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The Trial

New York Daily News
Mazoltuv Borukhova and Daniel Malakov at their wedding, 2002

The murder of Daniel Malakov took only a few seconds to unfold. Malakov, a thirty-four-year-old orthodontist, was shot three times at close range on October 28, 2007, as he stood with his four-year-old daughter Michelle near the entrance to a playground in Forest Hills, Queens. He was there to meet his estranged wife, Mazoltuv Borukhova, a physician, to hand over Michelle—of whom Malakov had been given custody three weeks earlier—for an all-day visit with her mother. The gunman fled. Malakov died in hospital after an unsuccessful attempt by his wife to administer CPR on the pavement in the wake of the shooting. Michelle, after some initial bureaucratic confusion, was entrusted to members of Malakov’s family.

In November the gunman was identified as Mikhail Mallayev, a fifty-year-old resident of Chamblee, Georgia, and a relative of Borukhova’s by marriage; in February Borukhova was arrested and charged with hiring Mallayev to kill her husband. The case attracted considerable attention, not least because Malakov, Borukhova, and Mallayev all belonged to the tightly knit and, to the public, little-known Bukharan Jewish community, originating in Uzbekistan and now clustered in Forest Hills.

Borukhova and Mallayev stood trial together in a proceeding that lasted six weeks; both were found guilty and were given sentences of life without parole. The most damning evidence of their conspiracy consisted of cell phone records of ninety-one calls exchanged between the two in the three weeks preceding the murder, along with bank records showing deposits of nearly $40,000 made by Mallayev (although not directly traceable to Borukhova) on separate occasions before and after the shooting.

Of this case, widely regarded as open-and-shut, Janet Malcolm, who attended the trial, has given an account rich in perplexities. She does not directly challenge the guilty verdicts handed down; but she does raise enough incidental questions of bias and suggest enough alternate ways of reading some of the evidence as to place the entire proceeding under the shadow of doubt. Iphigenia in Forest Hills is a garden of forking paths where at every turn new and contradictory narrative byways open up. It is a brief book but immense if measured by the implications that can be teased out of its sentences—not to mention the spaces between the sentences. By the time we are done the certainties of legal evidence and judicial decisions have given way to a fundamental and unappeasable ambiguity.

Those are articulated at the outset in a remark by the presiding judge at the trial (Robert Hanophy, of whom more later) appended by Malcolm as epigraph: “Somebody’s life was taken, somebody’s arrested, they’re indicted, they’re tried and they’re convicted. That’s all this is.” In opposition to this cut-and-dried dismissal of any residual impulse to probe deeper, she juxtaposes the words of a prospective, ultimately unselected juror: “Everything is ambiguous in life except in court”—an observation of a sort in which Malcolm’s books abound, posted like warning signs to the reader to beware of the astringent clarity of each separate element as it comes into view. We want the elements to add up to a satisfying and coherent story. But as Anton Chekhov wrote—in a letter quoted by Malcolm in Reading Chekhov: A Critical Journey (2001)—responding to a reader who had complained of the writer’s having evaded a proper explanation of his protagonist’s motives: “We shall not play the charlatan, and we will declare frankly that nothing is clear in this world. Only fools and charlatans know and understand everything.”

A law court is not a bad vantage point for taking note of folly and charlatanry, but Malcolm does not exempt anyone from bias: “We go through life mishearing and mis-seeing and misunderstanding so that the stories we tell ourselves will add up.” Stories want to resolve themselves despite all obstacles; Malcolm’s peculiar mission, here as elsewhere, is to point out the cost of such resolutions, to zero in on those details that don’t fit the main story and are thus discarded, and in the process to make manifest the unreconcilable gap between an acceptable master narrative—the version that everyone must agree on in order to keep moving forward—and the specific qualities of what actually happens.

She lingers on points that might seem moot in the light of subsequent events: for example, whether the fingerprint expert who verified Mallayev’s prints was biased by his having known that Mallayev had already been incriminated by the cell phone evidence. She is not imputing bias on the part of the expert, although she cites in detail an analogous case in which such bias played a destructive role; at the very least she makes it clear that if there had been bias we would have no way of knowing. We take on faith an expertise that may be just another illusion, relying on a forensic method that may (according to a National Research Council Report) be deeply flawed, with the jury’s verdict burying any misgivings. In like fashion she takes on, one after another, the building blocks with which an unassailable story may be constructed.

Law in this light becomes the mechanism whereby certain lives, certain realities, are permanently buried in the interest of pragmatic social ends. Its truth is not an expression of reality but a symbolic plaque set up in place of reality, like the decorative mosaics adorning the Queens Supreme Statehouse, “a sort of mad allegory illustrating concepts…that relate to a court of law.” Malcolm spends several pages on these mosaics—leaving her story behind her almost as one would step out of a courtroom for a breath of air—in a digression that is not really a digression but the underscoring of an aesthetic principle. All that comes into view imposes, in the moment of its visibility, its own relevance. The random glimpses, here, of “figures, set in a sinister landscape crowded with waterwheels and mountains and roads and rainbows and blue bowls filled with gold”—the muralist’s barely decipherable and barely noticed allegory—make apparent the impossibility of stepping outside the domain of competing narratives that is the world.

Malcolm takes every opportunity to emphasize the unsettling quality of that competition. The atmosphere she establishes is quite different from the sealed-off environment that most jurors experience. To sit as a juror is to start with a tabula rasa: a juror is presumed to know nothing, and if a juror does know more than a very little he is likely to be disqualified. There is a “once upon a time” quality to the way the lawyers’ narratives fall on the ear in that tightly controlled setting. One is given not one but two tales, unfolding as if in a vacuum, and then given a choice of which one to believe. A juror finds himself unnaturally focused on the minutiae of the information he is being given—there are no distractions as in ordinary life—while being given no hint as to how much other information has perhaps been withheld, or the degree to which this apparently open forum is a performance stage-managed according to undeclared rules and prior understandings. The life of the courtroom is indeed a parallel life, sitting in detached judgment on the other one.

The truth is messy, incoherent, aimless, boring, absurd,” Malcolm has written elsewhere. “The truth does not make a good story; that’s why we have art.”1 The paradox of Malcolm’s writing is that all her art is deployed to reveal the seams and interstices of the art-making process, to lay bare the details fudged or blurred or condensed, the inconvenient incongruities and confusions regularized or omitted, the bias by which certain details are foregrounded and others tossed aside. “Art” here would be the art of narration practiced by lawyers and journalists equally as much as novelists and screenwriters. Such ploys and devices are survival tactics, necessary acknowledgments of natural limits, and to focus relentlessly on them might at moments seem an exercise in relativism or equivocation. Judge Hanophy’s impatient “they’re indicted, they’re tried and they’re convicted” would sum up such a response neatly. Malcolm follows a trail of “what if”s that can lead away from the question of what is legally actionable into speculation on different kinds of guilt and how small actions may make the difference between vastly different outcomes.

The judge figures as a convenient spokesman for an approach diametrically antithetical to Malcolm’s. She makes no secret of her first and enduring impression of him: “Hanophy is a man of seventy-four with a small head and a large body and the faux-genial manner that American petty tyrants cultivate.” Neat minimalist caricature is linked to a broad implied landscape of social life, and she enriches the portrait with a devastating account of Hanophy’s intemperate and utterly irrelevant tirade against the English at a sentencing in 1997, an outburst that led to his being censured by the Commission on Judicial Conduct and that Malcolm characterizes as “a measure of what judges feel they can permit themselves in their courtrooms.”

The simmering hostility evoked by the judge’s first entrance in these pages persists as part of the book’s permanent atmosphere, flaring up from time to time, and taking on fresh importance when Hanophy, in the closing days of the trial, forces the defense to deliver its summation with very little preparation time in order not to delay his vacation: “This trial is going to be over on March 17th because I’m going to be sipping piña coladas on the beach in St. Martin.” (This and other such remarks have helped form the basis of an appeal to overturn the verdict currently being brought by the lawyer Alan Dershowitz.2) In a book dedicated to flushing out unsuspected strands of ambiguity, Judge Hanophy stands as a sort of strident emblem of the unambiguous.

In what pertains to the crime itself, there is relatively little here of what would be at the center stage of a typical journalistic account: the violence and chaos of the murder scene, the grief and shock of loved ones, the unraveling of the roots of the conspiracy. Malcolm avoids anything that would conjure the film noir atmosphere of Double Indemnity, and in fact devotes remarkably little space to Mallayev, the man who actually fired the shots. He becomes almost an accidental appendage of the case, a functionary of dubious connections (the court was told of an inexplicable multimillion-dollar bank loan he was granted despite being heavily in debt). He becomes visible only in his final statement—“rambling, confusing, entirely unpersuasive, but strangely dignified”—before sentencing: “What they try to accomplish is to satisfy the people of New York hey we got the killer. Don’t worry. You can go to the playground. Nothing is gonna happen.” Malcolm is always interested in any turn of phrase that seems like an inappropriate intrusion into what she describes as “the artificial and, you might even say, inhuman character of courtroom discourse.”

  1. 1

    Janet Malcolm, The Crime of Sheila McGough (Knopf, 1999), p. 26. 

  2. 2

    Dan Bilefsky, “Judge’s Rush for Vacation Marred Murder Trial, Appeals Lawyer Argues,” The New York Times, February 11, 2011. 

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