In 1989, the New Yorker published a two-part article by Janet Malcolm entitled “The Journalist and the Murderer.”
In the article, which was published in book form a year later, Malcolm offered her skewed perception of my relationship with Jeffrey MacDonald–the subject of my 1983 book, Fatal Vision–to support her bizarre hypothesis that “Every journalist…knows that what he does is morally indefensible.” So numerous and egregious were Malcolm’s omissions, distortions and outright misstatements of fact that I felt compelled to set the record straight in an epilogue to the updated edition of Fatal Vision that was published in 1989.
There is no statute of limitations on truth. Even now, twenty-three years later, Malcolm’s fictions ought not to be accepted uncritically. I reprint my 1989 response to her here.
The 1989 Epilogue to Fatal Vision
“Yet why not tell it like it happened?”
This book so angered Jeffrey MacDonald that he sued me in August, 1984. The suit, which originally received little attention, considering the constitutional questions it raised, proceeded to trial in July, 1987. A mistrial was declared when the Jury found itself unable to reach a verdict, and the case was later settled out of court.
In its issues of March 13 and March 20, 1989, the New Yorker magazine printed a two-part article entitled “The Journalist and the Murderer” by a staff writer named Janet Malcolm. The first part opened with the declaration: “Every journalist … 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.”
Malcolm’s focus was my journalistic relationship with Jeffrey MacDonald over the four years before Fatal Vision was published. Charging that I had “deceived,” “betrayed,” and “devastated” this convicted murderer and that my letters to him during the process of research constituted a “written record of … bad faith,” she attempted to employ this most atypical relationship between an author and his principal subject as a paradigm for the standard journalistic encounter–one which, somewhat idiosyncratically, she seems to view as the equivalent of “a love affair,” doomed to end badly.
Other publications, such as the Village Voice, have already commented upon Malcolm’s “asperity” and “quaint devotion to Freudian dogma,” both of which qualities are much in evidence in her commentary. And she is, of course, entitled to her opinions—such as that she “cannot learn anything about MacDonald’s guilt or innocence” from the physical evidence that led to his conviction or that “we have all dreamed about the violent deaths of our families”—however whimsical they may be.
But so numerous and egregious are her omissions, distortions and outright misstatements of fact, that I feel compelled to set the record straight. And in this matter, largely (and ironically) as the result of MacDonald’s lawsuit, there is a public record, vast portions of which Malcolm chose to ignore.
I first met MacDonald because I wanted to write a newspaper column about him. I’d arrived in Los Angeles in June, 1979, to spend several weeks as “writer in residence” at the Herald-Examiner and had read that the Long Beach Police Officers’ Association was planning a dinner-dance to raise funds for his defense. The item triggered an old, vague memory: this was the Green Beret doctor from Fort Bragg whose wife and two young daughters had been slaughtered in their home back in 1970. I recalled something about him saying that hippies had done it; then that he’d been charged; then that the charges had been dropped. But now, nine and a half years later, he was to return to North Carolina to stand trial for the murders—a circumstance sufficiently unique to warrant an eight-hundred-word column, assuming he would be willing to talk.
He was, and I drove down to meet him. Toward the end of our conversation, he broached the idea that I might write not merely a newspaper column but a whole book about him. As he later testified at deposition, “I believe that I was the one who initiated the discussion. I believe that I said, ‘Would you be interested in the possibility of writing a book on this case?’ “
What he didn’t tell me, but later admitted under oath, was that he’d already scheduled a meeting with Joseph Wambaugh for later that day to discuss the same proposition. Wambaugh, immersed in other projects, turned him down.
At deposition, MacDonald also recalled telling me, “You’re the kind of guy I’ve been looking for for nine years.” When asked what he meant, he testified: “[McGinniss] appeared to be comfortable for me to be around. He appeared very bright; cynical . . . funny, easy to work with; had prior successful books; had proper contacts in publishing circles; had expressed enthusiasm to me and appeared to be very receptive to a fair reading of the facts.”
Now—noting that from the start he sensed I was “cynical,” but somehow interpreted that as advantageous rather than inimical to his interests—one might think that were I interested in “seducing” this man (in Malcolm’s use of the term as it applies to journalistic conduct), I would have made certain that the one thing I did write about him—my Herald-Examiner column—would be sufficiently flattering as to lull him into a false sense of security.
One would think that, as Malcolm’s exemplar of “the journalist-who [seems] so friendly and sympathetic, so keen to understand [the subject] fully, so remarkably attuned to his vision of things, to I would have taken pains not to blow my cover, as it were, for the sake of a newspaper column. Such was not the case. As MacDonald later told a Washington Post reporter, “I read the column and it’s about [my] boat, it’s about my blond stewardess girlfriend and it’s about [my] condominium … I call him and I say, ‘Joe, this is a piece of crap’… I said, ‘Joe, I’m really disappointed. I thought we had a whole different kind of relationship …’”
No such conversation, in fact, ever took place, but when he testified at the trial of his civil suit against me, MacDonald admitted my column had provoked “feelings of annoyance … I was annoyed that the exact three things that I had hoped would not be mentioned in the column were mentioned in the first paragraph.”
This point seems not only to set the agenda for so much that followed between MacDonald and me but also to undermine Malcolm’s basic premise—namely, that the journalist invariably practices “deception” upon his or her subjects, preying” on their “vanity, ignorance, or loneliness.” Vain he may have been, but in June, 1979, when I first wrote about him to his displeasure, Jeffrey MacDonald was neither lonely nor ignorant.
He was, however, hungry for money, as was his lawyer, which led to the arrangement between us that—all by itself—should have (but didn’t) rendered this relationship unsuitable for what Malcolm termed her “reflections.” It was not, as she wrote, a “grotesquely magnified version of the normal journalistic encounter,” but something quite exceptional. I don’t think she could have chosen a worse example if she’d tried—which she didn’t.
Later that June, I met with MacDonald’s lawyer, Bernard Segal. We agreed that MacDonald would receive a minority share of the proceeds of any book I might write about him in return for granting me complete and exclusive access to him and his legal staff throughout the trial and, upon the trial’s conclusion, access to all documents related to the case, as well as his assurance of continuing cooperation.
There was no commitment, indication, or even hint that my book would portray MacDonald as innocent. Indeed, having no idea what the story would turn out to be—was he a murderer or not?—I could hardly have offered such assurances.
MacDonald himself, testifying at both deposition and the trial of our civil suit, conceded that from the start he recognized he would have no control over what I would write.
“Do you recall in your discussion with Mr. McGinniss,” my lawyer asked at deposition, “[his] telling you that he would only write the book on the condition that he had total control over what he published and could publish the truth as he saw it?”
“Not in those words,” MacDonald replied.
“Do you recall any similar sentiment or words to that effect?”
“Yes,” MacDonald conceded.
At our civil trial, my lawyer, Daniel Kornstein, asked MacDonald, “You did expect Mr. McGinniss to hear other sides, other versions adverse to yours about the story?”
“Yes, that’s true,” he said.
“And … you never, during these preliminary conversations, told Mr. McGinniss that you wanted him to write a book portraying you as innocent, did you?”
“No, I did not,” MacDonald said.
“And you understood that it was possible that Mr. McGinniss might come to a contrary conclusion?”
“Did you ever consider what might happen if Mr. McGinniss concluded that you were guilty instead of innocent? Did that thought ever cross your mind?”
”I’m sure that crossed my mind. I can’t recall it specifically happening, but it must have occurred at some time.”
“And when the thought crossed your mind, did you also think whether or not Mr. McGinniss would have the right to conclude that you were guilty?”
“Mr. McGinniss could conclude what he wanted, if it was fair and honest and accurate and nonfiction.”
“And he could write about it that way in the book, couldn’t he?”
“That was my understanding.”
How much clearer can it be that from the start—long before any “friendship” entered into the equation—MacDonald was aware he was taking a risk? But—as is the case with many psychopaths—he was so convinced of his own ability to manipulate, to persuade, to seduce, that he did not see it as such. What we are talking about here is not only pathological narcissism but what I would term “pathological optimism.”
With the understanding that further details would soon be arranged, I arrived in Raleigh, North Carolina, where MacDonald was about to stand trial, and found him and his aide in a fraternity house on the campus of North Carolina State University. A room was made available to me and I began my reportorial work as negotiations between Segal and my literary agent at the time, Sterling Lord, proceeded.
When asked at deposition to describe his recollection of my relationship with him during his murder trial, MacDonald testified, “We had meals together. He was living in the same fraternity house that we were living in, so I saw him on a daily basis. And I remember that he was—I would characterize it as sort of hanging around. He was always in the background with a—with a pad and a pencil.”
“And was this consistent with your expectations of what you wanted the person writing the book to do/” my lawyer asked.
“Yes,” MacDonald replied.
This is consistent also with effective reporting technique as described by its practitioners for generations. Gay Talese wrote in the preface to his collection of profiles, Fame and Obscurity, in 1970: “I try to follow my subjects unobtrusively while observing them in revealing situations.” And in Tom Wolfe’s 1973 introduction to The New Journalism he writes: “Most good journalists who hope to get inside someone else’s world and stay there awhile come on very softly and do not bombard their subjects with questions … Your main problem as a reporter is, simply, managing to stay with whomever you are writing about long enough for the scenes to take place before your own eyes. There are no rules or craft secrets . . . that will help a man pull this off; it is completely a test of his personality.”
To me, the problem of the reporter and the subject seems analogous to that posed by Heisenberg in his formulation of the “uncertainty principle,” which states that any attempt to measure precisely the velocity of a subatomic particle will knock it about in an unpredictable way, thereby altering the very force that the experimenter has sought to quantify. The reporter, by his very presence, causes a change in the behavior of the person about whom he eventually hopes to write. His goal should be to minimize this alteration.
I might add that the presence of machinery, be it full-sized television camera or pocket-sized tape recorder, invariably aggravates this problem, making the reporter s presence more invasive and rendering less authentic the eventual portrait. That’s an opinion shared by the New Yorker‘s Lillian Ross, who has written: “Does a tape recorder used in reporting help reveal any truth? I don’t believe so. In fact, I believe that a tape recorder gets in the way of your response, to a person, and it is this response that gives an interview its authenticity. Tape recorders almost always take the life out of your response to a person, and the response of the person to the tape recorder may deaden things further … Furthermore, the practice of depending on a tape recording makes for a lifelessness in the way you report. It makes you lazy and inert.”
On July 16, 1979, about a week after the murder trial had begun, Segal and my agent, Lord, representing MacDonald and me, signed an agreement that specified that in return for granting me “exclusive story rights” to his life, MacDonald would receive 20 percent of the first $150,000 paid to me by any publisher for a book about him and 33 percent of any proceeds beyond that. In addition, the agreement stated that MacDonald would receive 40 percent of any motion picture or television proceeds.
By the end of the month, Lord had reached agreement with the Dell Publishing Company for publication of both hardcover and paperback editions of the book. There was, however, a significant caveat: MacDonald would have to sign a release prepared by Dell’s lawyers in which he promised not to sue. He did sign on August 3, 1979, with Segal signing as witness. At no time did I sign any agreement with MacDonald in regard to what the book’s contents would be, nor did I ever, orally or in writing, grant him any rights of approval or review. Indeed, the whole purpose of the release was to assure just the opposite: that I would be free to write whatever I came to believe to be true. The release said:
I understand you are writing a book about my life centering on my current trial for murder….
Accordingly, I hereby grant to you the exclusive right to use my name, portrait and picture in and in connection with the publication of an untitled work about my life and the trial in which I am a defendant for murder . . . You may include in the book any incidents, characters, dialogues, actions, scenes and situations that you desire.
