The Journalist and the Murderer

by Janet Malcolm

  “ ‘What the fuck were those people thinking of? How could twelve people not only agree to believe such a horrendous proposition but agree, with a man’s life at stake, that they believed it beyond a reasonable doubt in six and a half hours?’ ” Bostwick read aloud from McGinniss’s second letter to MacDonald. He then turned to McGinniss and said, “Did you believe that when you wrote it to him?” McGinniss replied, “I did and I still do. I think it’s the most horrendous proposition in the world that a man could murder his wife and two little girls.” The transcript continues:

  Q: What I’m asking you, Mr. McGinniss, is something else. Didn’t you try to tell him with those words that you found it hard to believe that the jury had come to the verdict they did?

  A: I was surprised it only took them six and a half hours, but my perspective, you’ll have to remember, was totally and entirely from one side during that trial. I spent my time only with MacDonald, not with the prosecution.

  Q: I understand that, Mr. McGinniss. What I’m asking you is whether you were trying to get Dr. MacDonald to believe that you believed the jury had been wrong.

  A: No.

  Q: You weren’t, not with those words?

  A: I didn’t feel that the jury—

  Q: I’m just asking you what you were trying to get Dr. MacDonald to believe with those words.

  A: I have no recollection of what I was trying to get Dr. MacDonald to believe.

  Bostwick continued to tighten the screws: “Did you consider yourself [MacDonald’s] friend at the end of trial?”

  A: I considered myself the author, I considered him the subject during those six or seven weeks. We certainly got along well. I don’t know how you define “friend.” It was a professional relationship.

  Q: How do you define “friend”?

  A: I defined “friend” as someone whose company I enjoy from time to time; someone whose—with whom I would have reason to stay in some kind of contact. I have never really stopped and thought about a definition of the word “friend,” but I’m sure we could find one in a dictionary. But Dr. MacDonald was the subject, and I was the author. And that was the primary focus of the relationship.

  Q: I’m going to ask you again: Did you consider at the end of the trial that you were his friend?

  A: I don’t know how to answer that. I felt terrible when he was convicted. If I hadn’t considered him in some degree a friend, I suppose I would have felt happy he was convicted. Instead I felt real bad.

  Q: Did you consider him your friend?

  A: That’s the best I can do, Mr. Bostwick.

  Q: Would you take a look at Exhibit 36A again.… It says, “Goddamn it Jeff, one of the worst things about all this is how suddenly and totally all of your friends—self included—have been deprived of the pleasure of your company.” Why was it so easy for you to know that you were his friend when you were writing him that letter, and you can’t decide today whether you were his friend at the end of the trial?

  A: Well, that was eight years ago, and my recollections were a lot fresher.

  Q: You’ve just forgotten that you used to be his friend, right?

  McGinniss’s agony went on:

  Q: “Total strangers can recognize within five minutes that you did not receive a fair trial.” You didn’t really believe that he didn’t receive a fair trial, did you?

  A: Well, I’m sure that that was an oversimplification, and indeed it misstates the total strangers. How could they recognize anything within five minutes?

  Q: I don’t know. Why did you tell him that?

  A: I don’t know. Because, you know, Mr. Bostwick, when I write a letter it’s like making a phone call. You just—

  Q: You talk about what’s in your heart, right?

  A: You talk about—it’s not like writing for publication.

  Q: You say what comes to mind—isn’t that right? What you really feel?

  A: You take less care with the way you phrase things.

  Bostwick’s own carefully shaped narrative hewed close to its theme of cold betrayal. He relentlessly hammered home the idea that McGinniss’s deception of MacDonald had been a matter of simple opportunism, and that the letters had been written in utter cynicism—to get material out of MacDonald and to lull any suspicions he might have which could imperil McGinniss’s project. To nail down his harsh thesis, Bostwick prefaced his reading of excerpts from the letters with a reading of excerpts from newspaper interviews that McGinniss had given during his publicity tour for Fatal Vision, in which, evidently thinking himself safe from the vengefulness of a man locked up for life, he spoke of MacDonald with frank loathing. (“He is a very sick human being,” he told one reporter, and, in response to another reporter’s question, fixed the time of his realization of MacDonald’s guilt as having actually occurred during the trial.)

  Kornstein, in his friendly examination of McGinniss, three weeks later, did what he could to repair the damage. On the fair assumption that deceiving a few journalists during a book tour was a lesser offense than deceiving MacDonald for four years, Kornstein had McGinniss testify that he had misinformed the reporters. “Statements by me that I was convinced of MacDonald’s guilt before the jury came back were not accurate reflections of the way things really were,” McGinniss said, at Kornstein’s prodding, and went on, “I just gave some simplistic shorthand answers which, no question about it, in two or three instances created an impression which is not—it’s the way I wished it had been, more than the way it was.” Kornstein also asked McGinniss, “In those letters in 1979, did you genuinely feel every emotion that you expressed?”

  A: Yes, sir, I felt every emotion I expressed. I’m not that good a writer to fake something like that.

  Q: Was there anything in those letters that you intended to be false?

  A: Nothing I intended to be false.

  Q: Was there anything in those letters that you intended to deceive MacDonald with?

  A: If we’re talking about these first six or nine months, no, sir. They were honest expressions of feelings that I had at the time.

  In his cross-examination, Bostwick went straight for the exposed throat:

  Q: You said yesterday … looking at the letters of the first six to nine months after the trial, [that] you never intended to deceive him.… After the first six to nine months, did you intend to deceive him?

  A: Well, there certainly came a time when I was willing to let him continue to believe whatever he wanted to believe, so he wouldn’t try to prevent me from finishing my book, yes, sir.

  Q: Is the answer yes?

  A: The answer could be interpreted that way, I suppose.

  Q: By someone reading the letters, for instance.

  A: Well, I’m sure it would be by yourself, sir. I don’t know—other people might interpret it differently.

  Bostwick went on to read from a letter from McGinniss to MacDonald dated April 14, 1982, written soon after MacDonald had been reincarcerated following an eighteen-month spell of freedom. (In July 1980, the Fourth Circuit Court had ruled favorably on MacDonald’s appeal that he had been denied a speedy trial, and he was released. Then, in March 1982, the Supreme Court overturned the lower court’s decision, and MacDonald went back to jail.) Bostwick continued, “Mr. McGinniss, you told your wife you were glad he was back in jail. Two weeks later, in this letter, you’re telling him that you hope you’ll be able to call him at home. Why?”

  A: As I’ve already testified, I believe because I was encouraging him to not discourage me from finishing the book that I had put so much of my life into at that point. My commitment was to the book and to this truth.

  Q: And it was O.K. to tell him something that you really didn’t believe in the service of this truth?

  A: I would say that falls into Mr. Wambaugh’s category of untruth.

  McGinniss’s reference to Wambaugh’s “category of untruth” concerned what everyone later agreed was the pivotal moment of the trial. As the cornerstone of his defense of McGinniss, Ko
rnstein had gathered together a roster of well-known writers—members of what he called “the literary community” and Bostwick less delicately, if perhaps more accurately, called “the writing industry”—to come and testify that McGinniss’s deception of MacDonald was standard operating procedure. Kornstein’s original list of “experts on the author-subject relationship,” included William F. Buckley, Jr., Tom Wolfe, Jimmy Breslin, Victor Navasky, J. Anthony Lukas, and Wambaugh, but only Buckley and Wambaugh actually testified; after their appearance, the judge, evidently feeling that the defense had taken enough punishment from itself, called a halt, and decreed that no more writers would be heard from.

  Buckley came first. Kornstein asked him, “Based on custom, practice, and usage within the literary community and your own experience, what is the scope of the author’s discretion to encourage self-deception on the part of the subject?”

  A: Well, there again, that’s an artistic question. If Senator [Alan] Cranston, let’s say, while I was writing a biography about him, began to make references that sounded to me as though he had another wife living in Florida, I would from time to time return to that subject to encourage him to give me more details, but I wouldn’t alert him to the fact that I was suddenly discovering that he was a bigamist.…

  Q: Again, based on custom, practice, and usage within the literary community and your own experience, would it be appropriate or inappropriate to perhaps feign agreement with the principles of the subject in order to encourage further conversation?

