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Chapter One

The transcripts of trials at law--even of routine criminal prosecutions and tiresome civil disputes--are exciting to read. They record contests of wit and will that have the stylized structure and dire aura of duels before dawn. The reader feels as if he has been brought to the clearing and can smell the wet grass; at the end, as the sky begins to show more light and the doctor is stanching a wound, he takes away a sense of having attended a momentous, if brutal and inconclusive, occasion.

    Trial transcripts have no author, but they read as if someone wrote them. Their plot revolves around two struggles. One struggle is between two competing narratives for the prize of the jury's vote. The other is the struggle of narrative itself against the constraints of the rules of evidence, which seek to arrest its flow and blunt its force. The word "objection" appears in the transcript perhaps more frequently than any other, and betokens the story-spoiling function of the law. The law is the guardian of the ideal of unmediated truth, truth stripped bare of the ornament of narration; the judge, its representative, adjudicates between each lawyer's attempt to use the rules of evidence to dismantle the story of the other, while preserving the integrity of his own. The story that can best withstand the attrition of the rules of evidence is the story that wins.

    The law's demand that witnesses speak "nothing but the truth" is a demand no witness can fulfill, of course, even with God's help. It runs counter to the law of language, which proscribes unregulated truth-telling and requires that our utterances tell coherent, and thus never merely true, stories. This law--with its servants ellipsis, condensation, presupposition, syllogism--makes human communication possible. It also provides trial lawyers with endless opportunities for discrediting opposing witnesses. In the discourse of real life--life outside the courtroom--the line between narration and lying is a pretty clear one. As we talk to each other, we constantly make little adjustments to the cut of the truth in order to comply with our listeners' expectation that we will guide them to the point of what we are saying. If we spoke the whole truth, which has no point--which is, in fact, shiningly innocent of a point--we would quickly lose our listeners' attention. The person who insists on speaking the whole truth, who painfully spells out every last detail of an action and interrupts his wife to say it was Tuesday, not Wednesday, and the gunman was wearing a Borsalino, not a fedora, is not honored for his honesty but is shunned for his tiresomeness. In a courtroom, however, he would be one of the few people who could withstand cross-examination, who would not be caught in the web of one or another of the small untruths most of us mechanically tell in order that human communication be a swift, clear river rather than a sluggish, obstructed stream.

    As I was rereading the transcript of a criminal trial held in federal court in Alexandria, Virginia, in the fall of 1990, my attention was caught by an example of one such narrativizing untruth uttered by a prosecution witness named Frank Manfredi, as he was being questioned by the prosecutor, Mark J. Hulkower. Hulkower was eliciting from Manfredi the history of a business transaction that lay at the heart of his case against the defendant, a forty-eight-year-old lawyer named Sheila McGough. The exchange between Hulkower and Manfredi went as follows:

    Q: Directing your attention to May 1986, did you have occasion at that time to become involved in a transaction for the purchase of insurance companies?

    A: Yes.

    Q: How did you learn of that opportunity?

    A: I saw an advertisement in the Wall Street Journal.

    Q: With whom were you put in touch?

    A: I dialed the number that was in the ad. At that time I spoke, either the first call or the second call, to Mr. Bob Bailes.

    The ad in question, which ran in the Wall Street Journal on Friday, June 13, 1986, read:

Insurance Companies For Sale

Trustee in Bankruptcy is selling the stock of 17 Insurance Companies, which is owned and controlled by a corporation in bankruptcy under Chapter 11. Please write S. S. Smith, attorney and Trustee, P. O. Box 1474, Abingdon, VA 24210.

    Manfredi's testimony about the ad, set side by side with the ad itself, offers an instance of demonstrable falsehood. The ad proves that Manfredi spoke falsely when he said he "dialed the number that was in the ad," since no number appears in the ad. Common sense tells us that Manfredi probably forgot the uninteresting intervening steps he had had to take (writing to the attorney, S. S. Smith, or calling Information) before he could speak to the insurance companies' owner, Mr. Bob Bailes. Memory functions as a ruthless editor of God's long-winded truth. It cuts through tedious, insignificant detail. Trial lawyers cynically rely on this function to help them impeach witnesses under cross-examination; much of the work of preparing for trial goes into the search for traces of memory's blue pencil with which to brand opposing witnesses liars. In this case, the defense lawyers, Gary Kohlman and Mark Rochon, did not so brand Manfredi; his testimony about "the number that was in the ad" went by unchallenged and unnoticed. I had dug up the ad out of a writer's inquisitiveness, a storyteller's wish to go back to the origins of the story, a journalist's habit of lingering in empty rooms on the off chance that a secret door will give way under accidental pressure.

