The Journalist and the Murderer

by Janet Malcolm

  ABRAMS: No, it doesn’t. But I will tell you that I have interviewed a lot of jurors, and any sort of action by journalists which misleads people is something that a lot of ordinary citizens—non-lawyers, non-journalists—find very offensive.

  McGinniss told Buckley and Abrams how the mistrial had come about: “After three days of deliberation, the jury expressed the view that they were hopelessly—not even deadlocked so much as confused—and were not going to be able to render a verdict.… There was a special verdict form which had thirty-seven different boxes to check off ‘Yes’ or ‘No,’ and it became apparent that they simply didn’t understand how the facts that had been presented at the trial related to the questions that they had in front of them, and after three days they announced that they were unable to really agree upon anything, and they asked to be allowed to go home.”

  THE jurors themselves told a different story about the mistrial. When I met with four of them in Los Angeles, they said they had felt capable of making their way through the verdict form (two of the six jurors held master’s degrees), but were helpless in the face of a juror named Lucille Dillon, who refused to deliberate. After the first question on the verdict form had been discussed and voted on, with five in favor of MacDonald and one, Dillon, in favor of McGinniss, Dillon walked away from the table and would have nothing further to do with the group, sitting near a window reading, while the rest, perforce, deliberated on what to do about her. “Our mistake was that when we wrote a letter to the judge telling him that Lucille wouldn’t deliberate, we said she was for McGinniss,” Sheila Campbell told me. “If we had left it open, and just said we were having trouble with Lucille, we might have got another juror in.” This was so. When the judge proposed to Bostwick and Kornstein that Dillon be replaced with an alternate, Kornstein naturally refused to relinquish a juror known to be on his side, and the judge was forced to declare a mistrial. The trouble had started early in the trial, when Dillon, an animal-rights activist, brought animal-rights literature to the jury room and wasn’t able to interest the other jurors in her cause. She became the weird Other to the majority, and they became the Oppressors to her. When the time for deliberations came, the majority realized too late—like other majorities who have ignored the warning signals of annoying minorities—that they had scorned this woman at their peril and were now powerless against her.

  I spent the afternoon of Thanksgiving, 1987, with Lucille Dillon in my hotel room in Los Angeles. She was a pleasant-looking, self-possessed woman of sixty, with graying curly hair, who was wearing white slacks, a white overblouse, and white sneakers on very tiny feet; she spoke in a melodious soft voice and had a most appealing deep-throated chuckle. We ate a room-service lunch of avocado salad and sherbet, and she told me of her experiences at the trial.

  “I saw McGinniss as a very good man,” she said. “It just showed about him. We’ve all met people where we get this strong impression of goodness. MacDonald? I had no feeling one way or the other about him. I wondered about him, but I had no impression of him. I liked both the lawyers. They both looked like very good men, too, and I thought they did very good jobs. There was something about them, the look in their eyes, something good. I thought the judge was a very nice man, very patient, kindly, courteous, considerate.”

  I said, “The defense has criticized the judge for letting the case come to trial. They said that he didn’t understand that this was a First Amendment case, and that if he had he would have dismissed it.”

  “I agree with that. To me, the First Amendment was on trial in this case—the First Amendment of the Constitution, guaranteeing the right to free speech. I saw that very early. I understood that someone was trying to stop someone from saying something, and I didn’t like it one bit. I believe in the Constitution.”

  “When did you develop your interest in the First Amendment?”

  “In high school, I read the Constitution, and I loved it. It was a wonderful thing to read, just beautiful. It protected people. This was a document that protected you, and they would have to fight against that document to get to you unfairly. On a trip to Washington, I got a copy of the Constitution. I haven’t read it all. I tried to. I read most of it, but it got a little tedious, and I quit. I just totally believe in it. It’s not always enforced, it’s not always used by the government. This is a complaint I have. There are many unconstitutional things the government does.”

  “What things are you thinking of?”

  “I’m thinking of the income tax. One of the reasons the Constitution was written was to guarantee that Congress control the money supply, and that it not get into the private hands of bankers. The federal income tax was put into effect in 1913—even though the Constitution forbids that—and now people don’t have much of anything. Everything is taxed.”

