The Journalist and the Murderer (14 page)

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

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

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

MacDonald replied, “He said it was outrageous.”

“Did he say why?”

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

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

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

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

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

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

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

MacDonald continued to talk about McGinniss’s letter: “He kept saying ‘It’s background’ when I asked him why he wanted to discuss intimate scenes between me and a woman. I talked to him on the phone and said, ‘Joe, this is crazy. This doesn’t make any sense. What does this have to do with the story about the case?,’ and he’d say, ‘Nothing. What it does is it teaches me. I’m the artist. I have to know everything. I have to know what your sweat smells like. I want to know how you and Colette made love. Then I can choose from that. I, as the artist, have to have all this background so that I can write the true story of Jeff MacDonald, decent man in prison.’ And that made sense to me, quite honestly. I think I understood what he was saying. I had made a decision—catastrophic, it turned out—to trust Joe. It turned out I was unbelievably off
base. He dragged the stuff out of me, and then turned it around in the book and said, ‘Here’s this callous, superficial, chauvinistic, nasty human being talking about the woman he says he loves.’ But that’s not me. That’s not my life style.”

“But did you
have
to tell him those things?” I asked.

“I know, I know,” MacDonald said. “And the answer—and it’s not even an excuse anymore, because I’m so ashamed that I did it—is that he said he was writing a book that would get the truth out about this horrible mis-prosecution, and I was willing to pay the price.”

As we talked, MacDonald, who had forgone his lunch to be with me, ate some small powdered-sugar doughnuts from a package I had bought at a machine in the prison-staff lunchroom, and once again I was struck by the physical grace of the man. He handled the doughnuts—breaking off pieces and unaccountably keeping the powdered sugar under control—with the delicate dexterity of a veterinarian fixing a broken wing. When the package was empty, he neatly folded it, and spoke of the abusive letters he had received by the hundred from readers of
Fatal Vision
. “There’s one I’ll never forget,” he said. “I wake up occasionally and think of it. A guy wrote me and said, ‘I’m sitting on the beach in front of the Sheraton Waikiki Hotel, and my wife and I have just read
Fatal Vision.’
Then he speaks of me as though I’m a psychotic monster. It’s an unbelievably tormenting thing. Here is this guy, sitting on a beach with his wife, supposedly having a vacation, writing a vicious, hateful letter to someone in prison.” I had read this letter in Bostwick’s office, and I, too, had found it unbelievable. This is the letter: