I recently read a bizarre article by Janet Malcolm on a murder trial in NYC. What threw me about the article was that the story was utterly commonplace (by the standards of today’s headlines): divorced mom kills ex-husband in a custody dispute over their four-year-old daughter. The only interesting features were (a) the wife was a doctor and the husband were a dentist, the sort of people you’d expect to sue rather than slay, and (b) the wife hired a hitman from within the insular immigrant community that she (and her husband) belonged to. But, really, neither of these was much of a twist.
To add to the non-storyness of it all, there were no other suspects, the evidence against the wife and the hitman was overwhelming, and even the high-paid defense lawyers didn’t seem to be making much of an effort to convince anyone of their client’s innocents. (One of the closing arguments was that one aspect of the wife’s story was so ridiculous that it had to be true. In the lawyer’s words:
If she was guilty, why would she say that? . . . It’s actually the strongest evidence of her truthfulness, because if she was a liar she would say something that made no sense. I mean, it makes no sense.
If that’s the “strongest evidence” in your favor, then you’re in trouble.)
And indeed, the two defendants were in trouble. They ended up with life in prison.
The only real evidence in favor of the defendants was that the woman was devoted to her daughter and that she and her husband (and their extended families as well) were involved in bitter legal proceedings, which included at one point a court order against the husband and, at a later date, a ruling that he should have custody of the daughter. Unfortunately, all of this understandable frustration did nothing to reduce the evidence that she hired her friend to kill her ex-husband. If anything, this all just makes the motivation for the murder that much more plausible.
The strange thing about the Janet Malcolm article is that Malcolm is so sympathetic to the killers (or, more specifically, to the ex-wife who made the call; Malcolm doesn’t say much about the actual shooter). Malcolm never goes so far as to do a Michael Moore (who notoriously described himself as the only white man in America who thought O. J. Simpson didn’t do it), but she definitely seemed to be rooting for the woman to get off, to the extent that she (Malcolm) called up one of the lawyers in the middle of the trial in what looks like an attempt to force a mistrial.
Malcolm’s main argument seems to be that the woman who ordered the killing was represented by a very good lawyer, but, because of difficulties having to do with other lawyers involved in the case, this super-defender didn’t have a chance to really do his thing and win the case.
Why do I care?
Why am I writing hundreds of words about a months-old magazine article on a year-old court case that wasn’t so remarkable in the first place?
The key is the author: Janet Malcolm, who’s arguably the best—perhaps only—pure essayist writing in English today.
What do I mean by a “pure essayist”? Someone who writes about one topic but is using it as a hook to talk about . . . anything and everything. Classic examples from the previous century include Rebecca West and the George Orwell of “Inside the Whale.” Who else besides Janet Malcolm does this nowadays?
To understand any article by Malcolm, you have to go on several levels.
1. On the surface, it’s the story of a woman in a difficult situation (an immigrant woman, a doctor, divorced with a young child and trapped in a family feud) who’s been accused of murder, and, as the story goes on, it becomes pretty clear that she actually did it. Along with this, it’s an interesting look into the peculiarities of the court system, from jury selection through cross-examination to opening arguments.
2. At the next level, it’s a New Journalism-style bit of court reporting, where we are told not just about the facts of the case but also, “Boys on the Bus”-style, about the other reporters and about the journalist’s personal sympathies.
3. Finally, amidst the colorful details of the court case, Malcolm occasionally offers a thoughtful reflection on the court system. Sometimes I think she’s flat-out wrong, but even then she’s interesting. (For example, at one point she reports an awkward bit of cross-examination and says that witnesses often get tangled up in trying to match wits with opposing lawyers. My impression is that the story is simpler than that, it’s just that when you’re on the stand, you’re scared of saying the wrong thing, so your words come out all hesitant, defensive, and triple-checked. How can anyone avoid it?) Anyway, the point is that I found Malcolm’s article to be thought-provoking throughout, much more than one would expect from the pretty basic story of the crime.
OK, here’s my theory . . .
Now let’s try to put it all together. What we have is an open-and-shut case, a story with no suspense. The killer is named on page 1 and the evidence mounts from there. No courtroom surprises, the case ends as it begins, and the killers get life sentences. I don’t think that any major magazine–other than the New Yorker–would’ve published Malcolm’s article.
So why did Malcolm take on this case? One possibility is that it seemed more ambiguous at the beginning than the end. Perhaps before the trial started, the evidence didn’t look as strong as it eventually did. (Once Malcolm sat in the trial for several weeks and interviewed all the participants, it’s no surprise that she turned it into an article (and maybe, soon, into a book); the real question is why she thought this particular case was worse the effort in the first place.)