    Kohlman and Rochon lost the trial. Their client was found guilty of fourteen out of fifteen counts of felony on Wednesday, November 21, 1990, the day before Thanksgiving (the jury, evidently needing the afternoon hours for shopping for cranberries and canned pumpkin, reached its verdict by lunchtime after six hours of deliberation). She was sentenced to three years in prison, and after she lost her appeal she served two and a half years of the time. About a year after her release, in the winter of 1996, she wrote to me and said:

I was a defense lawyer who irritated some federal judges and federal prosecutors in the course of defending a client. The federal prosecutors in my hometown [Alexandria, Virginia] investigated me for four years, and when they failed to turn up anything illegal in what I was doing, they made up some crimes for me and found people to support them with false testimony.... I didn't commit any of the 14 felonies I was convicted of. The U.S. Government office in Alexandria "framed" me.

    After poking and peering at this case for over a year, I have come to the conclusion that Sheila McGough's summary is an accurate one. It seems scarcely possible that in this country someone could go to prison for merely being irritating, but as far as I can make out, this is indeed what happened to Sheila McGough. She is a woman of almost preternatural honesty and decency. She can also be maddeningly tiresome and stubborn. As one looks at her disastrous confrontation with authority, one thinks of Antigone. And yet when one studies the case closely, one sees that she is not Antigone but Creon. What nettled the government about Sheila McGough was not her flouting of the law but her driving of it into the ground--her legal fundamentalism and literalism.

    Under our system of justice, a person accused of a crime is entitled to a defense that is equal in power to the attack of the prosecution and to all the prerogatives of respect and consideration due to a contestant in a match of equals. (Defendants who are in jail appear in court in suits and ties or dresses, rather than in prison uniforms, to betoken this parity.) If he wins and is acquitted, he is taken back into society and his citizen's rights are fully restored to him. But should he lose, he is ejected from society, his rights are stripped from him, and he is subjected to punishment. Although there is wide disagreement about the degree of punishment that should be meted out to unsuccessful criminal defendants--who become criminals directly the verdict is read--there is general acceptance of the idea of punishment. There is also agreement that the game of trials is played for keeps and that when there is a conviction, it should hold. There is the possibility of appeal, but the system is weighted to protect the conviction. Society wants closure and provides itself with it. A conviction is extremely hard to overturn; if it were easy, the result would be an endless round of rematches.

    Sheila McGough represented Bob Bailes--the man who placed the Wall Street Journal ad--in federal court in Alexandria in the late summer of 1986 against the charge of giving false information to a bank in order to secure a loan; she lost the case, and Bailes was convicted and sentenced to five years in prison. Two years later, while still in prison, he was brought to trial again, this time in Charlotte, North Carolina, for an older and more serious offense--"a scheme to defraud" he had attempted to carry out in the early eighties. He was convicted once again and sentenced to an additional twenty-five years. The crime that Sheila McGough was convicted of in 1990 was the crime of not letting go, of not accepting the unwritten law of closure.

    After her client went to prison, she continued defending him as if nothing had happened, as if he were still a person with rights rather than a convict without any, and as if the appeal stage of a case were the same as the pretrial and trial stages. She refused to accept the guilty verdict (and, subsequently, verdicts). Although such refusals are not unknown in life as well as in fiction, in most instances lawyers who file appeals for convicted felons don't expect to prevail. After the appeal fails--as it usually does--they withdraw their attention; they, too, need to close the book on the case and move on. But Sheila McGough never withdrew her attention from Bob Bailes. She remained at his side and fought for him as if he were Alfred Dreyfus, instead of the small-time con man, with an unfortunate medical history and an interesting imagination, that he was.

    The judge who sentenced him to twenty-five years in prison addressed him thus: "Mr. Bailes, you have led a life of nothing but fraud and perjury for at least the last thirteen years. If you'd devoted the talents you have and the energy you have expended in these falsifications [to honest enterprise], you'd probably be making a million dollars a year now instead of going to jail." This is a common idea about con men--which misses the point about them. Con men are not businessmen manques. They are not businessmen at all. They are in an entirely different line of work. They are not called con artists for nothing; they are called con artists precisely in recognition of the qualities they share with regular artists, which are: (1) love of solitude; (2) love of freedom; (3) dislike of authority; and (4) extraordinary powers of daydreaming.

    The clientele for con art has never been large; it is a specialized clientele, made up of people who are dreamers in their own right, people for whom the fantasy of getting something for nothing, or close to nothing, is so powerful that it frees them from the constraints of common sense. Common sense is the enemy of art, as we all know. The spell of any work of art can be shattered by the sound of the nasty little voice saying, "But this is ridiculous." The clientele for Bob Bailes's art was smaller and more specialized still: he was a kind of con man's con man. The "scheme to defraud" for which he was convicted in North Carolina was a sort of Duchampian meditation on con art itself. Bailes claimed to possess certain extraordinary insurance companies, which were governed by charters granted in the 1890s, when insurance was not yet subject to the state regulations by which policyholders are now protected. He said he had legal documents that empowered the owners of these wonderful companies to sell insurance as if they were living in the lawless past, free of all regulation. The people Bailes offered his unregulated insurance companies to weren't credulous old ladies but spiritual colleagues of his. The idea of a company whose extraordinary value lay in its resemblance to an elevator that some fluke of history has exempted from all safety regulations could appeal only to people who themselves functioned on a high level of cynicism and amorality.

    Since the early 1980s, Bailes had been offering his sardonic pieces through a leading con-art dealer--the Classifieds section of the Wall Street Journal. (The FBI, I was told by a former agent, keeps an agent assigned to this section.) In early June 1986, soon after Sheila McGough took him on as a client and was preparing his defense against the bank fraud charges, Bailes placed what was to be the last of his Wall Street Journal ads--the one that Frank Manfredi answered. By June 18, Manfredi and his partner, Francis Boccagna, had signed a contract with Bailes to buy two insurance companies for $900,000 apiece, with a down payment of $75,000 for both. The history of what happened next exists in two versions: the government's and Sheila McGough's. In the government's version, Sheila was Bailes's accomplice in the scam. She was the woman in the La Tour painting who tensely watches the dupe's foolish face as she cuts the strings of his purse. Her role in the scam, as Hulkower outlined it to the jury, was to use the dignity of her office to lull the investors into a false sense of security. She had assured them that their $75,000 down payment would be held in escrow, he said. But then, on the very day that they wired the money to her attorney trust account, she removed it and gave it to Bailes, keeping $5,000 for herself. And when the deal collapsed under the weight of its improbability, the down payment was nowhere to be found. Hulkower called it the "escrow scam."

    Sheila's version of what happened was never heard at trial. Defendants in criminal trials often don't testify. Their lawyers fear that what will happen to them under cross-examination--the beating they will take--will outweigh any gain. In Sheila's case, however, the decision not to testify was made not by her lawyers but by Sheila herself, out of protectiveness for her client. If she had testified in her own behalf, she would have been cross-examined and inevitably forced to answer questions about Bailes, and her answers might have been harmful to Bailes. To save herself at her client's expense was unthinkable.

After reading Sheila's letter, I wrote back and proposed that we meet. Hers was not the first letter I had received from someone claiming to have been unjustly convicted--what journalist today has not received such letters? But there was something about this writer--perhaps simply that she had put the word "framed" in quotes--that drew me to her, that made me want to know more about her case. "It was a medium-sized local story," she said at the end of her letter, "and the writers around here are sure they know what happened: a naive, unmarried woman was beguiled into crime by a con man who sent roses to her law office. So no one is willing to consider another possibility and actually read the documents."

    Sheila took the train up from Washington (after getting permission from her probation officer, under whose watch she would be for another year) and met me in a coffeehouse in downtown Manhattan. She was already there when I came in, sitting at a marble-top table with the look of someone who had been waiting for some time. I don't know what I expected, but it wasn't a woman who looked and sounded like one of the blandly wholesome heroines of fifties movies. She was small and blond and pretty, and her voice was fresh and girlish, formed for phrases like "Gee whillikers!" and inflected by habits of unremitting good sportsmanship. She looked younger than her fifty-four years. Prison had evidently not broken or marked her. With her pale, translucent skin and single-strand pearl necklace and decorous navy-blue suit, she might have been the director of a small foundation or a corporate wife from Scarsdale, in town for a matinee. She talked almost uninterruptedly for the two hours of our meeting. Bailes had died the previous year, she told me, so she was finally free of her burden of silence; she could speak about him to an outsider without fear of doing him harm. However, I couldn't get a purchase on most of what she said. Too much had happened and it had been locked up in her too long for it to assume the shape of a comprehensible narrative. But Sheila, in any case, was not interested in telling a plausible and persuasive and interesting story. She was out for the bigger game of imparting a great number of wholly accurate and numbingly boring facts.

