Returning to the Scene

August 18, 2011   •   By Michael Washburn

JANET MALCOLM'S Iphigenia in Forest Hills: Anatomy of a Murder Trial, an expansion of a 2010 New Yorker essay, explores Mazoltuv Borukhova’s trial for the murder of her husband, Daniel Malatov. Malatov was brazenly assassinated in a Queens playground in 2007. The prosecution, which ultimately won the day, sending Borukhova to jail for life, argues that after losing a custody battle for her four-year-old daughter, Michele, Borukhova arranged to have her estranged husband killed. Malatov arrived at the playground to retrieve his daughter from her mother, and as Malatov and Borukhova swung their daughter playfully back and forth — Michele’s arms in her mother’s hands, her father supporting her lower body — a gunman approached the father and riddled him with bullets. The gunman then turned and walked calmly out of the park. The prosecution linked the triggerman, a family acquaintance named Mikhail Mallayav, to Borukhova through circumstantial evidence, most potently 90 phone calls between the two, some garbled recordings, and Mallayav’s receipt of some $40,000 in the period leading up to the murder, although that money was never directly linked to Borukhova. 

From this brutal scenario, Malcolm spins a disquieting tale of the workaday criminal trial, where the court sanitizes and defines the chaotic humanness of crime. Courts do not tailor the law to the crime (though justice, like fine suits, surely gets fitted for those with means); they narrate actions, alleged or actual, into patterns that match ready-made legal categories. Certainty and simplicity triumph over ambiguity. Malcolm has written commandingly on such collisions in the past — most notably in The Journalist and the Murderer — and her skills seem perfectly suited to the task at hand in Iphigenia in Forest Hills.

But there’s a problem. It is unclear whether Borukhova refused to be interviewed or if Malcolm elected to embargo her, but the two never speak directly to one another. This lends Borukhova a strange… well, insalience. The Malcolmian tradition is voyeuristic, placing the reader on her shoulder as she coaxes her subjects into self-revelation, if not self-realization. The pleasure of reading Malcolm stems from her ability to render intimacy and peculiarity — individuals’ self-delusions, unconscious tells, and transparent evasions — with precision, extrapolating from the person bold, often aggressive cultural insights. But by not engaging directly with its central character, this book lacks a center of gravity.

In the masterful The Journalist and the Murderer, Malcom’s book about the writer Joe McGinnis, her subject, like Borukhova, proves elusive: when Malcolm spooks him during an interview McGinnis is lost to her. He realizes during the conversation that she has provoked him to “make such a spectacle of himself.” Spectacle is the point of journalism, and the fact that people open up so candidly to writers is exactly what McGinnis was hoping for when he was speaking with his subject, murderer Jeffrey MacDonald. MacDonald ultimately didn’t like what was written and sued McGinnis for defamation. Murderer, in part, explores the ethics of insincerity. How much truth does a writer owe a source? The meeting between McGinnis and Malcolm is a brief, but revelatory, interlude, and the irony of McGinnis’s discomfort with participating in the journalism dance furnishes a central tension in the book. Malcolm complements her brief meeting by going through McGinnis’s vast, Janus-faced correspondence, which offers an unmediated look into his evasions, deceptions, and thought process.

Iphigenia in Forest Hills boasts such moments of insight as well, yet Borukhova herself appears solely through Malcolm’s exposition, her quoted testimony, and the unfavorable impressions of others. The scene in which Malcolm visits the woman’s empty cell at Riker’s Island is emblematic; Borukhova’s absence is an unfortunate, puzzling lacuna in an otherwise potent book. Even in the bare sketch Malcolm provides, Borukhova, a practicing physician and Bukharan Jew, appears a singly compelling, discomfiting, and complicated interlocutor. “The ‘good’ characters in a piece of journalism,” Malcolm wrote in The Journalist and the Murderer, “are no less a product of the writer’s unholy power over another person than are the ‘bad’ ones.” Malcolm elects to eschew this power when it comes to the woman who should be her protagonist. It’s almost as if Malcolm fell victim to the fallacy of imitative form: Borukhova is a riddle in her life and also during her trial. In telling her tale, Malcolm simply retains the enigma.

Nonetheless, Iphigenia in Forest Hills delves more deeply, subtly, and intelligently into the flawed mechanics of the criminal justice system than most books in recent memory. Malcolm sympathizes with aspects of Borukhova’s life — that she is an unapologetic, professional female, for instance — and she doesn’t argue guilt or innocence. The book isn’t so much an “anatomy” of a trial as a morally infused series of associations and questions sparked by the trial. Malcolm’s fascination is with the law as a discourse — the discourse — that molds our liberty, and does so by applying its normative codes and values through human actors, a demonstrably rickety and subjective delivery system.


“Stay out of the picture and you won’t get framed,” a student once told me during a discussion about the often-compromised criminal justice system. This student’s legal system, like Malcolm’s, functions as a terrible syllogism, always resolving in guilt: if you’re accused of being here/black/angry/strange, then you’re guilty. Once the questions are posed, the answer is always the same. Why are you so angry with your husband? Why are you in handcuffs? Why are you in jail? In court? Because, this system says, you’re guilty. Otherwise you wouldn’t be here. Awareness isn’t cumulative, but the debris of human bias and error is. From arrests and statements, to the attorneys’ and witnesses’ demeanor, the court formalizes and shapes into a legal narrative this accumulation of bias. Often, a critique of this sort stems from a left-leaning politics, producing criticism as rigid as the thinking it condemns. Malcolm doesn’t make her politics explicit, though; humans and their institutions are flawed, she rightly argues, regardless of their politics.

The trial-as-dramatic-performance is a structuring conceit of Iphigenia in Forest Hills, and the book understands everyone’s action through the lens of drama. It’s occasionally heavy-handed and pretentious (psychologist Igor Davidson is “the Kent of this tragedy”) but generally the metaphor is apt. Everyone plays their part, nobody calls in sick, and if anyone breaks character and reveals himself as incompetent, ignorant, or otherwise flawed, the production still proceeds. Even if you haven’t endured the puerile voir dire casting call, the Law & Order-style police procedural testifies to the innate dramatic staging of the ordeal. As Malcolm writes early on, “If we understand that a trial is a contest between competing narratives, we can see the importance of the first appearance of the narrators.” And institutions err most willingly when enthralled by their own dramatic narratives.

This is something of which we’re vaguely aware, right? That guilt or innocence in a criminal trial is the adult moral of adult story time? We live immersed in the narratology of criminal justice, but we often forget how personal failings, ambitions, and prejudices structure the administration of real-world justice. Justice, in Malcolm’s telling, fails to be blind while proudly being both deaf and dumb. “If any profession (apart from the novelist’s) is in the business of making things up,” Malcolm writes, dragging into the light this unpleasantry, “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.” Iphigenia in Forest Hills advances through such sentences: intuitively agreeable and utterly unassuming in their gravity. During testimony, for instance, the prosecution introduces a recording purporting to reveal Borukhova asking if Mallayav, the gunman, is going to “make her happy.” In the prosecution’s telling making Borukhova “happy” meant killing her husband. The prosecution sharpens this statement to a gleam, only to have their argument blunted on cross-examination when a more faithful translation of the tape reveals that Borukhova merely asks Mallayav whether or not he wanted to get out of the car she was driving. Correct and convincing are not synonyms, though. Despite the clarified translation, during deliberation the jury relies on the prosecution’s sexier tale.

Other failings are far more individual. Judge Robert Hanophy presides over the Borukhova trial. Hanophy is a clown, a petulant blowhard who exhibits the “faux-genial manner that American petty tyrants cultivate,” and who finds legal precedent in the film In the Name of the Father. If Malcolm sees the law as troublingly subjective, for Hanophy it proves reassuringly mechanical. Malcolm extracts the book’s epigraph from one of their exchanges. “You seem to think that this is so extraordinary,” Hanophy says. “It’s not. Somebody’s life was taken, somebody’s arrested, they’re indicted, they’re tried, and they’re convicted. That’s all this is.”

