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The Case of the Canned Lawyer

Writing cannot be done in a state of desirelessness.”

—Janet Malcolm, The Silent Woman

Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible.”

—Janet Malcolm, The Journalist and the Murderer

Just as The Journalist and the Murderer (1990) was a provocative, and provoking, meditation upon the ambiguous ethical role of the journalist vis-à-vis his subject, and The Silent Woman: Sylvia Plath and Ted Hughes (1995) was an equally original meditation upon the complicated art of biography (“the medium through which the remaining secrets of the famous dead are taken from them and dumped out in full view of the world”), so Janet Malcolm’s seventh book, The Crime of Sheila McGough, is both a highly detailed portrait of a woman lawyer and the court case with which she is involved, and an intensely personal and critical examination of law in contemporary America.

Malcolm is gifted with, if not accursed by, the allegorist’s imagination, to which nothing merely is, but can be interpreted in broad, ethical terms. She has the passion of a natural reformer, a messianic zeal strangely, yet often brilliantly, channeled into language. Her prevailing theme throughout her career has been a scrutiny of what is by way of the narratives we make of it, in composing the stories (the “narrativizing untruths”) of our lives. The Crime of Sheila McGough, in its radical distillation of the complexities of law, and its strategies of narration, is a book to set beside the very different yet equally provocative Lawyerland (1997) by the lawyer-poet Lawrence Joseph.

In the winter of 1996, a woman lawyer named Sheila McGough wrote to Janet Malcolm after being released from two and a half years in federal prison:

I was a defense lawyer who irritated some federal judges and federal prosecutors in the course of defending a client. The federal prosecutors in my hometown [Alexandria, Virginia] investigated me for four years, and when they failed to turn up anything illegal in what I was doing, they made up some crimes for me and found people to support them with false testimony…. I didn’t commit any of the 14 felonies Iwas convicted of. The U.S. Government office in Alexandria “framed” me.

Though Janet Malcolm comes to the conclusion that Sheila McGough’s summary of her case is accurate, this curious, disturbing tale is presented with such objectivity by Malcolm, with her characteristic penchant for assembling myriad facts and allowing witnesses to speak at length, that the reader may form his or her own conclusions. Malcolm presents McGough as “a woman of almost preternatural honesty and decency” and “an exquisite heroine,” a model of idealism and incorrigible loyalty. At the same time, McGough is “maddeningly tiresome and stubborn.” To master the “incoherent and senseless story of [McGough’s] ruin,” Malcolm had to grit her teeth to deal with a journalist’s nightmare: an utterly boring, banal, non-self-dramatizing subject unlike any other she had ever professionally encountered.

The journalistic subject is normally someone with a story to tell; you might even say to sell. Sheila’s refusal (or inability) to tell a story obviated the usual journalistic task of dismantling a well-made story. With Sheila the task, on the contrary, was to try to coax a story from the morass of her guileless and incontinent speech.

In other words, Sheila McGough is an aberration; one for whom the “narrativizing untruths” of normal life do not apply. McGough presents, for the journalist Malcolm, who is doggedly on her side through a year of frustrating investigation, both an exceptional opportunity and a liability:she refuses to become a “character”in Malcolm’s narrative. As McGough defeated her own lawyers’ attempts to save her from a criminal conviction and the ruin of her professional life, so McGough defeats Janet Malcolm’s enormous effort at making of her something she is not. And in the end, Malcolm must concede that she hasn’t saved her subject by exposing the circumstances of her criminal conviction: “I know that she still lies drowning in dark, weedy water—and that I must come up for air.”

Because The Crime of Sheila McGough is a reflection on the meaning of journalism as well as a work of journalism, and far more interesting as a reflection on journalism than as journalism, Malcolm’s strategy is that of continual analysis and self-scrutiny. Essentially, this is the identical approach Malcolm has taken to previous subjects, with generally illuminating results. Malcolm’s highly regarded but perhaps rather partisan Psychoanalysis: The Impossible Profession (1981) discusses in detail the theoretical phenomenon of “transference” (“how we all invent each other according to early blueprints”) and suggests in passing that the psychoanalyst is prey to a double vision of the patient:

He must invent the patient as well as investigate him; he must invest him with the magic of myth and romance as well as reduce him to the pitiful bits and pieces of science and psychopathology. Only thus can the analyst sustain his obsessive interest in another—the fixation of a lover or a criminal investigator….

Or, one might add, a journalist or writer. Yet more boldly, one might say brashly, in The Journalist and the Murderer (an investigation of the lawsuit of the convicted murderer Jeffrey MacDonald against Joe McGinniss, the author of Fatal Vision, a book about the crime that presents MacDonald as a psychopathic killer), Malcolm speaks of the mutual anxiety of writer and subject:

Even as [the writer] is worriedly striving to keep the subject talking, the subject is worriedly striving to keep the writer listening. The subject is Scheherazade. He lives in fear of being found uninteresting, and many of the strange things that subjects say to writers—things of almost suicidal rashness—they say out of their desperate need to keep the writer’s attention riveted…. The majority of stories told to journalists fail of their object. The writer ultimately tires of the subject’s self-serving story, and substitutes a story of his own.

This is a brilliant insight, though surely exaggerated, and unfair. Just as Malcolm’s much-noted charge that the journalist is “morally indefensible” in exploiting his subject is something of an exaggeration; most journalism, as we know from perusing the daily papers, is a forced effort to inflate the subject and to invest it with value it doesn’t possess.

Malcolm’s most engaging book, The Silent Woman, makes of the journalist’s quest a kind of detective story and the journalist a detective, investigating the “transgressive nature of biography,” in which, in the case of Sylvia Plath and Ted Hughes, “deep pathologies of biography and of journalism… fuse, and…engender virulent new strains of the bacillis of bad faith.” The predicament of biographers of Plath, confronted with a morass of ill-will and misinformation to which they in turn are tempted to contribute, strikes Malcolm as “a kind of allegory of the problems of biography in general.” To what extent is the biographer/journalist always inventing his or her subject, taking over the role of Scheherazade in the hope of keeping the reader listening? Is bad faith inevitably involved, or can there be a disinterested, “desireless” examination of a complex subject? (Malcolm says no. No writing is without “desire” or bias. Fairmindedness is only a “pose” and an attitude of detachment can never be more than a “rhetorical ruse.” Yet by her own acknowledgment of whose side she is on in the Plath/Hughes debate, which is the side of Hughes, Malcolm allows the reader to form conclusions that may be quite different from those she herself argues. She is that good a writer.)

The Silent Woman is Malcolm’s most successful book not so much for its provocative insights and ideas—all her books abound with these—as for the generous specificity of its English settings, the bed-sitters, flats, and houses of Plath’s aging survivors, and the gallery of “characters” she interviews. The detective-writer’s sharp eye and ear allow us not only to hear about her adventures, but to participate in them. By contrast, books in which Malcolm is less passionately engaged, among them Psychoanalysis: The Impossible Profession and The Crime of Sheila McGough, have comparatively sketchy or perfunctory settings; if more detailed, like the small suburban home of Sheila McGough’s elderly parents, or one or another law office (“The room had the obligatory vertical wood paneling and was in a state of comfortable disorder…. The conference table was an old, rather beat-up, glass-top model, with an agreeable mess of papers and objects on it. There was a bookcase of lawbooks…”), they are of little intrinsic interest, seeming rather desperately worked up from notes.

Malcolm argues that a journalist’s subjects are mostly “invented,” yet The Silent Woman is a memorable book primarily because its major subjects, Plath and Hughes, are larger than life as well as gifted poets, and even its minor characters (Hughes’s rebarbative sister Olwyn, the beleaguered biographer Anne Stevenson, and the memoirist A. Alvarez) are of uncommon interest. By contrast, the New York psychoanalyst “Aaron Green” and the luckless Sheila McGough are extremely limited; they strike a single note, and strike and strike that note; there is no seductive Scheherazade in their stories except the intrepid Malcolm, who can only quote her subjects’ monologues selectively, and write elegant prose around them. At times, Malcolm is disarmingly frank about the constraints, as she sees them, of her genre:

If Sheila is my heroine, Hulkower [a prosecutor] has to be my villain. Ajournalistic narrative is a kind of lumbering prehistoric beast that knocks over everything in its path as it makes its way through the ancient forest of basic plots. My sneaking liking for Hulkower simply has no place in my story. My assumption that Hulkower is a decent and well-meaning man must be held up to the strictest scrutiny; Imust search his words and writings for signs of bad faith.

Yet Malcolm’s predicament in The Crime of SheilaMcGough isn’t owing to the genre, for nonfiction can exhibit the ambiguity and irresolution of serious literature; it’s the static, obsessive nature of Sheila McGough. Malcolm’s talent for portraiture is thwarted by her. It is as if Vladimir Horowitz were compelled to play only “Chopsticks,” with numerous repeats. The artist may be Horowitz, but the tune is still “Chopsticks.”

What was the crime for which Sheila McGough was charged, and what was the “crime” for which she seems to have been convicted? Where Janet Malcolm sees McGough’s conviction as a consequence of “the crime of not letting go, of not accepting the unwritten law of closure,” in continuing to defend an obviously guilty client years after his conviction, and so irritating her (mostly male) opponents in a Virginia federal court, the reader is likely to see the conviction as inevitable, given McGough’s involvement in her client’s “business affairs” (in fact, an escrow scam) and her stubborn and protracted refusal to defend or even explain herself to prosecutors. The most naive of lawyers, McGough seems to have thought that a lawyer must remain loyal to her client at all costs, must believe her client’s stories no matter how implausible, and must allow herself to be imprisoned rather than testify against him: “To save herself at her client’s expense was unthinkable.”

Malcolm’s “heroine” winds up spending two and a half years in prison and destroys her professional career as a consequence of not only her refusal to acknowledge her smooth-talking client’s guilt but her own poor judgment, or stupidity, in refusing to see how her client has manipulated her. As a federal judge summed it up: “The court cannot help but feel that Bailes [the client] just ruined this woman’s life.” In a society in which lawyer jokes abound, some of the nastiest (and funniest)told by lawyers themselves, a society in which lawyers are feared, admired, envied, loathed, and ceaselessly discussed in the media, it’s something of a novelty to learn that some lawyers, at least the naive and inexperienced like Sheila McGough, are victimized by their criminal clients.

The literal crime for which Sheila McGough was convicted was her apparent involvement in her client Bailes’s escrow scam, in which he tried to sell stock in nonexistent insurance companies. Unwisely, though knowing that Bailes had been indicted for various other frauds, she allowed him to move into her law office and to use her office facilities for his “business affairs.” Yet more unwisely, and, as her prosecutors would charge, criminally, she received from one of Bailes’s victims $75,000, which was deposited in her attorney trust account, then withdrawn by her (minus an incriminating $5,000 fee to herself), and turned over to Bailes. As a prosecutor would argue,

[McGough’s] role in the scam… was to use the dignity of her office to lull the investors into a false sense of security. She had assured them that their $75,000 would be held in escrow…but then, on the very day that they wired the money to her attorney trust account, she removed it and gave it to Bailes, keeping $5,000 for herself. And when the deal collapsed under the weight of its improbability, the down payment was nowhere to be found.

There are further involvements that to the eye of a neutral observer, or a federal court judge or jury, would naturally seem suspicious, as well as highly unprofessional. “Sheila’s story is not a good one,” Malcolm concedes. Yet,

It has taken me over a year to grasp that Sheila, [Bailes’s] partner in the crime of getting things hopelessly balled up, stands, in her strange and pitiful way, for something rather magnificent. Her inability to see what was staring everybody else in the face about Bailes, her refusal to label him a con man and write him off,…are the signs not of naiveté, as some observers have believed them to be, but of a bracing idealism.

Readers may be puzzled by Mal-colm’s insistence upon the heroism of a victimized and deluded woman who, years after her conviction, and Bailes’s death, continues to defend him and to attack the federal prosecutors who “harassed” him and her. The true subject of The Crime of Sheila McGough is the psychological mystery we call “denial”—the refusal of a victim to concede her victim status, and her consequent collusion in her own degradation. If the victims at Jonestown or Waco could return from the dead to give testimony, no doubt many of them would continue to defend the cult leaders who led them into death; yet we would not applaud their loyalty or idealism, nor would we designate them as heroic. So, too, Sheila McGough seems to have been thoroughly brainwashed by an immensely charming “con man’s con man.”

Malcolm’s slender book might have been strengthened, and infused with more zest, if the writer had focused a bit more on the elusive Bailes, whom clearly she admires, in the way that writers admire any rogue who sets a plot in action: “Chaos was the medium in which he could breathe; order suffocated him.” Of con men like Bailes, Malcolm remarks:

Con men are not businessmen manqués. They are not businessmen at all. They are in an entirely different line of work. They are not called con artists for nothing; they are called con artists precisely in recognition of the qualities they share with regular artists, which are: (1) love of solitude; (2)love of freedom; (3) dislike of authority; and (4) extraordinary powers of daydreaming.