    I was to realize over my months of meeting with her and talking with her on the telephone that she was unlike any other journalistic subject I had ever encountered. The journalistic subject is normally someone with a story to tell; you might even say to sell. Sheila's refusal (or inability) to tell a story obviated the usual journalistic task of dismantling a well-made story. With Sheila, the task, on the contrary, was to try to coax a story from the morass of her guileless and incontinent speech. Her lawyers had evidently not been up to the task. To win their case, they needed to tell a story at least as compelling as the prosecution's--the story, as Hulkower neatly summarized it in his opening statement, "of what happens when an attorney violates the first rule of criminal defense and crosses the line from representation of the criminal to participation in his crimes." But no powerful counterstory was ever told by Kohlman and Rochon. With their hands tied by the double bonds of the rules of evidence and the stubborn silence of their client, they could do little more than rush around putting out little fires in wastebaskets as the entire building burned to the ground. When a powerful counterstory finally emerged--the story told by Shiela's appeal lawyer, Stuart Abrams--the day for powerful counterstories was past. Like the convicted Bailes, the convicted Sheila was beyond rescue by narrative; she was beyond the heavy door that can be opened only by the most massive assault on it of brute fact. Abrams accused the government of using perjured testimony to win its case and offered evidence of lying by government witnesses that would have given a jury something to think about but did not move the stony appeals court, which reverses only when it must. Abrams's story stirred my reporter's imagination. I have daydreamed of taking his work the step further needed to prove that Sheila was convicted by false evidence. But my fantasy that Abrams and I would work hand in hand to clear Sheila has not been fulfilled. Unlike Sheila, Abrams knows when to let go, and he has let Sheila go. Most of my calls to him go unanswered, but as a favor to Sheila, he allowed me two interviews.

    Abrams is a former government attorney who works in private practice in New York. He is a quiet, mild-mannered, very intelligent, deliberately colorless man. He seems to be kind and to have a sense of humor, which he thinks it wise to suppress when in the presence of a journalist. There is something old-fashioned about his reserve and caution. When I try to remember what he looks like, I think of a faded photograph of a man taken in a suburban train station on a gray morning. I don't know why I think of him as a commuter; perhaps because something about him evokes the mysterious, depressed men in John Cheever's stories.

    I went to see Abrams in his small, plain office in a big office building in the East Forties a few days after meeting Sheila in the coffeehouse. She had given him permission--as she gave all her other lawyers permission--to breach client-attorney privilege in speaking to me. "It's a very strange case," he said. "! don't understand why the government brought it. It has never added up to me. I have always had the feeling that there was another story that didn't come out at trial. Sheila did not seem to me to be a crook. And the people she supposedly defrauded weren't widows or orphans. It's hard for me to see them as victims."

    The people Abrams finds it hard to see as victims are: Frank Manfredi, a forty-nine-year-old disbarred lawyer, currently serving a four-to-seven-year sentence for grand larceny in a state prison; Alan Morris, a fifty-year-old disbarred lawyer, recently released from prison; Francis Boccagna, a thirty-two-year-old loan broker and erstwhile partner of Manfredi's; Philip Zinke, a fifty-seven-year-old career criminal and government informer; and Kirkpatrick MacDonald, an affluent fifty-eight-year-old investment banker. These were the men involved in the deal that was the centerpiece of Hulkower's case against Sheila. Hulkower put it this way:

Now, the government doesn't contend that there was anything wrong with Sheila McGough representing Bob Bailes on criminal charges. It's what criminal defense attorneys do. But the evidence will show, ladies and gentlemen, that what led to her downfall and what led to these proceedings today is that instead of remaining at arms' distance from Bob Bailes, and remaining Bob Bailes' criminal lawyer, Sheila McGough came too close to Bob Bailes, and began to handle his business affairs, and as the business affairs of a con man like Bob Bailes involve conning people, so too did the defendant, Sheila McGough, become involved in the con schemes.

    What led to her downfall. Hulkower was anticipating, of course. Sheila's downfall came only with the guilty verdict. But he was also echoing what he knew to be an assumption of the jury. In her letter to me, Sheila had said she was framed--but in a sense, everyone who is brought to trial, criminal or civil, is framed. For while the law speaks of a presumption of innocence, it knows full well that the accused is weighed down under a burden extremely difficult to get out from under. The deck is stacked against the accused. An accusation has enormous psychological clout. Once someone is accused of a crime or misdeed, he begins to burn with a kind of radioactivity. The story of wrongdoing that the prosecutor or the plaintiff's lawyer tells the jury is a fleshing out of the jury's preconception. The task of the defense is not to clear the accused (that is impossible; it is too late for that) but to attack the accusers--to show that the plaintiff or the government's witnesses are even worse than the accused.

