov was shot three times at close range in a playground in front of his wife and their four-year-old daughter, Michelle. Borukhova administered CPR on the scene, but was unable to resuscitate her husband, who later died in a hospital. The estranged couple had been in the midst of an ugly custody battle. Borukhova had accused her husband of beating her and sexually abusing Michelle; he claimed that she had turned his daughter against him. A family court judge had sided with Malakov and awarded him custody three weeks previously; and so, Malcolm writes, “the merciful messiness of private life” turns into the “pitiless orderliness of the legal system.”

In November the shooter was identified as Mikhail Mallayev, Borukhova’s cousin by marriage. Borukhova was arrested and charged three months later with ordering the execution. Her conviction rests on two pieces of incriminating evidence: Mallayev’s bank records, which show two deposits of approximately $40,000 before and after the shooting (although not directly traceable to Borukhova), and the record of 91 phone calls between the pair in the three weeks prior to the murder. Much like the Oscar-winning documentary filmmaker Errol Morris, writer and director of The Thin Blue Line (1988), Malcolm’s forte lies in contesting unimpeachable evidence, stripping away the mythical structure of the courtroom and the narratives in which it trades so that what seems authoritative one minute becomes shrouded in ambiguity the next. It undergoes, you might say, a good deal of fact-checking. But unlike Morris, who relies entirely on interviews and reconstructions of events to present his case, Malcolm makes ancillary questions her modus operandi. Like the finest of adjudicators, she raises enough doubt that takes on its own insidious effect.

Malcolm’s credo is to displace “good stories” with “true ones;” though it’s sometimes more a case of supplanting the narrative she doesn’t care for with one that she does. She readily acknowledges her own tendency to turn out narratives and admits to her “sisterly” solidarity with the defendant as a woman and a mother. She is drawn to Borukhova’s “arresting appearance,” her otherness in the courtroom, as “a captive barbarian princess in a Roman triumphal procession.” Despite Malcolm’s own partiality to mythological metaphor, Borukhova remains inscrutable; she “behaved as if the jury didn’t exist — speaking only to her interlocutors,” Malcolm writes, “and the jurors, in turn, behaved as if she didn’t exist.” Her refusal to play her part in the courtroom drama, demonizes her. “Nothing comes of nothing,” Malcolm writes, painting her as a Cordelia of miscarried justice.

The appearance of a children’s law guardian, David Schnall, on the scene, Malcolm writes, “marked a turn in the prosecution’s narrative. Schnall, who was assigned to represent Michelle’s “best interests,” served effectively as a second prosecution lawyer. He was immediately distrustful of Borukhova and “vehemently opposed” her attempt to regain custody of Michelle after the murder. In Malcolm’s version, Schnall appears not so much a disinterested player as a misplaced one, dissatisfied with his legal career and somewhat delusional. In an interview with Malcolm, he rants for 50 minutes on the world “as a place of hidden evil,” 9/11 conspiracy theories and “zombie banks.” Malcolm presented her notes to the defense lawyer, Stephen Scaring; but Robert Hanoply, the presiding judge, denied the motion.

Malcolm’s most cunning narrative device is to suggest that we, like Michelle, are all infantilized, subject to the judiciary’s rule of law, which relies for its effect on the hoarding of secrets. In the spectacle of the courtroom, “the children (the jurors and spectators) are put out of earshot so that the grown-ups (the attorneys and the judge) can talk about things their charges shouldn’t hear.” Malcolm, who clearly doesn’t think much of Hanoply’s deus ex machina “faux-genial manner,” cultivated by “American petty tyrants,” appends his commentary as an epigraph: “Somebody’s life was taken, somebody’s arrested, they’re indicted, they’re tried and they’re convicted. That’s all this is.” Malcolm also refers to a 2005 article by reporter Bob Port that says that the judge, known as Hang ‘em Hanoply, “is widely believed to have imprisoned more murderers than any sitting judge in the U.S.” The modern courtroom, a “temple of waiting” is (unlike the interminable Jarndyce v Jarndyce in Bleak House) about finality, subject to temporal (which are, of course, financial) demands; or in Hanoply’s case, a Caribbean holiday. He refuses an appeal from the defense attorney for a brief adjournment. His response: “I’m going to be sipping piña coladas on the beach in St. Martin.”

The Queens jurors, unlike their tricksy Bronx counterparts, who have been known to acquit a man on six accounts of attempted murder (see Edward Conlon’s Blue Blood), readily consume the “low-hanging fruit of the attorney’s dire narratives,” and Burokhova is dealt a life sentence. The tale settles on the orphan Michelle, the silent victim of the case, subject to a “Dickensian ordeal.” Malcolm describes the last time she sees Michelle, frantically peddling a tricycle amongst her “feared father’s family,” her face “distorted by mirthless laughter.” Malcolm’s tendency to side with a character, at the same time that she acknowledges the questionable grounds for doing so, is one of the most characteristic and controversial features of her journalism. There’s a fine line, it appears, between our unreliable and “overreliable” narrators.

In The Journalist and the Murderer, Malcolm offers a pitiless examination of writers who court and ruthlessly betray their subjects for their own professional gain. Her principal target is Joe McGinniss’s Fatal Vision. McGiniss’s 1983 bestseller gives a florid account of Jeffrey MacDonald, convicted of the murder of his wife and three children in Fort Bragg, North Carolina, on February 17, 1970. MacDonald, who has always proclaimed his innocence, recruited McGinniss in 1979 to tell his own side of the story and, more expediently, to cover his legal fees. In exchange for exclusive access to the defendant’s dealings, the author pledged to maintain the “essential integrity” of his life story. McGinniss, who was made part of the MacDonald legal team, maintained close correspondence with his subject, never appearing to place his innocence in doubt. But when the book was published four years later, what emerged was an excoriating indictment of the defendant, a damning portrait of a man (limned with the aid of some skewed psychology) as a narcissist, womanizing, psychopath, who, rather than mourning the horrific crime, was living it up in a Californian bachelor’s paradise. Writers depend upon “auto-fictionalizing” characters as much as the legal profession trades in obtuse legalese. But there is much literary license involved, Malcolm implies, in “trying to fashion a Raskolnikov out of a Jeffrey MacDonald.”

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In his most recent book, A Wilderness of Error (2012), Errol Morris returns to the Fort Bragg murders, by now the longest-running court case in US criminal history, taking both Malcolm and McGinniss to task, and presenting what is ostensibly a case for MacDonald’s innocence. It is less a portrait of a man accused than a rigorous cross-examination of every scrap of evidence and witness testimony collated over the past 43 years. The effect, as in Morris’s documentaries, is of unmediated access to material (we are not aware of any coaxing or insinuations that are perceivable in, say, a Herzog documentary); he lets people talk, and, in so doing, betray themselves. So the unreliable witness in The Thin Blue Line will profess how she wanted to be a detective as a kid, “I’m always looking, getting involved.” One thing to note is that Morris, who has been described as “unhipster” by a journalist in The New York Times, is not as fine a writer as he is a filmmaker. His prose can be a little clunky, his illuminations routine; but he is a commendable detective, which is perhaps not surprising given his training as a private investigator. He also studied the history of science under Thomas Kuhn, known for inventing the term “paradigm shift.”

“I know I cannot learn anything about MacDonald’s guilt or innocence from this material,” Malcolm writes in The Journalist. “It is like looking for proof or disproof of God in a flower.” Morris’s 500-page-plus book, which brims with charts, diagrams, illustrations, court transcripts, and lengthy interviews, is, in many ways, an attempted rebuttal of Malcolm’s cool, detached methodology. As with his documentaries, he privileges empirical evidence over possible motives. Eschewing Malcolm’s critical distance, Morris lays his own cards on the table: “I am repulsed by the fabrication of a case from incomplete knowledge, faulty analysis and the suppression of evidence,” he writes. “Repulsed and disgusted.”

The events in the MacDonald case are still murky, but all parties agree on some basic sequence: at a point before 3:30 a.m., Collette, MacDonald’s 26-year-old pregnant wife, was brutally attacked with a paring knife and ice pick; their five-year-old daughter Kimberley was beaten across the head with a club and stabbed multiple times; and their two-year-old daughter Kristen was stabbed with a knife and ice pick. MacDonald, who received relatively minor stab wounds, told the first military police to arrive on the scene that his family had been attacked by four intruders: two white men, a black man, and a white woman, who had chanted “Kill the pigs! Acid is groovy.” “PIG” was smeared in blood on the headboard in the master bedroom. Six months earlier, Charles Manson and his followers had murdered Roman Polanski’s pregnant wife, Sharon Tate, and four friends in a similarly savage attack in their Los Angeles home; “PIG” had also been scrawled in blood on the front door.