In the next paragraph, Segal inserted a phrase in brackets.
I realize, of course, that you do not propose to libel me. Nevertheless, in order that you may feel free to write the book in the manner that you may deem best, I agree that I will not make or assert against you, the publisher or its licensees or anyone else involved in the production or distribution of the book any claim or demand whatsoever based on the ground that anything contained in the book defames me [provided that the essential integrity of my life story is maintained].
The next and last relevant paragraph said:
I hereby release, discharge and acquit you from any and all claims demands or causes of action that I may hereafter have against you–whether for libel, invasion of right of privacy, or anything else–by reason of anything contained in the book or in the publicity or advertising pertaining thereto.
As August passed, my journalistic relationship with MacDonald (which in all other ways was so unusual) took on the inevitable personal aspect. As Tom Wolfe has written: “If a reporter stays with a person or group long enough, they—reporter and subject—will develop a personal relationship of some sort, even if it is hostility. More often it will be friendship . . .”
This has happened to me with almost everyone upon whom I have reported in depth. As journalist Marshall Frady has said of his own subjects (who have included Bill Graham, George Wallace, and Wilbur Mills among others), “I like ‘em all when I’m with ‘em. It’s only when I sit down at the typewriter that I realize what sons of bitches they really are.” Not all, of course, are sons of bitches. Some of the best friends I have are people about whom I’ve written, but there was never any ambiguity about the nature of the relationship when it began: I was journalist and he or she was subject and we were entering into a relationship from which each hoped to gain. (Only MacDonald, however, has ever benefited financially.)
By the time of his conviction, I had come to like Jeffrey MacDonald enormously. I had spent vast amounts of time observing him in court and listening to him testify and also much time with him under less stressful circumstances. I’d laughed, jogged, eaten, drunk, browsed through bookstores and talked sports with him. I had come also to know and to like his mother, his friends from high school, college, the Army, the hospital in California where he had worked—all of them people who professed belief in his innocence.
Can it be surprising that I found myself wanting to believe the same? Day after hot, humid day I would sit in court looking at crime-scene photographs that depicted the carnage inflicted upon MacDonald’s wife and daughters. Then, within the hour, he’d be chatting affably with me. Each time, my reaction was the same: this man could not have done this to those people.
Yet every day the evidence mounted. Concrete physical evidence; unambiguous, clear. It could not be, yet it was. He could not have, yet he did. The evidence demonstrated that Jeffrey MacDonald, this gracious, charming, affable man, had fractured the skull of his pregnant wife with a club; had broken both of her arms with a club; had stabbed her sixteen times in the neck and chest with a knife; had shattered the skull of his five-year-old daughter with a club; had stabbed her in the throat eight to ten times with a knife; had hit her again so hard with the club that he’d shattered an entire side of her face, leaving a piece of cheekbone protruding through the skin; and then, with full awareness of what he was doing, had walked into the bedroom of his two-year-old daughter and, laying her across his lap, had stabbed her twelve times in the back with a knife and four times in the chest and once—in the neck and then, again, fifteen times in the chest with an icepick.
I can tell you one thing: there was no “seduction” going on. At least not on my part. There was only my struggle to hold myself together in the face of this mounting horror.
To say there was ambivalence, to say there was conflict between what my head told me must be true and what my “heart,” for lack of a better word, told me could not be, would be to make the greatest understatement of my life. Yes, I’d been persuaded he must have done it. But yes, I cried, as did some of the jurors themselves, when their foreman pronounced their guilty verdict.
Let me now discuss the letters I wrote MacDonald in the months that followed, letters from which Janet Malcolm has quoted copiously. These were compassionate, anguished, and utterly genuine—and, I should say (since Malcolm pointedly does not) always written in response to equally anguished, tormented letters from him.
For six months following his conviction, maybe seven or eight, finding myself confronted by the most awful set of circumstances I’d ever known as a writer, and all the while being beseeched by this charming and persuasive man to believe in him, I wrestled with not only the question of his guilt but with another that was in some ways more disturbing: if he could have done this, how could I have liked him?
The “Afterword” to this edition, with its tale of my February 17, 1980, bloody nose, may have given some sense of how totally consumed I was by what I’d gotten into. For three years, almost every night, I would awaken within minutes of three a.m. and be in bed imagining, thinking, wondering—trying to come to terms with what had gone on inside that apartment at that hour on that night. Seldom would I get back to sleep before the sky lightened. These were not things about which I could speak to anyone but my wife, and even to her only on rare occasions. This was not a question of saying, “Oh, well, I guess he’s guilty, so probably I ought to stop being friendly and let him know what I think.” We are talking here of psychological crisis of major proportions. Sweats, chest pains, the insomnia, fits of depression. And this wasn’t just some private nightmare I was locked into: there was this book I had to write.
Recall here the words of Herve Cleckley, which I encountered for the first time in the fall of 1980: “Only very slowly and by a complex estimation or judgment based on multitudinous small impressions does the conviction come upon us [in regard to the psychopath] that, despite these intact rational processes, these normal emotional affirmations and their consistent application in all directions, we are dealing … not with a complete man at all but with something that suggests a subtly constructed reflex machine which can mimic the human personality perfectly.”
It took me a long time to accept that MacDonald could be the charming and apparently caring man I’d come to know (or thought I did) during the summer of 1979, and, at the same time be what the psychiatrist Otto Kernberg has described as “an enraged empty self—the hungry wolf out to kill, eat and survive.” My learning process, in that regard, did not even begin until the end of trial. It intensified once I won cooperation both from the federal prosecutors and from MacDonald’s in-laws, Alfred and Mildred Kassab (none of whom, incidentally, feel in the slightest betrayed), and continued until I had finished work on the book in spring of 1983.
During this period of turmoil, I was not about to sit down and kick things around with him conversationally. In her New Yorker articles, Janet Malcolm writes that my letters, “assuring MacDonald of … friendship” continued until “close to the publication” of this book, by which time, she says, I apparently felt I “could afford to be a bit cold and careless.”
That statement is false. By spring of 1980, as I found myself moving beyond the magnetic field of MacDonald’s personality and as my research turned up new information—none of it favorable to him—the tone of my letters shifted markedly. He still was my subject, about whom I would have to learn more if I was ever to reconcile the apparently irreconcilable. (As Barbara Grizzuti Harrison has written: “To try, in print, to reconcile irreconcilable differences is noble work, it is … labor to be proud of.”) It was necessary to keep lines of communication open, but because I no longer felt it, I could no longer express much personal warmth or sympathy for his predicament.
In July of 1980, MacDonald’s conviction was overturned by an appellate court—not because he was innocent but on grounds that the government had taken too long to bring charges against him. He was released from prison. Malcolm might think my continuing “seduction” or “conning” of him would have had me on the first flight west, eager to greet him as he walked out through the prison gates.
But no such thing happened. To fly to California and feign happiness at his release in order to assure his continuing cooperation seemed repugnant, given my feelings at the time. I am perfectly capable of suspending judgment while gathering information, or even of suppressing troublesome feelings in order to more fully report—as I think any good journalist has to be—but I cannot fake what I do not feel.
I liked MacDonald when I was with him during his murder trial. I felt sorry for him for months afterward and wrote him letters genuinely expressing that sorrow, even after I’d formed my opinion as to his guilt. Those letters—far from being my attempt to con him—represent the degree to which he’d succeeded in conning me.
It was not until October of 1980, when a publicity tour for Going to Extremes, my just-published book about Alaska, required it, that I next went to California. On October 1, I met Bernie Segal and an assistant of his named Sara Simmons for a drink at the Top of the Mark hotel in San Francisco. That night, in my notebook, I wrote: “They sense I feel he’s guilty.” Not an impression, I suggest, that a con artist would be seeking to create. (That notebook entry, as well as the excerpts from testimony that follow, were all in the public record and available to Janet Malcolm, but in her articles she omitted any reference to them.)
My recollection of the conversation, given under oath, is that Simmons, apparently troubled by something in my manner, asked, “You don’t think there is any chance that Jeff is guilty?” I replied, “I don’t know what I think.” She then said, “But don’t you think you have a moral obligation to Jeff?” I responded, “I think I have a moral obligation to the truth.”
Bernie Segal, MacDonald’s lawyer, remembered it slightly differently. At the 1987 civil trial, he testified, “My recollection is that Sara asked more directly. ‘Joe, is your book going to be [sic] that Jeff is guilty?’ ” He then said, “Joe was evasive—that is, ‘Well, you know, I can’t say everything now, and you’ll have to wait.’ ”
Whatever the actual words, alarm bells began ringing so loudly that Segal immediately called MacDonald, who just as quickly, Segal testified, “expressed his dismay. He was upset to learn that I believed that Joe McGinniss was actually writing … a negative book. ”
On the same trip—it was, I believe, the next day—I gave an interview to the San Francisco Chronicle. When the reporter asked if I thought MacDonald was guilty, I said, “I can’t talk about what I think. At the end of the book, the reader can draw a reasonable conclusion. I spent a great deal of time with both sides and got full cooperation.”
These are not the words of a perfidious journalist seeking to lull a naive subject into continuing cooperation. Indeed, the combination of Segal’s call and the newspaper story, which was published on October 12, so worried MacDonald that only two days later he wrote me a letter expressing concern.
“I had just finished a strange conversation with Bernie,” he wrote, “in which he was telling me how he sort of confronted you with some sort of request as to how you view my guilt or innocence. I pooh-poohed him, thinking he was exaggerating his statements and your lack of response. Reading your quotes in the October 12 article gave his version of your meeting a new weight and sobered me significantly… I hadn’t expected comments like that from you and don’t really know what to make of them.”That letter, which was sent to me almost three years before the publication of Fatal Vision, was, like so much else in the public record, ignored by Malcolm.
Despite the warning flags I had held up, MacDonald–more than a full year later–signed a second release, this one requested by a producer in connection with the Fatal Vision miniseries but clearly covering the book as well.
With no additions or deletions, MacDonald granted me the “unlimited right” to “describe, impersonate, simulate, depict and portray” him, and to “make use of any episodes in [his] life” as I, in my “sole discretion deem proper.” The release also stated that I “may exercise all or any of the rights herein granted …without claims, demands or causes of action, whether for libel, defamation, violation of right of privacy or infringement of any literary or other property right or otherwise” insofar as MacDonald was concerned.
And there is more. In addition to the releases, MacDonald sent me many letters in which he reiterated his awareness that he had no control over the content of my book. Examples from the public record, available to but ignored by Malcolm, include:
-April 14, 1982: “I haven’t ever asked you for any favors re: the book and I don’t normally think it’s my place to do so.” MacDonald then acknowledged his recognition that he did not have “any right to review material or anything else,” and added, “I never ask you what you are writing or how you feel about anything, i.e., me, Bernie, evidence, et cetera, et cetera…. “
-April 27, 1982 (following a meeting with an associate of F. Lee Bailey’s in which MacDonald tried unsuccessfully to persuade Bailey to take his case): “Bailey’s associate was totally aghast that I had no artistic control over the book . . .”
-August 22, 1982: “I had made myself a promise not to question you on the book. I’ve told you, and I mean it, that I have decided to go with you . . . without any controls to protect me, as I could have gotten with a lesser writer …”
The August 22 letter came after a phone call in which, for the first time, MacDonald had asked me how the book would portray him. I had declined to answer. In his letter, apropos of the phone conversation, he wrote that “Randi [his fiancée at the time] was stunned by your refusal to be committal,” but added that he’d overcome his original uneasiness about the conversation, saying, “Now I’m better. I think I’ve sorted things through.”