    Kohlman and Rochon could deliver only glancing blows to their opponents. Hulkower's narrative held. Its linchpin was the testimony of Manfredi, Boccagna, and Morris, each of whom said that Sheila had given them verbal assurance that the $75,000 would be held in escrow. Sheila's story--the one she didn't tell in court--is that she never gave them any such assurance.

    Before hearing more of her story, we need to have a firmer grasp of the transaction. When Manfredi "dialed the number that was in the ad" and told Bailes that he wanted to buy two insurance companies, he meant something a little different by the word "buy" from what the rest of us mean. His lawyer, Alan Morris, who appeared as a witness at the trial, explained that Manfredi and his partner, Boccagna, "were going to what we call 'flip' the transaction to an ultimate buyer." Hulkower, who was examining Morris, asked: "So they were going to buy and then turn around and sell?" Morris delicately corrected him: "They were going to try to make a buyer actually buy without them having to expend any money." The "ultimate buyer" Manfredi and Boccagna found was a woman in Buffalo, New York, named Bernice Kelly; but at the eleventh hour, for reasons unknown--or reasons Manfredi, Boccagna, and Morris thought it best to leave unstated--Kelly withdrew from the deal, and exited forever from its history. At trial, Kohlman, looking where he could for soft places in the prosecution's case, suggested that Bernice Kelly never existed, since no contracts with her signature--or, indeed, any paper trace of her at all--could be produced. But this went nowhere and had no point, since nothing hinged on whether Bernice Kelly was real or not. (I myself believe in her and see her as a rather heavy woman with a flushed face and dark curly hair, sitting at a table in a bar in Buffalo with a man who is watching a hockey game on television. She gets up and goes to a phone in a narrow passageway near the toilets and tells Boccagna the deal is off. When she returns to the table, the man puts an arm around her without taking his eyes off the television screen.)

    For Manfredi and Boccagna, it was imperative that a new ultimate buyer be found (before a restive Bailes snatched the companies away and sold them to someone else on his waiting list), and he appeared on cue, in the form of the rogue Philip Zinke. Zinke, like Manfredi and Boccagna (and perhaps Kelly), had no intention of parting with any of his own money. Among con artists, allowing money to leave your hands for even a moment when it can leave someone else's is a violation of a rule of art, an insult to yourself and to your calling. Zinke, as Manfredi testified, "was one of Frank's [Boccagna's] individuals." Boccagna was only twenty years old at the time of the transaction. A year earlier, he had dropped out of NYU, after the death of his father, to go into business for himself, as a real estate speculator and loan broker, with money his father had left him. Boccagna took out an ad in the New York Times offering loans, and Zinke, who was looking for funds "for some deal he had with some copper mine" (as Boccagna later testified in a deposition), answered it. No loan was made--Zinke wanted more money than Boccagna was prepared to lend--but when, in passing, Boccagna mentioned Bailes's insurance charters to Zinke, "his eyes lit up," and he said he would buy the two companies. He then called a man he had once worked with at Lehman Brothers, Kirkpatrick MacDonald, and offered him a partnership in the deal. MacDonald not only accepted but was persuaded to put up Zinke's half of the $75,000 down payment as well.

    The patsy--someone who was actually going to part with money--had finally appeared. Unfortunately for Sheila, he was a patsy without a patsy's philosophical bent. When he realized that he had been cheated, he didn't shrug and sadly stumble away in the direction of his next disaster. He moved heaven and earth to retrieve his loss and to strike back at those who had tried to take advantage of him. MacDonald was a harsh and punitive man, a sort of Roger Chillingworth. Being made a fool of was not his style, and he went into manic action. He telephoned the FBI in Alexandria, Virginia, told his story, and was encouraged to fly to Washington to incriminate an unsuspecting Bailes. At a restaurant called Hogates, over lobster and beer, MacDonald, wearing a concealed tape recorder, drew out the loquacious con man. The transcript of the conversation, which became an exhibit at Sheila's trial, contains this typical passage:

MacDonald: What have you found these companies are worth when you sell them to people? What do they end up selling for? Licensed to do business everywhere, all kinds of business in every state? That's real attractive to me.

Bailes: Well ... we sold one for three million dollars to a guy in Texas, and he sold it for 7 1/2 million to people who turned around and sold it to a big company for 12 1/2 million.

MacDonald: Wow.

Bailes: I don't know what they're worth. Who can say? It's worth what people pay for it.

