Beware the Snitch!

The world “snitch” is an old synonym for “tattletale.” Webster’s New Collegiate Dictionary dates its usage to 1785.

In a legal context, however, it’s a relatively recent word. It isn’t even in the Fifth Edition of the widely used Black’s Law Dictionary, published in 1979. In that edition, only a generation old, the alphabetical listings jump from “smut” to “so” without an intervening snitch.

In the 1980s, however, the word came into much wider usage. This was principally because as America’s ill-fated “War on Drugs” escalated unimaginably, the use of informers to find (or fabricate) evidence against drug offenders became widespread. Someone who played the role of informer, usually in return for a reduction in his or her own sentence, was and is known as a snitch.

PBS explored the problem in considerable depth in a 1999 documentary called simply Snitch. The program also explored the unfairness of many mandatory minimum penalties in drug cases.

Producer Ofra Bikel’s interest in the issue was galvanized after hearing the story of an 18-year-old young man who was set up by someone he thought was a good friend. When the 18-year-old got some LSD for this “friend,” it turned out that the person was in cahoots with federal drug enforcement agents — and desperate to get a break on his own drug sentence.

To Bikel, it seemed crazy that this 18-year old with no previous convictions should suddenly be sent away for a minimum of 10 years on evidence supplied by a snitch. After all, a snitch has a tangible incentive to lie in order to catch a break from prosecutors in his or her own case.

I saw Snitch in 1999, when I was living in Des Moines and working for a special task force created by the Iowa Legislature to review criminal sentencing policy. But I hadn’t thought about it for years — until I saw the current USA Today article on snitches in the federal justice system.

The USA Today piece examines how informers in federal cases essentially buy reductions in their sentences by providing information to prosecutors about other defendants. According to USA Today, one in eight federal prisoners is engaged in this type of pay-to-snitch venture.

To be sure, in this context “pay” doesn’t mean money changing hands. But a reduction in a prison sentence for someone looking for leniency in his or her own case is definitely a powerful incentive to cooperate with authorities. And it can easily cross the line into telling them what they want to hear, regardless of the truth.

How in the world Harry Potter author J.K. Rowling came to use the word “snitch” to refer to a peculiarly elusive ball in the game of Quidditch, I do not know. Interestingly, though, in Quidditch, the snitch is pursued by two players, one on each side, who are called Seekers.

These Seekers are not searching for truth; they simply want the snitch. Analogizing to an adversarial criminal justice system, the problem is that each side has such an incentive to cherry-pick the truth. Instead of seeking the truth of the matter, prosecutors too often try to use snitches to notch another “win” in the competitive games they play.

At stake in those games is much more than victory in a Quidditch match. People’s liberty is on the line, with the prospect of spending years behind bars because a snitch made up or embellished a story about them, just to stave the snitch’s own skin.

Probable Cause in the Wizarding World

“Odi et amo.” These short yet powerful words, from the Latin poet Catullus, can be expressed almost as succinctly in English: I love and I hate.

Catullus wrote two millennia ago. Yet such strong emotion is inevitably appealing, then and now. Small wonder that the self-promoting entertainer Cher once borrowed them to promote a concert tour.

Certainly such primal feelings are one of the key drivers of the hugely popular Harry Potter books and movies. Harry loves his friends, particularly Ron and Hermione and, later in the series, Ginny.

But he also hates his enemies: Voldemort, who killed his parents, and, on scene at Hogwarts, Severus Snape and Draco Malfoy.

Last night, I watched The Half-Blood Prince on DVD for the second time. Midway through the film, Harry, Ron, and Hermione, along with other students, are returning to Hogwarts from a visit to the nearby village. Suddenly, a student walking up ahead, Katy Bell, is swept up into the air, clearly possessed in some way.

Katy had been cursed with a spell (a form of assault) and made to carry a necklace intended to kill Prof. Dumbledore, the beloved Hogwarts headmaster. Beloved, at least, by all who truly live in the light.

The dark arts are fully unleashed, however, with Voldemort’s return. Harry Potter’s classmate Draco Malfoy is drawn, or chooses, to do the “dark lord’s” bidding.