That comment seems to me further evidence of the “pathological optimism” alluded to by the Army psychiatrist who testified at the grand jury that MacDonald, “if presented with twenty pieces of data . . . is capable of seeing only three or four and drawing his conclusions from those.” This seems particularly apparent given that his call came only nine days after he’d received a clearly ominous letter from Segal.
In response to MacDonald’s increasing pressure to learn how the book would portray him, I had sent him a couple of deliberately unilluminating paragraphs. This was a quite conscious effort on my part to keep him from interfering with my completion of the work. He had forwarded the brief excerpt to Segal and the lawyer had written: “I read the excerpt from Joe’s draft. It’s unrevealing about what he really thinks about the principal subject of the book, you, and about the tone (really innocent; probably innocent; suspiciously guilty; outrageously guilty but clever and should get away with it) that the book will finally take. Truthfully, I don’t know of any valid journalistic reason for Joe to be so guarded on the tone of the book, except one. That one reason is he is (and has been) vacillating on where he personally comes out on you and your case . . .”
At the 1987 trial of MacDonald’s lawsuit, Darnel Kornstein questioned Segal about this letter.
“Did you believe that [Joe] was vacillating over what he was going to write?”
“Yes,” Segal replied. “Some days he believed one way, it seemed to me, and other days he moved away from it. He never indicated, however, at any time from the October 1980 meeting on that he was still the so-called staunch believer in Jeffrey MacDonald’s innocence.”
This testimony by MacDonald’s own lawyer is perhaps the clearest evidence of all that Janet Malcolm’s statement that MacDonald “was led to believe by McGinniss that the book would support his claim [of innocence]” is false.
And there were still more revealing letters from him to me, unreported by the New Yorker. In December, 1982, I informed MacDonald that I had completed my manuscript. He wrote back that the news left him with feelings of ” … anxiety about how and what you’ve said. I don’t really even know the style, much less the content.” That does not strike me as the reply of a man who for three and a half years had been misled into thinking he would be favorably portrayed.
On February 9, 1983, he wrote, while asking if he could see an advance copy of the manuscript: “It was one thing not to have control over the book/contents/you. I granted you that and I have lived with it.” And on February 17, in the same context, he conceded: “It is not my right, as per our agreement, to tell you what to write, or have veto power, etc. etc.”
At the very least, this record provides valid basis for adopting a view of my relationship with MacDonald quite different from the extremely myopic one proffered by Malcolm.
As I see it, what really happened was that from the moment he first laid eyes upon me, MacDonald tried to con me, and through me–as, later, through Janet Malcolm–the public.
With her, he may have succeeded to a degree, in that she has written, after confessing her inability to confront the physical evidence, “MacDonald may be a murderer or he may be an unjustly convicted man.” But that may be just another version of the old story of the lady and the convict. There are women who develop a fascination with men convicted of violent crimes, especially violent crimes against women.
Certainly, Malcolm’s portrayal of MacDonald–”handsome, tall, blond, athletic,” and of his “poise” (not to mention his “preternatural equipoise”), his “intelligence,” the “intensity of his listening,” the way he “bristled with tense aliveness,” his “physical grace,” the way he handled a doughnut, for heaven’s sake, “breaking off pieces and unaccountably keeping the powdered sugar under control–with the delicate dexterity of a veterinarian fixing a broken wing” (this from a woman herself so delicate that she could not bring herself to look at some of the other things MacDonald had broken, like the arms and skull of his wife and the skull and face of his five-year-old daughter) —suggests a certain degree of emotional involvement.
Indeed, she refers to her correspondence with MacDonald, like all correspondence, as “a kind of love affair … tinged by a subtle but palpable eroticism.” But that, as they say, is another story.
MacDonald sued me in 1984 on grounds of fraud, breach of contract, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. He claimed that I had “intentionally and cynically” led him to believe that I was “convinced” of his innocence and that I was “writing the planned book from that point of view.” He also claimed that the book contained “numerous false statements of fact and false implications” and that because it had failed to “set forth his innocence,” I had not “maintained the essential integrity of his life story.” He further claimed that I’d caused him to suffer “mental anguish . . . nausea, weight loss … nightmares … shame, embarrassment and humiliation…loss of support by friends and associates…anxiety caused by hate-mail . . . difficulties in relating to and dealing with prison personnel and fear and anxiety regarding physical wellbeing due to adverse inmate reaction to falsehoods published in Fatal Vision.”
Leaving aside the irony that my “cynicism” was one of the qualities that supposedly had first made me seem an attractive journalistic prospect, and the further irony that a man convicted of murder could argue that in order to maintain the “essential integrity” of his life story a book about him would have to proclaim his innocence, I felt that the whole thing was simply a libel suit in disguise. But given that he’d signed two releases that precluded him from suing on any grounds, it didn’t seem to matter what he called it.
I quickly learned differently when my publisher’s insurance company said that because it was not labeled as a suit for either libel or invasion of privacy the company did not have to provide the coverage guaranteed me under my publishing contract. (G.P. Putnam’s had replaced Dell as hardcover publisher.)
I had to sue the insurance company in Federal District Court in New York City. In November, 1986, Judge Robert Sweet ruled in my favor, saying, “the court must look past the labels… to the facts . . .” Making it clear he was expressing no opinion on the merits of MacDonald’s claims but only their nature, Judge Sweet added: “The essence of these allegations… is that MacDonald did not receive a book which portrayed the ‘full and true’ story, equating truth with innocence. Since McGinniss wrote a book which did not fully support MacDonald’s version of the story, McGinniss allegedly lied when he represented that he was writing the ‘true’ story. The focus in these pleadings is MacDonald’s and McGinniss’ contrary views of the truth of the book . . . The pleadings . . . focus almost exclusively on the falsity of the book . . . The facts are based upon, and at times indistinguishable from, an allegation of libel.”
Eight months earlier, in Los Angeles, Federal Magistrate James McMahon, presiding over a pretrial hearing in the civil suit, also found it to be “a hidden libel case.” Using even stronger language, Magistrate McMahon said what MacDonald had apparently wanted was a “kept journalist,” and, later, “what he wasn’t interested in was a journalist. It was rather a publicist was what he wanted—a PR man. ”
The magistrate asked rhetorically, “So [McGinniss's] obligation in entering into this contract in a hotly contested murder trial where everybody recognized there was a significant chance of conviction as well as a significant chance of acquittal was to be totally up front with MacDonald at all times, and at the point where some evidence seemed to him to be convincing he was supposed to say, ‘Jeff, I now think you’re guilty so I have to walk out of here’?”
He added that the complaint made it “sound like MacDonald’s a spurned lover and he wants to blacken McGinniss’s reputation … This whole lawsuit smells like a grudge suit.”
None of these proceedings is even alluded to by Janet Malcolm. Yet she writes in copious—and often erroneous—detail about the eventual trial, which she did not attend. (I might add that neither I nor anyone else about whom Malcolm wrote and to whom I’ve subsequently spoken was ever contacted by a New Yorker fact checker.)
That the case even got to trial was the result of another judge’s befuddled misreading of the first release MacDonald signed. William Rea, a man only recently appointed to the federal bench by Ronald Reagan, apparently interpreted Segal’s handwritten addition to the single paragraph of the 1979 release as somehow obligating me to tell the story the way MacDonald wanted it told, in order to maintain the “essential integrity” of his life. Judge Rea failed to grasp the most obvious fact: that a release can only enlarge, not diminish a writer’s freedom. A modification of it may limit the degree to which that freedom is increased, but cannot leave the writer with less than if there had not been one. He also disregarded not only the unmodified paragraphs of the original release, but the entire 1981 release. Ruling that there were “genuine factual issues to be resolved,” he denied my motion for summary judgment. He also ruled that there were no First Amendment issues involved in the dispute. And, finally, that MacDonald—though serving three consecutive life sentences for murder—should be let out of prison each morning in order to attend the trial.
The trial lasted six weeks, starting in July, 1987. From the first it was an exercise in total confusion. The American Lawyer, the only periodical to cover the trial in any depth, termed it “amorphous and unwieldy” due to “the Judge’s failure to define the case.” The suit, according to the magazine, “[sounded] like a libel action, but the similarity eluded… William Rea …When Judge Rea chose to ignore the constitutional issues … he left the author shorn of his First Amendment protections.”
What the judge did permit, despite the fact that MacDonald’s convictions had by then been upheld even by the United States Supreme Court, was for him to assert his innocence. On the other hand, I was not allowed to introduce evidence that demonstrated his guilt.
Also, despite his ruling that this was not a libel suit and that no First Amendment defenses would be allowed, Judge Rea permitted extensive inquiry into the alleged “false statements and implications” in the book. None was found. The book’s “essential integrity” was maintained.
Malcolm (who, having not attended the trial, apparently relied heavily on MacDonald’s lawyer as a source for her impressions) reported that on cross-examination by this “pitiless” man, I was “mauled … until there was little left of [me] …” that I had my “liver ravaged” by his “relentless and pitiless interrogation” and that on at least one occasion he found himself going straight for [my] exposed throat.”Her graphic descriptions are in sharp contrast to those of the American Lawyer reporter, who was there, and who wrote simply that I answered questions in a “soft, almost academic manner.”
The cross-examination that did impress The American Lawyer was that of MacDonald, conducted by my extremely accomplished lawyer, Dan Kornstein. This, the reporter found “incisive and at times devastating.” Of it, Malcolm printed not a word. What she did write about Kornstein was that “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.”
Well, I was there—all day, every day—and I can tell you this never happened. Mark Platt, the associate in question, who continues to work for the firm of Kornstein, Veisz and Wexler in New York, can tell you the same. This is, quite simply, not true. I can only surmise that Malcolm published the statement to try to harm Kornstein’s reputation, perhaps out of pique she felt after he declined to be interviewed by her.
(Clearly, she feels that such a refusal offers her the journalistic equivalent of a license to kill. After I’d broken off contact with her following a single extremely peculiar interview, she wrote: ” … as McGinniss had come to see MacDonald with the eyes of the government prosecutors, so I, as I proceeded with my researches, had come to regard McGinniss with the eyes of [MacDonald's lawyer] and his staff. I was more fortunate than McGinniss precisely because of his refusal to speak with me: by banishing me, he had freed me from the guilt I would otherwise have felt. “)
Not being there, of course, can put any reporter at a distinct disadvantage, which Malcolm’s account of the trial amply demonstrates. Nowhere is this clearer than in her sketchy and misleading account of the testimony of Joseph Wambaugh which, she writes (offering no documentation whatsoever), “everyone later agreed was the pivotal moment of the trial.”
Bypassing the question of how a trial that ends in a hung jury can have a “pivotal” moment, let us look at some of what Wambaugh said that Malcolm chose not to report. He offered his opinion that:
“It’s necessary to form a personal relationship with the subject you’re interviewing.
“The author has total discretion to write his book as he sees fit, whether or not he’s a friend of the subject.
“One should never disclose one’s views because it may shut off further communication.”
He later added—speaking in particular of one’s dealings with a psychopath, which he considered MacDonald to be—”I would always allow a subject to think that he is manipulating me even when I had all sorts of evidence to cast doubt on what he’s telling me. I would continue to pretend to believe it and encourage him to talk.”
When asked whether “an author should disclose everything that he is thinking to his subject,” Wambaugh replied, “An author would be a fool to do that.”
