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What Happened to Michelle in Forest Hills?

Mazoltuv Borukhova with her daughter, Michelle Malakova, circa 2007

The Queens Family Courthouse on Jamaica Avenue—built eight years ago to replace a rundown former library that the Family Court had occupied for three decades—reflects the change that has taken place in public architecture during the past fifty years. Public buildings are no longer designed to be impressive but to be pleasant. Entering the courthouse’s five-story atrium and stepping onto its escalator, a visitor may have the momentary illusion of being carried to the lingerie floor of a department store rather than to a courtroom where her children will be taken away from her. The corridors outside the courtrooms where people sit and wait for hearings to begin have a similar atmosphere of euphemism. With their elegant floor-to-ceiling windows and handsome wood benches arranged in facing pairs, they evoke well-endowed university libraries and conference centers. They seem entirely unconnected to the little hell of family court.

During the three years I attended hearings at the Queens Family Courthouse on the continuing case of Michelle Malakova—whose mother, Mazoltuv Borukhova, a physician, had been convicted in 2009 of the murder in 2007 of her husband, Daniel Malakov, an orthodontist, by hiring a gunman to kill him at the entrance of a playground in Forest Hills, and was serving a life sentence at a maximum security prison in Bedford Hills—I came to know the corridor outside Judge Linda Tally’s third-floor courtroom very well. (Michelle, who was four years old when her father was killed, is now nine.)

As members of families have “their” chairs in the living room and at the dinner table, so the Malakov and Borukhov families—Bukharian Jewish immigrants from Uzbekistan who had settled in Forest Hills after the breakup of the Soviet Union—had their habitual places in the courthouse corridor, and these were as distant from each other as possible. Khaika Malakov, the father of Daniel, and his sons Joseph and Gavriel always sat at the near end of the corridor, while Borukhova’s mother, Istat, and her sisters Sofya and Natella sat at the far end. “My” place was in the center section where other members of the press would sit, among them the tabloid reporters with whom I had become friendly at the murder trial (or “Dentist Slay Trial” as one of their headline writers called it) in the winter of 2009. However, after a few months, the reporters stopped coming; the story of the “tragic hit kid” or “murder orphan” was evidently no longer newsworthy, and I became the only journalist covering the hearings.

Michelle’s story, in fact, was never newsworthy. She was always a recessive and passive character, the object of other characters’ fantasies and desires, her image vague and undelineated like that of the offstage changeling boy in A Midsummer’s Night Dream over whom Titania and Oberon wrangle. A Daily News story that appeared the day after the verdict, under the headline “Slain Dentist’s Kid Happy Now”—with the subhead “‘She doesn’t know anything,’ uncle sez of girl whose mom had dad shot dead”—was a characteristic exercise in journalistic resourcefulness in the face of insufficient knowledge. The News staff writer, Nicole Bode, who had covered the criminal trial, bravely began: “She was just 4 years old when she watched an assassin gun down her father in a cruel murder for hire that will send her mother to prison for at least the next two decades.” She goes on:

But now, at age 6, Michelle Malakov seems like any other happy and innocent child.
Each weekday morning, Michelle cheerfully boards a bus to Hebrew school in Queens, where she eagerly soaks up the alphabet. Each afternoon, she returns home to show off her new knowledge to her uncle, Gavriel Malakov, his wife and son, who have been her foster family since last spring. Her toys are comfortably scattered around the couple’s modest Forest Hills home, intermingling with those of her cousin, with whom she gets along well.
And her free time is filled with Jewish holiday parties at her relatives’ houses, trips to museums and other outings. “She’s a happy girl, she really is. Very sweet kid,” Gavriel Malakov said. “Just like other kids.”

After summarizing the history of the murder, about which “Malakov’s family has been careful to never speak” to Michelle, Bode goes on to quote the child’s law guardian, David Schnall, who “praised Malakov and his wife as ‘exceptional people’ and said they would make wonderful parents. ‘If anybody is to adopt, it is them and that’s who I am going to support wholeheartedly.’”

Michelle herself never appears in the story. A strictly truthful headline would have read “Slain Dentist’s Brother Sez Kid Is Happy Now.” But strict truthfulness is not the job of the tabloid journalist. Tabloid stories are written in the clean, taut style of legends and fairy tales and modernist fictions. They deal in the mythic and archetypal; they adhere to the basic plots. The news they bring us is that there is nothing new under the sun. The tabloid account of the trial of Mazoltuv Borukhova was the classic narrative of crime detected and punishment meted out to the criminal. The “Slain Dentist’s Kid Happy Now” story was a satisfying coda: the guilty mother was put away for good and the innocent child had found a safe haven with “exceptional people.” That the story was built on air and driven by the self-serving motives of the uncle and the legal guardian is another story, in another genre.

