Trials: On Janet Malcolm
I am almost certain I first learned about the Borukhova case from the local television news soon after Daniel Malakov was murdered but before the police arrested his wife, during that period of limbo when people have suspicions and air them but are careful to use the conditional tense. I believe it was the television news because I have vague recollections of sounds and images: the cadence of a professional, female voice bearing bad tidings; shots of a neighborhood playground gone desolate. I could be wrong. These sounds and images are not rare. They are the stuff of every nightly newscast: police tape, grieving relatives, pointed fingers.
I do not like the news, especially not television news, least of all your news at 10, the witching hour for local newscasts because it affords producers ample time to sift through the day’s petty corruption, malfeasance and borough tragedies and pick the choicest plums with which to send viewers off to sleep. On a certain New York City station the liturgy begins every night with the same incantation: “It’s 10 pm. Do you know where your children are?” I hurry to turn off the television on the rare occasions when I have forgotten to do so earlier. I have no children whose whereabouts I might worry about, and I do not like the news.
But if this time I continued to watch, it was because the Borukhova case was for me a special tragedy. The protagonists were exotic and familiar: members of the Bukharan Jewish community in Forest Hills, Queens, a closed, esoteric clan with mysterious origins in Central Asia. The deceased husband, Daniel Malakov, had been a young, respected orthodontist. His estranged wife and suspected murderer, Mazoltuv Borukhova, was a dark, beautiful, board-certified physician who had been born in Uzbekistan and studied medicine in Samarkand, the storied city of the Silk Road. She came to the United States in 1997, married Malakov several years later and bore their daughter, Michelle, in 2003, soon after which their marriage began to disintegrate. Michelle lived with her mother until October 2007, when a judge awarded temporary custody of Michelle to Malakov in a motion sought by neither husband nor wife. On October 28, Malakov was shot by an anonymous gunman—later to be identified as Mikhail Mallayev, a distant cousin of Borukhova’s—at a playground where Malakov had brought Michelle for a visit with her mother.
What I gleaned from the television that evening was not so detailed. The words that reached me through the nightly kaddish for the battered, the kidnapped, the murdered and the newly destitute might have been Jewish, immigrant, secretive, custody, doctor and woman. Had I known the accused murderer’s name was Mazoltuv I might have thought it ironic, but instead I thought mostly about what I would do if someone took away the children I hope someday to have—whether I might kill a man to get them back—and concluded that perhaps I would.
* * *
A similar “sisterly bias” animates Iphigenia in Forest Hills, Janet Malcolm’s epic account of the Borukhova trial, first published in The New Yorker in May 2010 and now in expanded form as a book. Iphigenia is a courtroom drama that veers from the trial unfolding onstage to the lives of its protagonists, a diverse cast of characters depicted as good, bad, ugly and sometimes all three. Over the course of the narrative Malcolm makes the argument that whether or not Borukhova is guilty, her trial was a legal travesty and, more grotesquely, she was doomed not from its outset but years earlier, when she filed for and received a temporary order of protection against her husband (she claimed that he had physically abused her and, later, that he molested their daughter). At that point Borukhova became a hostage to the bureaucracy of the state. Social workers came and went; a “law guardian” was appointed by the Queens Family Court (but paid by the parents) to defend the interests of Michelle. The power granted these state minions was perverse, even absurd, as they were summoned to judge Michelle’s welfare based on minimal knowledge of her family situation and only the briefest acquaintance with the child herself. (Malcolm tells us that it is a point of pride among court-appointed law guardians to have as little contact with their charges as possible. It was revealed during the trial that Michelle’s guardian, David Schnall, adhered obediently to this code, finally meeting Michelle some eighteen months into his tenure.)
Malcolm’s story raises serious questions about the general legitimacy of the family justice system, given its highly cursory and contingent nature, but makes plain that for Borukhova, it failed profoundly and unforgivably for one simple reason: nobody liked her. Michelle’s bureaucratic advocates evinced a “primal unease” about Borukhova that, according to Malcolm, “had nowhere to go except into hostility.” This animosity found its most powerful host in Judge Sidney Strauss, who was persuaded that the “overbearing” Borukhova’s “smothering” of Michelle was preventing her from bonding with her father. Michelle had, in supervised visits, refused to interact with Malakov, clinging to her mother instead. There might have been good reason for this—for instance, trauma resulting from the alleged inappropriate attentions of her father or physical abuse of her mother. Strauss thought otherwise. “If there was ever a situation in the mind of this particular Court that cries out for immediate action, it is this,” he pronounced, just before summarily transferring custody to Malakov.
Once Borukhova came to trial, her adversaries became even more formidable. The presiding judge, Robert Hanophy—who had previously been censured for making “discourteous, inappropriate and exaggerated” remarks as well as for being “vituperative” and “mean-spirited” when issuing a sentence—was known as “Hang ‘em Hanophy” for the very few acquittals granted by his court. (Hanophy has said that he only presides over homicide cases: “That’s all I try. I like what I do. I love it.”) In Malcolm’s account, Hanophy is a petty tyrant who relishes his role as lord of his small “fiefdom,” ordering spectators to remove their caps and playing favorites with the attorneys—namely for Brad Leventhal, the prosecutor. Mallayev’s court-appointed lawyer, Michael Siff, complained of being berated by the bench, and objections made by Siff and Borukhova’s counsel, the considerably more skilled Stephen Scaring, were repeatedly overruled. During Siff’s questioning about a terrorism arrest in which the suspect’s fingerprints were misidentified, the judge sustained an objection of Leventhal’s before Siff had even named the case. “Is it going to be Curtis Mayfield or whatever the guy’s name is?” asked Hanophy. “Brandon Mayfield,” Siff replied.
The evidence against Borukhova was strong but circumstantial: ninety-one calls between herself and Mallayev in the days before the murder, and Mallayev’s fingerprints identified on a silencer found at the scene of the crime. But Borukhova’s worst enemy was, as the cliché goes, Borukhova herself. Her physical appearance was bizarre and alienating: she wore garments to cover her legs and hair, as is the custom among Orthodox Jews, but on her slight frame the effect of her long skirts and white turban was not just foreign but archaic and otherworldly. She had grown very thin, refusing to eat the meals prepared for her in prison because they did not meet her standards of kashrut, and she was not permitted to accept meals cooked by her mother or sisters, the presence of whom hardly helped her case. Unlike the Malakov family, whose numerous members were eager and dramatic in their responses to the media, Borukhova’s family rebuffed the overtures of journalists. Her mother and sisters sat in court each day perched in their customary bench, often davening silently as if to erect a barrier between their coven and the earthly proceedings of the courtroom.
“How can she be this way? She shouldn’t be this way.” This is how Malcolm characterizes the response Borukhova elicited from nearly everyone she encountered, including, apparently, the jury, who issued a guilty verdict after six hours of deliberation; all but one of the jurors voted immediately for conviction. While on the stand, Borukhova had antagonized Leventhal, refusing to play his game or even the part of the distraught mother, a character with whom the jury might have sympathized. She also did not look at the jurors, who in turn tried not to watch her. “She looked regal,” Malcolm tells the reader. “She looked like a captive barbarian princess in a Roman triumphal procession. And the jury kept not looking at her.”
The jurors did, however, watch a video that Borukhova had commissioned of the transfer of custody in the hopes that it would convince whoever viewed it of the fierce attachment between mother and daughter. Michelle’s screams had the opposite effect. One juror interviewed by Malcolm after the trial told her that the video only proved that Borukhova’s motives were selfish: “She was cold and unconcerned…. I saw that she was willing to sacrifice the well-being of her daughter to get her way. This made me believe she would kill her husband to keep the daughter.”
How can he be this way? It’s a question that might have been asked of David Schnall, who told Malcolm candidly in a telephone conversation that he was hoping for a guilty verdict. The discussion then swerved rapidly from the case to Schnall’s “real passion,” not family law but a panoply of conspiracy theories including but not limited to the “Communist-like system” that controls the world order, “the phony global-warming agenda,” the foreknowledge of the US government of both 9/11 and Hurricane Katrina and the little-known fact that the polio vaccine does not prevent polio. After her interview with Schnall, Malcolm writes, she did something she had “never done before as a journalist”: “I meddled with the story I was reporting. I entered it as a character who could affect its plot. I picked up the phone and called Stephen Scaring’s office.”
Malcolm’s intercession was to no avail. Judge Hanophy denied Scaring’s motion to recall Schnall for further questioning. This was, unfortunately, hardly the judge’s most egregious display of bias. As the trial went on, Malcolm tells us, the judge became impatient. It seems he had a date with the Caribbean that was growing ever nearer, and he began to worry that he might be forced either to miss his vacation or, worse, to relinquish to an understudy the trial’s final act. He did neither, of course, instead accelerating the pace of the trial such that the defense attorneys were forced to prepare their summations over the course of one sleepless night while Leventhal was granted a weekend. Scaring’s performance was a disaster; Siff’s was only as bad as his opening statement, which is to say, even worse than Scaring’s.
To the last Borukhova refused to participate in the pageantry of the legal proceedings, her final statement before her sentencing to life imprisonment without parole as brief and unrepentant as Cordelia’s before Lear: “I would just repeat myself again and again as I mentioned at the time when my husband was killed, I had nothing to do with this murder. I didn’t kill anybody. I have nothing to do with it. That’s all, Your Honor.”
* * *
“Iphigenia in Forest Hills” is one of a number of stories reported for The New Yorker that Malcolm has gone on to publish as a book, many of them engaging, in one way or another, the practice of psychoanalysis. In the Freud Archives (1984) describes the rise and fall of Jeffrey Masson, a young, megalomaniacal psychoanalyst among the Freudian elite who becomes a theoretical renegade. The Journalist and the Murderer (1990) narrates convicted killer Jeffrey MacDonald’s libel suit against his treacherous biographer and erstwhile friend, the writer Joe McGinniss. The Silent Woman (1994) is a book about books about Sylvia Plath and their relationship to Ted Hughes, the poet-husband who survived her and who, along with his sister, Olwyn Hughes, served as Plath’s literary executor.
The Silent Woman is perhaps Malcolm’s most nuanced and beautiful book. In it Malcolm investigates the real robbing of a life story from its subject, a theft that is perpetrated by an often adoring biographer but with which the deceased subject, in the artifacts she has left behind, is complicit and utterly powerless. No matter what the intentions of the biographer, Malcolm suggests, this is not love and theft, the borrowing and reconstituting and homage to which artists sing hosannas; it is back-stabbing and grave-robbing, and its cost is human lives.
This book, more so than its infamous predecessors, comes closest to distilling all of Malcolm’s primary preoccupations into one slim volume. It is also the book in which Malcolm’s loyalties are most obscure. If we are “connoisseurs of certainty,” as Malcolm has written, then she is a virtuoso of provision and doubt. The Silent Woman is remarkable for Malcolm’s near excruciating awareness of every word in every sentence, how it bolsters or detracts from or complicates the lines of her argument; how every sentence works together to render a disciplined portrait of profound ambiguity.
The title The Silent Woman refers to several modes of silence, most obviously the necessary and resounding silence of the dead. But it is also the much resented literary “gag” order represented by the Hugheses’ control of the Plath estate, and, according to Olwyn Hughes, the silence Plath used as a weapon in life. The raging, “pitiless” voice of the master finally and fully articulated in the poems of Ariel was one manifestation of Plath’s power; the aggression of cold dumbness was another. Olwyn recounted an altercation with Plath to Malcolm: “She never said a word, but mutely glared. It is the only tiff I have ever had in my life where the other person hadn’t a word to say for themselves.” This aggression was compounded when Plath left the next day at dawn, making it impossible for Olwyn to reconcile with her. As Malcolm reminds us, Plath “‘left at dawn’ on another day, in 1963,” when she committed suicide—the ultimate act of silent aggression, its survivors left “forever in the wrong.” The war of the living to preserve the integrity of their stories against the deafening quiet of the dead is one that neither side can win.
Plath and Borukhova are both silent women; one dead, the other dumb, choosing to remain stoic against her interrogators. Borukhova’s story, like Plath’s, is told by others. In Malcolm’s account, Borukhova seems to sense that she is not the owner of her narrative; that to try to wrest it from the court, the lawyers, the media would be futile. She behaves as if she has already been buried, watching her biography write itself in the pronouncements of the judge, the faces of the jurors, the news stories accumulating each day like drifts of dirty city snow.
* * *
Upon its publication in The New Yorker, “Iphigenia in Forest Hills” was not met with universal acclaim as a tour de force of writing and reporting. In the New York Times’s “Media Decoder” blog, David Carr avoided rendering a verdict on Malcolm, merely allowing himself to sniff that “she may have been one of the reporters covering the trial at the Queens Supreme Court in Kew Gardens last March, but she was not and never has been part of the press corps.” Carr leaves the verdict instead to readers, and not just to readers generally but rather to those ghostwriters known as “commenters.”
Commenters are men and women in real life, presumably, but on the Internet they are disembodied pixels of pure judgment that trade little more than an e-mail address for the privilege of hearing themselves speak in the virtual pages of publications otherwise inaccessible to the voice of the layman, in this case, the venerable Gray Lady. Many do so anonymously or with a user name, believing that though their words may be read, they are in no danger of facing the consequences of their free speech, least of all the very real consequence that working writers must face when they put fingers to keyboard: a libel suit. Some brave (or stupid) folks use their actual names, perhaps emboldened by the carnival-like spectacle that welcomes the performance of every comer willing to step right up.
