The Journalist and the Murderer (3 page)

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 such 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.

A
S 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, as 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 29, 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.”

•   •   •

M
AC
D
ONALD
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, Eskatrol—an 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: