The transcripts of Trials at Law--even of routine criminal prosecutions and tiresome civil disputes--are exciting to read. They record contests of wit and will that have the stylized structure and dire aura of duels before dawn. The reader feels as if he has been brought to the clearing and can smell the wet grass; at the end, as the sky begins to show more light and the doctor is stanching a wound, he takes away a sense of having attended a momentous, if brutal and inconclusive, occasion.
Trial transcripts have no author, but they read as if someone wrote them. Their plot revolves around two struggles. One struggle is between two competing narratives for the prize of the jury's vote. The other is the struggle of narrative itself against the constraints of the rules of evidence, which seek to arrest its flow and blunt its force. The word "objection" appears in the transcript perhaps more frequently than any other, and betokens the story-spoiling function of the law. The law is the guardian of the ideal of unmediated truth, truth stripped bare of the ornament of narration; the judge, its representative, adjudicates between each lawyer's attempt to use the rules of evidence to dismantle the story of the other, while preserving the integrity of his own. The story that can best withstand the attrition of the rules of evidence is the story that wins.
The law's demand that witnesses speak "nothing but the truth" is a demand no witness can fulfill, of course, even with God's help. It runs counter to the law of language, which proscribes unregulated truth-telling and requires that our utterances tell coherent, and thus never merely true, stories. This law--with its servants ellipsis, condensation, presupposition, syllogism--makes human communication possible. It also provides trial lawyers with endless opportunities for discrediting opposing witnesses. In the discourse of real life--life outside the courtroom--the line between narration and lying is a pretty clear one. As we talk to each other, we constantly make little adjustments to the cut of the truth in order to comply with our listeners' expectation that we will guide them to the point of what we are saying. If we spoke the whole truth, which has no point--which is, in fact, shiningly innocent of a point--we would quickly lose our listeners' attention. The person who insists on speaking the whole truth, who painfully spells out every last detail of an action and interrupts his wife to say it was Tuesday, not Wednesday, and the gunman was wearing a Borsalino, not a fedora, is not honored for his honesty but is shunned for his tiresomeness. In a courtroom, however, he would be one of the few people who could withstand cross-examination, who would not be caught in the web of one or another of the small untruths most of us mechanically tell in order that human communication be a swift, clear river rather than a sluggish, obstructed stream.
As I was rereading the transcript of a criminal trial held in federal court in Alexandria, Virginia, in the fall of 1990, my attention was caught by an example of one such narrativizing untruth uttered by a prosecution witness named Frank Manfredi, as he was being questioned by the prosecutor, Mark J. Hulkower. Hulkower was eliciting from Manfredi the history of a business transaction that lay at the heart of his case against the defendant, a forty-eight-year-old lawyer named Sheila McGough. The exchange between Hulkower and Manfredi went as follows:
Q: Directing your attention to May 1986, did you have occasion at that time to become involved in a transaction for the purchase of insurance companies?
Q: How did you learn of that opportunity?
A: I saw an advertisement in the Wall Street Journal.
Q: With whom were you put in touch?
A: I dialed the number that was in the ad. At that time I spoke, either the first call or the second call, to Mr. Bob Bailes.
The ad in question, which ran in the Wall Street Journal
on Friday, June 13, 1986, read:
Insurance Companies For Sale
Trustee in Bankruptcy is selling the stock of 17 Insurance Companies, which is owned and controlled by a corporation in bankruptcy under Chapter 11. Please write S. S. Smith, attorney and Trustee, P. O. Box 1474, Abingdon, VA 24210.
Manfredi's testimony about the ad, set side by side with the ad itself, offers an instance of demonstrable falsehood. The ad proves that Manfredi spoke falsely when he said he "dialed the number that was in the ad," since no number appears in the ad. Common sense tells us that Manfredi probably forgot the uninteresting intervening steps he had had to take (writing to the attorney, S. S. Smith, or calling Information) before he could speak to the insurance companies' owner, Mr. Bob Bailes. Memory functions as a ruthless editor of God's long-winded truth. It cuts through tedious, insignificant detail. Trial lawyers cynically rely on this function to help them impeach witnesses under cross-examination; much of the work of preparing for trial goes into the search for traces of memory's blue pencil with which to brand opposing witnesses liars. In this case, the defense lawyers, Gary Kohlman and Mark Rochon, did not so brand Manfredi; his testimony about "the number that was in the ad" went by unchallenged and unnoticed. I had dug up the ad out of a writer's inquisitiveness, a storyteller's wish to go back to the origins of the story, a journalist's habit of lingering in empty rooms on the off chance that a secret door will give way under accidental pressure.
Kohlman and Rochon lost the trial. Their client was found guilty of fourteen out of fifteen counts of felony on Wednesday, November 21, 1990, the day before Thanksgiving (the jury, evidently needing the afternoon hours for shopping for cranberries and canned pumpkin, reached its verdict by lunchtime after six hours of deliberation). She was sentenced to three years in prison, and after she lost her appeal she served two and a half years of the time. About a year after her release, in the winter of 1996, she wrote to me and said:
I was a defense lawyer who irritated some federal judges and federal prosecutors in the course of defending a client. The federal prosecutors in my hometown [Alexandria, Virginia] investigated me for four years, and when they failed to turn up anything illegal in what I was doing, they made up some crimes for me and found people to support them with false testimony. . . . I didn't commit any of the 14 felonies I was convicted of. The U.S. Government office in Alexandria "framed" me.
After poking and peering at this case for over a year, I have come to the conclusion that Sheila McGough's summary is an accurate one. It seems scarcely possible that in this country someone could go to prison for merely being irritating, but as far as I can make out, this is indeed what happened to Sheila McGough. She is a woman of almost preternatural honesty and decency. She can also be maddeningly tiresome and stubborn. As one looks at her disastrous confrontation with authority, one thinks of Antigone. And yet when one studies the case closely, one sees that she is not Antigone but Creon. What nettled the government about Sheila McGough was not her flouting of the law but her driving of it into the ground--her legal fundamentalism and literalism.
Under our system of justice, a person accused of a crime is entitled to a defense that is equal in power to the attack of the prosecution and to all the prerogatives of respect and consideration due to a contestant in a match of equals. (Defendants who are in jail appear in court in suits and ties or dresses, rather than in prison uniforms, to betoken this parity.) If he wins and is acquitted, he is taken back into society and his citizen's rights are fully restored to him. But should he lose, he is ejected from society, his rights are stripped from him, and he is subjected to punishment. Although there is wide disagreement about the degree of punishment that should be meted out to unsuccessful criminal defendants--who become criminals directly the verdict is read--there is general acceptance of the idea of punishment. There is also agreement that the game of trials is played for keeps and that when there is a conviction, it should hold. There is the possibility of appeal, but the system is weighted to protect the conviction. Society wants closure and provides itself with it. A conviction is extremely hard to overturn; if it were easy, the result would be an endless round of rematches.
Sheila McGough represented Bob Bailes--the man who placed the Wall Street Journal
ad--in federal court in Alexandria in the late summer of 1986 against the charge of giving false information to a bank in order to secure a loan; she lost the case, and Bailes was convicted and sentenced to five years in prison. Two years later, while still in prison, he was brought to trial again, this time in Charlotte, North Carolina, for an older and more serious offense--"a scheme to defraud" he had attempted to carry out in the early eighties. He was convicted once again and sentenced to an additional twenty-five years. The crime that Sheila McGough was convicted of in 1990 was the crime of not letting go, of not accepting the unwritten law of closure.
After her client went to prison, she continued defending him as if nothing had happened, as if he were still a person with rights rather than a convict without any, and as if the appeal stage of a case were the same as the pretrial and trial stages. She refused to accept the guilty verdict (and, subsequently, verdicts). Although such refusals are not unknown in life as well as in fiction, in most instances lawyers who file appeals for convicted felons don't expect to prevail. After the appeal fails--as it usually does--they withdraw their attention; they, too, need to close the book on the case and move on. But Sheila McGough never withdrew her attention from Bob Bailes. She remained at his side and fought for him as if he were Alfred Dreyfus, instead of the small-time con man, with an unfortunate medical history and an interesting imagination, that he was.
The judge who sentenced him to twenty-five years in prison addressed him thus: "Mr. Bailes, you have led a life of nothing but fraud and perjury for at least the last thirteen years. If you'd devoted the talents you have and the energy you have expended in these falsifications [to honest enterprise], you'd probably be making a million dollars a year now instead of going to jail." This is a common idea about con men--which misses the point about them. Con men are not businessmen manqués. They are not businessmen at all. They are in an entirely different line of work. They are not called con artists for nothing; they are called con artists precisely in recognition of the qualities they share with regular artists, which are: (1) love of solitude; (2) love of freedom; (3) dislike of authority; and (4) extraordinary powers of daydreaming.
The clientele for con art has never been large; it is a specialized clientele, made up of people who are dreamers in their own right, people for whom the fantasy of getting something for nothing, or close to nothing, is so powerful that it frees them from the constraints of common sense. Common sense is the enemy of art, as we all know. The spell of any work of art can be shattered by the sound of the nasty little voice saying, "But this is ridiculous." The clientele for Bob Bailes's art was smaller and more specialized still: he was a kind of con man's con man. The "scheme to defraud" for which he was convicted in North Carolina was a sort of Duchampian meditation on con art itself. Bailes claimed to possess certain extraordinary insurance companies, which were governed by charters granted in the 1890s, when insurance was not yet subject to the state regulations by which policyholders are now protected. He said he had legal documents that empowered the owners of these wonderful companies to sell insurance as if they were living in the lawless past, free of all regulation. The people Bailes offered his unregulated insurance companies to weren't credulous old ladies but spiritual colleagues of his. The idea of a company whose extraordinary value lay in its resemblance to an elevator that some fluke of history has exempted from all safety regulations could appeal only to people who themselves functioned on a high level of cynicism and amorality.
Since the early 1980s, Bailes had been offering his sardonic pieces through a leading con-art dealer--the Classifieds section of the Wall Street Journal.
(The FBI, I was told by a former agent, keeps an agent assigned to this section.) In early June 1986, soon after Sheila McGough took him on as a client and was preparing his defense against the bank fraud charges, Bailes placed what was to be the last of his Wall Street Journal ads--the one that Frank Manfredi answered. By June 18, Manfredi and his partner, Francis Boccagna, had signed a contract with Bailes to buy two insurance companies for $900,000 apiece, with a down payment of $75,000 for both. The history of what happened next exists in two versions: the government's and Sheila McGough's. In the government's version, Sheila was Bailes's accomplice in the scam. She was the woman in the La Tour painting who tensely watches the dupe's foolish face as she cuts the strings of his purse. Her role in the scam, as Hulkower outlined it to the jury, was to use the dignity of her office to lull the investors into a false sense of security. She had assured them that their $75,000 down payment would be held in escrow, he said. But then, on the very day that they wired the money to her attorney trust account, she removed it and gave it to Bailes, keeping $5,000 for herself. And when the deal collapsed under the weight of its improbability, the down payment was nowhere to be found. Hulkower called it the "escrow scam."
Sheila's version of what happened was never heard at trial. Defendants in criminal trials often don't testify. Their lawyers fear that what will happen to them under cross-examination--the beating they will take--will outweigh any gain. In Sheila's case, however, the decision not to testify was made not by her lawyers but by Sheila herself, out of protectiveness for her client. If she had testified in her own behalf, she would have been cross-examined and inevitably forced to answer questions about Bailes, and her answers might have been harmful to Bailes. To save herself at her client's expense was unthinkable.
After reading Sheila's letter, I wrote back and proposed that we meet. Hers was not the first letter I had received from someone claiming to have been unjustly convicted--what journalist today has not received such letters? But there was something about this writer--perhaps simply that she had put the word "framed" in quotes--that drew me to her, that made me want to know more about her case. "It was a medium-sized local story," she said at the end of her letter, "and the writers around here are sure they know what happened: a naive, unmarried woman was beguiled into crime by a con man who sent roses to her law office. So no one is willing to consider another possibility and actually read the documents."
Sheila took the train up from Washington (after getting permission from her probation officer, under whose watch she would be for another year) and met me in a coffeehouse in downtown Manhattan. She was already there when I came in, sitting at a marble-top table with the look of someone who had been waiting for some time. I don't know what I expected, but it wasn't a woman who looked and sounded like one of the blandly wholesome heroines of fifties movies. She was small and blond and pretty, and her voice was fresh and girlish, formed for phrases like "Gee whillikers!" and inflected by habits of unremitting good sportsmanship. She looked younger than her fifty-four years. Prison had evidently not broken or marked her. With her pale, translucent skin and single-strand pearl necklace and decorous navy-blue suit, she might have been the director of a small foundation or a corporate wife from Scarsdale, in town for a matinee. She talked almost uninterruptedly for the two hours of our meeting. Bailes had died the previous year, she told me, so she was finally free of her burden of silence; she could speak about him to an outsider without fear of doing him harm. However, I couldn't get a purchase on most of what she said. Too much had happened and it had been locked up in her too long for it to assume the shape of a comprehensible narrative. But Sheila, in any case, was not interested in telling a plausible and persuasive and interesting story. She was out for the bigger game of imparting a great number of wholly accurate and numbingly boring facts.
I was to realize over my months of meeting with her and talking with her on the telephone that she was unlike any other journalistic subject I had ever encountered. The journalistic subject is normally someone with a story to tell; you might even say to sell. Sheila's refusal (or inability) to tell a story obviated the usual journalistic task of dismantling a well-made story. With Sheila, the task, on the contrary, was to try to coax a story from the morass of her guileless and incontinent speech. Her lawyers had evidently not been up to the task. To win their case, they needed to tell a story at least as compelling as the prosecution's--the story, as Hulkower neatly summarized it in his opening statement, "of what happens when an attorney violates the first rule of criminal defense and crosses the line from representation of the criminal to participation in his crimes." But no powerful counterstory was ever told by Kohlman and Rochon. With their hands tied by the double bonds of the rules of evidence and the stubborn silence of their client, they could do little more than rush around putting out little fires in wastebaskets as the entire building burned to the ground. When a powerful counterstory finally emerged--the story told by Sheila's appeal lawyer, Stuart Abrams--the day for powerful counterstories was past. Like the convicted Bailes, the convicted Sheila was beyond rescue by narrative; she was beyond the heavy door that can be opened only by the most massive assault on it of brute fact.
Excerpted from The Crime of Sheila McGough by Janet Malcolm. Copyright © 2000 by Janet Malcolm. Excerpted by permission of Vintage, a division of Random House, Inc. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.