At around three in the afternoon on March 3, 2009, in the fifth week of the trial of Mazoltuv Borukhova— a thirty-five-year-old physician accused of murdering her husband—the judge turned to Borukhova's attorney, Stephen Scaring, and asked a pro forma question. "Do you have anything else, Mr. Scaring?" The trial was winding down. Two defense witnesses had just testified to Borukhova's good character, and Scaring was expected to rest his case with their modest, believable testimony. Scaring replied, without any special emphasis, "Yes, Your Honor. I think Dr. Borukhova will testify in her own defense." There was no immediate reaction in the sparsely filled courtroom on the third floor of Queens Supreme Court, in Kew Gardens. Only after Borukhova had walked to the witness stand and taken the oath did the shock of Scaring's announcement register. The mouth of one of the spectators —that of the victim's younger brother—fell open, as if to mime the astonishment that ran through the room. Borukhova had sat at the defense table throughout the trial and during the hearings that preceded it, writing on legal pads and occasionally looking up to whisper something in Scaring's ear or to exchange a charged glance with her mother and two sisters, who always sat in the second row of spectator seats. She was a small, thin woman of arresting appearance. Her features were delicate, and her skin had a gray pallor. At the hearings, she was dressed in a mannish black jacket and a floor-length black skirt, and she wore her long, dark, tightly curled hair hanging down her back, bound by a red cord. She looked rather like a nineteenth-century woman-student revolutionary. For the trial proper (perhaps on advice), she changed her appearance. She put her hair up and wore light-colored jackets and patterned long skirts. She looked pretty and charming, if undernourished. When she took the stand, she was wearing a white jacket.
Scaring, a tall, slender man of sixty-eight, is a criminal defense attorney of renown on Long Island. He has a reputation for taking cases that seem unwinnable—and winning them. But the Borukhova case had special difficulty. For one thing, Borukhova was not the only defendant; she was being tried together with Mikhail Mallayev, the man accused of killing her husband for her. Scaring wasn't defending him, however; a younger lawyer named Michael Siff was Mallayev's court-appointed counsel, and Siff did not have Scaring's capacity for performing impossible feats. Mallayev was likely to be convicted—there was strong forensic and eyewitness evidence against him—in which case Borukhova would have to be convicted, too, because of an unbreakable link to him: cell-phone records had established that in the three weeks preceding the murder there were ninety-one calls between her and Mallayev.
Another obstacle in the way of Scaring's game attempt to rescue Borukhova from a lifetime in prison was the lead prosecutor, Brad Leventhal, who does not have Scaring's experience—he is twenty years younger—but is an exceptionally formidable trial lawyer. He is a short, plump man with a mustache, who walks with the quick darting movements of a bantam cock and has a remarkably high voice, almost like a woman's, which at moments of excitement rises to the falsetto of a phonograph record played at the wrong speed. He uses his hands when he speaks, sometimes rubbing them in anticipation, sometimes throwing them up in gestures of helpless agitation. In his winter outerwear— a black calf-length coat and a black fedora—he could be taken for a Parisian businessman or a Bulgarian psychiatrist. In the courtroom, in his gray suit with an American flag pin in the lapel, and with his Queens-inflected speech, he plays the role of Assistant District Attorney for Queens (he is also the borough's chief of homicide) to the hilt. The second chair at the prosecution's table was filled by Donna Aldea, a handsome young assistant D.A. with an incandescent smile and a steely mind, who comes from the appellate division. Leventhal relied on her for producing unanswerable arguments before the judge on points of law.
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In his opening statement, Leventhal, standing directly in front of the jury and speaking without notes, set the scene of the murder—which occurred on October 28, 2007 —in the manner of an old-fashioned thriller:
It was a bright, sunny, clear, brisk fall morning, and on that brisk fall morning a young man, a young orthodontist by the name of Daniel Malakov, was walking down 64th Road in the Forest Hills section of Queens county just a few miles from where we are right now. With him was his little girl, his four-year-old daughter, Michelle.
Malakov, Leventhal continued, had left his office, full of waiting patients, to bring the child to a playground, a block away, for a day's visit with her mother, "his estranged wife," Mazoltuv Borukhova. Then, "as Daniel stood outside the entrance to Annadale playground, just feet from the entrance to that park, just feet from where his little girl stood, this defendant, Mikhail Mallayev, stepped out as if from nowhere. In his hand he had a loaded and operable pistol." When Leventhal uttered the words "this defendant," he theatrically extended his arm and pointed across the room to a thickset man in his fifties with a gray beard and heavy dark eyebrows, wearing wire-rimmed eyeglasses and a yarmulke, who sat impassively at the defense table. Leventhal went on to describe how Mallayev shot Malakov in the chest and in the back, and, as the orthodontist "lay on the ground dying, his blood pouring from his wounds, saturating his clothing and seeping onto the cement, this man, the defendant, who ended his life, calmly and coolly took his gun, put it into his jacket, turned away and headed up 64th Road towards 102nd Street, and fled the scene." With agitated outstretched hands Leventhal asked the jury:
Why? Why would this defendant lie in wait for an unsuspecting and innocent victim? A man, I will prove to you, he didn't even personally know. Why would he lie in wait with evil in his heart?
Leventhal answered the question:
Because he was hired to do it. He was paid to do it. He's an assassin. A paid assassin. An executioner. A hit man. For who? Who would hire this man, this defendant, to murder in cold blood an innocent victim in the presence of his own daughter? Who could have such strong feelings towards Daniel Malakov that they would hire an assassin to end his life? Who?
Leventhal walked toward the defense table and again lifted his arm and pointed—this time at Borukhova. "Her," Leventhal said, his voice rising to its highest pitch. "The defendant Mazoltuv Borukhova, Daniel Malakov's estranged wife. The woman with whom he had been engaged in an ongoing and heated, contentious, acrimonious divorce for years."
Excerpted from Iphigenia in Forest Hills by Janet Malcolm. Copyright 2011 by Janet Malcolm. Excerpted by permission of Yale University Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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