Judge Posner’s Measure of a Fraudulent Litigation Narrative

by John P. Messina

Introduction

The Crime of Sheila McGough (Alfred A. Knopf 1999) (“McGough”), by Janet Malcolm, examines the trial and conviction of a lawyer charged with crimes of dishonesty. Malcolm concluded that Sheila was wrongly convicted.

Judge Richard Posner reviewed Malcolm’s book and acknowledged that her narrative “raise[d] deep questions about the law’s capacity to find truth and do justice.” R. Posner, “In the Fraud Archives,” New Republic 29 (April 19, 1999) [“New Republic”]. [1] See also Testimony, an expanded version of the book review that appears in Frontiers of Legal Theory 319-35 (Harvard Univ. Press 2001) [hereafter cited as “Testimony”]. [2]

According to Posner, however, Malcolm’s narrative was a “fraud” because it falsely exonerated Sheila by presenting a selective and misleading account of the official trial court record.

If it is appropriate for a federal judge to label McGough as a “literary fraud”[3] because Malcolm materially misrepresented the official record of Sheila’s case, then “judicial fraud” is an appropriate label for a published judicial opinion that materially misrepresents the official record of the particular case being decided.

I. Malcolm’s thesis: “Law stories are empty stories.”

Sheila McGough was a criminal defense attorney. In 1990 she was indicted and convicted of fraud, perjury, witness intimidation and related crimes, for which she was sentenced to three years in prison. After her release she persuaded Malcolm to investigate her case, claiming that she had been framed because her persistent efforts to defend her clients had “irritated some federal judges and federal prosecutors.” (McGough 6.)

Malcolm spent “over a year” looking into Sheila’s case, “poking and poring” over the facts. (McGough 6.) She constructed the McGough narrative from the official record of the criminal case and from witness interviews, including extended conversations with Sheila herself.

Malcolm concluded that Sheila was innocent, but she did not believe that the judges and prosecutors had “framed” Sheila in the sense of deliberately fabricating a case against a person whom they believed to be innocent.  Rather, Malcolm concluded, Sheila was convicted because she told the truth, but couldn’t mold the truth into a good story. (McGough 25-26.)  On the way to this conclusion Malcolm belittled  the supposed truth of narratives constructed in the courtroom:

What Sheila’s case illustrates with special vividness is something all attorneys know, which is that truth is a nuisance in trial work. The truth is messy, incoherent, aimless, boring, absurd. The truth does not make a good story; that’s why we have art. The prosecutor prosecuting an innocent person or the defense lawyer defending a guilty client actually have an easier task than their opposite numbers. In the unjust prosecution and in the lying defense, much of the work of narration—of transforming messy actuality into an orderly story—has already been done. The just prosecution and the defense of an innocent require a great deal more work. For truth to prevail at trial, it must be laboriously transformed into a kind of travesty of itself. Shelia’s lawyers, working in haste, and receiving no help from their literal-minded client, were unable to effect this transformation.

* * * *

Law stories are empty stories.  They take the reader to a world entirely constructed of tendentious argument, and utterly devoid of the truth of the real world, where things are allowed to fall as they may.

(McGough 26, 78-79; emphasis added.) 

Malcolm’s book was widely praised, receiving favorable notices in, among other places, the New York Times,[4] the Boston Globe,[5] Salon,[6] the Chicago Tribune,[7] Kirkus Reviews,[8] and Business Week.[9] 

Writing in the New York Times, fellow journalist Margaret Talbot[10] described Malcolm as the author of seven “rigorously intelligent books” on a single theme: “the vexed relationship between objective truth and the narrative truth we impose on it.”  Talbot found McGough to be “the most trenchant statement yet of this theme.”  She praised Malcolm for “build[ing] a convincing case for the singularity and integrity of McGough’s character” and lamented that “McGough’s lawyers were unable to do the same.”

In a similar vein Kirkus Reviews applauded Malcolm for doing “a brilliant job of uncovering the tiny inconsistencies in the record that reveal McGough’s innocence.”  The Boston Globe praised her for laying bare “McGough's near-certain miscarriage of justice.”

II. Posner’s review—a literary “fraud.”

Posner prepared for his review of McGough by doing what only a federal judge could do—he arranged to have the official record of Sheila’s case delivered to his chambers. He appears to have been the only book reviewer who actually reviewed the trial court record. His review of the record left him with “no doubt that [the charges against Sheila] were true.” (New Republic 29.)