That’s all this is. Hanophy’s statement crystallizes a great deal about the legal system’s self-conception. It’s a mechanism that moves with conviction toward conviction. Case closed. Stay out of the picture, again, and you won’t get framed. Hanophy mistakes his experience for wisdom, allowing his ego to run the courtroom. He acts brutishly toward the defense, and when her attorney argues that the judge’s behavior reflects negatively on Borukhova, Hanophy flatly rejects the argument.

If the judge misunderstands wisdom, Borukhova’s lawyer misunderstands honor, capitulating to and excusing the judge’s most egregious lapses of judgment. As the trial grinds toward its sixth week, Hanophy grows restless. He fears that the trial will interfere with a long planned trip to the beach. Hanophy rushes the defense, allowing Stephen Scaring, Borukhova’s attorney, one night to prepare his summation of the six-week murder trial. The prosecution, on the other hand, enjoyed an entire weekend to compose their rebuttal and closing remarks. Hanophy’s argument: “Come on, you’ve been in this business thirty years. You can do it.” Sleep deprived and ill prepared, Scaring bungles his closing. When asked about the circumstances of the summation, Scaring tells Malcolm, “I’m an honorable person. I wouldn’t call in sick when I’m not sick. There was no option but to proceed unprepared. So she was denied her constitutionally protected right of effective counsel.”

If “effective counsel” is nothing but a convenient fiction, the unbiased jury is the Yorick of this tragedy. “The prosecution does have an overwhelming advantage,” as Scaring tells Malcolm. “The jury walks in and figures the defendant wouldn’t be there if he wasn’t guilty.” Malcolm, more forcefully, writes that “rooting is in our blood; we take sides as we take breaths.” Malcolm admits to sympathy with Borukhova. At jury selection, the prosecutor asks potential jurors if the fact that Borukhova “holds medical degrees, because she’s an educated woman” will have an impact on their judgment. The correct response, should one care to serve on the jury, would be “no,” of course, but Malcolm writes of her “sisterly bias” toward Borukhova.

This is where the fist meets the face for Malcolm. Anyone biased in favor of Borukhova will never get selected for a jury. The corollary Malcolm draws from this is that bias against her, institutional and personal, defines the trial. And thus Borukhova suffers relentless, often arbitrary criticism of her “indecencies” from all precincts of her life. She fails to make a toast at a wedding. She wears dark purple lipstick. She wears black bras beneath white shirts. These behaviors are never greeted as quirks or taste; rather, each incident is an infraction demanding harsh judgment. Borukhova’s court-appointed child advocate — an unhinged, paranoid conspiracy theorist whose professional incompetence raises an entirely different set of issues — rashly accuses her of sociopathy, evidently because he just does not like her. And ultimately, according to jurors Malcolm interviewed, Borukhova’s combative yet affectless attitude during her testimony is “kind of what did her in.”

Malcolm effectively argues, despite Borukhova’s lifelessness on the page, that what “did her in” was less Borukhova’s criminal act — the truth of which coyly and powerfully remains unresolved for Malcolm, and for the reader — than the fact that people found her unpleasant and strange. “I recognized a tone I had heard in the voices of the therapists, police officers, social workers, lawyers, and relatives who testified against Borukhova,” Malcolm writes about a conversation with one witness during which they discussed Borukhova’s refusal to violate a religious prohibition and attend court after dark, therefore contributing to Scaring’s rushed summation. “[The interview subject’s] tone was one of disbelief and disapproval. How can she be this way? She shouldn’t be this way. Borukhova’s otherness was her defining characteristic.” And when likeability informs a verdict, justice becomes a clique.

Information is cumulative, but awareness is not. Awareness erodes like a beach against information’s relentlessness. The role of a writer — or of a certain type of writer — is to remind us what, individually and culturally, we know but that abundance forces us to forget. These writers enable our conscience by serving as aids to our memory. Janet Malcolm’s best work gestures to such cultural recollection. She’s authored several precise reminders that human frailty — venality, sloth, and the like — lie at the heart of scandal, and that scandal lies at the heart of human experience. Psychoanalysts harbor secrets. Journalists extol their own ethics while relying on a pliable morality. We naturally, intuitively suspect such indiscretions, and their social toxicity, but rarely with Malcolm’s penetration.