    The next morning, MacDonald was debriefed at FBI headquarters in Alexandria. Then, with the tape recorder and microphone once again in covert place, he went across town to see Sheila in her office. For the first fifteen or twenty minutes of his visit, he egged her on, as he had egged Bailes on, to incriminate herself with false claims about the insurance charters, but she did not oblige him. She said she knew very little about them, and that it was Bailes and S. S. Smith that he ought to talk to. MacDonald then dropped his mask and demanded that she give him back his $75,000. Sheila did not oblige him here, either, and in March 1987 MacDonald sued her for the return of his money. (There would have been no point in suing Bailes--who was now in prison and had no insurance.) The following fall, just as the case was to be tried, he received a settlement payment of $75,000 plus interest from Sheila's Errors and Omissions insurance. But this was not enough for MacDonald. He needed to further punish and humiliate the woman he had already brought to her knees. "My interest ... is to see this lady put out of business," he wrote in a letter of October 1988 to the Virginia State Bar, seeking to get her disbarred. "She is a loathsome sort and as a citizen I wish to get her off the streets." He told the bar association the history of the suit he had been "forced to institute" against Sheila and of his "close touch" with the FBI and the U.S. Attorney in Alexandria, who "are completely aware of Ms. McGough's background and activities and have on numerous occasions told me that she would be indicted. This has not happened yet due, I was told, to the fact that there are bigger fish in Washington waters (which I believe). Time, therefore, to at least get you fellows on her case." But even after the government, sated on its big fish, turned to Sheila and dispatched her with a lazy paw, MacDonald did not let up on his quarry. "The court should be severe in its sentence," he wrote to Mark Hulkower a month before Sheila's sentencing, "not only because of the nature of Ms. McGough's crime--in itself an outrageous insult to the public trust--but also because of her apparent lack of contrition, which shows an obvious character defect." MacDonald concluded his letter to Hulkower rather weirdly: "Whatever time in prison she receives, she should also be subject to a very substantial amount of community service. This avenue of punishment has very positive effects, I believe, in helping people such as Ms. McGough to change their outlooks and eventually return to society."

    Sheila had been sent a copy of MacDonald's complaint to the Virginia State Bar, and she responded to it, Sheila fashion, point by point, often straying into byways of deep irrelevancy but sometimes speaking with uncharacteristic directness, as when she declared in no uncertain terms that "I did not agree at any time to be an escrow agent or to hold money until certain conditions had been fulfilled." This is what never got said at trial because of Sheila's refusal to testify. If she had said it, and the jury had believed her, the outcome would have been different. The "escrow scam" was the heart of the government's case, and if its narration had faltered, the rest of the case would have collapsed. In her reply to MacDonald's complaint, Sheila also made some pointed remarks about her settlement with him. "My counsel had recommended settlement as a way of avoiding the 'embarrassment' of a trial that would taint me by association with these people.... I thought at the time it was a cowardly thing to do and made me in a moral sense the accomplice to a fraud against my carrier." Sheila had agreed to settle only on the day of the trial and only after the judge, Albert Bryan, Jr.--the same judge who, by apparent coincidence, was to preside over her criminal trial--said he wished the case settled. She has told me that she considers settling with MacDonald a failure of nerve and a major blunder, and she is right. Although the settlement agreement contained no admission of fault on Sheila's part, the fact that it granted to MacDonald the full sum of $75,000 could be taken as a tacit confession of guilt, as Hulkower lost no opportunity to point out.

The chronicler of the transaction that introduced Sheila to her nemesis begins to lose his bearings soon after the fatal down payment was wired to Sheila's account. At this juncture, he is like a motorist driving on a clear night who suddenly runs into a stretch of swirling, low-lying mist and must creep along using his dimmed headlights to try to see. The transaction dematerialized shortly after the down payment was made, but it isn't clear how or why. MacDonald, Zinke, Manfredi, Boccagna, and Morris have all testified about this murky moment, but their accounts, as well as lacking in explanatory power, are so contradictory that historical reconstruction based on them is impossible.

    Historical reconstruction in all cases gives rise to structures that are more like ruins than proper buildings; there is never enough solid building material and always too much dust. But in the case of the collapse of the Manfredi-Boccagna-Kelly-Zinke-MacDonald transaction with Bailes there is (perhaps appropriately enough) almost nothing but dust. We don't know what happened, why it happened, who said what to whom. All we know is that by the end of the summer Zinke had disappeared; Manfredi, Boccagna, and Morris had slunk away; Bailes was on his way to prison; and MacDonald had hired a high-powered lawyer named Michael Wyatt to represent him in his suit against Sheila.

