I’m reading Janet Malcolm’s “Iphigenia in Forest Hills” in the latest New Yorker (abstract here), about the trial of Mazoltuv Borukhova for murder (she allegedly paid Mikhail Mallayev to kill her husband), and this passage struck me for obvious reasons:
The fourth week of the trial had produced an arresting illustration of the malleability of trial evidence. During a police search of Borukhova’s apartment, an audiotape had been found and seized. It was a garbled, fragmentary, almost inaudible recording of a conversation between Borukhova and Mallayev, speaking in Bukhori and Russian. The conversation had taken place in May of 2007—five months before the murder. The prosecution had asked an F.B.I. translator named Mansur Alyadinov to make an English translation and called him to the courtroom to read from his text as the tape was played. The conversation had been secretly recorded by Borukhova during a ride in a car. But what was being discussed was not a murder plot. The tape recorded one of those irritatingly banal conversations which we helplessly overhear on trains and in restaurants from people talking on cell phones. The fragments of boring dialogue that came through had no relevance to the case. Why, then, was Leventhal [the lead prosecutor] playing the tape to the jury? The reason became apparent in the final two lines. The courtroom suddenly awakened from its torpor as it heard Mallayev say to Borukhova, “Are you going to make me happy?” And Borukhova replied, “Yes.”
One can imagine the translator’s own happiness when he heard those lines—and Leventhal’s when he read them in the transcript. Two interpretations immediately present themselves—both damning. The first is that Mallayev was sleeping with Borukhova and asking about a future encounter. The second is that Mallayev was talking about money—was she going to make him happy by giving him money to murder her husband? In either case, it looked bad for Borukhova. However, when Scaring [Borukhova’s attorney] cross-examined Alyadinov it began to look less bad. This is the idea and the beauty of the cross-examination. A successful cross-examination is like a turn of the roulette wheel that restores a lost fortune. First, citing a translation that Borukhova had made for him, Scaring got the F.B.I. translator to concede that, among other blunders, he had omitted the English words “Mother’s Day” from his text, and that a mystifying discussion of a “crazy house” was actually a discussion of the madhouse that the airport was on the day—Mother’s Day—that Mallayev travelled to New York from his home, in Chamblee, Georgia. Then Scaring took care of “Are you going to make me happy?” In Borukhova’s translation, what Mallayev had said was “Are you getting off?” The car had reached its destination. He had used the word padayesh [падаешь]—literally meaning “Are you falling?”—in an idiomatic sense to ask if she was getting out of the car. The translator had heard padayesh as obraduyesh [обрадуешь] (“Are you going to make me happy?”). The mistake was understandable: on a very hard-to-hear tape the word could easily be misheard. But that the mishearing so favored the prosecution, that it so well advanced the narrative of an unsavory association, suggests that this was a mishearing by design—unconscious design, perhaps, but design nonetheless. We go through life mishearing and misseeing and misunderstanding so that the stories we tell ourselves will add up. Trial lawyers push this human tendency to a higher level. They are playing for higher stakes than we are playing for when we tinker with actuality in order to transform the tale told by an idiot into an orderly, self-serving narrative.
Malcolm is an excellent writer, and I recommend the whole article if you can find a copy of the magazine.
Addendum. If you read Russian, there’s an interesting discussion at Avva; Anatoly says that both phrases, “ты обрадуешь?” and “ты падаешь?,” are very odd, but adds that he doesn’t know anything about the dialect of Bukharan Jews in New York [“кто знает, как там у них все наслайсено в диалекте нью-йорских бухарско-русских евреев”].