Wambaugh also offered impressions of MacDonald based on his meeting, which had taken place the afternoon of the day I’d first met MacDonald. “I found him to be extremely glib … I had never met anyone quite as glib, I don’t think, and I was astonished by the manner in which [his] story was delivered. He was describing events of consummate horror, but he could discuss the murders in quite graphic detail . . . in a very detached and glib and easy manner . . . I have interviewed dozens and dozens of people who were survivors of horrible crimes, some immediately after the event and some many years after, including the parents of murdered children, and I have never in all of my experience encountered someone who could describe an event like that in the almost cavalier manner that Dr. MacDonald described it.”
Asked if MacDonald had expressed any reaction at the close of the meeting, Wambaugh said, “He said he thought that I’d be the man to do the job and that we could work together.”
This happened to be precisely the same sentiment MacDonald had expressed to me only hours before. So once again the question arises of who, from day one, was seducing whom?
Other witnesses whose testimony Malcolm did not report included a medical doctor and professor of pharmacology who testified that the amount of amphetamine MacDonald’s own notes indicated he might have taken over the weeks that led up to the murders would have been more than enough to precipitate a rage reaction, or “amphetamine psychosis.”
There was also Joseph Barbato, the Army chemist who actually had performed the drug tests on MacDonald’s blood. Barbato unequivocally laid to rest any suggestion that the Army’s testing, given the equipment used and tests performed, could have detected the presence of amphetamines. MacDonald, according to Barbato, would have had to have taken a “lethal dose-he’d have to have the vial of pills still in his mouth” for the tests to show any evidence of amphetamine consumption.
Thus, the theory offered toward the end of Fatal Vision that amphetamine use might have played a role in MacDonald’s commission of the murders was not only vindicated but strengthened.
It was, however, Cleve Backster, the polygraph expert who’d administered a private examination in Bernard Segal’s Philadelphia office in April of 1970—and to whom MacDonald had consistently denied me access by refusing to sign a release allowing Backster to talk to me—who provided perhaps the most damning testimony.
After Kornstein located Backster in San Diego and served him with a subpoena, the polygraph expert—sworn to silence for seventeen years—testified at trial: “The results [of MacDonald's examination] were very unambiguous. They were not borderline at all. In my opinion he was being deceptive … concerning the questions relating to the crime [and so] I told him I could not be of help to him in his defense because he had failed the polygraph test …”
None of this was reported by Janet Malcolm. All of it further confirmed MacDonald’s guilt. That guilt, for some reason, is something Malcolm remains unwilling to accept. Despite dozens of volumes of court documents that contradict her, she’s even gone so far as to write: “investigators spent years working over the MacDonald murders and ended up with no certain answer to the question of what ‘really’ happened.” And that to try to “learn anything about MacDonald’s guilt from the evidence is like looking for proof or disproof of the existence of God in a flower.”
But perhaps the most remarkable of Malcolm’s omissions and misinterpretations concerned the trial’s outcome. She wrote that “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,” and that MacDonald’s lawyer “succeeded in causing five (out of the six) jurors … to accept his version of the MacDonald-McGinniss encounter. ”
Again, however, her version is contradicted by fact. At trial’s end, Judge Rea gave the jurors sixty-nine pages of instructions and a “Special Verdict Form” that contained thirty-seven questions, telling them to answer each one in order and not to proceed to a new one until unanimous agreement on the prior question had been reached. Then, as the jury began its deliberations, William Rea boarded a plane for Hawaii, telling all concerned that they could try to reach him by phone if any problems arose.
The first question on the form concerned not me but MacDonald, asking whether he had “performed all of the obligations and conditions Imposed on him under the contract.” One of the jurors answered “no” to this question. She contended that MacDonald had violated the exclusivity provision by cooperating with other authors (copies of a book proclaiming his innocence were actually on sale throughout Los Angeles during our trial); that he’d violated his agreement to cooperate fully by not permitting me access to Backster; and that most flagrantly, he’d breached the contract by lying about the murders.
Others were unsure how to answer. The forewoman, Elizabeth Lane, whom Malcolm quotes extensively (but not on this point), wrote in a letter to the Los Angeles Times, “I myself changed my mind twice on this very crucial issue.” According to the American Lawyer, Lane said “she was puzzled about whether the jury should consider the releases and competing book in answering this question,” but because Judge Rea had not instructed them to do so, “we did not consider them.”
Having thus disregarded the releases—due to absence of instruction from the judge—five jurors eventually agreed to answer “yes” to Question One in order to get on with their deliberations. But the sixth, Lucille Dillon, refused to change her opinion, saying, “An author must have total freedom to write the truth,” and “I don’t see how McGinniss did wrong.”
And so on that question and on that question alone—one which did not even relate to my conduct or to the content of my book but to MacDonald’s conduct—the vote was 5-1. Out of that has arisen a widespread misconception, fostered by Malcolm, that “the jury voted five to one for MacDonald.”
“There was an enormous assumption that we were in sympathy with MacDonald and we were going to give him the earth,” the forewoman told the American Lawyer. “It wasn’t true.” She said the jury had found Judge Rea’s instructions and the verdict questions “extremely confusing” and added, “I would like to have [said] at the outset that MacDonald got what he asked for and McGinniss did what he said he’d do, but we were asked to go through all the legal points. Maybe we got caught up in a thicket of legalities.”
Whatever she later told Malcolm, the forewoman wrote in her letter to the editor on August 26, 1987, that Lucille Dillon “was not … the only juror ‘sympathetic’ to … McGinniss, and we other five jurors were not all in favor of Jeffrey MacDonald.” Needless to say, in the New Yorker articles written by Malcolm, edited by her husband, and published by her extremely close friend Robert Gottlieb, those sentiments were not reported.
