The Journalist and the Murderer

by Janet Malcolm

  WHEN I walked into Daniel Kornstein’s office in mid-Manhattan, a week after the settlement, he said, “Didn’t you get my message? I called to cancel this appointment.” I looked at him innocently. Two days earlier, he had agreed to see me, and almost immediately had repented of it, leaving a message on my answering machine cancelling the meeting. Inspired by Keeler’s lecture on the necessity for reporters to report, I decided to ignore the message, and turned up in Kornstein’s office at the appointed hour. He wearily accepted my presence and immediately declared, “McGinniss and I are not going to talk about the case or coöperate on it.” He was a pained-looking, short, dark-haired youngish man.

  “You sent me that letter,” I said.

  “When we wrote the letter, we wanted to alert the media and make people aware of the new doctrine being advocated,” Kornstein said. “The case is over as far as we are concerned. Everything we want to say is in the transcript. Particularly the cross-examination of MacDonald and my summation. These were the key moments of the trial. We think the public record speaks for itself. I try my cases in the courtroom.”

  “Then why did you send out that letter?” I asked.

  Kornstein gestured helplessly. “I’m sorry. I can’t answer you.” Then he said, “The judge in the case didn’t see—was blind to—the First Amendment implications of the case. He is a new federal judge, appointed in 1984. He had been a state judge for sixteen years. He once played professional baseball—the Chicago Cubs were interested in him.”

  I asked a question about the trial, and Kornstein again said, “I’m sorry. I can’t answer you.” He added, “We are trying to put the case behind us.”

  “Would you rather I didn’t write about it?” I asked.

  “I would never want to say I would rather that something were not written,” Kornstein said piously.

  I asked him if his offer to let me read documents in his office—an offer made before McGinniss broke off relations with me—still held. “It’s a matter of convenience for me,” I said. “Your office is a few blocks from where I live, and Bostwick’s office is three thousand miles away.”

  Kornstein said he would consider my request and let me know. Suddenly, he said, “Do you know anything about me?”

  I looked at him with interest, and thought, Now all will be explained. This is going to be one of those moments of revelation, when the beggar discloses that he is the prince.

  “I am Vanessa Redgrave’s lawyer,” Kornstein said. “I represented her in her suit against the Boston Symphony.”

  It was time to go. “Will you let me know if I can read those trial documents here?” I asked. “I’ll give you my phone number.”

  “No, no, I have it,” Kornstein said, shuffling through papers on his desk. “I have dozens of pieces of paper with your phone number on them. I know your number by heart”—and then, bitterly, comically, he recited it. He presented me with two books he had written (Thinking Under Fire: Great Courtroom Lawyers and Their Impact on American History and The Music of the Laws) and politely escorted me to the door. I never heard from him again.

  “DID you ask Bostwick if he took the case on contingency?” Joseph Wambaugh said to me when I called him at his house in San Marino. “You can depend on it that he did.” Before I could tell him he was wrong, he went on, “You can bet the bank on it. Otherwise, it wouldn’t have got as far as it did. I myself have been sued so many times that it doesn’t matter whether it’s Mr. Bostwick or somebody else; it’s always the same. You could confer with every attorney in town, and you could draft the most binding, airtight, rock-solid legal release in the world, and the subject would sign it—and you could still find yourself in court, because any imaginative, resourceful lawyer can dream up a cause of action and bring a lawsuit. What does he have to lose? In Britain, if someone brings a libel action he runs a certain risk, because if he doesn’t prevail he has to pay the defendant’s legal fees. Here the plaintiff risks nothing, and once the mechanism of the suit is in motion the defendant is going to suffer—and I mean suffer. He immediately starts hemorrhaging his hard-earned bucks. Very few people have the stamina to endure one of these lawsuits. To defend himself, McGinniss had to come out here and live in a hotel for six weeks. He has a young child, he has a young family, he has a life as a college professor, he’s trying to write a book. He gave all that up for the principle of coming out here in defense. The MacDonald side would have settled; they would have settled for the same amount early on. McGinniss refused as a matter of principle. But when he came out here and got ground up in the system and dragged through it and saw what it was really about—it’s about the contingency system—he said, ‘Principle is principle, but this is really killing me.’ I saw McGinniss toward the end. He looked ten years older. I assure you, when you’re the victim of one of these lawsuits you are awake at three a.m. even if you don’t drink. You’re awake with the boozers, going crazy with homicidal impulses. My first nonfiction book, The Onion Field, brought me three lawsuits. One of them lasted twelve years. Think of that. Children grow up. Think of how many nights I saw at three a.m. At that time, publishers didn’t have insurance policies, the way they do now. Guess who paid for that lawsuit. My publisher and I split it down the middle. These contingency lawyers—they’re like garden slugs and boll weevils. You can’t get rid of them. Where is Agent Orange when we really need it? These guys are everywhere. We have twenty-five thousand lawyers in L.A. County. If we adopted the British system, all these contingency lawyers that keep spewing out of our law schools would have to go do something else they’re qualified for, like selling aluminum siding in Indiana or Veg-O-Matics on TV.”