  A: Well, I think it would be appropriate, given the priorities. The priorities are to encourage the person you’re writing about to tell you everything, and if that takes going down to a bar and having a beer with him, you go down to the bar and have a beer with him. If it means that you have to listen to three hours of boring, trivial matter of really no concern, you go ahead and do that. It’s part of the ordeal of a writer in seeking to get all the facts, on the basis of which he makes his definitive evaluations.

  In his cross-examination, Bostwick got right down to his enjoyable business:

  Q: You’re not trying to tell the jury that you believe that an author can lie to the subject of a book that he’s writing about, are you?

  A: Well, it all depends on what you mean by the word “lie.”

  Q: A lie is a false statement of fact, Mr. Buckley. I’m sorry you’re having such a difficulty—

  A: Well, look, look, look—

  Q: I can try to give you the definition of the word “lie.”

  A: Look, it’s not that easy. I’ve read Sissela Bok’s book on lying, and it’s not that easy. For instance, if the Gestapo arrives and says, “Was Judge Rea here? Where did he go?,” and I said, “Well, he went that way,” am I lying? Thomas Aquinas would say I was lying, a lot of other people would say I wasn’t lying, I was simply defending an innocent life.

  Bostwick continued to nudge Buckley toward the minefield.

  Q: I’m simply asking you whether it’s the custom and practice in the literary field for authors to lie to the subject in order to get more information out of them.

  A: It would really depend on the situation. If, for instance, you were writing a book on somebody who was a renowned philanderer and he said, “I mean, you do think my wife is impossible, don’t you?,” you might say, “Yeah, I think she’s very hard to get along with,” simply for the purpose of lubricating the discussion in order to learn more information.…

  Q: So if you have to, you’d go down and have a beer with the guy to get more information, right?

  A: Yeah, right.

  Q: And if you have to [you’ll] listen to three hours of boring talk from the person to try to get more out of them, right?

  A: That’s right.

  Q: And if you have to, you’ll tell him something you don’t really believe in order to be able to get more information from him, isn’t that right?

  A: Yes. That is right, understood in context.

  Kornstein put Wambaugh through the same paces as he had put Buckley, and Wambaugh, astonishingly—as if he were not the same person who had written MacDonald such a bluntly honest letter—testified that misleading subjects was a kind of sacred duty of writers.

  Q: Is there a custom or practice in the literary world about whether or not an author should disclose his views to his subject?

  A: I believe that one should never disclose one’s views, because it may shut off further communication.

  Q: Has that ever happened in your experience?

  A: Yes. Frequently [subjects] would ask me questions that if I answered them truthfully would shut off further communication.

  Q: And how did you answer them?

  A: I would tell an untruth if I had to.

  Q: Can you give us an example?

  A: Yes. In writing The Onion Field, I can recall one of the murderers asking me if I believed him when he said he didn’t shoot the policeman, and I at that time had interviewed scores of witnesses and had a mountain of information, and I did not believe him, but I said that I did, because I wanted him to continue talking. Because my ultimate responsibility was not to that person, my responsibility was to the book.

  In his cross-examination, Bostwick asked Wambaugh, “Would you tell an untruth here today?” Wambaugh replied, “No, sir.”

  Q: Why would you tell an untruth then but not now?

  A: I wasn’t under oath, to begin with.

  Q: That’s the difference?

  A: No, sir. My job was to get at the truth for the purpose of telling a coherent story, so I had to encourage that person to do it. May I describe the difference between untruth and lie?

  The distinction Wambaugh proposed—“A lie is something that’s told with ill will or in bad faith that is not true,” while an untruth is “part of a device wherein one can get at the actual truth”—only handed Bostwick another weapon. In his closing address to the jury, he was able to say mockingly, “Wambaugh—he was interesting. I was intrigued by his definition of lie and untruth, and it was just something about the way he did it that makes me think you might be, too. I’m not sure. I would always try to say, whenever I got caught telling a lie, ‘Well, I really didn’t mean it. It really wasn’t a bad lie.’ ” Turning his attention to Buckley, Bostwick observed, “Now, Buckley didn’t know what a lie was, actually. We had an interesting conversation about St. Thomas Aquinas and Sissela Bok, but he wasn’t sure what it was. My mother would have taught him if she were here, I’ll tell you.”

