The Journalist and the Murderer Read online

  You must fear—on top of everything else—that you will somehow become a non-person. Just—poof—there is no more Jeff. There is just this big empty space where he was. Well, that’s not going to happen, because there are too many people who care too much about you, and please try to remember that during those hours and days when you feel at your worst.… I will be back home by Sept. 25—into N.Y. on Sept. 26 for meetings about this book with Delacorte—it’s a dinner, actually, where the president of the company & Sterling [Lord] & I will try to block out a reasonable timetable & where I explain to them how things managed to take this drastic & unexpected turn for the shitty.… I have much, much more to say, but I do want you to receive at least this much from me by the time you reach Cal.… I’ll write again in a couple of days. Jeff, it’s all so fucking awful I can’t believe it yet—the sight of the jury coming in—of the jury polling—of you standing—saying those few words—being led out—and then seeing you in a fucking prison. It’s a hell of a thing—spend the summer making a new friend and then the bastards come along and lock him up. But not for long, Jeffrey—not for long.

  More soon—

  Joe

  On September 28, 1979, McGinniss wrote again:

  … I am very relieved that you are at last in a place where they do not keep you in shackles all day.… I am hoping that you won’t even be there very long; that the folks in Richmond [the federal appeals court] recognize and act upon the validity of the bail appeal.…

  What I propose is to fly to California, prepared to stay for a while. To see you, as much as possible, either at this location where fate and bureaucracy have combined to put you, or, far better for both of us, in Huntington Beach. In any event, that is when our real work can begin. Aside from the money, and the fact that someday the full story will be told, it seems to me that one very important benefit of the book is that it gives you something constructive to do day by day. Something real; something valuable; something essential. A way to channel your anger and reflections. A book about the case; no convict should be without one. (Even in jest, it doesn’t feel right to type the word “convict” in reference to you, and I am hoping like hell this phase will come to as quick and merciful a halt as possible next week in Richmond with the granting of bail.…

  Jeff, it is still very hard to accept all of this. To have you writing about prison and life on the bus. To be trying to answer all the questions about what went wrong: the most obvious answers, of course, are the ones you’ve already come up with. Jury selection. It was utter madness … was, all by itself, probably all the answer anyone would ever need as to what went wrong.…

  Goddamn, Jeff, one of the worst things about all this is how suddenly and totally all your friends—self included—have been deprived of the pleasure of your company.… What the fuck were those people thinking of? How could 12 people not only agree to believe such a horrendous proposition, but agree, with a man’s life at stake, that they believed it beyond a reasonable doubt? In six and a half hours?…

  As you have no doubt gathered, I do not devote the care to word selection and organization in my letters that I do in my books. Generally, I don’t write letters at all. One of the reasons my phone bill each month is almost as high as the mortgage. Writing, for me, is work, and I do not like to do my work carelessly, but if I waited until I got a letter into the shape I’d be happy with, you would never hear another word from me and would think I had perished on a mountain or had instead undertaken to write the life story of Freddy Kassab. So, even as imperfectly as I have expressed it, what I mean is I am still sorry as hell this whole thing ever happened, and am impatient to see you again and to plunge into the book, and, hopefully, once again to share with you many laughs and good stories and new experiences as well as re-living, in sorrow, some of the bad ones from the past.…

  These early letters, like the overture to an opera, announce all the themes of the coming correspondence. Until close to the publication of Fatal Vision, when McGinniss apparently felt he could afford to be a bit cold and careless with MacDonald, he wrote letters assuring MacDonald of his friendship, commiserating with him about his situation, offering him advice about his appeal, requesting information for the book, and fretting about competing writers. The passages dealing with this last concern—a very common one among writers (every writer thinks someone else is working on his subject; it is part of the paranoid state of mind necessary for the completion of the infinitely postponable task of writing)—make especially painful reading, in a correspondence full of painful moments. McGinniss had a real cause for worry: two people were actually planning to write books about the MacDonald case. One was Bob Keeler, who had been covering the case for Newsday since the early seventies; the other was Freddy Kassab, the stepfather of the murdered woman, who was looking for an as-told-to writer to set forth his version. But the measures that McGinniss, his agent, and his publisher took to insure that no one but McGinniss would come out with a book about MacDonald were extraordinarily active. In the letter of September 28, McGinniss also wrote:

  I mentioned to your Mom last night that I felt strongly you should not start doing a bunch of interviews while in prison. There’s no way that kind of thing can do you any good right now; I am thinking of Keeler in particular. Whether or not he is going ahead with his book I do not know, but, frankly, the one and only one in which you have any interest is the one to which I will be devoting the next two years of my life.… Sterling and Ross Claiborne [vice-president of Dell], incidentally, both felt very strongly that any major stories, interviews, etc. done with you at this time would undermine my position to some extent.

  Then, on November 19, 1979, McGinniss to MacDonald:

  Keeler seems awfully plugged in, & your Mom says he’s been nosing around Schenectady & vicinity trying to get old acquaintances of your sister’s to talk. Sounds to me like he is definitely doing a book, and with Freddy still trying to do his own, you & I had better get asses in gear.

  McGinniss to MacDonald, December 18, 1979:

  Freddy Kassab has made it official. The New York Times book division … has given him a contract for a book about you and the murders and how he eventually brought you to trial.… The first thing this means is that now Freddy will never talk to me about anything, which will make certain aspects of my book a little more complicated, and the second thing is I want to be sure that the two books are not published at the same time, or even in the same season. I really don’t care which comes first: I just don’t want them coming out together. Can you imagine me going around the country on talk shows with that guy?

  I wonder whether from your end, it might not be a good idea to have Bernie [Segal] send some sort of letter to New York Times Books and/or to the writer, reminding them of the extent to which libel and invasion of privacy laws might apply in this situation.…

  Anyway, New York Times Books is not, despite the impressiveness of anything with NY Times in the title, a particularly attractive place to wind up. It is most certainly not in the first, or even second echelon of publishers, but even so, your personal life and my professional life would both be a bit simpler if Freddy Kassab were not writing his own book. If a timely reminder of legal implications might still be able to forestall this, I would think it worth a try.…

  Just as I wrote that, I decided to call Ross Claiborne back and see what he thought of all this. First, he tells me he has just received another call, this time from an editor at Time-Life books, saying they were “considering” a proposal for “a book” about MacDonald, etc. This editor wanted to know the status of mine, and Ross C. said, oh, it’s very far along; research completed; writing is coming very well; he’s well into it. This is known in the trade as heading off at the pass. The Time-Life editor did not say whose proposal they were considering, and now the situation is extremely confused. Is this a third book in the offing (possibly by Keeler?). Or, is this the Freddy proposal, still not accepted, but only being considered by Time-Life, and not the NY Times? … I
t may be tomorrow, actually, before I hear back on any of this, but, at any rate, you’re getting a rare inside glimpse into the wonderful world of publishing and how sometimes gamesmanship can be almost as much of a factor as literary merit.

  McGinniss to MacDonald, December 20, 1979:

  Update from the ever-changing publishing world: the New York Times Books is not, repeat not, doing a Freddy Kassab book. Ross Claiborne’s original info was wrong.… In early January Delacorte/Dell will issue a release to Publishers Weekly, Variety, and other interested outlets that they have this book in the works, and it’s a big deal, and etc. etc. to try to drive away any other interested bystanders. That sort of thing also generates some movie interest as well.

  McGinniss to MacDonald, January 10, 1980:

  Keeler’s opus will run in Newsday sometime soon, and he probably plans to use that as his book proposal—showing how much work he’s already done—so, to try and defuse this whole scene a little bit, Delacorte/Dell as of this morning is issuing a flashy news release, to be sent to all the usual media outlets … saying that big-name author (me) has been signed to six-figure contract to do big deal book on most bizarre crime story of the decade; that sort of thing. They are emphasizing my “total and exclusive” access to you, as well as how far along the whole project already is; making it sound, actually, as if the book is two-thirds written.… Sterling is checking this week with some sources at Newsday to try to find out for me when Keeler’s piece will run. Sounds like it will be quite a big deal. I am uncomfortable thinking that someone else already knows more about any aspect of this than I do, but Keeler obviously is way ahead of me in Patchogue. I trust we’ll be able to catch up. You can see, though, the wisdom in not cooperating with him.

  McGinniss to MacDonald, February 26, 1980:

  Keeler’s thing came out last weekend, and it sure was a piece of crap. Whew! Real cheap soap-opera shit. Not overtly hostile to you—particularly considering his personal feelings—but just such a shitty piece of work. Badly written—atrociously written, in fact, which surprised me, because his basic trial coverage was well done—sloppily organized, and just, in the end, pointless.… Makes me wonder what the value would be of all Keeler’s six years of research stuff from Long Island.

  McGinniss to MacDonald, March 18, 1980:

  I get back here to discover, through a somewhat frantic phone call from Ross Claiborne, that Freddy has apparently succeeded in getting a publisher for his book, and, what is more troubling, has obtained the services of a first-rate writer to do the book. The writer’s name is J. D. Reed, and he is on the staff of Sports Illustrated but also the author of “Free Fall,” a novel about the D. B. Cooper caper, which is selling very well and has just been bought for a movie, giving Reed a temporarily hot hand, and apparently causing great Hollywood interest in the Freddy story as a movie.

  McGinniss to MacDonald, March 28, 1980:

  Update from the land of eastern standard time, big-time publishing, and gray, post-winter days that don’t know when to quit.…

  I talked to Bernie last weekend and he said he would send letters both to the president of Doubleday and Reed.… Reed has already told Ross Claiborne he is “not committed” to this project and that, in the light of all this, he would certainly have to give it a whole new look. I’ve heard nothing since then, but I can guarantee you that a letter from Bernie to Doubleday will make them take a very close look at the project, and with both author and publisher wavering, Freddy could find himself heading back to square one. We shall see.…

  • • •

  GARY BOSTWICK is a forty-nine-year-old man of unexceptional appearance—he is plump, wears a shaggy mustache, and has small eyes behind wire-frame glasses—who immediately strikes one as a man of exceptional decency, good humor, and quickness of mind. If McGinniss’s chief problem as defendant was his letters to MacDonald, a close second in bad breaks was the drawing of Bostwick as opposing counsel. “I love juries,” Bostwick often says. More to the point, juries love him. Jurors sit there presumably weighing evidence but in actuality they are studying character. They miss little. When I spoke to the jurors of the MacDonald-McGinniss case and asked them their impressions of the two lawyers, they offered a low opinion of Kornstein, derived in large part from the way he frequently humiliated a young associate; in one instance, the associate made what Kornstein perceived as a mistake while examining a witness, and Kornstein peremptorily ordered him to sit down. Bostwick’s behavior, in contrast, had been impeccable, the jurors reported. A question that was asked by many people during the trial and after was: How could such a good man have taken on such a terrible client—a client who had murdered his wife and children and now had the gall to sue a reputable author for writing a book about him that he didn’t like? This was the sort of case, it was felt, that would attract the lowest sort of contingency-fee hustler, not an attorney of probity and reputation. Although Bostwick—who was not working on a contingency basis but at his regular rates—was never able to change this view of the case as it was reflected in the newspapers, on the radio, and on television, he succeeded in causing five (out of the six) jurors and an alternate to accept his version of the MacDonald-McGinniss encounter as a sort of Conradian fable of moral failure, and of the trial as a necessary ritual of retribution.