  I asked Wambaugh what his experience of testifying at the trial had been.

  “It was a joke,” he said, and went on, “The question that some of the jurors made such a big deal of was ‘Have you ever lied to the subject of a book?’ The answer is no. But I haven’t always told the truth. I’ve dealt with sociopaths, murderers, other horrible people—as a cop and as a writer—and by no means would I always tell them the truth, though I wouldn’t lie to them. What’s the difference between a lie and an untruth? Simple. With a lie, there’s malice involved, there’s ill will. With an untruth, there isn’t. You go to a thirty-year reunion and everybody in the room is telling untruths. Everybody. ‘Oh, how great you look!’ That sort of thing. When I’m talking to a sociopath, a killer—either as a cop or as a writer—and the guy says, ‘You can identify with the feelings I had when I raped those thirteen women, can’t you? You know how I felt, and you would have done the same thing, wouldn’t you?,’ I’ll say, ‘Oh, sure, Charlie. Hell, I can’t quit smoking or drinking, so how can I criticize you? Have another candy bar.’ Of course that’s what I’ll say, to keep the guy talking. But there is no malice involved. Now, if I said, ‘Charlie, if you confess to those thirteen rapes I’ll see to it that the D.A. drops all charges and lets you plead a parking ticket’—that’s illegal, there’s ill will and malice there, and that’s a lie. This is what I tried to explain to the jury. Well, look, let’s talk about juries. Does one get a jury of one’s peers? If there had been a chance of Joe McGinniss getting a jury of his peers, Bostwick would never have filed a complaint. Joe McGinniss got an average big-city jury, which is what Bostwick knew he’d get. On the entire jury panel there was one person who was a college graduate. Bostwick got rid of that sucker immediately in his peremptory challenges. One of the jurors testified that she’d read maybe one book in her life. When I sat there and looked at those people, I started sweating for McGinniss. His peers—people of similar background and education—don’t get on juries. The jurors, almost one and all, said afterward that they didn’t understand writers, they didn’t understand the publishing world, they didn’t understand anything that Buckley and Wambaugh were saying up there, they didn’t understand this business of the difference between a lie and an untruth. They said there’s no difference, and if you tell somebody anything that isn’t exactly true you should be
punished for it. One person said she wanted to give MacDonald millions and millions of dollars. I tell you, people who were McGinniss’s equals in education, background, and experience wouldn’t have responded like that. He did not get a jury of his peers, and he would never get one. He knew that. Would he want to go through that again, for the principle, for all writers everywhere? Well, no. He finally said, ‘Screw it. Let’s settle.’ And I don’t blame him a bit. I’m sorry about it. It makes me sick—it makes me absolutely sick—to think that that psychopathic baby-killer will get three hundred and twenty-five thousand dollars out of that. It makes me want to puke.”

  “I know there was a lot of criticism of your testimony among the jurors,” I said.

  “Oh, absolutely. I was sitting there talking to people who have never read a book, some of them. I might as well have been speaking Chinese when I talked about the difference between a lie and an untruth in an interview with a sociopathic killer. I knew they didn’t understand me, and I wasn’t surprised at their reactions. When you talk to a sociopathic criminal, you have to flatter him and curry favor with him by telling him something that isn’t absolutely true. You have no choice but to do it, whether you’re a police officer or a writer. They will put you in that position. They do it. They enjoy it. They’ll say ‘You do believe me, don’t you?’ right at a point where you’re convinced they’re lying. If you say no, you could lose everything you’ve gained, including your book, your money, your time if you’re a writer, and your case if you’re a cop. So you cannot tell the truth.”

  “Well, I guess everybody has to decide that one for himself—and you’ve decided it this way. But that’s not the only way a person could decide.”

  “What would you do? Would you lose everything?”

  “I know it’s very easy to put on moral airs and to say ‘I would have behaved—’ ”

  “No, I want you to put on moral airs. I want you to see where the morality lies. I want you to see that as a cop I had a moral obligation to the people of Los Angeles to make this case, and if by telling an untruth—not a lie—to a sociopathic criminal I could better protect the people of L.A., then I had a moral obligation to the people to do it. Put me in the position of the writer—I tried to tell them this at the trial. I said, ‘A book is a living thing. When you get to the point where you have this entire investment in it, then this book is as much alive as anyone you’ve ever known—sometimes more so—and you have a moral obligation to protect that life, to not let it die aborning. If I have to tell an untruth to a sociopathic criminal to protect this living thing, to let it be born, then that’s where my moral obligation lies.’ ”

  The next day, Wambaugh called me. He said there was something he wanted to talk about: he felt dissatisfied with the end of our conversation, when he had pressed me to say that I, too, regarded the books I had written as living things, and I had felt obliged to say that I didn’t. “I guess I felt silly after talking to you about that,” he said disarmingly. “It’s something I just never questioned. I always assumed that every writer felt this way about his work. I’ve read hundreds of writers who say that in the course of writing a book the story takes over and the characters take over and it’s almost as if they themselves were not involved.”

  I said, “It has been said of characters in novels that they seem more real than people in life—”

  “Yes, yes,” Wambaugh cut in. “And they seem to do things of their own volition, without any help from you.”

  “But that’s fiction. In nonfiction, which is what you and I and McGinniss write, the characters don’t need to ‘take on a life of their own.’ They already have one in actuality.”

  “I know,” said Wambaugh. “But I write it in the style of a novel. I write what Truman Capote called ‘the non-fiction novel.’ ”

  I already knew about Wambaugh’s writing techniques from his testimony at the MacDonald-McGinniss trial. In answer to Kornstein’s questioning, Wambaugh had said,

  When I write non-fiction, obviously I was not there when the events occurred. I write in a dramatic style—that is, I employ lots of dialogue, I describe feelings, I describe how the events must have taken place. I invent probable dialogue or at least possible dialogue based upon all of the research that I do.… And in order to have the artistic freedom I need, I get a legal release whenever I can.

  Wambaugh returned to the book-as-living-thing theme. “I used to think of books as living things, corny as it sounds, even before I began to write. I felt Call of the Wild was a living thing, and then Moby Dick.”

  “What about boring books?” I asked. “Are they living things?”

  “No. They don’t come alive for me. But I’m sure that the authors of those books go to their graves thinking they have brought something to life. And maybe people don’t feel that I have brought something to life, but I feel that I have. I’m not an intellectual. I write from the guts, and I’m talking to you from the same part of my anatomy. When I was testifying, Bostwick tried to make a book seem like a pair of shoes. I said that when I wrote my first book I didn’t have a thought about making money; I only thought what a great honor it would be to get something published. Even now, I don’t write for money. I’ve made plenty of money. I don’t even think about money anymore, except when I have to pay lawyers who are trying to bankrupt me.”

  “So you’re one of those lucky people who write for the pleasure of it, and who happened to strike a nerve that has caused millions of people to buy your books.”

  “That’s right. I feel it’s a goddam miracle. And because I’ve been blessed like this, and had this enormous stroke of luck, I feel I have an obligation, as McGinniss felt he had one, to fight for those other authors, ninety-nine per cent of whom can’t even think of making a living from writing.”

  ON SEPTEMBER 18, 1987, McGinniss appeared on William F. Buckley’s television talk show “Firing Line,” together with Floyd Abrams, the New York libel lawyer and expert on the First Amendment. Watching a tape of the program a few months later, I was fascinated by the transformation McGinniss had undergone. The defensive and uncomfortable man I had spoken with in Williamstown and the desperate, hounded, Orestes-like figure of the trial transcript had become a relaxed and expansive celebrity author, exuding a kind of boyish excitement and disbelief about being somebody in the world. I had met this McGinniss, too, in the letters to MacDonald; showing off his worldly successes to MacDonald was evidently as deep a need for him as was misleading MacDonald about the book. “The New York Times Book Review is not only going to do a major review [of Going to Extremes] but is actually sending someone up here next week to interview me,” McGinniss wrote happily to MacDonald in a letter of August 6, 1980. “That is like having Knighthood conferred.” On July 16, 1982, he boasted to MacDonald about Phyllis Grann, his new editor at Putnam (McGinniss had changed publishers by this time), who was “probably the highest-ranking, most prestigious and successful woman in the entire publishing business” (even though, as McGinniss felt constrained to let MacDonald know, she “started in publishing as Nelson Doubleday’s secretary”). Five months later, he triumphantly described to MacDonald, in his cell, the sales conference at which Fatal Vision had been presented: “At the conclusion of the presentation of this book, which consisted of not only Phyllis Grann raving about it but marketing director, book-club & subsidiary-rights person, publicity director, and finally the president of the company all saying how special it was … sales reps were asked to conduct a secret ballot to rate the books in terms of how they thought they would sell—and Fatal Vision (and this is a secret, please, no Xeroxes of this letter to friends in Cal. or anywhere else!)—was chosen number one.”

  Now, on television, sitting with people who were clearly on his side, McGinniss chatted easily and fluently about the lawsuit, like a man recounting to a dinner table of friends a freakish misfortune that had befallen him on his way to work. After listening to McGinniss’s account, Abrams remarked, “One of the startling things to me is th
at here you have someone who the [criminal-trial] jury has found committed this most heinous of all acts, and you still had people on the [civil-trial] jury who listened with great interest, maybe sympathy, and willingness to treat him like everyone else. Maybe a jury is supposed to do that, but it’s pretty unusual when you have a murderer in front of you.” The dialogue continued:

  MCGINNISS: As one of them put it to me afterward—we were permitted, and indeed encouraged, to speak to the jurors after the non-verdict was reached—

  BUCKLEY: Including Dr. MacDonald?

  MCGINNISS: No, he wasn’t. His lawyers were, but he himself was reincarcerated at that time. He was present during the trial. He was in court all day, dressed like this in suits, no handcuffs on, in the presence of the jury, which was like a summer vacation for him. It was great, you know—you get out of jail. But at the end, one of the jurors said to me, “The fact, Mr. McGinniss, is that it wasn’t MacDonald who was on trial here. It was you. You were the defendant. You were the one we had to judge.”

  Buckley led the discussion to the issue on which he himself had testified:

  BUCKLEY: Let me ask you this, Mr. Abrams. Suppose [McGinniss] had said, responding truthfully in all matters, “I absolutely knew he was guilty on the first of April, 1975, but I continued to let him think that I thought he was innocent for two years.” Would that have justified a finding for the plaintiff?

  ABRAMS: I don’t believe so. I really don’t. I mean, that raises a nice issue of the difference between the sort of situations which the law ought to deal with and the sort of situations which allow us to pass a moral judgment on somebody but which the law, as such, is not designed to deal with.

  BUCKLEY: You have had a lot of dealings with the press. Was I incorrect in testifying, as I did, that a writer—especially an investigative writer—very often gives an impression intending to disarm the person he’s writing about? Does that shock you ethically or in any other sense?