Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible. He is a kind of confidence man, preying on people’s vanity, ignorance, or loneliness, gaining their trust and betraying them without remorse. Like the credulous widow who wakes up one day to find the charming young man and all her savings gone, so the consenting subject of a piece of nonfiction writing learns—when the article or book appears—his hard lesson. Journalists justify their treachery in various ways according to their temperaments. The more pompous talk about freedom of speech and “the public’s right to know”; the least talented talk about Art; the seemliest murmur about earning a living.
The catastrophe suffered by the subject is no simple matter of an unflattering likeness or a misrepresentation of his views; what pains him, what rankles and sometimes drives him to extremes of vengefulness, is the deception that has been practiced on him. On reading the article or book in question, he has to face the fact that the journalist—who seemed so friendly and sympathetic, so keen to understand him fully, so remarkably attuned to his vision of things—never had the slightest intention of collaborating with him on his story but always intended to write a story of his own. The disparity between what seems to be the intention of an interview as it is taking place and what it actually turns out to have been in aid of always comes as a shock to the subject. His situation resembles that of the subject of Stanley Milgram’s famous psychological experiment (conducted at Yale in the early sixties), who was tricked into believing that he was participating in a study of the effect of punishment on learning and memory when in fact what was being studied was his own capacity for cruelty under the pressure of authority. In an ingenious fake laboratory setup, the “naïve subject”—a volunteer who had answered an advertisement in a New Haven newspaper—was told to give an increasingly painful electric shock to a person, presumably another volunteer, in response to every wrong answer to a test question. In “Obedience to Authority,” his book about the experiment, Milgram writes of his surprise at the large number of subjects who obeyed the experimenter, and kept on pulling the lever even though the receiver of the shocks was screaming with pain—or, rather, with simulated pain, since the whole thing was rigged: the electrical apparatus to which the victim was strapped was a stage prop, and the victim himself was an actor. Milgram’s idea had been to see how ordinary Americans would behave when put in a situation roughly comparable to that of the ordinary Germans who were ordered to participate actively in the destruction of the Jews of Europe. The results were not encouraging. Although a few subjects refused to go on with the experiment at the first sign of distress from the victim, most subjects docilely continued giving shock after shock. However, Milgram’s chilling findings are not the point. The point lies in the structure of the situation: the deliberately induced delusion, followed by a moment of shattering revelation. The dizzying shift of perspective experienced by the subject of the Milgram experiment when he was “debriefed,” or “dehoaxed,” as Milgram calls it, is comparable to the dislocation felt by the subject of a book or article when he first reads it. The subject of the piece of writing has not suffered the tension and anxiety endured by the subject of the “Eichmann experiment” (as it has been called)—on the contrary, he has been on a sort of narcissist’s holiday during the period of interviews—but when the moment of peripeteia comes, he is confronted with the same mortifying spectacle of himself flunking a test of character he did not know he was taking.
However, unlike the reader of “Obedience to Authority,” with whom Milgram shares the technical details of the deception, the reader of a work of journalism can only imagine how the writer got the subject to make such a spectacle of himself. The subject, for his part, is not likely to supply the answer. After his dehoaxing, he tends to pick himself up and walk away from the debacle, relegating his relationship with the journalist to the rubbish heap of love affairs that ended badly and are best pushed out of consciousness. Occasionally, a subject will have become so enmeshed with the journalist that he cannot let go of him, and long after the galling book has been remaindered the relationship is maintained through the interminable lawsuit that the subject launches to keep the writer bound to him. Yet even here the journalist’s perfidy is not exposed, for the lawyer who takes the subject’s case translates his story of seduction and betrayal into one or several of the conventional narratives of libel law, such as defamation of character or false statement of facts or reckless disregard of the truth.
In the summer of 1984, a lawsuit was filed by a subject against a writer in which, remarkably, the underlying narrative of betrayed love was not translated into any of those conventional narratives but, rather, was told straight—and, moreover, told so compellingly that at trial five of the six jurors were persuaded that a man who was serving three consecutive life sentences for the murder of his wife and two small children was deserving of more sympathy than the writer who had deceived him.
I learned of the case only after the trial had ended, when I received a letter, dated September 1, 1987, from a certain Daniel Kornstein. The letter—which had been sent to some thirty-odd journalists throughout the country—began:
Kornstein went on to characterize the suit as an attempt “to set a new precedent whereby a reporter or author would be legally obligated to disclose his state of mind and attitude toward his subject during the process of writing and research,” and to speak of the “grave threat to established journalistic freedoms” that such a precedent would pose:
With his letter Kornstein enclosed transcripts of the testimony of William F. Buckley, Jr., and Joseph Wambaugh, who had appeared as expert witnesses for the defense, and excerpts from his own closing statement, “in which I tried to stress the gravity and scope of this new threat to freedom of expression.” He concluded, “Joe McGinniss and I both feel that the danger is sufficiently clear and present as to warrant your close attention and concern.”
I took Kornstein’s bait—I don’t know if any of the other journalists he wrote to did—and a few days later I was driving up to Williamstown, Massachusetts, to talk to Joe McGinniss at his house there. I looked forward to the interview, which would be the first of a series of tape-recorded conversations that McGinniss and I had arranged to have over the next few weeks. I had never interviewed a journalist before, and was curious about what would develop between me and a journalistically knowledgeable, rather than naïve, subject. Here, clearly, there would be none of the moral uneasiness that the naïve subject all but forces the journalist to endure as the price of his opportunity to once again point out the frailty of human nature. McGinniss and I would be less like experimenter and subject than like two experimenters strolling home from the lab together after the day’s work, companionably thrashing out the problems of the profession. The tape recorder would preserve the trenchant things we would say; nobody would “do” anything to anyone. The conversation would be serious, on a high level, maybe even lively and witty.
It did not work out that way, McGinniss refused the role of co-experimenter, preferring to play the role of subject. After the first hour of the five hours we spent together, I stopped struggling to preserve my scenario of elevated talk between confrères and gave in to McGinniss’s imperative that we play the old game of Confession, by which journalists earn their bread and subjects indulge their masochism. For, of course, at bottom, no subject is naïve. Every hoodwinked widow, every deceived lover, every betrayed friend, every subject of writing knows on some level what is in store for him, and remains in the relationship anyway, impelled by something stronger than his reason. That McGinniss, who had interviewed hundreds of people and knew the game backward and forward, should nevertheless exhibit himself to me as a defensive, self-righteous, scared man only demonstrates the strength of this force. Near the end of the day, he told me of a dream he had had the night before: “I was back in the courthouse in L.A. There was a second trial. I said, ‘No, this can’t be happening. I’m not ready for this yet, it’s too soon, I haven’t recovered from the first trial yet.’ When I woke up this morning, my amateur analysis of the dream was that it was about my talking to you today. This would be the new trial. It didn’t seem very subtle. The message was right on the surface.” At six o’clock, the tape recorder clicked, and though McGinniss sat waiting for n1e to put in a new tape I decided to bring the interview to an end. When, two days later, he called to cancel our future interviews and to say “I want to put all this behind me,” I was not surprised, and rather relieved: I had begun to sense that McGinniss’s confession to me was not a new one. Someone had been there before me, and something was being repeated with me. A few weeks later, upon reading the transcript of the MacDonald-McGinniss trial, I knew who and what it was. What McGinniss had not yet recovered from—what he had no doubt been helplessly reliving in his imagination during his meeting with me—was a four-and-a-half-day interrogation by Gary Bostwick, the plaintiff’s lawyer. Bostwick had mauled McGinniss until there was little left of him. What McGinniss had gone through at the trial was what one goes through in those nightmares of being found out, from which one awakens with tears of gratitude that it is just a dream. Only the most hardhearted person could read the transcript of Bostwick’s examination without feeling pity for McGinniss. But even the staunchest defender of a journalist’s right to do his work in whatever unpleasant way he chooses cannot but wonder how McGinniss could have been so imprudent as to leave behind—in the form of some forty letters to MacDonald—a written record of his bad faith.