I have a theory. I doubt I’ll ever have the chance to meet Janet Malcolm and ask her, so I’ll just put it out here. Malcolm refers to the well-known idea that all sorts of lawyers can successfully defend an innocent person; what makes a great defense lawyer is the ability to get a guilty person off. And, indeed, if there’s a hero in Malcolm’s story, it’s the lawyer for the ex-wife, a man who perhaps can work miracles.
So, my theory is that Malcolm sees herself in the same role. Any journalist can wring sympathy and a critique of the legal system out of a wrongly-accused person, but a great journalist can extract sympathy from someone who’s manifestly guilty.
Thus, rather than writing an article slamming the criminal courts on the basis of some dramatic miscarriage of justice, Malcolm is attempting the much more impressive feat of basing her critique on an open-and-shut case.
What I’m talking about here is not just a degree-of-difficulty thing. My guess is that Malcolm feels that her deeper arguments are strong enough that they should hold even in the weakest-possible legal case. Perhaps Malcolm would feel it would be cheating to make her argument in the context of an innocent person wrongly accused, or even in an ambiguous case.
This reminds me of Malcolm’s most famous article, The Journalist and the Murderer, in which–incredibly (to me)–she was angry at a journalist for deceiving a man who, it turned out, had murdered his entire family! Again, I think Malcolm saw the challenge in taking the side of a murderer, and, again, she felt strongly enough about her point (that journalists should not be deceivers) that she wanted to make that point in the starkest possible setting. The Journalist and the Murderer: you can’t get much starker than that.
In any case, I wasn’t convinced by Malcolm’s article. Just because there are some awesome lawyers out there, no, I don’t think every killer has the right to Johnny-Cochran-level representation. And, no matter how much someone loves their child, I don’t see that it’s such a great idea to arrange for the child to see her father being shot. It’s hard for me to get around this one. I also don’t approve of a journalist trying to use her influence to throw a monkey wrench into a murder trial.
But Malcolm’s our only great essayist, so I’ll read through to see her thoughts. I can appreciate a writer’s artistry without agreeing with her politics.
I can't speak to the merits of Malcolm's article beyond what you've described for us but, to answer a question you posed, for my money Hendrik Hertzberg (who writes the Talk of the Town column, again, in the New Yorker) is simply superb as an essayist. Wish I could write like that…
Who else? Ray Sawhill, aka Michael Blowhard from 2blowhards.com.
I'm sure you could write to Malcolm to ask her about your theory. I'd be surprised if she didn't reply.
And Gay Talese?
Don't forget Malcolm's second most famous article, about Jeffrey Masson, in which, after Masson sued for libel, she had a hard time defending the damning things she had quoted him as saying. That too was bizarre: Why use the power of The New Yorker to attack someone so minor whose sins were so minor?
I guess Talese is a reporter rather than an essayist.
Completely offtopic, but the practice you have of holding comments until approved makes any decent discussion here impossible. Why not rely on spam filters to hold questionable looking comments but post all others immediately? You could reduce spam with a captcha if necessary.
David:
1. I suppose I could write to Janet Malcolm, but I'd feel a bit uncomfortable corresponding with someone who has such a sympathy for murderers. I don't mind engaging her in the impersonal format of blogging, and I don't mind if she sees this, but I'd feel a little queasy about having a one-on-one interaction with her.
2. I agree that Gay Talese is great, as are Gore Vidal and many others. Still, I think Malcolm is a step above in how she uses her essay to get to all sorts of topics.
3. I would like more discussion, but we get well over 200 spam comments a day. Almost all these get caught by the spam filter. A few months ago I tried accepting non-filtered comments by default. At first, only a few spam comments got through, but after a couple days we started to get more and more and I had to turn it off.
There is a way when commenting to register with the system. Then your future comments will be approved automatically.
Seth:
In this case, I was even more bothered by Malcolm's apparent attempt to try to force a mistrial for a convicted killer! She's a good writer, though. . . .
How about Tom Wolfe (or at least the Tom Wolfe who used to write things like "The Last American Hero")?
Mark:
Good point. I've actually plugged Wolfe on this blog. I love The Painted Word and From Bauhaus to Our House. Wolfe is a great one for using the essay format to bring in insights from all over.
And it would be great to be a fly on the wall overhearing a conversation between Janet Malcolm and Tom Wolfe. I bet they disagree on everything.
Some of these people seem rather full of their own large vocabulary and idiosyncrasies of style without having anything much original to say. That does not stop them being entertaining and worth reading, but the adjective "great" is arguable.
As usual, I am not sure what the "our" in Andrew's last paragraph is meant to include or exclude. Is the implication that U.S. citizenship is necessary in order to be considered as a great essayist? Even within that limit what about scientists such as Freeman Dyson and Steven Weinberg who write intelligently, gracefully and clearly way beyond their nominal fields of expertise?
