Anyone who follows a criminal trial, whether by reading the newspaper or watching "Law and Order" reruns, becomes a virtual juror -- obliged to wrestle, at some point, with just what constitutes “a reasonable doubt.” The phrase is full of perplexities. How tight must the prosecution’s case be (how unimpeachable its evidence, how rigorous its narrative) before any possibility of skepticism vanishes? How do you tell the difference between a shadow of genuine doubt and clouds of smoke blown by defense lawyers?
We virtual jurors can mull over such questions; there is no pressing obligation to settle them. For someone involved in deliberating a case, the issue is more urgent -- though also, perhaps, more intuitive. A doubt will count as reasonable if other people see grounds for it. But speculating about the matter from a distance isn't pointless. After all, the virtual juror may end up in court as an actual juror. (Or, if really unlucky, as an defendant.)
Janet Malcolm’s new book Iphigenia in Forest Hills: Anatomy of a Murder Trial, published by Yale University Press, draws on her coverage of the case of Mazoltuv Borukhova for The New Yorker. In March 2009, Borukhova, an internist, was convicted of hiring Mikhail Mallayev to murder her estranged husband Daniel Malakov, an orthodontist. The motive, according to the prosecution, was Borukhova’s rage at losing custody of their daughter to Malakov. She had also accused him of molesting the child, though there seems to have been no evidence of this apart from Borukhova's testimony. Phone records showed that she and Mallayev (her cousin by marriage) had called one another more than 90 times in the days before the murder, which took place on in late October 2007. About a week later, Mallayev deposited $20,000 in cash to his bank account. It took the jury six hours to return a guilty verdict for both of them.
Everyone involved belonged to what the book’s cover calls “the insular Bukharan-Jewish community of Forest Hills, Queens,” adding the spice of exoticism to an already sensational dish. When one well-mannered, upper-middle-class professional arranges to have another one whacked, tabloid reporters know true happiness. Not that Iphigenia in Forest Hills is sensationalistic in the slightest; very much the opposite. Although this is, by my count, Malcolm's third work of reportage on a court case, none of them belong to “true crime.” That genre tends to be breathless and sordid, and to hedge its bets on whether the reader aspires to be a detective or a serial killer. Malcolm's work is never anything but cool, measured, cerebral. Her interest is never in the offense itself. Instead, she writes about the narrative aftermath -- how memories and motives are later represented, and how modes of storytelling clash during a trial. She has had personal experience on that score, as one of the defendants in the the long-running libel suit that Jeffrey Masson brought following publication of her book In the Freud Archive in 1983. (Malcolm was acquitted in 1994.)
“Trial lawyers,” she wrote in The Crime of Sheila McGough (1999), “are a species of historian who work in a more charged atmosphere and for higher stakes than to regular, clientless historians, but who are part of the same guild of hobbled narrators. (Biographers and journalists are other members.)” Each sort of narrator selects and arranges information, “transforming messy actuality into an orderly story." In her early essays and books, Malcolm often wrote about photography, psychoanalysis, art criticism and literary biography. Themes from that work echo in her reporting on court cases. Her attention constantly turns to the framing of information, and how stories cohere (or don’t).
This analytic quality also comes through in when the narrative incorporates her own response to a person or event. Emotion is reported, not evoked. The prose is lucid, even luminous, though also taut with self-control, to a degree rare in first-person journalism. What T. S. Eliot said about poetry seems to apply to her work: It "is not a turning loose of emotion, but an escape from emotion; it is not the expression of personality, but an escape from personality. But, of course, only those who have personality and emotions know what it means to want to escape from these things."
With Iphigenia in Forest Hills, though, her prose doesn't reach escape velocity. The book deserves study by anyone interested in the art of nonfiction narrative. Yet there is a problem.
It is not with the reporting. Malcolm attended the trial and studied its transcript. She seems to have interviewed every family member or officer of the court in the case willing to speak about it.There is just enough background information on the Bukharan Jews, a sect with roots in Central Asia, to provide the necessary context. She notices how the personalities of the lawyers and witnesses subtly affected the dynamics of the trial. In the case of the judge, the influence was not so subtle. He had made vacation plans and was determined to have the verdict in time to be relax without distraction.
All of this is well-handled: vintage Janet Malcolm. But there is an odd slippage between what the narrator says and what she shows. Malcolm refers to “the enigma of [Borukhova’s] case: she couldn’t have done it and she must have done it.” This is the crux of the book -- the contradiction driving the inquiry. And the reader with no previous knowledge of the case (I am such a reader) naturally awaits the revelation of whatever fact will suggest Borukhova is not only innocent but quite incapable of the crime. Yet no moment of compelling doubt comes; the evidence Malcolm presents from the trial is never exculpatory. So what are the grounds for supposing that Borjukhova “couldn’t have done it”? Her social status and reserved demeanor. A refined professional woman -- that is, someone like the author herself -- would not plan to kill the father of her child in cold blood.
This seems like a very thin reed on which to hang a claim of profound undecidability. The trial might have had a different outcome, to be sure -- if, say, the defendants had better lawyers, or the prosecutor were less persuasive, or the judge not as committed to (in his words) “sipping piña coladas on the beach in St. Martin” by St. Patrick’s Day. The dynamics of the trial would have been different. The jurors might have concluded that culpability had not been proved "beyond a reasonable doubt" (not the same thing as finding someone innocent).
The author's wish for such an outcome is evident in Iphigenia at Forest Hills. She identifies with Borukhova. And the thought of a mother being separated from her child by prison is painful. (One juror was tempted to override her own judgment of the defendants' guilt to keep that from happening.) Malcolm writes of "the unattainability of the ideal of neutrality and the inescapability of bias. Desire governs judgment as well as shaping narrative: "We take sides as we take breaths." Yes, but desires and judgments can clash, or cancel out each other, which seems to be what happened with this book. Malcolm's urge to establish reasonable doubt about Borukhova's guilt does not win the struggle; her reporting doesn't let it. "Everything one knew about life and about people," she writes, "cried out against the notion that this gentle, cultivated woman was the mastermind of a criminal plot." It's almost enough to make you think Malcolm had never read Freud, but of course she has, and she knows better.