McGinniss is forty-six years old and has published six books, the most recent being “Blind Faith,” of earlier this year. The first, “The Selling of the President, 1968,” written when he was twenty-six, brought him immediate fame and acclaim. In the 1968 Nixon-Humphrey campaign, he had penetrated the inner councils of the advertising agency hired by Nixon, and in his book he revealed the techniques by which Nixon had been made to appear less awful on television. This was in the early days of television’s use in politics, and McGinniss’s revelations (today very tame) seemed startling and ominous. The defeated Humphrey was quoted on the book jacket as saying, “The biggest mistake in my political life was not to learn how to use television,” and “I’m fighting packaged politics. It’s an abomination for a man to place himself completely in the hands of the technicians, the ghost writers, the experts, the pollsters and come out only as an attractive package.”
During our talk, McGinniss spoke of how he had come to write “The Selling of the President,” and surprised me when he said that he had first taken his idea of reporting a Presidential advertising campaign to the Humphrey camp. “Humphrey’s people said, ‘Are you crazy? This is all secret. The public shouldn’t know about this. No way.’ Humphrey’s advertising agency was Doyle Dane Bernbach, a very sophisticated group who recognized right up front that a book calling attention to the process would not be in their best interest, so they wouldn’t give me any access at all. Nixon’s people were almost touchingly naïve. They said, ‘Oh, gosh, really—a book? Yeah, sure.’ These were people who had had very little experience of being written about.” Then, as if the ghost of Bostwick had just appeared at his side, McGinniss added, “But I hardly felt the obligation to say when I arrived at their offices every morning, ‘Gentlemen, I must again remind you that I’m a registered Democrat who plans to vote against Mr. Nixon, and that I think what you’re doing—which is trying to fool the American people—is sinister and malevolent, and that I intend to portray you in terms that you are not going to find flattering.’ I felt no obligation to make that statement. And when they were talking about what they were doing and turned to me and said ‘What do you think of that?’ I’d say ‘Yeah, that looks good’ if I thought it was done effectively. I was trying to make myself as unobtrusive a presence as possible. And when the book was published they reacted with outrage or wry amusement, depending on their sense of humor or their degree of passion as Nixonians. But in no case did anyone think he could sue because he had been defrauded into believing I was going to do something other than what I did.”
McGinniss’s next book was a novel, “The Dream Team,” which was a critical and commercial failure. Then, in 1976, he published a curious book called “Heroes.” It is a confessional work that—like many such exercises—confesses something different from what the confessor thinks he is confessing; by making himself into a subject, the autobiographer sets himself up for a betrayal no less profound than that invited by the subject of someone else’s writing. “Heroes” juxtaposes chapters about (among other personal matters) McGinniss’s inability to be nice to his girlfriend, Nancy Doherty (now his second wife), because of the guilt he feels over leaving his wife and three children, with chapters about meetings with public figures such as Eugene McCarthy, Ted Kennedy, Daniel Berrigan, George McGovern, William Westmoreland, and William Styron, who disappoint him, and confirm him in his notion that there are no heroes left in the world. Before his meeting with McCarthy, over lunch at Toots Shor’s, McGinniss rehearses his lines:
McCarthy disappoints McGinniss by being reserved and opaque. He is “not a man inclined toward quick intimacy,” McGinniss reports, and, to avoid a drinking expedition that McGinniss organizes when Howard Cosell turns up at the restaurant, McCarthy slips away while McGinniss is in the men’s room. Ted Kennedy is similarly elusive. In Berrigan, McGinniss finds the expansive interlocutor he has been seeking, but the morning after their boozy late-night conversation McGinniss opens the notebook in which he inscribed Berrigan’s aperçus, and instead of “the disciplined, accurate notes of a trained professional” he finds only illegible scrawls and the punch line of a coarse joke. With one striking exception, the stories McGinniss tells on himself in “Heroes” are pretty unsurprising. The exception is an extraordinary incident that takes place at ten-thirty in the morning in the kitchen of William Styron’s house on Martha’s Vineyard, where McGinniss has spent the night—most of it sitting up and drinking with Styron, whose book “Lie Down in Darkness” he had read four times. McGinniss writes:
Styron appears in his bathrobe, and when he learns what McGinniss has done he is unbelieving, then outraged. “You used that crabmeat?” Styron says, and McGinniss goes on, “It was as if he had come upon me making love to his wife. ‘I didn’t expect you to do this,’ he said.” The story ends happily—Styron regains his good humor and geniality when he eats the crabmeat pie and finds it delicious—and lamely. For what the incident is about, what lies below its light surface, is the dire theme of Promethean theft, of transgression in the service of creativity, of stealing as the foundation of making. That McGinniss is rewarded, rather than punished, for his theft confuses the issue. Yes, a subject may occasionally grudgingly concede that what has been written about him isn’t bad, but this doesn’t make the writer any less a thief. The rare, succulent crabmeat, picked out of the shell, packed, sealed, refrigerated, jealously hoarded, is like the fragile core of a person’s being, which the journalist makes away with and turns into some horrid mess of his own while the subject sleeps. (“That crabmeat has a very delicate flavor,” poor Styron whimpers on hearing of McGinniss’s Tabasco and Worcestershire sauce and bread crumbs and heavy cream.) When McGinniss wrote this chapter, he could hardly have known that someday he would be in a courtroom in California having his liver ravaged by a pitiless lawyer. Or did he write those letters to MacDonald to make sure that such a fate would be his?