In the 1970s, America was a nation wrought with sharp social divisions and political tumult; with a disenchanted, hostile, drug-fuelled counterculture, and a vociferous anti-war protest movement that loomed like a specter over its golden suburbs. It was the hangover of the 1960s and the advent of the fall into neoliberalism, with social cohesion spiraling into anarchy and alienation. A Princeton graduate and promising surgeon in the Special Forces with two children, MacDonald was, in many ways, the American Dream incarnate. Still, as time passed, and evidence proved less than forthcoming, investigators began to question his story. The military police soon dismissed the idea that drug-fuelled hippy intruders had been responsible, looking at MacDonald instead as the culprit. If MacDonald’s family received such brutal wounds, they questioned, why did he get off so lightly? A lot of CID. time went into the contingencies of the (botched) crime scene; into fathoming whether an upset coffee table could have plausibly landed on its side; or whether the crime scene had been intentionally staged.

MacDonald was arrested and subjected to the longest pre-court martial hearing in military history. It concluded with an acquittal, and he was honorably discharged from the army. But he made the error of subsequently appearing on national television in an appeal to reopen the case to find the culprit(s), but it had the reverse effect: shining the light back on MacDonald. Appearing on The Dick Cavett Show, he complained at length about the way the military police had treated him. The public found it hard to sympathize with a man so absorbed in his own plight, with seemingly so little regard for his family’s tragedy. Emotion goes a long way in the courtroom, as it does on the screen. In the case narrated in The Thin Blue Line, it was Randall Adams’s failure to show remorse (pretty difficult if you have not committed the case, as his attorney points out) that determines his fate. That is until Morris comes along.

MacDonald’s most costly error yet was to lie to his inexorable father-in-law, Freddie Kassab. Trying to get him off his back, he professed that he had “taken care” of the killers himself; but the lie served only to plant seeds of distrust. Once his greatest advocate, Kassab, who was already outraged at MacDonald’s hubris in speaking out on national television, became his fiercest adversary over night. He exerted considerable pressure on the authorities to reopen the case, which led to a retrial in 1979. The defendant’s lawyers Bernard Segal and Wade Smith were optimistic about an acquittal on the first day, and MacDonald himself said that were he to be convicted, it “would be the Alfred Hitchcock ending to the horror story.” But things did not go according to plan for the defense. The prosecution emerged with a strong case based on (specious) evidence that included a copy of the 1970 Esquire magazine, found on the MacDonald’s coffee table, part of which contained a lengthy article on the Manson murders, with the implication that that was where MacDonald got his inspiration for the hippy gang cover-up; government lab technicians testified that MacDonald’s pajama top was perforated with 48 cylindrical ice pick holes, which suggested that it had been laid on Colette while she was stabbed, rather than being used to fend off the assault, as MacDonald claimed. Lastly, the jury was privy to an audio tape made on April 6, 1970, by military investigators in which MacDonald firstly recounts the murders in a matter-of-fact, placid manner, and subsequently becomes defensive and angered when the investigators suggest his involvement in the crime.

The defense was counting on Helena Stoeckley testifying in the witness stand and confessing to have been one of the intruders MacDonald had claimed to have murdered his family. Stoeckley was a drug-addicted local woman, known to wear a floppy hat, blond wig, and white boots — an image not unlike that of the candle-bearing blonde female that MacDonald recalled seeing on the night of the murders, in addition to two white males and one black, one of which was purported to have been her boyfriend. A woman of similar description had been spotted on a street corner by a policeman on his way to the scene, not far from the MacDonald residence — an unusual sighting given the time and location. At various points during the case, Stoeckley claimed to have been present at the MacDonalds' that night, only to later deny it. Prior to her testimony, the defense and prosecution had conducted interviews with her, during which she denied having been at the MacDonalds' on the night of the murder, or to having even seen MacDonald beforehand. Segal argued for the introduction of testimony from other witnesses to whom Stoeckley had confessed. But the ruling judge Franklin Dupree denied the motion on the grounds that there was no evidence to link Stoeckley to the scene and that her version of events was unreliable due to years of drug abuse. MacDonald himself was antagonistic and hostile under cross-examination. In six hours MacDonald was found guilty and sentenced on one count of first-degree murder and two counts of second-degree murder, consecutive life sentences which he is still serving.

There’s a motif of noughts and crosses that shines like a flashlight throughout The Thin Blue Line (a reference perhaps to the game of “Odds and Even” played in Poe’s “The Purloined Letter”). The film ultimately leads to the acquittal of the wrongly accused Randall Adams, but the documentary’s effect is to suggest that the connection between evidence and event is wholly arbitrary; that, like postmodern fiction, it is only by provisionally fixing together a hotchpotch of indeterminate grey ends that we might arrive at a version of the “truth.” Victorian jigsaw puzzles with their neat resolutions are determinately a thing of the past. Although unlike Malcolm who readily concedes the “morally indefensible” nature of her profession and is profoundly skeptical of an official version of events, Morris believes that truth exists, even if there is no hard-and-fast illuminating proof. “It is possible to cherry-pick evidence to support any conclusion,” he writes. “And it is possible to interpret evidence to support a conclusion. But evidence can also be made to disappear.”

Stoeckley, now deceased, like so many of the inexhaustible cast of characters involved in the trial (listed like a family tree at the beginning of Morris’s book), is his wild card. Much of his argument rests on an affidavit MacDonald’s attorneys filed in 2007 from Stoeckley’s mother which states that her daughter confessed twice to being at the MacDonald’s house on the night of the murders. Morris also relies on MacDonald’s latest appeal based on a 2005 sworn affidavit signed by a retired federal marshal, Jimmy Britt. Britt claims that whilst he drove Stoeckley from South Carolina to testify at the first trial in Raleigh, she admitted to having been at the MacDonald’s residence that night. He also states that the prosecutor of the case, James Blackburn, threatened her with prosecution if she testified. Existing material also reveals though that Stoeckley also met with the defense that day to whom she admitted to having no recollection of her whereabouts on the night the crime took place. Moreover, she contacted Dupree during the trial, claiming that she was terrified not of Blackburn but of Segal. An unfortunate footnote to Morris’s argument to emerge last September is that conclusive evidence shows that Britt could not have accompanied Stoeckley, since several other marshals had in fact done so. As for Blackburn, he was disbarred and jailed in 1993 for ethical misconduct, convicted of embezzling clients’ funds and modifying court documents. “The significance of Stoeckley’s testimony and the outcome of the trial,” Morris writes, “depends on whom you believe: Blackburn or Britt.” Every piece of hard evidence seems to be founded on a highly precarious substructure; each figure of authority with his own dubious past.

As in Malcolm’s narrative, the player who should be the most impartial emerges as the most predisposed. Dupree had clearly made up his mind as to MacDonald’s guilt prior to the trial, and appears to have been less than sympathetic to Segal, rejecting motion after motion in an “openly hostile” courtroom. Even McGinniss concedes:

From the earliest days of the trial the expression most often seen upon [Dupree’s face] as Bernie Segal conducted cross-examination was one of distaste. With even casual spectators openly remarking on the judge’s expression, it seemed only logical to assume that it would, to some degree, indicate to the jurors where his sympathies (or lack of sympathy) lay, and possibly even suggest to some where their own belonged. His rulings on several major evidentiary motions did much to shape the course of the trial.

The title, A Wilderness of Error, is taken from Poe’s story “William Wilson,” and Morris cites the “great ability” of the Prefect in the story “The Murders in the Rue Morgue” “to deny that which is and to explain that which is not.” Like Poe’s “tales of ratiocination,” Morris is interested in showing how, in the absence of moral certainty, we trick ourselves into fabricating narratives that take ancillary details or ambiguous information for hard evidence. Morris is a writer who believes in shaking the unambiguous from the ambiguous — hitting the nail right on the head. Malcolm, who is skeptical about the differences between fiction and non-fiction, believes in preserving those mysteries; that the heart of the matter, (a version of) the “truth,” can only be reached circumlocutorily, or in “41 false starts,” as she writes in her essay on the artist David Salle.

For Morris, the longevity of the case owes much to empirical factors and distorted evidence — prosecutorial misconduct, incompetent investigators, and forensic mishap — in reaching a foregone conclusion. If it is a “comedy of errors,” then it is also a tragedy of miscarried justice. Part of the fascination with the Fort Bragg murders — as for the James “Whitey” Bulgar trials — is that they are concerned with a world gone by. Both cases are involved with incidences that took place just before the dawn of forensic science, when cherry-picking evidence was indeed possible, and crime scenes were systematically mishandled.

With MacDonald, the narratives that accrue to the crime remain discrete courtroom affairs, isolated from the social dislocations of the period. There has been little attempt to probe the cultural psyche from which the murders might have arisen. Motives are not forthcoming, and motiveless violence is deemed unpalatable — catharsis demands a rational framework and closed endings. The thin blue line that authorities seek so economically to uphold is that precarious balance between social cohesion and anarchy. But in Morris’s, as in Malcolm’s, narrative, a false sense of security is to be treated with suspicion. Later this year, the now presiding judge at Wilmington, North Carolina, 80-year-old James C. Fox, will issue a report on his findings from MacDonald’s evidentiary hearing. It may well be Fox’s last major decision, and he will no doubt be anxious to make a prudent one; it could also be MacDonald’s last shot in the dark. 

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Jess Cotton is a writer living in London.

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