History is a story chafing against the bonds of documentary fact. Trial lawyers are a species of historian who work in a more charged atmosphere and for higher stakes than do regular, clientless historians, but who are part of the same guild of hobbled narrators. (Biographers and journalists are other members.) How Mark Hulkower, in spite of extremely serious constraints, narrated his story of Sheila's role in the "escrow scam" offers an instructive glimpse into the workings of historical method and illustrates its inevitable alliance with the forces of purposive storytelling against those of aimless truth-seeking:

Now the defendant worked closely with Bob Bailes in this scheme. Her role was to tell potential investors, people who were looking into the possibility of buying one of these insurance companies, victims ... that if they sent to her account, her attorney trust account, a refundable deposit to hold one of those insurance companies, she would retain the deposit in her attorney trust account, in her escrow account, and you will hear that an attorney trust account is a special account attorneys at law have for holding money for people, just for that purpose. Sheila McGough would tell the investors that she would hold the money in [her] account and then having induced the investors to turn over the money to her, she would disburse it.... Witness after witness will come here, ladies and gentlemen, and tell you how Sheila McGough deceived them.

    The document that most heavily taxed Hulkower's powers as a storyteller and threatened to spoil his narrative of the "escrow scam"--as it had already discomfited MacDonald's lawyer in his civil suit against Sheila--was that most mundane but irrefutable agent of fact, a telephone bill. Alan Morris's telephone bill for July 1986 had strayed into the discovery of the MacDonald suit (Morris had carelessly left it in a sheaf of documents he was required to submit to the lawyers on both sides) and couldn't be dislodged, like the ledge of granite that emerges beneath a building site and must be accepted and incorporated into the architect's plans. The bill revealed that the crucial telephone conversation in which Sheila was supposed to have "induced the investors to part with their money" by assuring Morris that the $75,000 down payment would be held in escrow was only one minute long. It rendered worthless--and perjurious--the testimony of Frank Manfredi in a deposition taken a week earlier, when the telephone bill had not yet surfaced and Manfredi had felt free to indulge his habit of compulsive untruthfulness. Manfredi drew a vivid scene: He spoke of sitting in Morris's office in Garden City on July 15--the day before MacDonald's money was wired to Sheila's account--and listening to Morris converse with Sheila on a speakerphone, which permitted him to hear both sides of the conversation. According to the deposition transcript, Morris read Sheila a letter (later mailed to her) that spelled out the terms of the escrow agreement. The transcript continues:

    Q: Is there any doubt in your mind, Mr. Manfredi, that on the 15th Miss McGough understood that the $75,000 was to be placed in an escrow account in her name?

    A: None whatsoever because this letter (indicating)--

    Q: You are referring now to Exhibit 7?

    A: Yes. (continuing) Was specifically read to her.

    Q: To Miss McGough?

    A: That is correct.

    Q: In this July 15 conversation?

    A: I believe it was. We had several conversations on July 15. Alan Morris read this letter to her in my presence.

    Q: Verbatim?

    A: Yes, because it wasn't until they said fine that we arranged to have the monies wired the following morning from, I believe, it was Morgan Guaranty.

    The letter, dated July 16 and received by Sheila about a week later, read:

Dear Ms. McGough:

    This will confirm my conversation of July 15, 1986 with Robert Bayliss [sic] regarding the above matter. At this time my clients have arranged to wire to your account the sum of $75,000.00 which represents the down payment in this transaction. Additional terms were likewise agreed on as follows:

    A) Down payment will be held in your bankruptcy account until closing of this transaction. In the event closing cannot take place, except for a breach by the buyer, the down payment will be returned forthwith.

    B) A certificate of good standing for all states and the District of Columbia will be delivered at closing.

    C) A certificate of authority for the transaction of General Insurance, Property and Casualty, and annuities in all states including the District of Columbia will be delivered at closing.

    I am sure that this meets with your approval, and hence it is hereby deemed that these terms are incorporated by reference into the contract dated June 24, 1986.

    Should you have any questions, please contact me.

Very truly yours,
Alan D. Morris

    When Morris's deposition was taken, a week after Manfredi's and a few days after the telephone bill had planted itself in the case like an unwanted chaperon, he was obliged to tell a different story from Manfredi's. Upon being asked whether he had read the letter to Sheila over the phone on July 15, he was forced to waffle. "I believe I may either have read or explained what I was going to write."

    Q: You either read or paraphrased?

    A: I don't believe that I read the letter because I had not drafted it. Many times you draft things and it is not typed until the following day. I indicated what I was doing, relative only to the down payment, nothing else.

