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Iphigenia in Forest Hills--Anatomy of a Murder Trial.

Iphigenia in Forest Hills--Anatomy of a Murder Trial By Janet Malcolm

In 2007, the state of New York charged Mazoltuv Borukhova with hiring a hit man, Mikhail Mallayev, to kill her husband. The couple had been estranged for four years, and just three weeks earlier, a family court had changed custody of their four-year-old daughter from the mother to the father. This was an interesting case, but if you are looking for a court procedural, you won't find it here. The author, journalist Janet Malcolm, believes the legal system is untrustworthy, and she structured her book to support her opinion.

It becomes clear early in the book that Malcolm does not want to present readers with evidence from the family court and the criminal trial so that we might form our own opinions about the verdict. New York newspaper articles about the trial report interesting testimony about many aspects of the case that Malcolm chooses to omit. Instead, she wants to show that the trial was unfair because the judges in the proceedings were irritable and biased: in family court toward the father and in criminal court toward the prosecution. This reader, however, found it impossible to agree with her opinions because her presentation was so skewed against the state's witnesses and the legal system itself.

In fact, the state's case was strong. Borukhova and Mallayev exchanged 91 cell phone calls in the three weeks before the murder, 68 in the final six days, which Borukhova--a specialist in internal medicine--explained only by saying she was treating Mallayev's wife for high blood pressure. The murder occurred when the father brought the daughter to a local park on a Sunday morning to visit with Borukhova.

Borukhova testified that they were happily swinging the child between them when her husband was shot, but she neither saw the shooter nor heard any shots. Mallayev's fingerprints were found on the bleach-bottle silencer that fell off the gun after the first shot.

Two eyewitnesses to the shooting saw a red-haired woman standing with the father and child before the shooting and testified that Borukhova ran up a few minutes after the shooting and tried to resuscitate him. One of the eyewitnesses identified Mallayev in a lineup, and they both identified Borukhova's sister as the red-haired woman.

Malcolm leaves the eyewitnesses out of her account, as well as the prosecutor's argument during closing that Borukhova didn't hear the shots because she believed Mallayev would be using a silencer. Due to her late arrival to the scene, she did not know it had failed and that two shots were audible for blocks. When police questioned Borukhova at the scene, she said she had not heard shots, and she stuck to that story during the trial.

One of the central issues in the pending appeal is that the trial judge, Robert Hanophy, forced defense counsel to give closing arguments on Friday before the Sabbath, which gave the prosecution the weekend to prepare its argument. The trial had lasted nearly five weeks, and the parties had just rested the previous evening, but the judge wanted summations to commence because he had a vacation scheduled and was worried that a lengthy deliberation by the jury might upset his plans. (The jury actually took only six hours to convict both defendants.)

Had Malcolm recounted evidence favorable to Borukhova, showing that the jury may have reached the wrong decision, the reader might have reason to conclude that the judge's conduct was legally unfair rather than simply unsavory. Instead of describing evidence, however, Malcolm reveals the various ways in which her sympathies lay with the mother and her mistrust of the judges, the prosecutors, and the father's family.

In the many reviews of this book, nearly all by nonlawyers, reviewers were universally impressed by Malcolm's insight, her skepticism, her refusal to accept easy answers. All of the reviewers indicate, to a lesser or greater degree, that they believe Borukhova did not receive a fair trial. I suspect that many lawyers who read this book might instead be frustrated by all that is left out.

E.B. Gwynn is a Florida Bar member and a staff attorney with the First District Court of Appeal in Tallahassee.
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Author:Gwynn, E.B.
Publication:Florida Bar Journal
Date:Sep 1, 2011
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