McGinniss met MacDonald in June, 1979, in Huntington Beach, California. McGinniss had just finished “Going to Extremes,” a work of reportage about Alaska that was to restore to him the reputation he had lost with “The Dream Team” and “Heroes,” and establish him as a humorist of no inconsiderable gifts. He was in California as a visiting columnist for the Los Angeles Herald Examiner, writing a column of light, sharp commentary. However, the meeting with MacDonald put a halt to McGinniss’s traffic with comedy, and brought him to a genre—the “true-crime novel”—in which he had never worked. Fortunately for him, the books of this genre published in America today apparently need to fulfill only one requirement—that they be interminably long—and when “Fatal Vision,” the true-crime novel McGinniss eventually wrote, weighed in at six hundred and sixty-three pages it insured for itself the place on the best-seller list that its publishers had anticipated when they gave him a three-hundred-thousand-dollar advance.
McGinniss was led to his subject by an item he read while scanning the Los Angeles newspapers for topics for his column: the Long Beach Police Officers Association was sponsoring a dinner dance to raise funds for the legal defense of Jeffrey MacDonald, a local physician, who was about to be tried for murder. McGinniss remembered the crime, which had occurred nine years earlier. On February 17, 1970, MacDonald’s pregnant wife, Colette, aged twenty-six, and his two daughters, Kimberly and Kristen, aged five and two and a half, were bludgeoned and stabbed to death in the family’s apartment at Fort Bragg, North Carolina, where MacDonald was serving as a doctor in a Green Beret unit. MacDonald was charged with the murders and then cleared by an Army tribunal. But his story about waking up to the screams of his wife and older daughter and about seeing four intruders—three men holding clubs and knives and a woman with long hair holding a candle and chanting “Acid is groovy” and “Kill the pigs”—led to no arrests, and continued to raise the question of why no traces of the intruders were found in the apartment, and why MacDonald was merely knocked unconscious and slightly cut up when his wife and children were savagely done to death. In response to pressure from Alfred Kassab, the stepfather of the murdered woman, the Justice Department revived the investigation in 1971 and, over a period of years, built up a compelling enough case against MacDonald to bring him to trial. In the intervening eight years, MacDonald had moved to California, and had made a life for himself that appeared to be shadowed neither by the loss of his family nor by the cloud of suspicion that had hung over him from the day of the murders. He had not remarried and was leading a pleasant, blameless life in the California style. He was a hardworking, successful physician—he had become director of emergency medicine at St. Mary’s Hospital, in Long Beach—and he lived in a small, attractive condominium apartment on the water, to which he liked to bring friends and girlfriends, often entertaining them with rides in his thirty-four-foot boat named (what else?) the Recovery Room. He was a handsome, tall, blond, athletic man of thirty-five, who had grown up in a lower-middle-class household in Patchogue, Long Island, the second of three children, and had always had about him a kind of preternatural equipoise, an atmosphere of being at home in the world.
MacDonald went to Princeton on a scholarship in 1961 (he was apparently the first student from Patchogue High School to go to an Ivy League college), then to Northwestern University Medical School, and then to Columbia Presbyterian Medical Center, in New York, for his internship. In the summer following his sophomore year at Princeton and her sophomore year at Skidmore, MacDonald’s girlfriend Colette Stevenson became pregnant. The couple decided against abortion and were married in the fall of 1963. Colette left Skidmore, and Kimberly was born in Princeton; Kristen was born in Illinois. Photographs show Colette to have been a pretty, blond girl with a soft, rounded face; all accounts of her stress her reserve, her quietness, her kindliness, and her conventional femininity. At the time of her death, she was taking an evening course in psychology at the North Carolina State University extension at Fort Bragg.
A few days before the fund-raising dinner dance, McGinniss went to see MacDonald at his apartment and interviewed him for his column. Near the end of the interview, MacDonald asked McGinniss if he would like to attend the murder trial—in Raleigh, North Carolina-and write a book about the case from the perspective of the defense team, with whom he would live, and to all of whose plans, strategies, and deliberations he would be privy. This proposal had a special appeal for McGinniss. The situation that MacDonald outlined resembled McGinniss’s situation with the Nixon advertising people, which had had such a successful result. Although none of us ever completely outgrows the voyeurism of childhood, in some of us it lives on more strongly than in others—thus the avid interest of some of us in being “insiders” or in getting the “inside” view of things. In my talk with McGinniss in Williamstown, he used an arresting image: “MacDonald was clearly trying to manipulate me, and I was aware of it from the beginning. But did I have an obligation to say, ‘Wait a minute. I think you are manipulating me, and I have to call your attention to the fact that I’m aware of this, just so you’ll understand you are not succeeding’? Do little bells have to go off at a certain point? This has never been the case before. This could inhibit any but the most superficial reporting. We could all be reduced to standing in the street interviewing the survivors of fires.”
McGinniss, of course, wanted to be in the burning house itself, and when MacDonald presented his proposition the allure of the flames was strong enough to cause him to accept a condition that another writer might have found unacceptable—namely, that he give MacDonald a share of the book’s proceeds. McGinniss was not the first writer MacDonald had approached. For many years, at the prodding of his lawyer, Bernard Segal (who had defended him before the Army tribunal, and who remained his lawyer until 1982), MacDonald had been offering himself as a subject to writers. It had been Segal’s idea—fantasy, as it proved—that a book would bring in a sizable portion of the money needed to pay for MacDonald’s defense. “We were running into the red substantially,” Segal testified at the McGinniss trial. “People were working without salaries . . . and I thought a book with an advance that was substantial and fair would help out.” Two writers who had nibbled at the bait but had not been netted were Edward Keyes and Joseph Wambaugh; Keyes couldn’t get the necessary advance, and Wambaugh couldn’t come to the trial, because he was making a film. The hope of finding a writer had been pretty much abandoned, and when McGinniss turned up on the eve of the trial he was like the answer to a prayer one had no longer thought worth uttering. The dovetailing of desires was remarkable: McGinniss would get his insider’s spot (“I wouldn’t have wanted to just go to the trial and sit out there with the other reporters,” he told me. “I wanted to do it from the inside looking out, and I wanted total access to MacDonald and his lawyers”), and MacDonald would get his money. In the deal that was presently struck—presided over by Segal and Sterling Lord, McGinniss’s agent, who had got McGinniss a contract with the Dell/Delacorte publishing company and his three-hundred-thousand-dollar advance—McGinniss would receive not only total access but also a written promise of exclusivity and a release from all legal liability. MacDonald would lend himself to no other writer and would not sue McGinniss for libel if he didn’t like what was written. For his part, MacDonald would receive twenty-six and a half per cent of the advance and thirty-three per cent of the royalties. The arrangement was a kind of reification of the hopes and good intentions that writers and subjects normally exchange at the beginning of their enterprise. The money that MacDonald was to get was simply a more tangible manifestation of the reward that every subject expects to receive at the end of the project—why else would he lend himself to it? And, similarly, the written assurances that McGinniss received from MacDonald were no different from the tacit ones that writers normally receive from subjects: It is understood that the subject will not sue, and that he will not faithlessly go to another writer.
