Defense Articles

Kristine Kolar, chief public defender for the 9th Judicial District, said, “This is being considered a very important victory for public defense.”

Prosecutors argue the decision unnecessarily takes out of the hands of law-enforcement officials a valuable tool for bringing perpetrators to justice.

Ramsey County attorney Susan Gaertner said the opinion was contrary to a national trend that is “accepting” of arrestee databases.

“(Minnesota) is really bucking the trend,” she said. “This decision is an unfortunate stumbling block.”

Specimens collected

Under a Minnesota law passed as part of the Omnibus Public Safety Finance Bill in 2005, law-enforcement personnel were directed to take biological specimens from juveniles and adults who have had a probable-cause determination on a charged offense but had not been convicted.
Under the law, if the person is found not guilty, the Bureau of Criminal Apprehension is required to destroy the specimen taken; if the charges against the person are dropped, upon request, the BCA must also destroy the specimen. The BCA is also required to remove the person’s information from the BCA’s combined DNA index system.

The Court of Appeals found the law violated the Fourth Amendment to the U.S. Constitution and Article 1, Section 10, of the Minnesota Constitution. The privacy interest of a person who has been charged with a criminal offense but not convicted is not outweighed by the state’s interest in taking a biological specimen from the person for purpose of DNA analysis, the court reasoned.

Rights preserved

Defense attorneys think the decision is an important step in preserving individual rights and privacy.

“It was heartening to read,” 3rd Judicial District Chief Public Defender Carol Weissenborn said. “It preserves the presumption of innocence.”

Criminal defense attorneys contend that the statute’s requirement that individuals against whom charges were dismissed request removal of their DNA from the database was unrealistic.

The DNA is destroyed only if the defendant initiated the request, Weissenborn explained.

“The onus was on the individual,” she said.

Many individuals who’ve given DNA samples after an arrest don’t even know they can have it removed if charges are dropped, Kolar said.

“Once your name is in the database, it’s difficult to get it out,” she said. “People have to have the savvy to initiate it and the ability to initiate it.”

As law enforcement becomes more technical, Weissenborn said, it’s more important to avoid the possibility that technology will “swamp the rights of ordinary citizens.”

“The statute didn’t make sense,” she said. “It’s long been understood that invading the body and taking DNA - is invasive, and it’s a search.”

Invasiveness challenged

Prosecutors dispute the degree of invasiveness involved in taking a DNA sample from an individual.

Assistant Washington County attorney Richard D. Hodsdon, who represents the Minnesota Sheriff’s Association, said the procedures for collecting and analyzing DNA had advanced over the years.

“It seems as if the court doesn’t have a good comprehension of the evolution of biomedic samples,” he said.

Some prosecutors contend that obtaining a DNA sample is really no different than fingerprinting or taking a booking photo, which is done as a matter of course following an arrest.

There is no objection to taking fingerprints as part of the booking process, Hodsdon said.

“That is not protected as a Fourth Amendment search,” he said.

Taking a photo of someone’s distinguishing marks, like tattoos for example, may actually be more intrusive than taking a DNA sample, Hodsdon said.

“A DNA swab is minimally intrusive,” he said.

According to Gaertner, the American Bar Association has come out with new DNA standards that approve of arrestee databases. She also said the federal government allowed collection of DNA samples, and more and more states were going in that direction as well.

“Although the National Association of Insurance Commissioners (NAIC) has been working for years to create a modernized and uniform state regulatory system, such a system has not yet been achieved and seems unlikely to be realized in the near future. Under these circumstances, an optional federal chartering system for insurance companies seems to be an idea whose time has come,” according to Wallison.

For many years, the AEI beat an incessant drum urging the transfer of regulatory jurisdiction from the federal government to the states. In a report released in early March 2006, the AEI espoused the creation of an optional federal charter for insurers.
Traditionally, the AEI has used the following modus operandi:

1) Identify stringent federal rules

2) Urge transfer of authority to the states

3) Threaten any state jurisdiction that actually uses the authority with an industry boycott.

Reversal

The AEI reverses itself with the call for federal insurance oversight. Without drawing attention to the policy reversal, the think tank explains its flip flop by blaming the states for not deregulating fast enough after the 1999 repeal of the Glass-Steagall Act of 1933.

One can quibble with the extent of competitive change that occurred after the repeal of the venerable act, which established legal firewalls between the three financial services sectors, helping to rebuild the American financial system after its collapse in 1929. Decades of seriously damaging court decisions and Federal Reserve Board rulings had weakened the Glass-Steagall Act so much that competition among banks, insurers and life insurance companies was already rampant by the time the act was repealed. As early as April 7, 1998, the financial historian Ron Chernow told The New York Times, “[The Act] is so riddled with loopholes at this point that it is effectively dead-Congress just refuses to give the last rites and bury it.”

The true change brought on by repeal related to the ability of financial institutions from one sector to own an institution in another sector. Investment and commercial banks have been hesitant to buy or establish insurance companies that are not subject to the subservient world of banking supervision. Ownership and not competition seems to be inhibited.

It is important to note that the AEI points toward the notoriously docile Office of Comptroller of the Currency (OCC) when it discusses an optional federal charter. By highlighting the OCC, the AEI is very clear that the national framework that it is now advocating should not be loaded down with consumer protections or enforcement mechanisms.

As Wamson points out, the banking lobby proposed an optional federal charter even when it was clear that the Congress would repeal the Glass-Steagall Act. This new competitive environment forced insurance companies and their associations to consider the advantages of a new regulatory framework; and at an AEI conference in June 1999, the American Bankers Insurance Association-an affiliate of the American Bankers Association-proposed the idea of an optional federal charter for insurance companies.

President Clinton did not sign the repeal legislation until November 12, 1999, so it’s difficult to see how the proposal responds to the post-repeal market.

The “Fetcher Bill” phase

The AEI report seems to be part of a growing campaign to revive the optional federal charter legislation. Many observers expect legislation to be introduced this year, but no one expects its passage.

Opponents of the optional federal charter proposal still rally behind the banner of the State Modernization and Regulatory Transparency (SMART) Act. This proposed legislation may actually be introduced this year as well. Once again, no one expects this legislation to pass.

Regular readers of this column will recognize the elaborate ruse being carried out with the introduction of each piece of insurance legislation. The old name for such legislation is “Fetcher Bills.” While they cannot pass, members of Congress can use the legislation to attract campaign donations from interested parties.

A major shift

Still, the move by the AEI should not go unnoticed by those who support a streamlined but effective system of state insurance regulation. The AEI is not an industry trade association that sends out cheerleading press releases for membership consumption. The AEI is a think tank that melds policy development and political action into one powerful force. At times it serves as a government in waiting. Proposals honed by the AEI result in laws, insurgencies and wars. The AEI is not just any think tank.

Some court observers believe that Leavitt lost his re-election bid for Juab County attorney in part because of the controversy surrounding his prosecution of Green. But the former prosecutor has also reached out to the polygamist’s family, helping them relocate from their compound of mobile homes in Utah’s western desert to Utah County.

Leavitt said it was family members who contacted him about defending William Green. One of Tom Green’s ex-wives is the teenager’s mother.

“My feeling is that Bill Green is as much a victim of polygamy as any child bride,” Leavitt said.
The lawyer, who is former Utah Gov. Mike Leavitt’s brother, said several people he has prosecuted have turned around and hired him as a defense attorney. Asked why, Leavitt said he could only guess they felt that even though he “hit ‘em hard,” they also believed he was fair.

Draper police have said William Green’s case has nothing to do with polygamy. The 18-year-old is accused of meeting the 13-year- old girl through the Web site, MySpace.com. According to documents filed in West Jordan’s 3rd District Court, Green is accused of having sexual relations with the girl this past February and March.

“There’s no indication or nothing in our complaint” that links the incident to Tom Green’s ideology, Draper Police Sgt. Gerry Allred said at the time of the arrest.

Leavitt declined to discuss the specific allegations against William Green.

“We don’t believe that he’s a predator or that he’s a sex offender,” he said. “He doesn’t merit being posted on the Internet as a sex offender. We don’t think society will be better off having him being painted that way.

Criminal defense lawyers are hailing as a significant victory a recent appellate decision ending the state’s practice of taking arrestees’ DNA samples without first obtaining a search warrant.

In In the Matter of the Welfare of C.T.L., the Minnesota Court of Appeals struck down as unconstitutional portions of the DNA statute that directed law-enforcement personnel to take a biological specimen from a person charged with a crime. The samples so taken have been placed in a searchable DNA database that law enforcement personnel use to investigate unsolved and future crimes.