After five years of tangles with Malfoy (and Malfoy’s father), Harry has deep-seated personal reasons to suspect Draco of committing the crime of cursing Katy. But standing before the highly rational and fair-minded Professor McGonagall and the saturnine Snape, he struggles to articulate his reasons.

McGonagall asks who could have done it. Harry blurts out that it was Malfoy. Snape challenges him to state his evidence. But Harry can reply only, “I just know.”

Even in the wizarding world, probable cause requires more than that.

Goodell, von Ranke, and Factual Bedrock

Roger Goodell, the pragmatic, business-savvy commissioner of the National Football League, would seem to have little in common with Leopold von Ranke, the staid nineteenth-century German historian.

Goodell spends his days managing the cash cow that is the NFL. Like his counterpart David Stern in the NBA, the commish is ever-alert to minimizing scandals involving star players. If such scandals spin out of control, the league's brand could become tarnished and the line of ready and willing advertisers for TV commercials start to diminish.

Ranke, by contrast, was a German professor who did his work far from the media limelight, in another place and time. Over 150 years ago, he was a key figure in pioneering the professionalization of history as an academic discipline that insists on the use of original documents. Using authentic sources, his goal was to recreate the past "wie as eigentlich gewesen."

Interpretations differ on how to properly translate this German phrase. One view is that Ranke meant historians are to draw upon archival research to present the past as it actually was. Others suggest that the word "eigentlich" is a type of linguistic flavoring particle, and that Ranke did not claim that a historian can truly conjure up the past in all its teeming complexity, no matter how close the research stays to the original sources.

No matter how one interprets the phrase "wie es eigentlich gewesen," however, it seems clear that Roger Goodell's announced goals in the investigation of a possible sex scandal involving legendary quarterback Brett Favre are Rankean in nature. While playing for the New York Jets in 2008, Favre may have sent inappropriate text messages and provocative photos to a sexy sideline reporter named Jenn Sterger.

Favre has moved on to the Minnesota Vikings, where, at 41, he is once again the center of attention for legions of football fans. Sterger, 26, has moved on from the Jets as well, and now has her own spot on a sports-themed cable channel.

Meanwhile, allegations about Favre's (supposed) attempts to seduce Sterger have spilled out into the print media, after first circulating online. Commissioner Goodell has acknowledged that an investigation is underway, and Favre, like Pittsburgh's Ben Roethlisberger before him, could face a fine or suspension for violating the NFL's personal conduct policy.

I applaud Goodell for undertaking a thorough investigation. He sounded downright Rankean in his statement of intent: "We want to make sure that we understand exactly what happened." Serious allegations require serious fact-checking, so the commissioner's deliberation is far preferable to a tabloid rush to judgment or an old-school stonewalling denial.

Yet there is also a certain amount of epistemological naivete - or dis-in-jenn-uousness (bad pun there) - in the premise of Goodell's statement. From Kurosawa's famous film Rashomon to the controversial Clarence Thomas / Anita Hill theatrics at Thomas' Supreme Court confirmation hearing, it is not difficult to find examples of how challenging it can be to get at the whole truth.

This is not to say that truth always eludes us, and that all accounts are relative. As a historian and as a lawyer, I have no doubt that, even amid dueling accusations and interpretations, there is a factual bedrock.

In the case of Favre and Sterger, getting to that bedrock will involve a lot more than interviewing the two principals. The NFL had better get the cell-phone records, so that faithful football fans are not left relying on You Tube, trying to figure out what's going on.

From the Margins to the Manger

Shepherds were ritually unclean under Rabbinic law and could not testify in a court of law. But in the Gospel of Luke, it was they, along with the angels, who gave the first testimony to the birth of Jesus.

For it isn't to the palace that the Christ child comes
But to shepherds and street people, hookers and bums.
- Bruce Cockburn, "Cry of a Tiny Babe"

African Americans, like shepherds, have often been relegated to the margins of society, and an affinity between the two groups is readily apparent in Langston Hughes's Black Nativity. In one version of the play, now in its eleventh year at the Lorraine Hansbery Theatre in San Francisco, wayward shepherds find their way to the baby Jesus singing songs of musicians who have died in the last year.

This year, the shepherds made sure to include songs by Michael Jackson, the King of Pop. Way to go, shepherds! A nice combination of sacred and secular, paying respects to the King of Pop while on the way to honoring the King of Kings!