  The debacle of Buckley’s and Wambaugh’s testimony illustrates a truth that many of us learn as children: the invariable inefficacy of the “Don’t blame me—everybody does it” defense. Society mediates between the extremes of, on the one hand, intolerably strict morality and, on the other, dangerously anarchic permissiveness through an unspoken agreement whereby we are given leave to bend the rules of the strictest morality, provided we do so quietly and discreetly. Hypocrisy is the grease that keeps society functioning in an agreeable way, by allowing for human fallibility and reconciling the seemingly irreconcilable human needs for order and pleasure. When Buckley and Wambaugh said bluntly that it’s all right to deceive subjects, they breached the contract whereby you never come right out and admit you have stretched the rules for your own benefit. You do it and shut up about it, and hope you don’t get caught, because if you are caught no one—or no one who has any sense—will come forward and say he has done the same thing himself. When Kornstein, in his closing statement, said, “Buckley and Wambaugh testified that the task is to get the story, and that you do what is necessary to get the story,” he was simply inviting the crushing lecture on decency that Bostwick was all too pleased to read him in his final argument. “What you heard here this morning was truly outrageous,” Bostwick said, and went on:

  What’s outrageous is that the defendant here, supposedly the protector of the First Amendment freedoms—freedom of speech, freedom of expression—has put experts on the stand who said, in Mr. Kornstein’s own words, that
they must do whatever is necessary to write the book. Those were the words that he used: “whatever is necessary.”

  Those words have been used by dictators, tyrants, demagogues throughout history to rationalize what they have done.… We’ve just gone through a series of Congressional investigations where that was also one of the excuses: We had to do what was necessary. It was all right to lie, because it was necessary.

  The experts said it’s all right to tell the man something you don’t believe in, as long as you’re getting more information from him, for the sake of the project. I listened throughout the two and a half hours, astounded that that would be set forth in a courtroom as being the kind of principle that writers or lawyers or juries should be guided by. We cannot do whatever is necessary. We have to do what is right.

  ON NOVEMBER 23, 1987, three months after the end of the trial, an agreement to settle the suit was reached, whereby McGinniss, conceding no wrong, pledged to give MacDonald three hundred and twenty-five thousand dollars, to be paid by an anonymous party, presumably the insurance company of McGinniss’s publisher. As it happened, I was in California on the day of the settlement, for my first meeting with Bostwick—actually, I was in his office in Santa Monica, reading court documents while waiting for him to return from the settlement negotiations. Since the day that McGinniss called from Williamstown to break off our talks, I had been in a state of odd uncertainty about how to proceed. Odd, because in the past reporting had been something I did instinctively and easily: it was like going to the store before dinner to gather the ingredients for what you were going to cook. But with this project nothing was instinctive or easy. The store, which hitherto had been a vast, glutted American supermarket, had shrunk to a bare little grocery in a Third World country. I couldn’t get my hands on anything. McGinniss had broken off relations with me, Kornstein never answered my telephone calls, McGinniss’s friends wouldn’t speak with me, and even the court stenographer from whom I had ordered a transcript of the trial seemed to be part of what I began to think of as a conspiracy of fate; she was never in her office, and the transcript didn’t come and didn’t come. As I waited for it, back in New York, I would sometimes walk over to the building where Kornstein had his office (it happened to be two blocks from where I lived) and peer wistfully into the lobby. As I fretted, I also ruminated about what had happened between me and McGinniss. What had I done to cause the man to think of me as another persecutor, rather than simply as a colleague who had come to discuss issues of common interest raised by his lawsuit? I realized that I had been unimaginative. When one is feeling as beleaguered as McGinniss must have been feeling, anything short of utter, empathic agreement will seem hostile and unfeeling. When one is in pain, one wants sympathy and reassurance, not abstract argument. And when one has maintained—as McGinniss and Kornstein and Buckley and Wambaugh had maintained—that the whole future of journalism may depend on the writer’s freedom to dissemble, because otherwise the subject will flee, then one is fairly obliged to flee from a writer who doesn’t seem all that convinced of the rightness of one’s position. For McGinniss to have continued our interviews in the face of my skepticism would have been to repudiate his own position. It was logically imperative that he break off our interviews and leave me as empty-handed as he believed he would have been left if he had told MacDonald his true thoughts.