  On the face of it, one would have thought that Bostwick’s task was extremely difficult, if not impossible. It is one thing to call Lord Jim to account for his betrayal of the trust of the innocent pilgrims aboard his ship, and another to try a journalist for his sins against a man convicted of a crime so horrible that it renders the journalist’s sins innocuous in comparison. But among the many curiosities and surprises of this curious and surprising lawsuit was the ease with which Bostwick was able to make his case, and the difficulty that Kornstein had with his. As Kornstein must have been dismayed to learn, having a murderer for your adversary does not give you an automatic advantage. Kornstein’s strategy of constantly reminding the jury of MacDonald’s conviction did not serve him well. The jurors said they held this against him, feeling it an insult to their intelligence. (They were nudged toward this reaction by Bostwick, who, in his final argument, compared Kornstein’s constant references to MacDonald as “the convicted murderer” to a detergent commercial in which the word “Oxydol was mentioned twenty-seven times in three minutes, so that people would not forget that Oxydol was the thing to buy.”)

  But there may be a deeper reason for the jurors’ almost bovine equanimity in the face of MacDonald’s crime. This reason can be stated as a corollary to society’s need to punish the transgressor, which is the need to forgive the transgressor. The crime of murder is one we have all committed in our (conscious and unconscious) imaginations. We have all dreamed about the violent deaths of our families; we have all said about people we love “I could kill him” (or her). In our old literature, we have Medea, Clytemnestra, and Oedipus acting out these fundamental fantasies; more recently, and thus more veiledly, we have Raskolnikov killing his mother and his sister through the murder of two strangers. And as we need to be punished and then absolved of our guilt, so do we punish and then absolve those who actually do what we only dream of doing. One of the unsolved mysteries of the case was McGinniss’s preternatural hardness toward MacDonald both in his book and in the statements he made to the press after its publication. As the trial went on, it was this hardness—McGinniss’s apparent incapacity for feeling compassion for MacDonald—rather than MacDonald’s crime, that came to seem monstrous to the jurors. One of them, a young black woman named Sheila Campbell, articulated this feeling to me. “The part I didn’t like was when MacDonald let McGinniss use his condominium, and McGinniss took it upon himself to find the motive for the murders,” she said. “I didn’t like the fact that McGinniss tried to find a motive for a book that was a best-seller, and that’s all he was concerned about. He wasn’t concerned about MacDonald as a human being whatsoever. He said he had feelings for Colette and the kids. But when are you
going to start forgiving someone even if they did commit the crime? Are you going to torture the man for the rest of his life?”

  MacDonald’s own appearance at the trial did nothing to dissuade anyone from thinking of him as a person worthy of forgiveness. Dressed in a subdued business suit, he sat quietly at the plaintiff’s table, and the association of this sobersided man with the straight-arrow Bostwick gave the jurors further permission to regard MacDonald’s crime and punishment as a closed book, and to see him as a kind of nearly, if not fully, redeemed soul, who had suffered, whom it was not their place to judge, and whose punishment by McGinniss had been excessive and unfair.

  Bostwick’s punishment of McGinniss, on the other hand—his relentless and pitiless interrogation—seemed neither excessive nor unfair to the jurors, they reported, nor inconsistent with his persona as a good man. With the flaming sword he had been handed in the form of McGinniss’s letters, he had no trouble playing the role of avenging angel. “It is a case about a false friend,” he dramatically announced in his opening statement. What he did not articulate to the jurors but what a reader of the transcript cannot help noting is the (in this case) ironic parallel between the methods of trial lawyers and of journalists. The devastating narrative that Bostwick spun out of McGinniss’s heedless epistolary chatter was like the narrative that a journalist spins out of a subject’s careless talk during an interview. As the subject blathers on and on, apparently oblivious of the notebook or tape recorder that is catching the words on which he is later to be impaled, so McGinniss was apparently oblivious of the consequences of leaving behind a written record of his intimacy with MacDonald, with whom he evidently felt so comfortable that he could confide in him his secrets from “the wonderful world of publishing”—like a businessman confiding the details of the day’s deals to a trusted mistress. And just as the subject, after the book or article comes out, will desperately attempt to unsay the things he wishes he had not said to the journalist, so, at the trial, did McGinniss attempt to repudiate his letters to MacDonald.