Thus Carr has only to lay the groundwork for the judgment of commenter John H. Marks of Massachusetts, a veteran reporter, who writes that Malcolm is
not someone who ever applied herself to the daily grind of telling unglamorous stories about ordinary people, about the funding of schools, the budgets of police departments, the sadness of an untimely death, the burning of a small house. That’s the essence of journalism, for my money, and seduction is a part of it, as are all the basic human endeavors. It’s a complicated job and only for grown-ups.
Marks is one of many whose objections to Malcolm seem grounded not in perceived professional transgressions but in her uppity, unapologetic, even indecent intelligence. He is a spokesman for the peculiarly American persuasion that the workaday hack is more honest, more industrious, more deserving of our admiration than a superior mind, even a genius (unless, of course, his genius is for making money).
Other commenters have been less polite. In the Village Voice: “The old shrink broad (JM) is pushing 80…. How does Janet get away with recycling 20 year old shrink stuff virtually word for word all over again?” In Salon, after the publication of the book: “So yet another misandrist rant from someone who is pissed that for once a man got some tiny measure of justice? Thanks for publishing this review so I know not to buy Malcolm’s obviously biased piece of crap book.” Back to the Times: “Malcolm’s tiresome literary aspirations”; “a journalist with an agenda”; “pompous and pretentious…a need to place herself above all other writers, as if she is auditioning to be their confessor.”
“No thank you,” continues the last. “What is it about this writer that wants killers to go unpunished by society?… Whom does Janet Malcolm want to kill with impumity [sic]?” Of course, all writers get bad reviews, but Malcolm’s unabashed sympathy for Borukhova and her mode of expressing it seem to have struck an especially raw nerve.
After Borukhova was convicted in March 2009, she all but disappeared from the public eye. (As a mere weapon-for-hire, Mallayev, who was also convicted, never occupied it in the first place.) I spoke with Nathan Dershowitz on the phone in February, a week after his brother, Alan, argued Borukhova’s appeal. Dershowitz would not tell me whether he and his brother were representing Borukhova pro bono, nor would he comment on the specifics of Malcolm’s article, telling me instead that he had read the piece and had “lots” of thoughts about it. He did not think the article would affect the outcome of the appeal, about which he seemed optimistic. He did echo many of Malcolm’s concerns about the psychological burden facing defendants and their lawyers. “The prosecution controls the distribution of information,” he told me. “The press is grossly one-sided. Prosecutors hold press conferences when they first arrest someone. The defense can’t catch up.” Dershowitz described one case “in particular that was on Court TV.”
Dr. Sybers was a medical examiner down in Florida, and what happened with him was a number of other medical examiners sat around to try to decide, if you wanted to off your wife, what would you give her? And they looked around to try to find what it was. They finally came up with something called succinylcholine, which is used in operations to numb people. We went through the whole trial, everything up and down, in and out. After we got the case reversed, the FBI discovered that succinylcholine is endogenous to the body. They discovered that if they checked anybody, or meat in the refrigerator, or fish, they would find succinylcholine in it in about the amounts that they found in the wife.
The New York Times reported the story differently. Sybers was engaged in an extramarital affair when his wife died, in 1991, of unknown causes. Needle marks were found on one of her arms. A special prosecutor was appointed, who then spent five years building a case against Sybers before bringing him to trial. Sybers’s conviction, in 2001, hinged on the testimony of an expert witness about succinylcholine. Two years later, a Florida appeals court found for Sybers: methods of detecting succinylmonocholine, the chemical into which succinylcholine breaks down, were novel and procedurally dubious, and it was discovered that the chemical is in fact present in many corpses.
“The underlying theory for this rule is that a courtroom is not a laboratory, and as such is not the place to conduct scientific experiments,” the court concluded. The special prosecutor admitted that “though believed to be accurate at the time of the testimony” the evidence could “no longer be relied upon.” Sybers pleaded guilty to manslaughter in exchange for time served.
But neither Sybers’s reversal of fortune nor its coverage in the media seems to have mollified Dershowitz. “That story is still out there about his doing it,” he told me, “and then they allow the footer at the bottom: his conviction was reversed. Period. That never really makes it into the story. So what happens is, as with Janet Malcolm’s story, it ends before the appeal.”
* * *
If there is any rival to Janet Malcolm as the most talented and incendiary woman journalist of her generation it is Renata Adler, and their biographies share some striking similarities. Both were born in Europe in the 1930s—Malcolm in Prague in 1934, and Adler in Milan in 1938—to Jewish parents who fled brewing troubles on the continent when the writers were young children. Both have had long relationships with The New Yorker, where neither has published much that is explicit about being Jewish, a woman or the child of refugees. Both have written extensively about libel law and have been sued in connection with articles they published in the magazine; Adler even took a break from her writing career to earn a law degree from Yale. There are also crucial differences. Janet Malcolm remains a lively if divisive presence in the journalistic milieu and a valued contributor to The New Yorker. Adler, who fouled its temple at the turn of the century with her damning memoir Gone: The Last Days of “The New Yorker,” has hardly been heard from since.
Adler’s alleged offense was the smearing of Judge John Sirica, an otherwise undistinguished jurist who became famous, and eventually an American hero, after assigning himself the Watergate trials. But as Adler wrote in an essay for Harper’s Magazine (“A Court of No Appeal,” August 2000), published after no fewer than eight New York Times articles had appeared denouncing her “irritable little book” (“A Question of Literary Ethics,” April 5, 2000, unsigned), the underlying aggravation was not Adler’s casual aside on page 125—“In the course of research, I had found that, contrary to what he wrote, and contrary to his reputation as a hero, Sirica was in fact a corrupt, incompetent, and dishonest figure, with a close connection to Senator Joseph McCarthy and clear ties to organized crime.” It was the 241 pages surrounding it, wherein Adler, with indecorous abandon and brief, mincing cuts, julienned a generous batch of New Yorker writers and editors, including, most fatefully, Charles McGrath, who was by then editor of The New York Times Book Review, and, most memorably, Adam Gopnik, for whom she revived the obscure but extraordinarily evocative adverb “meaching.”
“Renata Adler is being disagreeable again,” groused Judith Shulevitz in Slate, who used the occasion of Adler’s “spectacle” in Harper’s to bemoan her pathetic decline from “America’s most lacerating cultural critic” into a “crank.” Shulevitz faulted Adler for introducing no new, verifiable information about Sirica, and on that point, she is at least partially correct: Adler’s explication of Sirica’s criminal ties was based not in the written record of Sirica’s life but in some very intriguing gaps—gaps that, as far as Adler knew, no other reporter had bothered to investigate, least of all the yeoman Times reporters busy defending Sirica’s honor. Some suggested that Adler had committed libel and lamented that, as the jurist was dead, he could take no legal recourse against her. (Adler got the bit about McCarthy from Sirica himself, in his autobiography; she claimed that the ties to organized crime are suggested by the unaccountable good fortune and attentions of powerful men that dogged both Sirica, who boxed professionally at a time when the sport was controlled by the mob, and his father—described by his son as a serially luckless businessman—who was busted for bootlegging during Prohibition.)
Adler’s inclusion of that sentence was unfortunate, despite that every word of it could be true. But what is notable about the plaints of Shulevitz and her cohort is not their substance—Shulevitz turns from the particulars of Adler’s essay to a general polemic against journalism of the “neurotic,” “self-exploiting” strain, a charge that was hardly novel even in 2000—but the tone of their laments. “Adler specializes in unpleasantness of the high-handed variety,” wrote Shulevitz, her schoolmarm’s ruler poised for the knuckle-raps to come. She went on to describe Adler as “haughty,” “ungracious,” “sneering,” this all despite that “when it comes to the facts, she is not in error,” at least as far as Shulevitz knew.
In 2004 the elusive Adler allowed herself to be interviewed by Robert Birnbaum for the Morning News. The conversation turned to another Jewish woman writer, another refugee, who wrote controversial articles for The New Yorker and was widely vilified as a result. Birnbaum questioned Adler about her friendship with Hannah Arendt, bringing up the fracas that greeted the publication of Arendt’s report on the Eichmann trial.
RA: So what made you think of Hannah Arendt? Why?
RB: I have always admired her and recently I read a recap of the Eichmann in Jerusalem controversy and there is a new edition of Origins of Totalitarianism.
RA: That’s right. Everyone turned on her for the Eichmann book as well.
RB: She, of course, suggested it would have been better had people criticized the book she had actually written.
RA: That’s always asking too much.
“What is it about smart Jewish women that seems to spark antipathy?” asked Birnbaum, citing specific examples concerning Arendt, Susan Sontag and Cynthia Ozick. Adler refused to take the bait.
RA: I don’t think there is something about Jewish women. I don’t. Do you?
RB: I don’t know.
RA: About women generally, no, I don’t think that either.
RB: Well, that’s good.
RA: I haven’t thought about it. It may be so. But it certainly never crossed my mind.
* * *
The Journalist and the Murderer, remarked Craig Seligman in a portrait of Malcolm published a decade ago in Salon, “is one of those remarkable works that trusts the reader to meet it with all the sly intelligence that has gone into its composition.” The book is famous less for its account of Jeffrey MacDonald’s libel suit against Joe McGinniss than for its provocative opening sentences:
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.
Whatever else the book said or did not say, these first sentences divided American journalists. Some defended the book as a nuanced investigation of the relationship between journalist and subject, a relationship that is problematic if not basically antagonistic. Others took Malcolm literally, howling that she had impugned the honor of the entire profession. “That’s what you get,” wrote Seligman, “for trusting the reader.” This latter group closed ranks against Malcolm, who became something of a pariah, a sorcerer expelled from the order for revealing its mysteries.
Seligman and others have read The Journalist and the Murderer as a thinly veiled exorcism of the demons plaguing Malcolm in the wake of the libel suit brought against her and The New Yorker by Jeffrey Masson. (Masson claimed that she had fabricated a number of quotes attributed to him, the most damning of which were included in the extraordinary fifteen-page lunchtime interview that provides the narrative crux of In the Freud Archives.) In the book’s afterword, Malcolm cautions the reader against this facile assumption. She reminds us that “the journalistic ‘I’” of the preceding pages is an “overreliable narrator.” To understand this “I” as wholly contiguous with the journalist is a mistake. The “I” of journalism is, rather, “almost pure invention,” like “the chorus of Greek tragedy.” It is the “embodiment of the idea of the dispassionate observer of life,” ï»¿an idea that, as Malcolm has showed us, is a cherished and convenient fiction.
How is it, then, that Seligman, who is an otherwise subtle and sympathetic reader of Malcolm, fails to understand that her “I” is always begging the question, even when she avows it is not? Malcolm has warned the reader that she, like her subjects and the reader, is a player in the story, and thus unreliable, as witnesses always are.
This is a lesson acknowledged but perhaps not fully understood by Katie Roiphe in her recent Paris Review interview with Malcolm. I say “with” and not “of” because even more so than the typical PR interview—which is a collaboration between subject and interlocutor, shaped through many months of collaboration into a document over which the subject has editorial approval—Malcolm is clearly running the show. The resulting text is a master class in dissembling and misdirection. It is not surprising that the woman who has irrevocably altered our understanding of the journalist-subject relationship should be the rare quarry to completely elude her hunter. What is surprising is the ease with which Roiphe, seemingly seduced by the “controlled, restrained, watchful” presence of the object of her admiration, rolls over. “Even though I ostensibly am interviewing her, I am still nervous about what impression I am making on her,” writes Roiphe, “still riveted and consumed by the idea of the three penetrating sentences she could make of me should she so desire.”
After Malcolm deflects Roiphe’s initial question about the role that psychoanalysis has played in her writing (“Although psychoanalysis has influenced me personally, it has had curiously little influence on my writing”), Roiphe tries again, this time quoting Malcolm in “Iphigenia,” in which she writes of journalism that “malice remains its animating impulse.” Malcolm replies:
I think you are asking me, in the most tactful way possible, about my own aggression and malice. What can I do but plead guilty? I don’t know whether journalists are more aggressive and malicious than people in other professions. We are certainly not a “helping profession.” If we help anyone, it is ourselves, to what our subjects don’t realize they are letting us take.
Legally, malice is an amorphous concept that is apt to “confuse as well as enlighten” a jury in a libel case. In this sense, wrote Justice Anthony Kennedy in the Supreme Court opinion for Masson v. The New Yorker, the term “malice” may “be an unfortunate one.” Actual malice, he writes, “should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will.” He continues: “In place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity.”
But to prove that something has been falsified is only sometimes possible. In Masson’s libel suit against Malcolm, which was revised over the course of many years, and as some of the quotes she had been accused of fabricating were found in her tape recordings, there could be no evidence that Malcolm had conjured Masson’s quotes out of the ether. Her story could not be disproved for the simple reason that to prove a quote does not exist is materially impossible. One can prove that a quote is not where one was told it was to be found, or that it is substantively different from a recorded quote, but if, as Malcolm maintained, one holds that the quote might exist elsewhere—say, in a lost notebook that could be discovered at a later date by one’s errant progeny (as Malcolm was to swear, in an affidavit submitted a few months after the conclusion of her second trial, that her 2-year-old granddaughter had while playing in the writer’s summer home)—it is impossible to prove that the words themselves were never spoken. Libel suits of this kind often become character tests: he-said, she-saids before a jury of men and women who have themselves both perpetrated and been subjected to countless casual he-said, she-saids in the course of their lives.
When Malcolm describes malice as journalism’s “animating impulse,” she may be referring to simple spite; but such a definition seems reductive and literal. Perhaps she really does mean to imply only that the journalist is a nasty little parasite, draining her subject’s stories like a succubus to sate her bloodlust. But the picture changes if we venture that Malcolm’s understanding of malice might include reckless disregard—the title, incidentally, of Renata Adler’s 1986 indictment of the media establishment in two major libel cases, Sharon v. Time and Westmoreland v. CBS. The idea that most journalists are motivated by intentional malice is faintly ridiculous; the notion that in their directive to “get the story” they must choose some details and disregard, recklessly, a thousand others, is not just sound but obviously true. As Malcolm reminds us again and again, every narrator—whether he is a journalist, an attorney or merely a man sobbing his story to the bartender after a few too many—must attempt to shape a coherent story that reflects the reality he perceives but to which he can never be wholly faithful: “We go through life mishearing and mis-seeing and misunderstanding so that the stories we tell ourselves will add up.”
In this world, where truth is unstable, there is no contradiction between the Malcolm who scoffs at the easy marks seduced by journalists such as herself and the Malcolm who likens journalists requesting interviews to beggars pleading for alms. Malcolm knows better than anyone that the journalist’s power is granted by the willingness of subjects to spill the dirt, even when it is not in their interests, but that, once they do so, they are under her near complete control. All she has to do is shut up and listen.
* * *
The question left unanswered in Iphigenia in Forest Hills is, Who, truly, is Iphigenia? Malcolm alerts us to the narrative that the prosecution will weave: Borukhova as a furious Clytemnestra wreaking vengeance upon Agamemnon for the sacrifice of their daughter. But putting the question of his alleged molesting of Michelle aside—which is of course a serious charge, but one that is mostly irrelevant to the story as it unfolded after his death—Malakov is more a plot point than a player in Malcolm’s tragedy. He is certainly no Agamemnon. He is mostly passive against the onslaught of his formidable wife and the even more powerful justice system. He didn’t wrest Michelle away from Borukhova; he simply accepted the judge’s verdict when he was awarded custody. If he is the villain of this tale, he is a feeble one.
Iphigenia seems, rather, to be both daughter and mother, each a silent sacrifice to the hubris of the legal and familial systems charged with their care. Michelle is necessarily silent because, as a child, she has no real voice; Borukhova because, like Cordelia, she chose, by and large, not to speak. The daddy dearest here is not Malakov or Schnall or even Judge Hanophy, but the law and order enforced by the court, its proxies and the larger community. Our system of justice and punishment works to the extent that it functions symbolically; it does not operate blindly or fairly, and it requires blood tribute to lubricate its gears.
Dershowitz told me that Borukhova had received a copy of Malcolm’s story, but that, at least at first, she would not read it. She had other things on her mind: her appeal and, more urgently, the fate of her daughter, who is currently in foster care. Borukhova had bigger problems than a news story, even if it might be the definitive narrative of her life—the way that her story is remembered for years to come.
“How can she be this way? She shouldn’t be this way.” Why should we trust Janet Malcolm? She has admitted that she is biased and interfering. She contradicts herself. She makes no apologies. She repeats herself, some have charged—and she does. Again and again she tells us that the system is damaged beyond repair, its cast a cadre of shysters, patsies and brutes mad with the power to seal the fates of others. We get it, Janet, so please—quit harping.
Malcolm is not a gentle writer, and she does not pretend to hide her scorn for Hanophy and Schnall. But, given that Malcolm’s sympathies lie so clearly with her protagonist, it would be difficult to argue that the motive force behind Iphigenia is malice. Where other characters are concerned, Malcolm is generous or not depending on what they appear to deserve. Thus the well-meaning Siff is nonetheless bumbling and outmatched; Malakov’s father, Khaika, is a vengeful Jewish Godfather but also a patriarch protecting his brood. Malcolm can be brutal in her judgments, but it is the casual brutality of keen observation. I don’t detect in her writing the pettiness or spite that drives the gotcha and gossip stories published by so many others, but rather an underlying current of deep and inexhaustible anger at the way of things, which is recorded in our first stories and our latest court transcripts. “How can she be this way? She shouldn’t be this way.” How dare Malcolm, Adler, Arendt, Plath or Borukhova, when the rest of us do not? It is not the crimes these women do or do not commit, but how, that rankles. Their ambitions are unseemly, their behavior antisocial, untoward. If they are silent, they appear guilty; if they refuse to apologize, it must be so. The only words to be trusted are those uttered in confession.