  Dillon told me that she had remarried her second husband after being divorced from him for nineteen years. “It’s really a financial arrangement,” she said. “I said to him, ‘I’m getting on in years, and if anything should happen to you the boys will be stuck taking care of me. There aren’t too many jobs in Oxnard.’ That is where I was at the time. I did odd jobs, I worked at the Fabric Well awhile, little things, but they don’t last, those kinds of jobs. So I said, ‘Why don’t you marry me again, so I can have your Social Security? In case anything happens, the boys won’t have to take care of Mother in her old age.’ He said, ‘I’ll think about it,’ and then he said O.K. So he has his life—his quiet life—and I have mine. He has his room, and I have my room. We own a mobile home together. It was strictly a money deal. Strange, isn’t it?”

  As I listened to Lucille Dillon, I felt more acutely conscious than ever of the surrealism that is at the heart of journalism. People tell journalists their stories as characters in dreams deliver their elliptical messages: without warning, without context, without concern for how odd they will sound when the dreamer awakens and repeats them. Here I sat, eating my Thanksgiving dinner with this stranger dressed in white, whom I would never see again, and whose existence for me henceforth would be on paper, as a sort of emblematic figure of the perils of the jury system.

  “Was it Kornstein who persuaded you?” I asked.

  “Oh, no. Nothing persuaded me. As more information came out, it just confirmed me more and more. Everything that was said as the case unfolded confirmed what I knew at the beginning. I could not change my mind.”

  Dillon went on to speak of her aversion to the other jurors. “I felt something was going on that wasn’t right. I wondered, Are these people supporters of MacDonald? Could it be that everyone in this room is a MacDonald supporter? How come they’re so sympathetic to him? I wondered about that. I will always wonder about that. They got along with each other beautifully. It was as if they had already known each other, they were so friendly. They laughed all the time, and talked constantly and loud, and they were all of one mind, like one person, in full agreement. They were not very intelligent. I’m not saying that I am, but I sensed a lack of intelligence in these people. They were childish and silly and ignorant. It’s not nice to be around people like that. I went into the hall a few times to get away from them, from their nasty dispositions and nasty attitudes. I was on a jury a few years ago, and it was the same. They were not nice people. It was a trial about a young man. They were going to hang that young man for a questionable thing. The boy was accused of smuggling marijuana into prison. They wanted to send him to prison. They were older folks. They were mean. They didn’t care if they ruined his life. I couldn’t agree to it.”

  “So it was another hung jury?”

  “It was another hung jury.”

  • • •

  MCGINNISS, in one of his late letters to MacDonald, quoted a passage he had written earlier in the day which he evidently felt it safe to let MacDonald read (though “I’m bending my principles even to do this”), about the criminal-trial judge’s attitude toward Bernard Segal, MacDonald’s defense counsel:

  Judge Dupree was possesse
d of an unusually mobile, expressive face, and, from the earliest days of the trial, the expression most often seen upon it, as Bernie Segal conducted cross-examination, was one of distaste. Obviously alert, attentive, and sometimes even taking notes during Blackburn’s direct examination, the judge would lean back in his chair with his eyes closed, grimacing in exasperation or rubbing his temples as if his head ached, during those periods when Segal was aggressively questioning a prosecution witness.

  I thought of this passage when I met Segal in San Francisco, where he practices law and is a professor at the Golden Gate University School of Law. He is a round, extremely voluble man of sixty, with a head of curly gray hair, who seems caught in a perpetual struggle between his sense of himself as a serious and dignified person and an antic force within him bent on subverting this self-image. He said, “It was my idea from the outset to have a writer in our midst. Having spent some time as a journalist before I went honest and became a lawyer, I thought, There aren’t many books written from the inside of a case, and this is a unique case with a unique client. A lot of the time, you’re embarrassed by your client in a criminal case. Not because your client is necessarily guilty but because, generally speaking, people are not dragged into criminal cases for no reason. There’s usually something about their conduct that is a little off, that makes them vulnerable to the charge. So as a lawyer you say, ‘My God, I don’t want a reporter hanging around and seeing this side of my client—we’d better not let him in with us.’ Jeff MacDonald was one in a million, as a client and as a human being, and I thought, Here we have a real person, someone the reader will identify with. Jeff MacDonald doesn’t look like and is not like the average criminal defendant. This is a three-dimensional, warm, caring, decent human being caught up in a nightmare of the law. He was for me an American Dreyfus. The story of Dreyfus was one my father made me read as a child. He took me to see the Paul Muni movie of the Zola story. I lived it a hundred times.”

  Segal went on to speak bitterly of Judge Dupree’s ruling that psychiatric evidence would not be admissible at the trial. The defense had planned to introduce the testimony of several psychiatrists who had examined MacDonald—both at the time of the murders and at the time of the criminal trial—and had found him sane and unlikely to have committed the crimes. As Michael Malley later recalled, at the McGinniss trial, “The prosecution had announced, ‘If we prove that this man did it, we don’t have to prove why he did it or that he’s the kind of man who could have done it.’ We thought that was a very unsatisfying view of life to give to a jury, and we were going to spend a lot of time, if the judge would let us, trying to prove what kind of man Jeff MacDonald was, to prove that he was not the kind of man who could have done it.” Here, as in several other places in the McGinniss trial, what was not supposed to happen—the trial was not supposed to be a retrial of MacDonald—did in fact happen. In the course of challenging the fairness of McGinniss’s book (using Segal’s “essential integrity” clause as his shaky justification), Bostwick also succeeded in raising the issue of the fairness of the criminal trial. In his examinations of Malley, Segal, and MacDonald, he bore down heavily on an incident that had preceded Judge Dupree’s ruling on the psychiatric testimony. At first, the judge had been disposed to consider allowing the defense its psychiatrists—provided that the prosecution be allowed to have a go at MacDonald with a psychiatrist of its own choosing. MacDonald reluctantly agreed to submit to an examination by the enemy’s psychiatrist, a Dr. James A. Brussel, of New York, who came to Raleigh accompanied by a clinical psychologist from West Orange, New Jersey, named Hirsch Lazaar Silverman. The examination of MacDonald took place on the evening of August 13, 1979, in an attorney’s office, and at the McGinniss trial Segal testified about a less than encouraging encounter he had had with Brussel after it was over:

  Dr. Brussel was standing there in the waiting room. He was dressed in a suit and he had a hat on. And when I came in, I said something about, “Well, I’m glad it’s all done already,” and Dr. Brussel said, “Where’s my hat?” I was sort of taken aback. I thought perhaps he was jesting. But he was a man close to eighty years of age and I realized he really wasn’t kidding. And we all sort of looked a little bit startled, and he was turning around looking for his hat, and finally someone said, “Dr. Brussel, your hat’s on your head.” He said, “Oh, yes.” Then he said, “Where am I? What place is this?” And we again were a little bit taken aback … and finally one of us said, “Dr. Brussel, this is Raleigh, North Carolina.” He said, “Oh yes—yes, of course.”

  After the judge received Brussel and Silverman’s evaluation of MacDonald, he ruled against admitting any psychiatric testimony from either side: “To pit shrink versus shrink would simply tend to prolong the case and at best would prove something that would just tend to confuse the issues.” In the McGinniss trial, Bostwick asked MacDonald, “Did Mr. McGinniss say anything to you about the judge’s decision not to allow psychiatric testimony?”

  MacDonald replied, “He said it was outrageous.”

  “Did he say why?”

  “Yes, because he said he was—he was referring to Brussel—a senile, incompetent son of a bitch.”

  However, when he came to write Fatal Vision, McGinniss—probably because he was struggling to lend substance to his portrait of MacDonald as a psychopath—quoted at length from the Brussel-Silverman report, which reads like the work of a parodist, as in “There seems to be an absence in him of deep emotional response, coupled with an inability to profit from experience. He is the kind of individual who is subject to committing asocial acts with impunity.” And “In terms of mental health and personality functioning, he is either an overt or a repressed sexual invert characterized by expansive egotism and delusions of persecution. He is preoccupied with the irrelevant and is unable to face reality.”

  Unknown to MacDonald and his lawyers until many years later, when the Freedom of Information Act led to the discovery, Dr. Brussel was not merely a fragile old man at the end of his career; he was a forensic psychiatrist who in 1971 had assisted the government in mounting its case against MacDonald, and who had advanced the theory that MacDonald killed Colette during an argument, and then killed the children because they were witnesses. “There is no question that the prosecution pulled a fast one when they selected him as the psychiatrist to give MacDonald what was supposed to be a neutral psychiatric examination,” Segal told me. “We got lumped by the judge in a ferocious manner. I’ve never seen a case like this in the twenty-seven years I’ve been practicing. Jeff could in fact be guilty, but when a man is convicted at a ruthless, unfair trial, the system is violated, and everyone is less safe. Having said that, however, I know, as well as anybody can know who was not there on February 17, 1970, that he didn’t do it.”

  IN FEBRUARY of 1988, I paid a second visit to MacDonald at Terminal Island. He was to have been returned to his old prison in Arizona after the settlement of the McGinniss lawsuit but had formally requested to be allowed to remain at Terminal Island in order to be close to his ill mother, who lives in nearby Long Beach. The request was granted on the condition that he continue in solitary confinement, and he accepted the condition. We sat in the same visitors’ room, after he had gone through the same ritual with the handcuffs, and I asked him about one of McGinniss’s letters which had made a strong impression on me—as much because of what MacDonald had done to the letter as because of what McGinniss had written: MacDonald had taken a pen and had, as it were, vandalized the letter, covering each of its seven pages with a variety of savage marks. The letter’s entire text had been crossed out, paragraph by paragraph, as if by someone striking blows at the defenseless words on the page. When I first saw the letter, I felt in the presence of a terrible anger and hatred and desire to do injury. For me, it was, and remains, the only sign of anything disturbing and uncanny about MacDonald, of anything that isn’t blandly “normal.”

  MacDonald told me that he had marked up the letter while making a tape in respo
nse to the questions McGinniss asked in it. “I was so angry about having to make the tape that each time I answered a question I’d cross it out with my pen like that. As I’m making the tape, I’m thinking, There, you son of a bitch! You’re pleading for it, and, O.K., I’ll give it to you, since I have your assurances that this is just between you and me.”

  In the letter, more persistently than ever before, McGinniss was attempting to break through MacDonald’s elusive blandness, interrogating him closely about the intimacies of his marriage. As McGinniss later testified under Bostwick’s questioning, “I was trying to urge him to stop talking platitudes and start talking like a real person.… What he had told me up until then seemed so superficial and so lacking in genuine emotional content that I felt it wasn’t all there was—there must be more, there must be things he was holding back.” So McGinniss did what we all do—made the mistake we all make—when faced with a stubbornly enigmatic Other: he fell back on himself and his own experiences to solve the enigma. He wrote to MacDonald:

  I know you are an optimist, and I know you tend to block unhappy memories, but, Jeff, let’s face it, early marriage is no picnic for anyone. It sure as hell wasn’t for me. Marrying at twenty-one, having a child the next year, then another in another year and a half, and then me falling in love with someone else while my wife was pregnant yet a third time.…

  Having gone through that sort of experience myself, I think I might be more attuned than most people to the possibility that you shared some of those reactions in your own life.… There is enough already known in terms of your extracurricular life to demonstrate that you were at least as promiscuous as I was.

  But MacDonald would not accept the gambit, would not accede to the suggestion that he and McGinniss were peas in a pod who had both wronged the dull women they had got stuck marrying. As I noted earlier, most people don’t make good subjects for journalists; MacDonald was a member of the unpromising majority rather than of the special, auto-novelized minority. When McGinniss said he was trying to get MacDonald to “start talking like a real person,” he could only have meant that he wanted him to start talking like a character in a novel. McGinniss’s letter—whose object was precisely to invalidate MacDonald’s reality and enlist his aid in creating a literary character out of himself—lays bare one of the fundamental differences between literary characters and people in life: literary characters are drawn with much broader and blunter strokes, are much simpler, more generic (or, as they used to say, mythic) creatures than real people, and their preternatural vividness derives from their unambiguous fixity and consistency. Real people seem relatively uninteresting in comparison, because they are so much more complex, ambiguous, unpredictable, and particular than people in novels. The therapy of psychoanalysis attempts to restore to the neurotic patient the freedom to be uninteresting that he lost somewhere along the way. It proposes to undermine the novelistic structures on which he has constructed his existence, and to destroy the web of elaborate, artful patterns in which he is caught. There are people (psychoanalysts among them) who think that the action of psychoanalysis is, as it were, to transfer the patient from one novel to another—from a gothic romance, say, to a domestic comedy—but most analysts and most people who have undergone the therapy know that this is not so, and that the Freudian program is a far more radical one. Patients in analysis sometimes say they feel they are being driven crazy by the treatment. It is the denovelization of their lives, and their glimpse into the abyss of unmediated individuality and idiosyncrasy that is the Freudian unconscious, which causes them to feel this way.