May
06

An Invitation To Janet Malcolm

I generally enjoy Janet Malcolm's writing for The New Yorker. So when a colleague recommended her piece on the Borukhova trial, I was eager to read what Malcolm had to say. The essay, Iphigenia in Forest Hills, disappoints.

Mazultuv Borukhova and Mikhail Mallayev were convicted in Queens in 2009 of the murder of Daniel Malakov. The case was covered extensively in the Northeast, with even The New York Times present for the gory details. Yet it really wasn't all that glamorous or unusual a case: Ms. Borukhova stood trial for hiring Mallayev to murder her ex-husband as part of an ongoing custody dispute involving the couple's young daughter. Malakov was, tragically, gunned down in the daughter's presence.

These deadly sorts of passions are not foreign to lawyers. Experienced litigators know that the family courts are far more dangerous a locale than the criminal courts. Homicide lurks as an ever-present possibility in many a custody battle. Many a judicial marshal has told me during a murder trial that they feel far safer in a courtroom with a man accused of murder than they do with a husband and wife arguing about where junior will spend the Christmas holiday.

What made the Borukhova case so eye-popping, I suppose, was the vocation of the divorcing spouses: Borukhova is a physician her ex-husband was an orthodontist. Season this heady brew with the unusual ethnicity of the parties, members of the close knit Bukharian Jewish community, and well, the plot doesn't actually thicken, but it remains unusual. We love it when the upper middle class fails. and fails so spectacularly. It is resectable voyeurism, a safe place to air out the secret fantasies most of us are too inhibited to act upon. (Thankfully.)

I expected fireworks and intellectual sizzle from Malcolm. Would she be able to transform this quotidian tale into an epic?

Malcom could not do so. Worse, she succumbed to stereotype, a sin unforgivable for a writer as fine as she undoubtedly is. Consider this whopper: "If any profession (apart from the novelist's) is in the business of making things up, it is the profession of the trial lawyer. The `evidence' in trials is the thread out of which lawyers spin their tales of guilt or innocence."

It is hard to know what to do with a statement so crass, so lacking in comprehension of the trial lawyer's craft. This is a tourist's assessment of trial. It has the feel of a guidebook written by someone who has never actually visited the locale about which they are writing.

The law of evidence is hard and exacting. A client accused of a crime must prepare to meet the state's case, understanding not just the discrete facts which will be offered against a client, but their place and role within the narrative the state will tell. But the narrative is rarely made up of whole cloth. It reflects a truth about what the evidence must mean, how the facts fit into a story reflecting the state's conviction that the defendant committed a crime. The defense learns these facts, steeps itself in them, and then looks to see if there is not really another narrative, an exculpatory rendering of the facts, that is inconsistent with guilt. Malcolm understands well that a trial is about competing narratives.

But to suggest that lawyers have a free hand to make things up is really the silly sort of cynicism one would expect of someone whose never attended a trial. Good lawyers know that the stories they tell must have the ring of truth. Jurors, I am persuaded, try to do the right thing for the right reasons most of the time. Trial isn't trickery.

A few years ago, my office was consulted about the possibility of defending a man in a notorious crime. It was expected that the state would seek the death penalty. We sought to put together a team of people who would best be able to fit the facts and circumstances of the defendant's life into a narrative context. A friend of mine, a novelist of some repute, was the first person I turned to. This writer composes exquisite fiction, and can render plain truths that are sometimes hard to say. But that does not mean those truths are fiction; it simply means that the truth is sometimes hard to discern and that it evades the binary logic of deadline writing.

I suspect Malcom's piece in The New Yorker is a signal that there will soon be a book on the Borukhova case. Of course, I will read the book. Malcolm writes so well that time spent with her prose is simply pleasure. But small missteps in her reporting of the trial in The New Yorker reflect that although she is a keen observer of the public spectacle of trial, she really doesn't understand the Herculean task of a courtroom fight. She lacks an insiders knowledge of the exquisite agony that is trial.

So here's an open invitation to Ms. Malcolm: Why don't you sign onto to a defense team and learn what it is like to live with an accusation and to determine where the truth lies? Come along to see what happens as a lawyer prepares for trial, and as a defendant looks uncertainty dead in the eye and tries to remain strung for battle. The fight needn't be about the failings of the rich and mighty. Everyman faces destiny in each trial. Want to see how to defend a gang-related murder? Or see what it is like to be accused of molesting children? Or stand accused of robbery, rape or some other horror? We'll make you part of the defense team, if you'll promise to honor the work product privilege. I am sure we can learn a lot from your observations and skill as a writer; it looks as though you might learn a little about lawyers and the search for truth. And who knows, the client may just consent to let you write about what you have learned.
Comments (3)
Posted on May 8, 2010 at 1:30 pm by William Doriss
That was painful, all those foreign-sounding names...
That was painful, all those foreign-sounding names. Otherwise riveting. I already read about this case in the Times, but this was good filler; 22 chapters, yikes!

As to your criticism of Malcolm above, I say, "Picky, picky, picky!" You lift a couple of sentences out of a 22 chapter book and object. Ever heard the expression, "Out of context"? I give Malcolm the benefit of the doubt. Chalk it up to 'artistic license' or journalistic 'license'. Furthermore, I don't believe she's entirely inaccurate.

You're being overly sensitive here. Remember, she is 'just a journalist-reporter', not an attorney, for god's sake. On the other hand, your invitation to follow you around some day was brilliant. What's the difference between an attorney and a catfish? Hint: one is a bottom-feeding sucker and the other is just a fish!?!

Be careful when you butt heads with The new New Yorker magazine. They usually know what they're doing. In the same issue, a letter from Temple U. prof Matt Way I found to be kick-a$$. If you had not sent me to this to this May 3 issue, I would have missed it. Thanx, New Yorker, still the best that money can buy. Wish you would pick up my story! Janet Malcolm can do it whenever she likes, no charge.

As to trial lawyers spinning their tales,... in my CT cases, my lead defense lady addressed the Court thusly at summation: "I think what really happened was..." So now you have the defense table offering its own version of events, contradicting not only the prosecution's version but my own version to which I testified under oath. Without asking me or telling me. (Not to worry, it's in the transcript.)

I now believe this to be grounds for appeal: ineffective use of counsel. Unfortunately, when we get to appeal, there is a second round of 'ineffective use of counsel'. So my question is, when do all the ineffective uses and usages of one sort or another cease? And why is it that all these incompetent people get paid, keep their jobs, and in some cases--like Judge Chatigny--get promoted to ever higher levels of lifelong incompetence?

When and how does a genuinely false record get corrected? Oh, I get it! It never gets corrected BECAUSE the State is ALWAYS RIGHT, even when it's WRONG. What a racket, as I have posted many times.

Posted on May 8, 2010 at 1:30 am by Norm Pattis
Lee
point well taken
n
Lee
point well taken

n

Posted on May 7, 2010 at 11:23 pm by Lee
I would really love to read that article. Finished...
I would really love to read that article. Finished the New Yorker piece yesterday and though I agree with your assessment that she is does not have an insider's perspective, an insightful outsider's perspective is probably more valuable during my next jury selection than hearing truth I already know whispered back to me beautifully.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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