Posner described McGough as “a short, entertaining, beautifully written, and deeply irresponsible book.” (New Republic 29.)  He explained his charge of irresponsibility by comparing Malcolm unfavorably to authors of revisionist legal history who try to show that a particular trial—of Dreyfus, Sacco and Vanzetti, Hiss—produced a miscarriage of justice.  Revisionists who pick a well-known case to revise, Posner observed, do so against “a public record that can be consulted to evaluate their claims.”  (Id.)  Malcolm, on the other hand, picked an obscure case of which the record was, for all practical purposes, inaccessible to the public:

While there is a public record in the technical sense—a trial transcript, briefs, and other documents that are available for public inspection in a government archive—it is not published, and it is not readily available to people outside the federal judiciary.  Thus most of Malcolm’s readers will find it impossible to evaluate her claims.  They will remain unaware that her use of the record was selective and misleading.  For the case against Sheila McGough was much stronger than Janet Malcolm lets on.

(Id.) [emphasis added].

Posner identified six different ways in which Malcolm tried to make her reader doubt Sheila’s guilt. Her “ethically most dubious, but rhetorically most effective means” of persuasion was that she “ignore[d] much of the damaging evidence presented at McGough’s trial.” (Testimony 330.) Posner argued that Malcolm ignored this evidence “because it would spoil the story she [was] determined to tell.” (New Republic 32.)

After leveling the fraud charge Posner methodically outlined the evidence presented at Sheila’s trial, including information that Malcolm omitted from her book. 

A. Posner’s summary of the evidence against Sheila McGough.

In 1986 a con man named Bob Bailes retained Sheila to defend against bank fraud and related charges.  Bailes was selling fraudulent insurance charters.  He “implausibly represented to potential investors that the insurance charters, which he had forged, authorized the purchasers to engage in the insurance business anywhere in the United States without complying with pesky state-law restrictions.”  (Testimony 323.)  Despite Sheila’s efforts, Bailes was convicted and sentenced to 25 years in prison.

While Sheila was preparing his defense, Bailes placed an ad in the Wall Street Journal to advance the scam and used her law office to carry it out.  Manfredi and Boccagna, acting as brokers for investment banker Anderson, responded to the ad.  Bailes demanded that they make a $75,000 deposit to Sheila’s trust account, to be refunded if the deal didn’t close. 

Instead of holding the money, Sheila distributed $70,000 to Bailes and kept $5,000 for herself.  Two weeks later Anderson became suspicious and, through his attorney (Blazzard), asked Sheila whether the $75,000 was still in her account.  She falsely replied that it was; she also falsely represented that some of the insurance companies were up and running; none were. (Testimony 324.)

Anderson eventually demanded a refund of the $75,000.  Sheila refused; a civil suit followed.  At her deposition Sheila denied under oath that she represented Bailes in the insurance charter transaction.  Posner charges that “[t]his was a lie, made under oath, and material to [the civil] suit.” (Testimony 324.)  Her deposition testimony became the predicate for a felony conviction for perjury. (Testimony 331.)

On the eve of trial Sheila’s lawyer submitted to the court two forged documents that, if accepted as true, would have excused Sheila from liability.  Sheila “tried unsuccessfully to get a [key person’s] signature notarized by a friend of Bailes named Cain.”  (324.)  The day after Cain refused to notarize the forged signature, Sheila settled for the full $75,000 demanded by Anderson rather than go to trial. 

According to Posner, Sheila was deeply involved in two other, similarly fraudulent schemes to sell the insurance charters, one for $37,500, the other for $25,000.  As outlined by Posner, these schemes were as follows:

Sheila also created a complex scheme to obtain Bailes’s release from prison into her custody.  The scheme involved her filing bankruptcy petitions for assetless corporations owned by Bailes, followed by claims against the bankrupt by other shell corporations owned by Bailes.  “Nonexistent debtors sought relief from nonexistent debts owed to nonexistent creditors.” (Testimony 325.) Sheila asked for Bailes’s release into her custody on the ground that if he were out of prison, he could take the necessary steps to see that the creditors of the bankrupt corporation could be repaid. 

After a grand jury began investigating, Sheila learned the identity of three witnesses scheduled to testify against her and served each of them with complaints seeking $50 million in damages.  When she presented the complaints to the clerk of court, she refused to pay the filing fee; the clerk wouldn’t accept the papers for filing, so they never matured into an actual lawsuit. 

Sheila was indicted and convicted of fraud, witness intimidation, and related crimes.  She did not take the stand.

B. The six flaws in Malcolm’s narrative, according to Posner.

Posner criticizes Malcolm’s presentation of the case against Sheila in six respects.

First: He denigrates Malcolm’s method for refuting the case against Sheila as “quibbl[ing] over evidentiary details.” (Testimony 326.) He argues that “[a]lmost every legal case is replete with loose ends, discrepancies, inconsistencies, questionable witnesses, bits of evidence that don’t fit or that contradict other bits.  A defense lawyer will often try to use such impurities to plant doubts in the minds of jurors, who may have an idealized conception of how guilt is proved.” (Id.)  He then responds item-by-item to Malcolm’s attack on the prosecution’s evidence. (Testimony 326-28.) 

Second: He faults as “most naïve” Malcolm’s crediting Sheila’s denials of the charges against her.  He points out that “these denials were not made under oath…. They were made to Malcolm years after the trial.  Naively crediting these unsworn, implausible denials, Malcolm is oblivious to the possibility of being conned by a con artist’s lawyer.”  (Testimony 329.)

Third:  As noted earlier he accuses Malcolm of ignoring the evidence supporting the guilty verdict.  He identified six items of evidence that Malcolm omitted from her account of the case against Sheila:

  1. She omits to mention Sheila’s appropriation of Johnson’s $25,000.
  2. She omits to mention Sheila’s dealings with Irwin and Sali, which included her misappropriating another $25,000 and making a groundless threat to have Sali arrested.
  3. She does not mention Sheila’s role in the $50 million complaints served on three witnesses who were scheduled to appear before a grand jury and testify against her. 
  4. In her discussion of the sham bankruptcies, she omits to mention that Sheila actively participated in them. 
  5. She does not mention Sheila’s false statements to attorney Blazard.
  6. She does not mention Sheila’s perjured deposition testimony, when she falsely denied that she represented Bailes in connection with the insurance charter transactions. 

Fourth: Posner attacks Malcolm’s tactic of “changing the subject” as a way of undermining the reader’s confidence in Sheila’s guilt. (Testimony 331-32.)  According to Posner, she changes the subject by  inviting the reader to imagine malevolent motives on the part of the prosecutor and the judge. 

Fifth: He takes Malcolm to task for “invit[ing] the reader to consider the even more alarming possibility that the American legal system is incapable of making truthful determinations of guilt and innocence; and it is here particularly that one catches a distorted and amplified echo of the philosophical tradition of mistrusting testimony.” (Testimony 331.)  

He argues that “[i]f the legal process is incapable of discovering the truth, how likely is it that journalism is capable of discovering it?  If legal testimony is utterly untrustworthy, how likely is informal testimony to a reporter to be trustworthy?” (Testimony 332.)

Sixth: Finally, Posner complains that “Malcolm seeks to enlist sympathy for her heroine by depreciating the gravity of Bailes’s crimes.” (Testimony 332.)  He argues that Malcolm should have noted that “Bailes’s victims included not only the people and institutions that he defrauded but also the taxpayers who bear the costs of the legal and administrative services that he abused.” (Testimony 333.)

C. Posner’s defense of the law’s truth-finding capacity.

Testimony is the opening chapter in a section on epistemology, by which Posner means “the critical examination of the truth-finding capacity of the law.” (Frontiers of Legal Theory 2.) Testimony invokes epistemology’s definitions of “testimony” and “assumed expert” to argue that the legal system’s fact-finding procedures are reliable and produce accurate legal judgments.

1. Testimony.

To a lawyer, testimony is a narrow term referring to sworn statements offered in a courtroom or at a deposition. To an epistemologist, the term refers more broadly to “any statement, oral or documentary, that is used to persuade a person of some fact.” (Testimony 319.)[11] Testimony is akin to “historical knowledge, since both refer to past events that cannot be directly observed.” (Testimony 320.) To illustrate Posner cites his own birth certificate:

My birth certificate is “testimony” to my age, parentage, name and place of birth. It happens to be imperfect testimony, as testimony so often is, because on the birth certificate my name is given as “Allen Richard Posner,” but I have always gone by the name “Richard A. [for Allen] Posner.” (Testimony 319-20.)

2. Assumed Expert.

Due to limitations of time and intellect, epistemology posits, we cannot use our own perception, memory, and inference to investigate and form beliefs about every single matter that touches our everyday lives. (Testimony 320.) When faced with a matter beyond our ken, we rely on the “authority of some assumed expert.” (Testimony 320.) Scientists are good examples of assumed experts. They have the time and the intellect to investigate cosmological and microscopic phenomena; the rest of us do not, so we rely on their testimony to form beliefs about those phenomena. (Testimony 320-21.)