It is understood—and yet it is also known that subjects do sometimes sue writers, and that they do sometimes leave one writer for another, or abruptly break off the interviews. It is the latter eventuality, with its immediate disastrous effect on his project, that causes the writer the greatest anxiety (a lawsuit can occur only after the project is completed, in some hazy distant future) and impels him toward the devices and disingenuousnesses that came under unprecedentedly close scrutiny in the MacDonald-McGinniss lawsuit. But the writer isn’t alone in his anxiety. Even as he is worriedly striving to keep the subject talking, the subject is worriedly striving to keep the writer listening. The subject is Scheherazade. He lives in fear of being found uninteresting, and many of the strange things that subjects say to writers—things of almost suicidal rashness—they say out of their desperate need to keep the writer’s attention riveted. In the MacDonald-McGinniss encounter—the encounter of a man accused of a terrible crime with a journalist whom he tries to keep listening to his tale of innocence—we have a grotesquely magnified version of the normal journalistic encounter. Even though the crimes to which the normal subject pleads innocent—vanity, hypocrisy, pomposity, inanity, mediocrity —are less serious than those of which MacDonald stood accused, the outcome tends to be the same: as MacDonald’s tale ultimately failed to hold McGinniss—whose attention soon shifted to the rhetorically superior story of the prosecution—so do the majority of stories told to journalists fail of their object. The writer ultimately tires of the subject’s self-serving story, and substitutes a story of his own. The story of subject and writer is the Scheherazade story with a bad ending: in almost no case does the subject manage to, as it were, save himself.
As if sensing the deeper structures of the Devil’s pact he was brokering between MacDonald and McGinniss, Segal, when called upon to approve a release from McGinniss’s publisher, scribbled in a proviso whose language, on first reading, seems oddly ambiguous for a lawyer to use. The release was dated August 3, 1979, and was written in the form of a letter from MacDonald to McGinniss which began, “I understand you are writing a book about my life centering on my current trial for murder.” The letter’s third paragraph, where Segal’s emendation took place, originally read:
Segal felt constrained to change the final period to a comma and to add these words: “provided that the essential integrity of my life story is maintained.” Eight years later, in the MacDonald-McGinniss suit, it became MacDonald’s contention that the “essential integrity” of his life story had not been maintained in McGinniss’s book, and that McGinniss was guilty of a kind of soul murder, for which it was necessary that he be brought to account. The federal judge assigned to the case, William Rea, also seemed to hear the Commendatore’s music wafting out of the complaint and, in his denial of McGinniss’s motion for summary judgment, to concur with the plaintiff’s moralistic view of the case.
But all this was many years into the future. In the summer of 1979, MacDonald and McGinniss were Damon and Pythias. In common with many other subjects and writers, they clothed their complicated business together in the mantle of friendship—in this case, friendship of a particularly American cast, whose emblems of intimacy are watching sports on television, drinking beer, running, and classifying women according to looks. A few weeks after writing about MacDonald for the Herald Examiner, McGinniss gave up his guest column and flew to Raleigh to take up his insider’s post with the MacDonald defense; he moved into the Kappa Alpha fraternity house on the North Carolina State University campus, which Segal had rented for the summer, and there joined MacDonald, his mother, Segal, and the various lawyers, paralegals, law students, and volunteers of the defense group. One member of this group was Michael Malley, a lawyer, who had been MacDonald’s roommate at Princeton and had taken part in MacDonald’s defense at the Army hearing that dismissed the charges against him in 1970. Now, on leave from his law firm in Phoenix, Malley had once again put himself at the service of his friend, and, alone of the group, was not happy about the insertion of McGinniss into its midst. As Malley was to testify later, he had nothing against McGinniss personally —indeed, he liked him, the way everyone else did—but he felt there was something fundamentally risky about letting a writer into the inner councils of the defense. “I felt that if Joe was there all the time, we had a real problem about the attorney-client privilege,” Malley said, adding, by way of explanation, “The privilege is that anything you say to your attorney isn’t going to go beyond the attorney unless the client agrees to it. But if there is an outsider present, somebody who doesn’t belong to the defense team, the privilege is waived. And Joe, to me, clearly seemed to be an outsider, and I simply didn’t like it.” Malley told Segal of his concern about McGinniss, and Segal came up with a solution to the problem of the attorney-client privilege which Malley reluctantly accepted: McGinniss would be made an official member of the defense team—he would sign an employment agreement with Segal—and would thus be protected against, for example, any attempt by the prosecution to get at the defense’s secrets by subpoenaing his notes.
The criminal trial in Raleigh lasted seven weeks and ended, on August 29th, with MacDonald’s conviction—to the shock and horror of the defense. McGinniss, on hearing the verdict, cried, as did everyone else in the defense group. MacDonald was put in handcuffs and taken to a federal prison in Butner, North Carolina. The next day, he wrote a letter to McGinniss—the first letter in a correspondence that was to last almost four years. “I’ve got to write to you so I won’t go crazy,” he began. His letter ended with this emotional paragraph:
McGinniss did not “know that.” In the course of the trial, he had become persuaded of MacDonald’s guilt and had found himself once again in the position—the one he had held with the Nixon advertising group—of enemy infiltrator. In July, 1983, two months before the publication of “Fatal Vision,” Bob Keeler, a reporter from Newsday, who had also attended the criminal trial, interviewed McGinniss for an article he was writing for The Newsday Magazine and questioned him closely about the uncomfortableness of his situation in Raleigh. “There was nobody to talk to,” McGinniss told Keeler. “I couldn’t react. I couldn’t say to someone sitting next to me in the courtroom, ‘Hey, this doesn’t sound good.’ ”
“What was your anticipation of the result when the jury went out to deliberate?” Keeler asked.
“I was not convinced they were going to convict him. At the same time, I said to myself, ‘If I were a juror I would vote to convict.’ But I didn’t think that those twelve people were all going to come to the same conclusion I had come to. I didn’t know if it was going to be a hung jury or an acquittal. But I think I would have predicted either of those two results ahead of the conviction.”
“O.K. So the day after the conviction you went down to Butner, and Jeff hugs you and says he hopes you’re going to be his friend forever. What were your feelings at the moment? Obviously, by that time you must have known the book was going to come out showing him to be a guilty guy. How did you feel at that moment?”
“I felt terribly conflicted. I knew he had done it—no question—but I had just spent the summer with the guy, who on one level is a terribly easy person to like. But how can you like a guy who has killed his wife and kids? It was a very complex set of emotions I felt, and I was very happy to leave him behind in prison.”
Later in the interview, Keeler asked McGinniss this blunt question: “One of the theories among the reporters at the trial was that you were going to write this Jeffrey MacDonald-the-tortured-innocent book. Another theory was that you were going to do to Jeffrey MacDonald what you’d done to Richard M. Nixon—that is to say, to be in his presence and in his confidence for a number of months and then run it up his butt sideways. And I’m wondering, since the latter has turned out to be the case, whether that’s going to provide a problem for you in the future. That is to say, is anybody ever going to trust you again?”
“Well, they can trust me if they’re innocent,” McGinniss retorted.