    By the time of the criminal trial, Morris had tidied up his story; he saw that the letter of July 16 and the one-minute phone call could not be reconciled. Under Hulkower's careful questioning, Morris testified: "I called up Ms. McGough's law office and the conversation was just, I am just confirming the fact that you are going to be holding the money in escrow, the $75,000 coming down tomorrow. There was no objection. That was the end of the conversation."

    Q: So that was a short conversation?

    A: Very short.

    The letter of July 16 was of enormous interest to Hulkower (as it had been to Wyatt), because it was a piece of paper that actually said the down payment would be held in Sheila's account until the closing of the deal. But unfortunately for the inner consistency of the narrative of the "escrow scam," the letter isn't quite what it ought to be. It doesn't say, "Dear Ms. McGough: This will confirm our conversation," but refers only to a conversation with Bailes. When looked at closely, the letter would seem, if anything, to confirm Sheila's contention that she had not spoken with Morris at all on July 15. Had she done so, would not the letter have referred to the conversation? In the hands of a lesser craftsman, this inconsistency, and the inconsistencies between the depositions and the trial testimonies of Morris, Manfredi, and Boccagna, might have seriously impaired the narrative of the "escrow scam." But in the capable hands of Hulkower, the narrative beautifully held. Hulkower simply wouldn't allow the inconsistencies to impede the progress of his story, and Kohlman and Rochon were evidently unprepared to stem its flow. When Kohlman cross-examined Manfredi, instead of confronting him with the lie he told in his deposition, he merely rubbed his nose in the felonies he had been sent to prison for--felonies that Hulkower had preemptively set before the jury and that the judge finally grew tired of hearing about. "Mr. Hulkower, you have brought out that he forged somebody's name, and that he took somebody else's money that he wasn't supposed to. He has admitted that. And he is not on trial here. So why don't we move on?"

    Sheila's version of what happened--the story that never got told at trial, and that I was able to pry from her only with the greatest difficulty--was this: She had but the vaguest sense of what the Manfredi-Boccagna-Kelly-Zinke-MacDonald-Bailes transaction was about. At the time, her attention was anxiously focused on the preparation of her defense of Bailes in the bank fraud case, which was scheduled for trial on July 28 and which she did not feel prepared to argue. Bailes had parked himself in her law office, as he had habitually parked himself in the law offices of his previous lawyers (such as S. S. Smith, the attorney whose name and address--unbeknownst to him--appeared in the Wall Street Journal ad of June 13), and while Sheila worked on his defense, he coolly worked on his own business. Believing this business to be legitimate, Sheila tolerated his presence in her office and absently consented to the unremarkable favors he asked: the use of her telephone, of her office suite's copying and typing facilities, of her attorney trust account for the receipt of the $75,000 down payment. When the money came in, she drew it out and gave it to him, minus $5,000 he told her to keep as part of the fee he owed her. It seemed so simple and straightforward. The money was his. Allowing him to use her account had been a mere "accommodation." About five days later, she received the letter of July 16 from Morris and was baffled by it. She showed the letter to Bailes, and he took it from her and said, "This is all a lot of nonsense. I'll take care of it." "I realize now that this was a big blunder," Sheila told me. "I should have written back at once and got it down on paper that I had never agreed to hold the money. But at the time, my mind was elsewhere. It didn't seem important." As for Morris's one-minute conversation with her, she says it never happened and surmises that the one-minute charge was for a call which the receptionist in her office suite picked up while she was out.

    There are loose ends in Sheila's story. She told me that she had not only agreed to Bailes's use of her account for the $75,000 payment but had welcomed the arrangement. "Since Bobby was being tried for bank fraud, and the charges came out of some forms he'd filled out, I didn't want him to go to a bank to open a new account. I didn't want him anywhere near a bank," she said. However, Bailes already had a bank account in Alexandria, in the name of Preferred Research, one of the companies he professed to own. When I questioned Sheila about this--about why the money hadn't been wired to that account instead of to hers--she had no answer. But even without this and other strangenesses, Sheila's story is not a good one. It seems unbelievable that someone who had a law degree could be so credulous and so careless. I happen to believe that Sheila's weak story is true and that Hulkower's strong story is off the mark. But that's because I have had the opportunity to study Sheila over time and (following the cues of Stuart Abrams) to come face-to-face with Morris and Manfredi's untruthfulness. The jury had no such opportunity.

    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. Sheila's lawyers, working in haste, and receiving no help from their literal-minded client, were unable to effect this transformation.

(Continues ...)