Bailes was such a charmer, even a (female) Justice Department lawyer who prosecuted him remembers him with a smile: “He probably could have sold you a pair of dirty socks and you would have been happy.” Unfortunately, this paragon of seduction has departed the scene, having died in prison while serving a twenty-five-year sentence for fraud, and only Sheila McGough remains on stage, fifty-four years old, looking and sounding like “one of the blandly wholesome heroines of fifties movies” despite her prison ordeal and her unremitting sense of outrage at the injustices committed upon her and her client. Even as a lawyer, McGough isn’t representative: she was middle-aged when she entered law school, took a degree from the newly accredited (and undistinguished) George Mason Law School, and became a public defender for the state of Virginia with no office or colleagues—a solo practitioner, as a sympathetic witness observed, in the “cesspool of the criminal defense world.” She was simply not smart enough to recognize her attractive client’s duplicity, though he had a prison record and was currently involved in a transparently fraudulent scheme (the nonexistent insurance companies he tried to sell were allegedly chartered in the 1890s, before state insurance regulations were made into law). Once she became involved in his “business,” and in the affairs of the dupes (who hoped to defraud the government, too), she was lost. As another lawyer observed:

[Sheila] was a midget among giants in that crowd. These guys were professionals. They were a bunch of sharks. I wouldn’t trust a single one of them. You count your fingers after you shake their hands.

As a “character” in a narrative, McGough disappoints because she shows no growth, no change, no self-awareness.

The case of Sheila McGough will seem to many readers merely one of those unfortunate but perhaps not uncommon cases in which a defendant refuses to testify on her own behalf in a trial, deluded into thinking that she must not betray another (who has in fact betrayed her). It is unreasonable to expect judges, or any officers of the court, to take responsibility for such defendants, even if they are “innocent”; for by their collusion with the guilty, they are in fact sabotaging the possibility of justice. Yet Malcolm seems to hold these officers of the court responsible, even as she absolves McGough of blame. To demonstrate the very real dangers of adversarial law, Malcolm might have chosen to write about one of those unconscionable capital cases in which an innocent defendant (often an African-American male) is found guilty and sentenced to death, though the prosecution is in possession of exculpatory evidence that might have freed him. The Sheila McGough case is simply too slight and unrepresentative to merit such passion and to support Malcolm’s not entirely original charge that adversarial law has little to do with truth or justice but only with convincing a judge or a jury that one side is “being untruthful in aid of the truth” and not in the aid of untruth.

In one of Malcolm’s quests for something worthwhile to write about in this frustrating adventure, like a down-at-the-heels private eye she finds herself in Garden City, Long Island, “impelled by the notion that places can speak of what happened in them.” She hopes to visit the office in which much of the business that led to McGough’s conviction took place, but discovers only a vacated suite of rooms.

Then Ifound it:the vacant rooms were themselves the treasure I sought. They gave me my metaphor for the narratives of the law—the stories told by lawyers—with which I had been trying to come to terms and which had filled me with the kind of boredom and alienation I now felt. Law stories are empty stories. They take the reader to a world entirely constructed of tendentious argument, and utterly devoid of the truth of the real world….

Some law stories are “empty stories,” but surely not all.

Compare the more inspired ending of The Silent Woman, which brings the detective-writer to the home of an elderly Englishman who lived below Sylvia Plath at the time of her suicide, and whose comically self-absorbed testimony she has politely transcribed. An articulate crank, Trevor Thomas lives in a rat’s nest of a flat, so filled with debris that there are only narrow pathways along which one can walk. Malcolm is both appalled and fascinated, as somehow we knew she would be:

Later, as I thought about Thomas’s house (which I often did; one does not easily forget such a place), it appeared to me as a kind of monstrous allegory of truth. This is the way things are, the place says. This is unmediated actuality, in all its multiplicity, randomness, inconsistency, redundancy, authenticity. Before the magisterial mess of Trevor Thomas’s house, the orderly houses that most of us live in seem meager and lifeless—as, in the same way, the narratives called biographies pale and shrink in the face of the disorderly actuality that is a life. The house also stirred my imagination as a metaphor for the problem of writing. Each [writer] faces not a blank page but his own vastly overfilled mind. The problem is to clear out most of what is in it…. The goal is to make a space where a few ideas and images and feelings may be so arranged that a reader will want to linger awhile among them, rather than to flee, as I wanted to flee from Thomas’s house.

The Crime of Sheila McGough ends with a rather forced passage of nature lyricism, as Malcolm, still in pursuit of an appropriate setting, visits a hillside vaguely associated with one of Bailes’s failed schemes. She notes a “pretty dappled glade where purple asters and goldenrod grew amidst spent jewelweed and joe-pye weed”; we are meant to conclude that the law is a matter of empty rooms, while nature abides. The Crime of Sheila McGough will not have the distinction of being among Janet Malcolm’s major works, but it exhibits many of the writerly strengths for which this gifted (and controversial) cultural critic is deservedly known.

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