“You don’t feel that you in any sense betrayed Jeffrey or did him dirt or anything?”
“My only obligation from the beginning was to the truth.”
“How would you describe your feelings about Jeffrey MacDonald now? This is a complex question, obviously, but obviously you’re going to be asked this on talk shows, and you’re going to have thirty seconds or ten seconds to think about it. How would you describe it?”
“Right now, I have a strange absence of feeling toward him. He has occupied so much of my consciousness and subconscious for so long that, with the book finally done, I find myself kind of numb in regard to him. I don’t have a feeling except the feeling that has been with me, which isn’t focussed so specifically on him but on the whole thing—a sadness that just doesn’t go away. It’s just sadness, sadness, sadness. Such a tragic, terrible waste, and such a dark and internally persecuted human being he is. He is so different from what he appears to be. I feel very sad that he didn’t turn out to be who he wanted me to think he was. Because that would have been a lot easier to handle.”
MacDonald was transferred from the Butner prison to the Terminal Island Federal Correctional Institution, near Long Beach, California—after a bus trip that spread over several weeks, during which he was kept in shackles—and in November McGinniss flew out to see him there and to continue his research for the book. Although he had glued himself to MacDonald in North Carolina, McGinniss had put off interviewing him about his life before the murders until the trial was over; now he would do this work. But at the prison McGinniss was prevented from bringing a tape recorder, or even a notebook and pencil, into the visiting room. So the men devised a scheme that would take the place of interviews: MacDonald would recollect his past into a tape recorder and mail the tapes (via his mother) to McGinniss. Over the next two years, MacDonald sent McGinniss a total of thirty tapes, which he made under somewhat mysterious circumstances (How did he get a tape recorder into his cell? Why was he never caught recording? Why was the tape recorder never found by guards? Why was his mother never caught smuggling the tapes out?), and from which McGinniss quoted excerpts in his book in chapters entitled “The Voice of Jeffrey MacDonald,” alternating with the narrative proper. McGinniss stayed in California a week, and during his stay MacDonald put his empty condominium—a half hour’s drive from the prison—at McGinniss’s disposal. McGinniss slept in a guest room-office, and during the day (he visited MacDonald in the late afternoon) he would read in the massive files on the case that MacDonald kept there and had given him carte blanche to rifle. McGinniss found so much of interest in the files that he asked MacDonald if he might take some of the material back home with him; the ever-obliging MacDonald agreed, and even lent him a suitcase in which to cart the stuff. Among the documents McGinniss found in the apartment, the most exciting to him was an account MacDonald had handwritten for his attorneys at the Army hearing in 1970. In it (the document was later made public), he listed all his activities on the evening of the murders and mentioned a diet pill, Eskatrolan—amphetamine combined with a sedative—that he had been taking. McGinniss, baffled, like everyone else, as to what could have prompted MacDonald to kill his family, and in such a savage way, consulted various pharmaceutical texts and found that Eskatrol could induce psychosis when taken in high enough doses. (It was removed from the market in 1980.) MacDonald had written:
Not implausibly, McGinniss interpreted “3-5 capsules” to mean three to five capsules a day, which is an overdose, and he went on to propose in “F atal Vision” that MacDonald killed his wife and daughters in a fit of rage toward the female sex—a rage that he had been repressing since early childhood and that the drug (in combination with stress, fatigue, and Colette MacDonald’s threatening “new insights into personality structure and behavioral patterns,” picked up at the psychology course she was taking and had just come home from) finally permitted him to vent. McGinniss based his theory of the crime on an unironic reading of three moral tracts—Otto Kernberg’s “Borderline Conditions and Pathological Narcissism,” Christopher Lasch’s “The Culture of Narcissism,” and Hervey Cleckley’s “The Mask of Sanity”—in which the terms “psychopath” and “pathological narcissist” are confidently offered as the answer to the problem of evil (as if labelling were ever anything more than the restatement of a problem). In the MacDonald-McGinniss trial, to lend credence to McGinniss’s labelling of MacDonald as a pathological narcissist, Kornstein invited Kernberg himself to appear as an expert witness and apply to MacDonald the adjectives he applies to the patients in his book—“grandiose,” “cold,” “shallow,” “ruthless,” “exploitative,” “parasitic,” “haughty,” “envious,” “self-centered,” “lacking in emotional depth,” “deficient in genuine feelings of sadness”—who suffer from the malady he has invented. Kernberg prudently declined, and suggested a colleague of his, Michael Stone, for the role, which Stone accepted and played to the hilt.
Another arresting find of McGinniss’s at the MacDonald apartment was a letter from J0seph Wambaugh, dated March 28,1975, spelling out the conditions under which he would consider writing a book about MacDonald. The letter’s tone is more like that of the charmless writing in small print on a baggage-claim check than like the communication of an author to a prospective subject. As he read, McGinniss must have marvelled at, and possibly envied, Wambaugh’s je m’en foutisme. But then Wambaugh was an ex-cop (he was once a detective on the Los Angeles police force), and, maybe even more to the point, he was one of America’s most successful popular writers, who apparently could afford to be blunt (as McGinniss, strapped for cash, apparently could not). “You should understand that I would not think of writing your story,” Wambaugh wrote, and he went on:
McGinniss quotes this letter in “Fatal Vision,” and also quotes from a note that MacDonald sent to Segal about the letter: “What do you think? He sounds awfully arrogant to me, but it will be an obvious best-seller if he writes the book.” McGinniss goes on, “Wambaugh, of course, had not written the book. . . . Now I was writing it.” He adds, assuming some of Wambaugh’s toughness, “As would have been the case with Wambaugh, MacDonald had absolutely no editorial prerogative. And the ‘ugly possibility’ to which Wambaugh referred had now become a reality.”
But toward MacDonald himself McGinniss continued to behave with his customary ingratiation. For almost four years—during which he corresponded with MacDonald, spoke with him on the telephone, received his tapes, and, on two occasions, visited him—he successfully hid the fact that in the book under preparation he was portraying MacDonald as a psychopathic killer. In 1981, in a letter to his editor at Dell, McGinniss wrote nervously, “The ice is getting thinner, and I’m still a long way from shore.” But he need not have worried; MacDonald never twigged to the ruse. Like the dupe in the Milgram deception, the naïve subject of a book becomes so caught up in the enterprise and so emotionally invested in it that he simply cannot conceive of it in any terms other than those the writer has sèt for it. As the Milgram subject imagined he was “helping” someone to learn, so MacDonald imagined he was “helping” McGinniss write a book exonerating him of the crime, and presenting him as a kind of kitsch hero (“loving father and husband,” “dedicated physician,” “overachiever”). When, instead, McGinniss wrote a book charging him with the crime, and presenting him as a kitsch villain (“publicity seeker,” “womanizer,” “latent homosexual”), MacDonald was stunned. His dehoaxing took place in a particularly dramatic and cruel manner. McGinniss had steadfastly refused to let him see galleys or an advance copy of the book. In a letter of February 16, 1983, he had written sternly, “I understand your impatience, and it is to that that I will attribute the unpleasantness of your tone. . . . At no time was there ever any understanding that you would be given an advance look at the book six months prior to publication. As Joe Wambaugh told you in 1975, with him you would not even see a copy before it was published. Same with me. Same with any principled and responsible author.” MacDonald had accepted the rebuke, and had enthusiastically lent himself to the pre-publication publicity campaign for the book. His assignment was an appearance on the television show “60 Minutes,” and it was during the taping of the show in prison that the fact of McGinniss’s duplicity was brought home to him. As Mike Wallace-who had received an advance copy of “Fatal Vision” without difficulty or a lecture-read out loud to MacDonald passages in which he was portrayed as a psychopathic killer, the camera recorded his look of shock and utter discomposure.