The fact is, the jurors never got beyond their disagreement over that first of the thirty-seven questions, and Judge Rea had to be summoned from Hawaii to declare a mistrial. That outcome left alive an extremely troubling constitutional issue. As Kornstein put it in a letter sent to a number of journalists at the close of trial:
For the first time a disgruntled subject has been permitted to sue a writer on grounds that render irrelevant the truth or falsity of what was published . . . Now, for the first time a journalist’s demeanor and point of view have become an issue to be resolved by jury trial …The MacDonald claim suggests that newspaper reporters, as well as authors, can and will be sued for writing truthful but unflattering articles should they ever have acted in a fashion that indicated a sympathetic attitude toward their subject.
It seemed apparent that Judge Rea had learned nothing during the six weeks of testimony and that any retrial in front of him would be just as much a mishmash as had been the first. Indeed, there was the prospect of an endless series of mistrials, stretching toward infinity, due to endless confusion over just what the relevant issues were. There was also the sobering possibility that a jury instructed by such a judge—who would permit no First Amendment defenses in a trial about the content of a book—might return a finding for MacDonald, thereby setting the very precedent about which Kornstein had expressed concern.
From the day he’d filed his suit, I had instructed that no further payments be made to MacDonald, on grounds that by suing he had breached his agreement not to sue. By trial’s end, approximately $100,000 that otherwise would have been paid to him by my agent had accumulated in an escrow account.
In November, faced with the prospect of a retrial that again would take me three thousand miles from wife and family and again would disrupt work on the book that became Blind Faith, I agreed to release the money in escrow, drop my counterclaims against MacDonald, and permit my publisher’s insurance company to pay an additional $225,000 in order to dispose of the case.
I doubt that anyone would feel good about seeing $325,000 given to a murderer, and I did not. On the other hand, I wanted to rid myself of him—not to mention Judge Rea and his obtuseness. MacDonald was in prison for life. Having the ability to reach out from behind bars and so disrupt my own life was something that gave him great pleasure. I wanted all that to stop.
And so, in November of 1987, the lawsuit was disposed of through a settlement in which MacDonald dropped all claims. That matters could have progressed to the point where any payment seemed necessary was horribly distasteful to me, but subsequent developments left me feeling not quite so chagrined.
MacDonald’s lawyer—apparently looking for income tax advantages—insisted that the money not be paid until January, 1988. In the interim, MacDonald’s father-in-law, Fred Kassab, filed suit against him, claiming that-—as in the Son of Sam law-—no murderer should profit from his crime. In the final disposition of that case, a California judge reapportioned the payment so that MacDonald only received $50,000, not $325,000, and awarded almost $85,000 to the Kassabs. (MacDonald’s lawyer collected most of the rest as his fee.)
So the net result was that-—not even taking into account additional legal expenses-—MacDonald wound up with less than half the money he would have received if he’d never sued me in the first place. Indeed, with less money than the Kassabs. And no new and dangerously restrictive precedents governing the conduct of reporters were set.
As I try to put these past ten years in perspective, I think sometimes of what Milton wrote in Areopagitica, his “Speech for the Liberty of Unlicensed Printing to the Parliament of England,” in 1644:
For books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul was whose progeny they are; nay, they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them …unless wariness be used, as good almost kill a man as kill a good book. Who kills a man kills a recognizable creature, God’s image; but he who destroys a good book, kills reason itself, kills the image of God, as it were, in the eye … We should be wary therefore what persecutions we raise against the living labors of public men, how we spill that seasoned life of man, preserved and stored up in books; since we see a kind of homicide may be thus committed.
I also think back to a letter I received in January, 1986, from a former criminal investigator named Richard Caniell, a resident of British Columbia. Mr. Caniell, with whom I was not and am not acquainted, wrote in part:
I think it is fairly axiomatic that society has an enormous need, as well as interest, in all the truth it can gain about such crimes [as MacDonald's] and particularly their motives …Yet how can we gain the needed insights if the criminals, or those who defend them, subvert, hide or destroy relevant evidence so that we never come to understand how such horrible crimes could be done by a person such as Doctor MacDonald…
In a very real sense, whether one is appointed by government, law enforcement bureaus or Life, itself, certain persons are called forward, as undercover agents to investigate crucially important crimes. They are required to enter a variety of alien or enemy territories for the purpose of gaining vital information as to the ways and means used by adverse, hostile or criminal forces for injurious or illegal purposes. A disguise, in such matters, of one sort or another becomes mandatory. In every case such undercover work is literally impossible without inducing trust in those to be investigated; a trust which, by its very nature, must be abused or betrayed in service to a larger purpose of reporting the truth …
It seems to me at the point you were forced to conclude that MacDonald was guilty you were required, by service to the truth you had agreed to serve in your writing, to do everything possible to reach through the remaining mystery. MacDonald claims it is against his personal interest that you acted, yet it is in the public interest that you did precisely what you did…
Isn’t his complaint fundamentally based on the continuance of his intent to make the story you wrote part of his cover-up? Having induced your trust, he meant to cooperate only insofar as it served his interests . . . In the end [he] seems to be saying you tricked him, took advantage of him, in order to learn the truth and reveal it. If this is punishable, then we need new laws. Have you, have we, an action against him for inducing our trust? May we sue him for lying to us, for misleading us, for hiding evidence, for endeavoring to drive society out of its mind?
The answer is no, we may not. But at least, despite his own litigiousness and the acquiescence of some courts and the fawning of the occasional magazine writer, we may continue to see him for what he is. Not that it’s a pretty sight. And not that the work I had to do in order to view it was ever joyous.
With some stories, that’s just the way it is. If you are going to be a nonfiction writer you must be willing to go where the story leads you even if it isn’t where you want to be. And, as the occasion demands, you must be willing to publish unpleasant truths—rather than pleasant untruths—about your subject. At the very least, I hope that anyone who has read Fatal Vision recognizes that—contrary to Janet Malcolm’s assertion—I did not suffer from an “incapacity” for “looking at this horror squarely.”
That much, for ten years, I know I’ve done.