* * *
Of all the characters Janet Malcolm has sketched in her career, perhaps none is more appealing than Gary Bostwick, the attorney who represented Jeffrey MacDonald in his suit against Joe McGinniss, and who was later hired to defend Malcolm in her final legal battles against Jeffrey Masson.
In The Journalist and the Murderer, Malcolm does not conceal her affinity for Bostwick, who seems not just a proxy for Malcolm but perhaps even more Malcolm than the book’s first-person narrator. In the scene in which Malcolm has dinner with Bostwick and his wife, Janette, the attorney appears likable and savvy, heartily eating first his dinner and then his spouse’s as he relates his perspective on the concluded trial with intelligent eloquence. Yet Bostwick also plays the part of the angry trial lawyer until Malcolm poses this question: “I asked if Bostwick didn’t think it possible that McGinniss had been telling the truth in his letters to MacDonald—that he had loved him as well as hated him.” Bostwick, “as if suddenly remembering that he was no longer in the courtroom,” relents. Janette, a Gestalt therapist, says to Malcolm:
“In my work, a patient will come in and say, ‘This is the truth about me.’ Then, later in the therapy, a significant and entirely opposite truth may emerge—but they’re both true.”
“It’s the same with the judicial process,” Bostwick said. “People feel that it’s a search for truth. But I don’t think that is its function in this society. I’m convinced that its function is cathartic. It’s a means for allowing people to air their differences, to let them feel as if they had a forum. You release tension in the social body in some way, whether or not you come to the truth.”
This passage is so succinct a summation of some of Malcolm’s fundamental concerns that, after publishing it, she might never have written another word on such matters. How can a jury know that Borukhova committed murder, or that MacDonald did? (Gary Bostwick, to this day, believes he did not.) How can a biographer know whether Plath was driven mad by Hughes, or Hughes to infidelity by Plath? How can a court determine whether Janet Malcolm fabricated quotes when, by definition, their nonexistence is unprovable? Truth is multiple and contradictory. We are prisoners to our incomplete understanding of the world and of ourselves, but if we choose to investigate, we might unearth some truths about some things, even if in that process we necessarily warp and degrade their other facets. One truth may tolerate another, or may not. People tend to pick their story and stick with it.
Furthermore, the systems we have devised for uncovering the truth—especially journalism and the legal system—distort reality as often as they reveal it. They are suffused with prejudice and fear, and driven by the primal human need for a story to have heroes and villains, a climax and a denouement. For the sake of the story, we disregard, recklessly. We choose sides, and we want our guy to win. “Rooting is in our blood,” Malcolm tells us. “We take sides as we take breaths.” When Malcolm interceded for Borukhova she crossed the line from reporter to actor, but it is a line that, in Malcolm’s world, does not truly exist. Whether or not Iphigenia was meant as a J’accuse, it will have repercussions. Perhaps a new set of jurors will rethink Borukhova’s case, the presumed scientific infallibility of fingerprinting, their own preconceived ideas about her guilt or innocence, or the sorts of people they would prefer to believe innocent or guilty. Perhaps Judge Hanophy, as has been reported in the press, will retire, freeing himself to sip piña coladas at leisure.
I don’t entirely agree with Malcolm’s claim that journalism is an “enterprise of reassurance.” It is true that when the media tell us they have caught the killer and she will be punished, we are happy to believe that they are right. But journalism, or “the news,” is also an exercise in fear and subordination, because even though this killer was caught, there will always be another, just as there will always be another fire or hurricane or stabbing or shooting or car crash, and next time the victim could just as well be you. In our mythic cycle of violence there is no news, only the same small tragedies repeating themselves endlessly, and our rationalizations for why they occur and who is at fault. We cherish both the great hope that our system of justice will mete out fate fairly and the barely suppressed anxiety that it will not.
But you know all this. I have lined up the evidence, and you will decide for yourself whether or not to find me, or Malcolm, or Borukhova, guilty. This is a story you’ve read a thousand times and will a thousand times again, first as tragedy, perhaps, but forever after as farce. You can read it in the papers each day or watch it on the news at night. It’s 10 pm. Do you know where your children are?