Criminal defense attorneys think the decision is a triumph for privacy rights and the presumption of innocence. Kristine Kolar, chief public defender for the 9th Judicial District, said, “This is being considered a very important victory for public defense.”

Prosecutors argue the decision unnecessarily takes out of the hands of law-enforcement officials a valuable tool for bringing perpetrators to justice.

Ramsey County attorney Susan Gaertner said the opinion was contrary to a national trend that is “accepting” of arrestee databases.

“(Minnesota) is really bucking the trend,” she said. “This decision is an unfortunate stumbling block.”

Specimens collected

Under a Minnesota law passed as part of the Omnibus Public Safety Finance Bill in 2005, law-enforcement personnel were directed to take biological specimens from juveniles and adults who have had a probable-cause determination on a charged offense but had not been convicted.
Under the law, if the person is found not guilty, the Bureau of Criminal Apprehension is required to destroy the specimen taken; if the charges against the person are dropped, upon request, the BCA must also destroy the specimen. The BCA is also required to remove the person’s information from the BCA’s combined DNA index system.

The Court of Appeals found the law violated the Fourth Amendment to the U.S. Constitution and Article 1, Section 10, of the Minnesota Constitution. The privacy interest of a person who has been charged with a criminal offense but not convicted is not outweighed by the state’s interest in taking a biological specimen from the person for purpose of DNA analysis, the court reasoned.

Rights preserved

Defense attorneys think the decision is an important step in preserving individual rights and privacy.

“It was heartening to read,” 3rd Judicial District Chief Public Defender Carol Weissenborn said. “It preserves the presumption of innocence.”

Criminal defense attorneys contend that the statute’s requirement that individuals against whom charges were dismissed request removal of their DNA from the database was unrealistic.

The DNA is destroyed only if the defendant initiated the request, Weissenborn explained.

“The onus was on the individual,” she said.

Many individuals who’ve given DNA samples after an arrest don’t even know they can have it removed if charges are dropped, Kolar said.

“Once your name is in the database, it’s difficult to get it out,” she said. “People have to have the savvy to initiate it and the ability to initiate it.”

As law enforcement becomes more technical, Weissenborn said, it’s more important to avoid the possibility that technology will “swamp the rights of ordinary citizens.”

“The statute didn’t make sense,” she said. “It’s long been understood that invading the body and taking DNA - is invasive, and it’s a search.”

Invasiveness challenged

Prosecutors dispute the degree of invasiveness involved in taking a DNA sample from an individual.

Assistant Washington County attorney Richard D. Hodsdon, who represents the Minnesota Sheriff’s Association, said the procedures for collecting and analyzing DNA had advanced over the years.

“It seems as if the court doesn’t have a good comprehension of the evolution of biomedic samples,” he said.

Some prosecutors contend that obtaining a DNA sample is really no different than fingerprinting or taking a booking photo, which is done as a matter of course following an arrest.

There is no objection to taking fingerprints as part of the booking process, Hodsdon said.

“That is not protected as a Fourth Amendment search,” he said.

Taking a photo of someone’s distinguishing marks, like tattoos for example, may actually be more intrusive than taking a DNA sample, Hodsdon said.

“A DNA swab is minimally intrusive,” he said.

According to Gaertner, the American Bar Association has come out with new DNA standards that approve of arrestee databases. She also said the federal government allowed collection of DNA samples, and more and more states were going in that direction as well.

Few moments in Bush’s presidency have tested the limits of loyalty more acutely than this one. For six years, the president has largely stood by those who have stood by him and has rarely given in to pressure to toss allies aside when they have come under fire. When he has, he has often resisted so long that the damage had already been done — pulling the Supreme Court nomination of Harriet E. Miers only after weeks of all-out conservative revolt and firing then-Defense Secretary Donald H. Rumsfeld only after a decisive midterm election defeat.
Bush has been more willing to part ways with those he has viewed as less than fully devoted to him and his agenda, most prominently then- Secretary of State Colin L. Powell . Critics believe this fixation on loyalty has left the president isolated from dissent and surrounded by ideological yes men, but it has also given him a team that has remained unusually cohesive through adversity, at least until recently, as more former insiders have spoken out critically.

“In his mind, loyalty works both ways. It’s a two-way street,” said Scott McClellan, the former White House press secretary who followed Bush from Texas . “Particularly those who have been with him a long time, the Texans, he’s developed more than a professional relationship; it’s a friendship.”

That seems especially true with Gonzales, a Bush confidant for a dozen years. Bush calls him “Fredo” and has given him five jobs over the years. The two have spent weekends together with their wives at Camp David. “It makes it tough for the president — and less likely that the president’s going to want to do anything to push him out,” said Charles Black, a GOP lobbyist close to the White House.

Bush does not think Gonzales did anything wrong in dismissing the prosecutors, according to aides, but has been aggravated by his friend’s clumsy, shifting explanations of what happened. In effect, advisers said, Bush is giving Gonzales a chance to fix the situation today.

What happens if he does not remains unclear. No one in the White House believes Gonzales can say anything that would get Democrats to drop the matter, but his supporters hope he can be confident and consistent enough to explain his role without providing more ammunition for critics. Should he stumble, some Republicans said, Gonzales has a responsibility to fall on his sword, sparing Bush having to ask.

“The president’s loyalty is the only explanation for the attorney general’s continued service,” said Mark Corallo, a former Bush Justice Department spokesman. “The attorney general’s not a bad person. He’s a smart guy. But he completely mishandled the situation on so many levels that he has completely shattered the trust of the people who work for him. . . . At this point, the attorney general’s loyalty to President Bush needs to trump President Bush’s loyalty to the attorney general.”

Bush’s notion of loyalty was forged in the fires of his father’s White House, when he grew offended at what he saw as personal agendas and cutthroat infighting. The focus of much of his discontent was White House Chief of Staff John H. Sununu, whom Bush considered more devoted to his own empire-building than to the president.

Sununu sealed his fate when he said on television that the president had “ad-libbed” a controversial line in a speech. Bush was furious that Sununu appeared to blame the president rather than defend him. “We have a saying in our family,” Bush was later quoted as saying. ” ‘If a grenade is rolling by the Man, you dive on it first.’ The guy violated the cardinal rule.” Bush flew to Washington and told Sununu to quit.

Byline: Lyndsey Layton

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Bethesda, Md.: Aren’t there records that Gonzalez could consult regarding when he made decisions or what high level meetings he attended? I forget things at work frequently and that’s what my notes and records are for.

Lyndsey Layton: Bethesda, in his testimony yesterday, Gonzales claimed there was no written record of the decision made by Sampson to fire the attorneys.

_______________________

Los Gatos, Calif.: Good Morning. I had a questions and I know it was a good question, but I can’t remember what it was. The process that I went through to formulate the question was flawed and I apologize, but I do remember that I had a question. I have searched my memory and can’t recall the question.

Lyndsey Layton: Los Gatos. I had an answer for you but in the 30 seconds it took me to hit the buttons here and post your question, I cannot recall what it was. I am likewise sorry for that fact, but I cannot offer a response that I cannot recall.

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Odenton, Md.: Good morning Lyndsey. Of the names you mentioned as a possible new AG, why would any of them want to leave their current position/life to run DOJ for only the last 20 months of this abysmal administration? They can’t even get anybody to agree to become War Czar because, as the typical explanation goes, the White House has no idea what it’s doing.

Lyndsey Layton: Why indeed. Why did Gates agree to become Defense Secretary? Something about service or when the president asks you to serve you don’t sit it out, etc. AG seems a little less like a death mission than DefSec.

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Springfield, Va.: What’s going on with the investigation of Rep. “$90,000-in-my-freezer” Jefferson? Why is this taking so long?

Lyndsey Layton: The freezer raid was in 2005, plenty of time for that cash to thaw out. One of the snags in the case came last May when the FBI raided Jefferson’s congressional office, sparking a legal tussle over whether the executive branch had violated the constitutional separation of powers. That debate is being played out in court and the documents seized are in limbo; meanwhile, a grand jury has been hearing other testimony and seeing other evidence.

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Portland, Ore.: Hi Lyndsey. Re: Gonzales — it’s not clear to me what happens next. If he chooses not to resign and Bush doesn’t fire him, what can the Senate do then? Whose court is the ball in now? Thanks.

Lyndsey Layton: Hi Portland. If Gonzales won’t step down and Bush won’t fire him, it’s really up to Senate Republicans and how hard they want to push for his removal.

Darden angered Cochran when he asked Heidstra if he (Heidstra) had told someone that one of the voices sounded Black. Cochran emphatically objected to the question and Ito Sustained it. However, Heidstra continued speaking. That led to Ito yelling at him to “Wait! Wait!”

The jury was then ordered to leave and Darden defended his line of questioning by pointing out that an aquaintance of Heidstra’s quoted him (Heidstra) as saying one of the voices sounded Black and like O. J. Simpson.

Cochran angrily responded: “I resent that statement. You can’t tell by somebody’s voice whether they sound Black.
There have been several other occasions when Cochran and Darden have had major disagreements. Darden has been accused of being a pawn used by the District Attorney’s office because the jury is primarily Black and so is he.

The L.A. Times pointed out that Cochran and Darden have been at each other’s throats since the beginning of the trial when Cochran made the suggestion that Darden was added to the team because of the racial make up of the jury.

John Burrus, an Oakland, CA, attorney told the Times: “Chris took it (Cochran’s suggestion) personally. As a consequence, Chris has responded to every one of Johnnie’s jabs and innuendoes. Partly that’s because he has suffered in public stature in the Black community, when he should be receiving accolades as an able professional prosecutor. He wears his resentment over that on his sleeve. What he doesn’t understand is that you can’t win a public relations battle with Johnnie Cochran.”
O.J. Simpson defense attorney Johnnie L. Cochran and prosecutor Chris Darden were recently threatened with contempt of court following a highly-charged courtroom debate over the issue of race.

The two, who had run-ins in the past, locked horns in the courtroom of Superior Court Judge Lance Ito over the question of whether or not Darden was asking a racist question of a witness and the bigger question of whether or not one can tell if someone sounds Black. An angry Ito made the jury leave, warned both attornies and called for an immediate recess.

The latest incident began when Darden questioned defense witness Robert Heidstra, a neighbor of Nicole Brown Simpson, who claimed to have heard two voices arguing about 10:30 p.m. on the night Mrs. Simpson and her friend Ron Godman were murdered.

INTRODUCTION

The protection of attorney-client communications for criminal defendants accused of terrorism is in a state of flux. Federal regulations, passed in response to the September 11, 2001 terrorist attacks, place new and controversial guidelines upon criminal defense attorneys and their clients.1 Many argue these regulations will chill attorney-client communication,2 thus effectively breaching one of the oldest privileges in the law.3 Specifically, the USA Patriot Act and Bureau of Prisons Rule have the potential to curtail an attorney’s ethical obligation to keep his client’s communications private, as required by the Model Rules of Professional Conduct (”1983 Model Rules”).
These new regulations, which mandate disclosure of confidential communications in specific circumstances, could compromise the sacred role of a lawyer as advocate and counselor. Previously, these communications were protected under Model Rule 1.6, which requires an attorney to keep confidential all information that may be embarrassing or harmful to the client.4 This note examines the state of the Model Rules regarding attorney-client confidentiality prior to September 11, outlines new regulations under the USA Patriot Act, and discusses potential consequences to attorney-client communication that result from these rules.

Part I will examine scholarly discourse to show that confidential communication is not only required by tradition and reason, but is also imperative to ensure effective client representation. Part II will consider the new federal regulations, comparing them with previous laws that already undermined the attorney-client relationship. Finally, Part III will discuss potential consequences of the new federal regulations.
I. THE NECESSITY OF CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION

A veil has cloaked conversations between attorneys and their clients since the sixteenth century.5 This protection, however, was first embodied as an evidentiary principle and not as a professional obligation.6 The 1983 Model Rules lagged behind the adoption of this evidentiary principle and did not recognize a specific obligation of confidentiality until the early 1900s.7 However, with the adoption of Model Rule 1.6, attorneys received specific guidance in their relationships with clients.8 The current construction of the law can be best understood with a consideration of the history governing attorney-client communications.

A. THE CANONS OF PROFESSIONAL ETHICS

The initial construction of confidentiality was recognized in the Canons of Professional Ethics (”1908 Canons”)? While the ABA adopted Canons 1-32 in 1908, no canon directly addressed confidentiality.10 Instead, Canon 6 only mentioned the duty to keep confidences in the context of a conflict of interest.11 The final paragraph of Canon 6 recognized “the obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences.”12 Subsequent amendments in 1928, including Canon 37, explicitly stated the duty of an attorney to keep his client’s confidences.13 As understood by legal scholars, the information protected by Canon 37 was only that which was also protected by the attorney-client privilege, namely those communications that would be protected in the courtroom should also be protected outside the courtroom.14 This construction of the law, however, was often ambiguous.15 An attempt to clarify the law was made in 1969 with the adoption of the Model Code of Professional Responsibility (”1980 Model Code”), which replaced the 1908 Canons.16

B. THE MODEL CODE OF PROFESSIONAL RESPONSIBILITY

The Model Code adopted Rule (DR) 4-101, which stated that not only were the clients’ “confidences” to be maintained but also the clients’ “secrets.”17 While a “confidence” is limited to information protected by attorney-client privilege, “secrets” are those communications made during the relationship that the client wishes to keep confidential or communications for which disclosure may be detrimental or embarrassing.18 This expansion of confidential information tried to induce clients to come forward with information that they might otherwise hesitate to offer.19 The final expansion of this rule was promulgated in the 1983 Model Rules.20

C. THE 1983 MODEL RULES

Model Rule 1.6 states:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonable believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyers and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.21

Think of it as the Rodney Dangerfield episcopacy: The U.S. Catholic bishops can’t get any respect.

Meeting at yet another tumultuous moment, and mostly behind closed doors June 19-21, the church’s leaders insisted they are carrying out the promises made a year ago to remove sexual offenders from the priesthood, to investigate the causes of the crisis, and to implement programs to prevent additional abuse.

To their obvious frustration, the bishops receive little praise for their efforts. Instead, they are challenged by the press, doubted by lay activists and ridiculed by abuse victims.
Just prior to the meeting, the already embattled bishop of Phoenix, Thomas O’Brien, would be charged with leaving the scene of a fatal accident. A pedestrian, 43-year-old Jim Reed, died. O’Brien reportedly told police that he thought he had hit a dog or a cat. The O’Brien incident, said Chicago Cardinal Francis George, made for a “pretty sober gathering.”

That sobriety was not, however, shared by the popular culture. The bishops have become late night comic fodder.

Jay Leno: “Did you hear that Phoenix police arrested a bishop for hit and run driving? A bishop! Talk about making a collar.”

Meanwhile, the man appointed by bishops’ conference President Wilton Gregory to head an investigation into the crisis–former federal prosecutor and Oklahoma Gov. Frank Keating–would compare recalcitrant bishops to members of La Cosa Nostra and then, no apology proffered, resign.

Jumping to the bishops’ defense was one of the nation’s leading criminal defense attorneys–counsel to indicted congressmen, cabinet members and an impeached president.

“The National Review Board does not believe there is a criminal organization afoot,” declared attorney Robert Bennett, a member of the panel established by the bishops to investigate the clergy sexual abuse crisis. Keating’s mafia metaphor, said Bennett, was “inappropriate” and “beyond the pale.”

Bennett’s comments followed a closed session at which review board members and the bishops discussed the board’s work, including a controversial diocese-by-diocese survey that California bishops said would violate that state’s stringent privacy laws; in addition, other bishops feared the data would become a weapon in the arsenal of emboldened prosecutors and aggressive litigators. The reluctance of California’s bishops–most notably Los Angeles Cardinal Roger Mahony–to respond to the survey was the proximate cause of Keating’s outburst.

The survey’s response procedures were altered to ensure anonymity of the data, a move that satisfied the California concerns.

The St. Louis meeting differed from the most recent bishops’ gatherings–Dallas in June 2002 and Washington the subsequent November. In Dallas, they approved a Charter for the Protection of Children and Youth, while in Washington they refined the “norms” accompanying the charter to satisfy Vatican concerns.

The St. Louis meeting was to be relatively quiet–the public agenda dominated by seemingly mundane matters such as development of a National Directory for Catechesis and discussion of the “formation, ministry and life of permanent deacons.” The crisis would be confined to closed-door sessions at which the bishops would hear from the review board and consider a proposal to conduct the first nationwide “plenary council” in more than a century.

The O’Brien and Keating debacles necessitated a more aggressive approach, both from the floor of the meeting hall and in the press briefings and media gaggles that followed both the closed and open sessions.

“As far as I know,” Cardinal George insisted, “every bishop went back [after the Dallas meeting] and went through the records, and removed from ministry anyone who was credibly accused of this. I don’t know any other group that has done that. I don’t know whether journalists have done that. I don’t know whether politicians have done that. I don’t know whether sports directors have done that.”

It is “outrageous” and “totally unjust,” said George, to suggest that the “bishops have done nothing.”

From the floor of the assembly, St. Paul Archbishop Harry Flynn, chairman of the bishops’ ad hoc committee on sexual abuse, echoed the theme: “A monumental effort has been made to fulfill the promises of that charter, to implement measures that would remove offending clergy, to reach out to those so terribly injured by sexual abuse, and to restore the trust and confidence of our people and our priests.”

The bishops received a pep talk from Archbishop Gabriel Montalvo, apostolic nuncio to the United States. “We all know that we are going through difficult times and that some real problems within the church have been magnified to discredit the moral authority of the church,” said Montalvo. The bishops should not “retreat into isolation” because of the crisis, Montalvo said.

SOMETIMES the outcome of a trial will depend on the context in which a single word is spoken. “Go get Arnold,” Al Capone instructed a subordinate. What exactly did he mean by that? Meet Arnold’s train? Or–put a bullet in Arnold’s brain, as indeed happened. In some circumstances the case hangs on the meaning of a word as intended by the person who uttered it, and that question has tied down a jury in a courtroom in New York, with fascinating implications. What did the defendant mean when he used the N-word about the victim?
The victim is a 22-year old black man whose skull was fractured by the defendant, who avers that his use of the N-word was not invidious. It seems odd that the point is as important as it apparently is. One would think that smashing someone’s head with a baseball bat is good evidence of acrimony. The defendant says he was defending himself against a robbery attempt, and that the use of the N-word carried not a trace of ill feeling.

The judge is spending considerable time on the question. If the defendant is convicted on all counts and the finding is that he was moved by racial hatred, he could face up to 25 years in jail. If the word was used as pure idiomatic description–as one might say, “He was driving a Ford”–the exposure is greatly reduced. Defendant’s mother insists that the use of the word carried no racial or ethnic overtones whatever. “Every kid in the neighborhood uses it. It doesn’t mean the same thing any more. They all say it all day long no matter what race.” A reporter on the scene generalized that the defense believes that “the N-word” is used “as a matter of course and that the word no longer carries the racially charged overtones it has historically.” Evidence put forward is rap music and conversation, especially among young people. It is not irrelevant that although explications of this sort were argued back and forth, no one in the court actually uttered the word.
The matter was quite properly examined directly with prospective members of the jury. One potential juror, asked what he thought about the use of the word, replied, “It depends on who’s saying it and how it’s been used.” That definition qualifies that man for service with Webster’s Usage panel. The prosecutor, Michelle Goldstein, would have none of it, the idea that the word had become innocent. It’s not like using the word “sweetheart,” she said, which means one thing when used by one’s fiance, something very different if spoken by a stranger to a woman on the street.

We can’t know whether the defendant intended obloquy. If the jurors regularly view The Sopranos, they might assume that no word in the English language is inherently offensive, with maybe the exception of stool pigeon. It is, however, arresting to weigh the consequences, under the law, of a word–this word–carelessly used.

Some years ago I was a defendant in a lawsuit brought by a creepy fascistic outfit (now out of business), and the question before the jury was whether I and the magazine I edited were racist. The attorney had one weapon to use in making his point, namely that we had published an editorial about Adam Clayton Powell Jr. when he made a terminally wrong move in his defense against federal prosecutors. The editorial was titled, “The Jig Is Up for Adam Clayton Powell Jr.?” On the witness stand I argued that the word “jig” could be used other than as animadversion. The feverish lawyer grabbed a book from his table and slammed it down on the arm of my chair. “Have you ever heard of a dictionary?” he asked scornfully, as if he had put the smoking gun in my lap. I examined the American Heritage College Dictionary and said yes, I was familiar with it. “In fact,” I was able to say, opening the book, “I wrote the introduction to this edition.” That was the high moment of my forensic life. And, of course, the dictionary establishes that the word “jig” can be used harmlessly.

So can the N-word, though there is a presumed linkage between how the defendant intended the word to be understood, and the fact that he smashed a baseball bat on the head of his interlocutor moments later.