Milgram, in the chapter on methodology in “Obedience to Authority,” explains that he did not use Yale undergraduates as subjects because of the risk that word of the experiment might get out among the student population. But there is reason to think—extrapolating from the writer-subject experiment—that even subjects who had heard of the Milgram experiment would have fallen into its trap after only a slight alteration of its character. MacDonald, after all, had heard of people who were displeased with what was written about them (sometimes to the point of suing the writer), and still he behaved as if there were no possibility that his “own” book could be anything but flattering and gratifying. Perhaps even more striking is MacDonald’s continuing and, under the circumstances, crazy trust in the good intentions of journalists. To this day, after all that has happened to him, he continues to give interviews to journalists, continues to correspond with them, continues to send them material (through an out-of-prison information office run by a woman named Gail Boyce), and does everything he can to be helpful to them, just as he did with McGinniss. Something seems to happen to people when they meet a journalist, and what happens is exactly the opposite of what one would expect. One would think that extreme wariness and caution would be the order of the day, but in fact childish trust and impetuosity are far more common. The journalistic encounter seems to have the same regressive effect on a subject as the psychoanalytic encounter. The subject becomes a kind of child of the writer, regarding him as a permissive, all-accepting, all-forgiving mother, and expecting that the book will be written by her. Of course, the book is written by the strict, all noticing, unforgiving father. During our conversation in Williamstown, McGinniss quoted the following passage from an essay by Thomas Mann, which he had come upon in a book by another of his literary heroes, Joseph Campbell:
“This isn’t something that you can argue before a jury of people who don’t read books,” McGinniss said to me, “but it seems to me to get right to the heart of it.” He told me that he had “compartmentalized” his conflicting attitudes toward MacDonald. “The first letter I got from the guy, written eighteen hours after his conviction, brought tears to my eyes. I felt genuine sorrow. He wrote, ‘All I want to know is that you’re still my friend and you believe in me.’ So what’s the appropriate response? To send back a paragraph that says, ‘I reserve the right to my own opinions, and I remind you that I’m the author and you are the subject, and we have to keep things on that level’? Or do I write back and say, ‘You sound terrible, prison must be awful, I really feel bad for you’? All of which was an expression of genuine feeling at that time on my part. Not a lie. But I was compartmentalizing. I was suspending my critical faculty long enough to allow me to write that letter.”
The letter in question was written on September 11, 1979, twelve days after MacDonald’s first letter to McGinniss. It read, in part:
This letter, like the overture to an opera, announces all the themes of the coming correspondence. Until close to the publication of “Fatal Vision,” when McGinniss apparently felt he could afford to be a bit cold and careless with MacDonald, he wrote letters assuring MacDonald of his friendship, commiserating with him about his situation, offering him advice about his appeal, requesting information for the book, and fretting about competing writers. The passages dealing with this last concern—a very common one among writers (every writer thinks someone else is working on his subject; it is part of the paranoid state of mind necessary for the completion of the infinitely postponable task of writing)—make especially painful reading, in a correspondence full of painful moments. McGinniss had a real cause for worry: two people were actually planning to write books about the MacDonald case. One was Bob Keeler, who had been covering the case for Newsday since the early seventies; the other was Freddy Kassab, the stepfather of the murdered woman, who was looking for an as-told-to writer to set forth his version. But the measures that McGinniss, his agent, and his publisher took to insure that no one but McGinniss would come out with a book about MacDonald were extraordinarily active.
McGinniss to MacDonald, September 28, 1979:
McGinniss to MacDonald, November 19, 1979:
McGinniss to MacDonald, December 18, 1979:
McGinniss to MacDonald, December 20, 1979:
McGinniss to MacDonald, January 10,1980:
McGinniss to MacDonald, February 26, 1980:
McGinniss to MacDonald, March 18,1980:
McGinniss to MacDonald, March 28, 1980:
Gary Bostwick is a forty-seven year-old man of unexceptional appearance—he is plump, wears a shaggy mustache, and has small eyes behind wire-frame glasses—who immediately strikes one as a man of exceptional decency, good humor, and quickness of mind. If McGinniss’s chief problem as defendant was his letters to MacDonald, a close second in bad breaks was the drawing of Bostwick as opposing counsel. “I love juries,” Bostwick often says. More to the point, juries love him. Jurors sit there presumably weighing evidence but in actuality they are studying character. They miss little. When I spoke to the jurors of the MacDonald-McGinniss case and asked them their impressions of the two lawyers, they offered a low opinion of Kornstein, derived in large part from the way he frequently humiliated a young associate; in one instance, the associate made what Kornstein perceived as a mistake while examining a witness, and Kornstein peremptorily ordered him to sit down. Bostwick’s behavior, in contrast, had been impeccable, the jurors reported. A question that was asked by many people during the trial and after was: How could such a good man have taken on such a terrible client—a client who had murdered his wife and children and now had the gall to sue a reputable author for writing a book about him that he didn’t like? This was the sort of case, it was felt, that would attract the lowest sort of contingency-fee hustler, not an attorney of probity and reputation. Although Bostwick—who was not working on a contingency basis but at his regular rates—was never able to change this view of the case as it was reflected in the newspapers, on the radio, and on television, he succeeded in causing five (out of the six) jurors and an alternate to accept his version of the MacDonald-McGinniss encounter as a sort of Conradian fable of moral failure, and of the trial as a necessary ritual of retribution. On the face of it, one would have thought that Bostwick’s task was extremely difficult, if not impossible. It is one thing to call Lord Jim to account for his betrayal of the trust of the innocent pilgrims aboard his ship, and another to try a journalist for his sins against a man convicted of a crime so horrible that it renders the journalist’s sins innocuous in comparison. But among the many curiosities and surprises of this curious and surprising lawsuit was the ease with which Bostwick was able to make his case, and the difficulty that Kornstein had with his. As Kornstein must have been dismayed to learn, having a murderer for your adversary does not give you an automatic advantage. Kornstein’s strategy of constantly reminding the jury of MacDonald’s conviction did not serve him well. The jurors said they held this against him, feeling it an insult to their intelligence. (They were nudged toward this reaction by Bostwick, who, in his final argument, compared Kornstein’s constant references to MacDonald as “the convicted murderer” to a detergent commercial in which the word Oxydol “was mentioned twenty-seven times in three minutes, so that people would not forget that Oxydol was the thing to buy.”)