Judge Linda Tally first encountered—perhaps it would be fairer to say was catapulted into—the case of Michelle Malakova on October 29, 2007, when a hearing was hastily convened in her courtroom to determine whether the four-year-old child, who had witnessed the murder of her father the day before, should remain a ward of the state or be released into her mother’s care. On the day of the murder, Michelle had been forcibly removed from her maternal grandmother’s arms at the Forest Hills police precinct and taken into the custody of the Child Protective Services (CPS), an arm of the Administration for Child Services (ACS). The attorney for the ACS, Eric Perlmutter, had filed a petition charging “imminent risk” of abuse and neglect and stated that “ACS needs time to investigate whether or not the mother is a fit resource for the child.” Tally, a handsome, unsmiling woman in her fifties with an air of perpetual impatience and irritation, said to Perlmutter:

Where is the imminent risk? Yesterday the father was killed. He was murdered. It was on the news. Everyone heard, I’m sure, that story…. The mother, as far as the court knows, is the only other living relative of this child. Why doesn’t she have primacy of parental rights over everyone else?

When a second ACS lawyer, Lauren Mallar, explained that a month earlier custody had been taken away from Borukhova and given to the child’s father by a judge named Sidney Strauss, Tally remained unconvinced:

Even if the Court decided that the child would be better off with the father rather than the mother, unless the mother poses some risk to the child…she would have the primacy of parental rights over anyone.

But over the course of the hearing Tally’s view radically changed. Her tone hardened into the one that prevailed over the next four years of hearings in her courtroom. Her dislike of Borukhova seemed as manifest as the cool professionalism of her bench decorum. After six days of testimony from seven witnesses, Tally ruled that Borukhova was not a fit parent and that Michelle must remain in remand. “This Court is extremely mindful that the State’s interference with a parent’s right to custody of his or her biological child should never be taken lightly,” Tally wrote. “However, the Court finds in this particular case that State intervention in family life is necessary to prevent imminent risk of further emotional harm to this child.”

Until the fall of 2007, Michelle Malakova’s family life was much like that of other children whose parents hate each other and have separated. She lived with her mother and grandmother and saw her father only for supervised visits at social agencies. Borukhova had accused Malakov of hitting her and sexually molesting the child as an infant (she said that Malakov put his face into the baby’s genitals) and had received a protective order. The visits with the father were mandated by the state that had intervened on the mother’s behalf, and became increasingly central to the divorce proceedings that followed, of which Judge Strauss was the arbiter. The visits did not go well. Reports from the social workers all said the same thing: Michelle would shrink from Malakov and cling to Borukhova throughout the visit. All efforts to coax the child to “bond” with the father failed.

The social workers felt sorry for the spurned father—he seemed like such a nice, gentle person—and became increasingly critical of Borukhova for what they believed to be her deliberate sabotage of the father–daughter relationship. Borukhova denied this. She said she was trying to cooperate but that the child was so profoundly fearful of the father that nothing could—or should—be done to change the situation. The social workers thought otherwise. Their reports to Judge Strauss grew increasingly impatient and harsh. They felt that something could and should be done for the beleaguered Malakov and recommended that Borukhova absent herself from the room during the visits.

They did not recommend that custody be changed from mother to father. Judge Strauss’s decision that this be done shocked all parties, including Malakov, who had not asked for custody or wanted it. It was a decision widely felt to be wrong. In his opening statement at the criminal trial, the lead prosecutor, Brad Leventhal, identified the decision and its implementation as the direct cause of Malakov’s death: “If Daniel’s fate had not been sealed when Judge Strauss issued that ruling on October 3 of 2007, it was most certainly sealed on the evening of October 22 of 2007” when the transfer of custody took place.

In other words, he implied, a woman whose child is taken away from her for no good reason may be expected to do something violent to get the child back. Although there was nothing to link Borukhova to the crime on the day it occurred, a kind of primal necessity pointed to her guilt. Daniel’s family instantly “knew” Borukhova was responsible for his death. (At the hospital where the dying man was taken, his sister-in-law Natalie Malakov screamed at Borukhova, “Stupid girl, what did you do? You’ll never see Michelle again!”) The police “knew” it, too, and their confidence that evidence of Borukhova’s guilt would emerge was triumphantly borne out. A cell phone company’s record of ninety cell phone calls between Borukhova and a man named Mikhail Mallayev led to the arrest of Mallayev, whose fingerprints matched those on a silencer found at the crime scene, and, presently, to the arrest of Borukhova herself.

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