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.”
* * *