But there may be a deeper reason for the jurors’ almost bovine equanimity in the face of MacDonald’s crime. This reason can be stated as a corollary to society’s need to punish the transgressor, which is the need to forgive the transgressor. The crime of murder is one we have all committed in our (conscious and unconscious) imaginations. We have all dreamed about the violent deaths of our families; we have all said about people we love “I could kill him” (or her). In our old literature, we have Medea, Clytemnestra, and Oedipus acting out these fundamental fantasies; more recently, and thus more veiledly, we have Raskolnikov killing his mother and his sister through the murder of two strangers. And as we need to be punished and then absolved of our guilt, so do we punish and then absolve those who actually do what we only dream of doing. One of the unsolved mysteries of the case was McGinniss’s preternatural hardness toward MacDonald both in his book and in the statements he made to the press after its publication. As the trial went on, it was this hardness—McGinniss’s apparent incapacity for feeling compassion for MacDonald—rather than MacDonald’s crime, that came to seem monstrous to the jurors. One of them, a young black woman named Sheila Campbell, articulated this feeling to me. “The part I didn’t like was when MacDonald let McGinniss use his condominium, and McGinniss took it upon himself to find the motive for the murders,” she said. “I didn’t like the fact that McGinniss tried to find a motive for a book that was a best-seller, and that’s all he was concerned about. He wasn’t concerned about MacDonald as a human being whatsoever. He said he had feelings for Colette and the kids. But when are you going to start forgiving someone even if they did commit the crime? Are you going to torture the man for the rest of his life?”
MacDonald’s own appearance at the trial did nothing to dissuade anyone from thinking of him as a person worthy of forgiveness. Dressed in a subdued business suit, he sat quietly at the plaintiff’s table, and the association of this sobersided man with the straightarrow Bostwick gave the jurors further permission to regard MacDonald’s crime and punishment as a closed book, and to see him as a kind of nearly, if not fully, redeemed soul, who had suffered, whom it was not their place to judge, and whose punishment by McGinniss had been excessive and unfair.
Bostwick’s punishment of McGinniss, on the other hand—his relentless and pitiless interrogation—seemed neither excessive nor unfair to the jurors, they reported, nor inconsistent with his persona as a good man. With the flaming sword he had been handed in the form of McGinniss’s letters, he had no trouble playing the role of avenging angel. “It is a case about a false friend,” he dramatically announced in his opening statement. What he did not articulate to the jurors but what a reader of the transcript cannot help noting is the (in this case) ironic parallel between the methods of trial lawyers and of journalists. The devastating narrative that Bostwick spun out of McGinniss’s heedless epistolary chatter was like the narrative that a journalist spins out of a subject’s careless talk during an interview. As the subject blathers on and on, apparently oblivious of the notebook or tape recorder that is catching the words on which he is later to be impaled, so McGinniss was apparently oblivious of the consequences of leaving behind a written record of his intimacy with MacDonald, with whom he evidently felt so comfortable that he could confide in him his secrets from “the wonderful world of publishing”—like a businessman confiding the details of the day’s deals to a trusted mistress. And just as the subject, after the book or article comes out, will desperately attempt to unsay the things he wishes he had not said to the journalist, so, at the trial, did McGinniss attempt to repudiate his letters to MacDonald. “ ‘Total strangers can recognize within five minutes that you did not receive a fair trial,’ ” Bostwick read aloud from McGinniss’s first letter to MacDonald. He then turned to McGinniss and said, “You didn’t really believe that he didn’t receive a fair trial, did you?” McGinniss replied, “Well, I’m sure that that was an oversimplification, and indeed it misstates the total strangers. How could they recognize anything within five minutes?” The transcript continues:
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 actually occurring 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?”
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?”
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, Kornstein 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?”
In his cross-examination, Bostwick got right down to his enjoyable business:
Bostwick continued to nudge Buckley toward the minefield.
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?
In his cross-examination, Bostwick asked Wambaugh, “Would you tell an untruth here today?” Wambaugh replied, “No, sir.”
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:
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. I happened to be in Los Angeles on the day of the settlement—actually, in Bostwick’s office, reading court documents. 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 your position. For McGinniss to continue 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.
Now, in Los Angeles, I felt the familiar stir of something I hadn’t felt since my dismissal by McGinniss—something I recognized with delight, like the return of appetite after an illness. This was the feeling of gratified vanity that American journalism all but guarantees its practitioners when they are out reporting. In our society, the journalist ranks with the philanthropist as a person who has something extremely valuable to dispense (his currency is the strangely intoxicating substance called publicity), and who is consequently treated with a deference quite out of proportion to his merits as a person. There are very few people in this country who do not regard with rapture the prospect of being written about or being interviewed on a radio or television program. Even someone as smart and self-possessed as Bostwick said yes to me when I telephoned him from New York to ask if I could interview him and his client. His first step in the minuet was to say that his side of the lawsuit had not been fairly represented in the press, and that he hoped I would be more fair-minded. My first step, since I did not want to lose him and MacDonald as I had lost Kornstein and McGinniss, was to say that fairness was an ideal rather than something one could give or withhold at will—and anyway it was not a quality that writers had a very big stake in cultivating. He then murmured his appreciation of this “honest” answer—with which, of course, I had simply taken ingratiation to a higher level. Throughout my stay in California, I maintained the posture of the bluntly honest reporter who says what she thinks and never tells a Wambaughian untruth. I believe that the meaning (or meaninglessness) of this posture was completely understood by Bostwick and his associates, and, later, by MacDonald and his various friends and followers. I think that by the time I arrived on the scene everyone involved in the MacDonald-McGinniss lawsuit had become thoroughly familiar with the deepest structures of the journalist-subject encounter, and was under no illusions about a new journalist with a new cover story. But how many of us with no illusions left about the nature of romantic love will for that reason turn down a plausible lover when one comes along? Don’t a rare few affairs not turn out badly? And isn’t the latest lover invariably different in kind from all the previous ones?
