The Treacherous Nature of Legal Narrative

Fallows and Rosen

The Treacherous Nature of Legal Narrative

Fallows and Rosen

The Treacherous Nature of Legal Narrative
New books dissected over email.
Feb. 1 1999 2:54 PM

Fallows and Rosen

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Hi, Jim--

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We seem to have had radically different reactions to the book, so this should be fun. Maybe I'm just a prisoner of my preconceptions, but to me, Janet Malcolm is the most morally illuminating literary journalist in the country, and The Crime of Sheila McGough, which I devoured yesterday in one sitting, epitomized the qualities that I find so exciting in everything she writes. So much of Malcolm's work is a meditation on the unruliness of truth and its struggle against the neatly organized, tendentious stories with which unreliable narrators--biographers, prosecutors, defense lawyers, photographers, and psychoanalysts--try unsuccessfully to contain it. Malcolm's wonderful essay about the Museum of Modern Art's exhibit of Julia Margaret Cameron's Victorian photographs, which I read in the New York Review just before reading the McGough book, set the stage perfectly: Malcolm describes how the amateur theatricals quality of Cameron's elaborately posed historical photographs, with sweating neighbors grimacing in their home-made Arthurian costumes, creates a zany reality that is somehow more truthful than a slickly professional production would be.

In the McGough book, Malcolm explores a version of the same paradox to give us a breathtaking series of insights on the peculiarly treacherous nature of legal narrative. "Trials are won by attorneys whose stories fit, and lost by those whose stories are like the shapeless housecoat that truth, in her disdain for appearances, has chosen as her uniform," she writes convincingly. "What Sheila's case illustrates with special vividness is something all attorneys know, which is that truth is a nuisance in trial work. The truth is messy, incoherent, aimless, boring, absurd. The truth does not make a good story; that's why we have art .... In the unjust prosecution and in the lying defense, much of the work of narration--of transforming messy actuality into an orderly story -- has already been done. The just prosecution and the defense of an innocent require a great deal more work. For truth to prevail at trial, it must be laboriously transformed into a kind of travesty of itself."

What clearly attracted Malcolm to McGough is the combination of her innocence--as The Journalist and The Murderer makes clear, Malcolm is powerfully drawn to the unjustly accused--and the irrational integrity that prevented her from countering the prosecution's strong but false story by inventing a strong but false story of her own. The prosecution's dime novel theory of motive--McGough must have lied to protect the con man Bailes because she loved him--was, as Malcolm discovered, false: McGough and Bailes were never involved. But it proved to be a more compelling narrative than the implausible truth, which is that McGough refused to testify in her own defense, and sacrificed her entire career for a shady client, because of what Malcolm calls "the radicalism of her vision of defense law as a calling for the incorrigibly loyal."

I'm surprised that you objected to the nonlinear structure of the book, in which Malcolm presents information more or less as she discovered it. This is, of course, central to Malcolm's point, which is that more dramatically coherent narratives inevitably impose a false sense of unity on the inherent shapelessness of truth itself. Moreover, Malcolm hardly asks us to accept Sheila's innocence at face value. She points to compelling evidence, never presented to the jury, that the government (unwittingly) used perjured testimony to win its case. A crucial witness said he heard one of the victims of the scam, Alan Morris, read Sheila a letter that purportedly spelled out the terms of the escrow agreement she insists she knew nothing about. But Malcolm notes that the telephone conversation during which Morris supposedly read the long letter was only a minute long, and that Morris himself was later disbarred and sentenced to jail for stealing escrow funds from a client. Malcolm also learned that Bailes, the con man, had tried unsuccessfully to pull the same escrow scam on another one of his lawyers, William Sheffield, who never mentioned it at the trial because no one asked him. These details didn't emerge in time to save Sheila not because of a massive government conspiracy, or because the government was determined to bring down Sheila because they found her "irritating." The truth, as Malcolm teaches us, is far less theatrical than that. Her prosecutor, Mark Hulkower, got an idea in his head, and once he began to build a case against Sheila it was far easier for him to construct a story that painted her as a villain than to change his mind in the face of the less dramatically compelling truth.

So we have a lot to talk about. In addition to Malcolm's reflections about the unique falsifications of journalistic narratives, prosecutorial narratives, and narratives of defense, I also learned a lot from her character sketches. In this regard, I found her, as always, to be an unblinking and judicious observer--not condescending in any way--and I wonder what it was about her descriptions that set you off. There are so many gems in the book, but to take just one, there's the amazing moment when Sheila is making hollandaise sauce in the kitchen, and Malcolm inwardly winces as she watches Sheila pour a packet of prepared powder in the saucepan of milk before she has brought it to a boil. Malcolm covertly glances at the instructions on the empty packet--"Mix the milk and the powder, and cook over low heat while stirring"--and when Sheila's mother voices the same concern, Malcolm is able to come to her defense, reporting that she had followed the instructions to the letter. ("We may not like the rule, but it's very clear.") If anyone has come up with a more elegant description of the superficial appeal and lurking dangers of legal formalism, I haven't seen it.

Best regards,

Jeff

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James Fallows is the author of
Breaking the News and is currently designing software at Microsoft. Jeffrey Rosen teaches law at George Washington University and writes for the New Republic and The New Yorker. This week they discuss The Crime of Sheila McGough, by Janet Malcolm.