Nick:
I hadn't reflected upon my use of "our," but I suppose it reflects the idea that great literature is part of our national patrimony. Just as the English are proud of Shakespeare, the French are proud of Monet, and so forth.
I agree that Dyson and Weinberg are excellent writers, but I don't think they can do what Malcolm and Wolfe can do (or Orwell in his day), which is to touch upon a whole world of ideas in the course of telling a single story. God is in every leaf of every tree, and the best essays do that.
Given that definition, Lewis Thomas comes to mind (though he doesn't qualify for the living essayist list).
Mark:
Oooh, I hate Lewis Thomas's writings, which to me epitomize a showy "humanism" beloved of my high school English teachers. I much prefer Oliver Sacks, who fills his essays with information rather than merely banging on a point over and over.
In the article, everyone but Malcolm who meets the accused gets some kind of "bad impression" about her, a feeling that this is a soulless woman who is not fit to be a mother or is capable of murder. Malcolm disagrees — she likes the woman. She uses this as an opportunity to talk about how emotion-driven (other) people are, how (other) people follow their instincts rather than looking objectively at the facts, how (other) people make quick and unreliable judgments. It's almost glaring in the article how she never points this light at herself, wondering why her own blatantly emotional judgments are so radically different from everyone else's.
I agree, the article was bizarre. The most interesting part was trying to figure out Janet Malcolm herself, rather than the actors in the court case.
"…Any journalist can wring sympathy and a critique of the legal system out of a wrongly-accused person, but a great journalist can extract sympathy from someone who's manifestly guilty."
I've heard heard something similar about the number of great writers who began as sports reporters, esp. on the baseballb beat (Ring Lardner, Red Smith, and for my money, Roger, uhm , uhm, … formerly of the New Yorker – thank you google: Roger Angell): you have to be very good to take what is essentially the same thing, day in and day out, and make it seem interesting.
umm.. trying to mute my outrage here, but.. Andrew? Is believing in the right to a fair trial really the same thing as sympathy for a murderer?
I thought Janet was extremely clear: her best guess is that the accused is guilty, but the trial was so outrageously biased against the acused that it was impossible to say for sure.
I mean, these were not little nitpicky issues. One of the key figures who testified for the prosecution turned out to be _insane_, but this was not mentioned to the jury. The defense was not allowed any time to prepare closing statements because the judge didn't want to miss his vacation. Major errors in translation were not corrected.
I think Janet is a great writer, and this was a great piece, but the fact that smart people didn't get it gives me pause.
Steve:
It depends how you define "fair trial." From Malcolm's article, I got the impression that the defendant was represented by an excellent lawyer who, unfortunately for her, said that "the strongest evidence of her truthfulness" was that she (the defendant) implausibly said that she didn't hear a shot go off when her husband was killed. My impression is that Malcolm felt that the defendant deserved, not just high-quality legal representation, but Johnny Cochran-stile wizardry that would get her off. It's hard to see how giving the lawyer a weekend to prepare would've helped the system reach a better verdict. Maybe it would've allowed the lawyer to come up with a clever counterargument, but would that really be such a good thing? My feeling is that "L.A. Law" and other cultural artifacts have led many Americans (including Janet Malcolm) to believe that every murderer (or, at least, every sympathetic murderer) deserves some sort of exceptional defense. I don't see it, and I think it's a weakness of Malcolm's article, interesting as it was, that she didn't appear to reflect upon this.
Andrew: your words are full of evil; please, rethink. It was not about 'clever counterarguments', or 'exceptional defenses'. It was about the most basic foundations of our justice system: fairness, equality, following the rules _even when_ the suspect is incredibly *unsympathetic*. (The article details how defendant's pride prevented her from making herself more "accessible" — in terms of dress, mannerisms — and that her supposed peers had a viscerally negative reaction to her.)
What you should find appalling is not that she didn't have Cochran as her defender. But that the system that is sworn to treat her fairly, no matter how guilty she may seem, did not. It wasn't just that her legal team didn't get the time they morally required to adequately defend the woman. It was also that the other side _did_.
A judicial system can only be judged by how well it does for those who seem least deserving. May you never find yourself in the legal system you seem to desire.
I agree that everyone deserves a fair trial, but I hardly think it's a scandal that one lawyer got more time than the other to prepare their statement. Somebody had to go first, after all. This sounds more like an excuse than anything else. Here's a case where there was nobody seriously contested the defendants' guilt (see above for "the strongest evidence of her truthfulness").
In a way it is admirable that Malcolm expressed her criticism of the legal system in the context of an open-and-shut case. Maybe she felt that her point would be obscured if she had chosen a case where there was real uncertainty about the guilt of the accused.
Still, between this and her earlier The Journalist and the Murderer, Malcolm really does seem to have some sort of sympathy for people who kill their family members. She's a good writer, but I still find this a bit creepy.