In Bostwick’s office, in Santa Monica, awaiting his return from Federal Court, I knew it wasn’t only the fine California climate that was giving me such a feeling of well-being. The metaphor of the love affair applies to both sides of the journalist-subject equation, and the journalist is no less susceptible than the subject to its pleasures and excitements. In our talk and in the transcript of the trial, McGinniss had made a point of distinguishing between the reporting and the writing phases of the journalistic enterprise, speaking of them almost as if the one had nothing to do with the other, and as if the reporting and the writing were done by two different people. While this confession of doubleness was McGinniss’s undoing at the trial—the contradiction between the nice guy who had lived in the fraternity house with MacDonald and had written to him in prison and the coldhearted “best-selling author” of “Fatal Vision” was simply too grotesque—it is in fact an accurate description of the general journalistic case. An abyss lies between the journalist’s experience of being out in the world talking to people and his experience of being alone in a room writing. When the interviews are over and the journalist first faces the labor of writing, he feels no less resentful than the subject will feel when he reads the finished text. Having to make, but not being able to make up, the journalist has a knotty and never entirely solvable problem, which he tends to put off facing as long as possible. Sometimes the task seems particularly discouraging. In 1985, in answer to an interrogatory by the plaintiff, McGinniss wrote of “too many sleepless nights, too many terrible dreams, too many blank, dull, empty mornings spent staring out the back window of my house, cold coffee in hand, postponing for another minute, another five, another ten, the dreadful task of going back upstairs and again confronting the chilling realization which, against my will, was forming itself . . . ” The realization was that MacDonald had murdered his wife and children; but no writer can read this passage without recognizing in it the feeling of not wanting to get to work on something that may not come out well—and McGinniss had special reason to feel anxious about how “Fatal Vision” would come out.
But now, as I sat in Bostwick’s office, the problem of writing was for me, as it was for McGinniss in the early days of his encounter with MacDonald, like the problem of death: it did not interfere with the pleasures of the present. From Bostwick’s repeated references to his mother in the trial transcript and from the sound of his friendly, Plains States voice on the telephone, I had formed an image of him as a distinctly salt-of-the-earth type, and had imagined his office as being fittingly unpretentious: a couple of amiably seedy rooms, say, over a diving-equipment-rental shop on a commercial drag. The actual Bostwick office, in a building at the westernmost end of Wilshire Boulevard, was a place of the most advanced and sleekly expensive design. Beyond a reception room where Mozart was playing on a tape deck and an elegantly dressed receptionist sat at a light-gray counter, a conference room furnished with a lacquer table and ten chairs of a vaguely Oriental design was visible through a glass wall, and beyond that was a breathtaking view of the Pacific, which looked as if it, too, had come from an authoritative postmodern design firm.
Bostwick had put a room at my disposal, where I could peruse a looseleaf book of trial exhibits, which were not yet in the public domain, and had assigned an assistant to look after me; he himself was at the Federal Courthouse all morning, negotiating the McGinniss settlement. Toward noon, he called in to say that the case was settled. That evening, Bostwick, his wife, Janette (a pretty, delicately boned, soft-spoken woman, who is a Gestalt therapist), and I went out to dinner together at a restaurant near the office. The occasion had a light, celebratory atmosphere. Bostwick reminisced about the early days of the case. “I took a deposition from McGinniss in 1985, and after an hour in the room with him I knew we had him,” he said. “I just rubbed my hands with glee from that day forward, because I knew what I could do on cross-examination. It wouldn’t even have to be a very good cross-examination.”
I was interested to see that, even though the lawsuit was settled, Bostwick was still in the grip of the dislike and contempt for the defendant which had informed his work in the courtroom. Evidently, to be a good trial lawyer you have to be a good hater. A lawsuit is to ordinary life what war is to peacetime. In a lawsuit, everybody on the other side is bad. A trial transcript is a discourse in malevolence.
“That first deposition was in New York,” Bostwick went on, “and then, a year later, I followed it up with another, in Pittsfield, Massachusetts, which is close to Williamstown. McGinniss had refused to come to New York for the second part of his deposition. He said, ‘Last time, I was courteous to you and came to New York. This time, you’re going to have to do it in Massachusetts.’ The law says that you can’t drag a person too far from his home, so I went. As it turned out, it was a great trip. It was late October, just after the Mets had won the World Series. My flight went right up the Hudson to Albany, and it was the most beautiful plane ride I’ve ever had. It was a crystal-clear day. From Albany I drove to Pittsfield. Kornstein had a much harder time getting there. He left Manhattan about the same time I left Los Angeles. It was more trouble for him than it was for me.” Bostwick laughed. “Can you imagine lawyers posturing over this sort of thing—‘Well, they won a victory on that one, making us go to Massachusetts’? That happens so much in this business you’d be shocked. People fight bitterly over these things, and then find themselves waist-deep in mud and asking themselves, ‘How did I get here? What happened?’ You acted like an ass, that’s what happened. Sometimes I wonder about being a lawyer, I wasn’t always one—I was a Peace Corps volunteer and a translator and an engineer and an Army officer first.”
Bostwick traded his empty plate for his wife’s half-full one, and as he took an appreciative forkful of blackened catfish he said, “McGinniss said he owed it to Colette and to the kids to write the book, but—as I said in my closing argument—it wasn’t them he owed, it was the Bank of New England. If you read those letters to MacDonald, you’ll see that he couldn’t stop working on the book. He had taken the publisher’s advance. He was compelled to do what he did, and he wasn’t free to tell MacDonald the truth.”
I asked if Bostwick didn’t think it possible that McGinniss had been telling the truth in his letters to MacDonald—that he had loved him as well as hated him. Bostwick, as if suddenly remembering that he was no longer in the courtroom and could relent toward his adversary without risk to his side, nodded agreement. “Things weren’t simple for him, He had conflicted emotions.”
Janette, who hadn’t spoken very much, now said, “In my work, a patient will come in and say, ‘This is the truth about me.’ Then, later in the therapy, a significant and entirely opposite truth may emerge—but they’re both true.”
“It’s the same with the judicial process,” Bostwick said. “People feel that it’s a search for truth. But I don’t think that is its function in this society. I’m convinced that its function is cathartic. It’s a means for allowing people to air their differences, to let them feel as if they had a forum. You release tension in the social body in some way, whether or not you come to the truth.”
“But in a criminal trial,” I said, introducing the subject to which every discussion of the MacDonald-McGinniss lawsuit inevitably leads, “isn’t there only one truth? Didn’t MacDonald either commit these murders or not commit them?”
“I don’t believe he did,” Bostwick said, “and I wouldn’t have taken the case if I thought he had. I probably explained it best to my daughter when she started being harassed at school because of my involvement in the case. I said to her, ‘Look, nobody knows. I’m not saying I know he didn’t do it. Only God and Dr, MacDonald know, and neither of them is talking. But I believe he didn’t do it.”
At the trial, Bostwick had pressed McGinniss on his certainty that MacDonald had committed the murders, reading aloud a passage from “Fatal Vision” in which McGinniss, referring to MacDonald’s mother, wrote, “There were too many things I could not say [to her], for instance that I knew her son had killed his wife and children.” Then Bostwick said to McGinniss, “You don’t really know he killed his wife and children, do you?” The exchange continued:
Now, at the restaurant, Bostwick spoke of his own willingness to live with doubt. “Given the facts as I know them—and there’s a lot of evidence on both sides—I prefer being uncertain to taking the easy way out and getting rid of my discomfort by being absolutely certain. I don’t know, and no one on this earth can be absolutely certain of the truth here. Anyone who professes to be absolutely certain I really distrust.” ♦
(This is the first part of a two-part article.)