In Posner’s view, most beliefs formed on the basis of testimony from assumed experts are reliable:

Most of these beliefs are as reliable as those we form on the basis of perception, memory, or inference, and many are more reliable. This is true even though we judge the reliability of testimony largely on the basis of other testimony (I believe that my birth certificate has the date of my birth right in part because of what I have heard about governmental recording of vital statistics and in part because of what my parents told me my date of birth was), and even though we can be fooled by testimony. (Testimony 321.)

Viewed this way, testimony is a “fundamental rather than a derivative source of knowledge, entitled to epistemological parity with perception, memory, and inference.” (Testimony 321.)

3. Conclusion.

 Posner acknowledges that “judgment on the basis of testimony is…fallible (Testimony 321), and that “some skepticism about the reliability of legal testimony is certainly warranted.” (Testimony 322.) But, he warns, too much skepticism “can easily misfire, leading to the unwarranted loss of confidence in the accuracy of the legal system.” (Id.) He faults McGough for creating such a loss of confidence in the legal system.

D. The gist of the fraud ascribed to Malcolm.

Posner wrote a book review, not a legal brief, so he didn’t spell out the elements of the fraud charge he levels at Malcolm. Those elements may be stated as follows:

III. The elements of a fraudulent judicial opinion.

When a federal judge opts to publish an opinion, he or she is reaching beyond the parties and speaking to the bar, the bench, and the academy. R. Posner, The Federal Courts: Challenge and Reform 350 (Harvard Univ. Press 1996) [“The Federal Courts”].

With rare exceptions, members of the broader audience for a published opinion are in the same boat as the readers of McGough—they will have no prior knowledge of the facts and issues in dispute, nor will they have ready access to the record underlying the published opinion. Consequently, they will have no independent means for evaluating whether the opinion’s narrative is fair or not.  

Posner’s critique of McGough suggests this framework for evaluating whether the narrative in a published judicial opinion is fraudulent or not:

This framework is consistent with Posner’s definition of a principled judicial opinion as one that addresses all of the facts and issues in the underlying case that are adverse to the opinion’s ultimate conclusion. The Federal Courts 351-52.

Conclusion

If it is fair to charge Malcolm with literary fraud for her “selective and misleading” use of the record in Sheila McGough’s case (New Republic 29), then a judge who publishes an opinion that includes a selective and misleading account of the record in the case being decided may fairly be charged with judicial fraud.

/s/  John P. Messina

[1] The title of the book review is a play on the title of an earlier Malcolm book—In the Freud Archives (1984)—that was the subject of a $10 million libel lawsuit. Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991).  In 1994 a jury found against the plaintiff.

[2] Frontiers of Legal Theory is a collection of essays that examines the contributions of economics, history, psychology, epistemology and empiricism “to the understanding and improvement of law.” Id. at 2.

[3] “Literary fraud” is the phrase Malcolm used to sum up Posner’s charges against her.  Letter to the Editor, New Republic 4-5 (May 31, 1999).  Posner simply charged her with “fraud.” 

[4] Margaret Talbot, “The Journalist and the Lawyer,” New York Times (February 7, 1999), online at http://www.newamerica.net/publications/articles/1999/the_journalist_and_the_lawyer

[5] Gail Caldwell, “The Ma’am Gave the Facts,” Boston Globe (2/21/99), online at http://www.boston.com/globe/search/stories/books/janet_malcolm.htm

[6] Stephanie Zacharek, Salon Book Review (2/5/99), online at  http://www.salon.com/books/sneaks/1999/02/05sneaks.html

[7] Jill Laurie Goodman, “Janet Malcolm Explores the Relationships Among the Law, Journalism, and the Truth,” Chicago Tribune, Books Section (3/7/99).

[8] The unsigned review from Kirkus Reviews is available online at http://www.powerbooksearch.com/booksearch0375704590.html

[9] Hardy Green, “Legal Puzzler,” Business Week (May 24, 1999), online at http://www.businessweek.com/1999/99_21/b3630110.htm

[10] Talbot is a Senior Fellow of the New America Foundation and currently a staff writer at the New Yorker.  From 1999-2003, she was a contributing writer to the New York Times Magazine.

[11] See, e.g., “Epistemological Problems of Testimony,” Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/testimony-episprob/ (accessed June 23, 2009).