The Government, By Any Other Name (Update)

In federal court, criminal cases are captioned as “United States of America against” whom (or what) ever.  The etiquette is to call the prosecution “the Government,” though I tend to spell it in written submissions with a lower case “g” while they use an upper case “G.” It’s my little way of tweaking them.

In New York State courts, on the other hand, criminal cases are styled as “The People of the State of New York against” somebody, and the prosecution calls itself “The People.” This offers the opportunity to use that against them, calling them the prosecution instead, and reminding the jury that they, not the prosecution, are “The People” and not to let the prosecution fool them. If done well, it can drive the point home.

Most other states have some similar variation on this theme, putting themselves in a throne of rhetorical righteousness while dumping the defendant in the hole of scorn. But apparently, Tennessee, the state got a bit twisted when the rhetoric game wasn’t going their way. From David French at the National Review:

Over in Williamson County, Tennessee…it’s apparently now a slur to call the government by its name.

There was a time when the word “government” projected an image of solidity, trust, power, all of which served the prosecution’s function well.  Apparently, not so much anymore.

The State has noticed in the past few years that it has become commonplace during trials for attorneys for defendants, and especially Mr. Justice, to refer to State’s attorneys as ‘the Government,’ ” [prosecutors wrote.] “The State believes that such a reference is used in a derogatory way and is meant to make the State’s attorney seem oppressive and to inflame the jury.

By “used in a derogatory way,” perhaps it’s said with a sneer, or one of those Dr. Evil laughs.  Or maybe, it’s merely the fact that the government has brought derision upon itself, and would prefer a different image?  Trustworthy, perhaps?  But what sort of voice inflection is being used to make the prosecution “seem oppressive and to inflame the jury”?  I need to know, so I too can do so.

As it turns out, the defense attorney has an ace up his sleeve, his name being Drew Justice.  How cool is that?  If he makes it to the Supremes, he will be Justice Justice, which would be beyond awesome.

But Justice had more than a name going for him; he had a sense of humor.

He demanded his client no longer be referred to as “the Defendant,” but instead be called “Mister,” “the Citizen Accused” or “that innocent man” — since all defendants are presumed innocent until a judge or jury finds them guilty. As for himself, clearly “lawyer” or “defense attorney” wouldn’t do him, well, justice.

“Rather, counsel for the Citizen Accused should be referred to primarily as the ‘Defender of the Innocent.’ … Alternatively, counsel would also accept the designation ‘Guardian of the Realm,’ ” Justice wrote.

And since prosecutors are often referred to formally as “General” in court, Justice, in an effort to be flexible, offered up a military title of his own.

“Whenever addressed by name, the name ‘Captain Justice’ will be appropriate.”

Gathering steam, he went on to say that even “the defense” wasn’t adequate and that “the Resistance” would be far more appropriate.

He then concluded his motion, returning to the formal language of court documents — sort of.

“WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis.”

The court, shockingly, denied the motions of both the government and the Guardian of the Realm.

As much fun as Justice’s motion may be, and it’s absolutely hysterical, there is more than ridiculousness in the prosecution’s motion to be called something other than what it is.  The fact that the name “the government” conjures up a derogatory image in the minds of jurors is a reflection of how it’s viewed, as an entity to be feared and despised by the citizens sitting on a jury.  This is no small thing.

The solution from the government’s perspective is to change the rhetoric, maybe call the prosecution “protectors of kittens and children,” to try to influence jurors to see its armed forces and oppressive might in a kinder light. Or, perhaps a more effective solution is to apprehend the problem and change the way in which government acts toward the citizens for which it exists.

If the government does not want to be viewed as oppressive, stop being oppressive.

And if it refuses to change its evil ways, resorting instead to new names much like its laws are entitled to convey anything but their substance, we can always turn to Captain Justice, Guardian of the Realm and Leader of the Resistance, to remind them of just how poor a job it’s doing of holding the public’s trust and confidence.

Update:  Turns out this isn’t new stuff, but is that same story as was posted by Kevin Underhill at Lowering the Bar and Will Baude at Volokh Conspiracy a couple years ago. Still, it’s fun stuff and worth a reprise.

10 thoughts on “The Government, By Any Other Name (Update)

  1. Guardian of the Realm II

    “If the government _does_ want to be viewed as oppressive, stop being oppressive.”

    —> ‘does not’

  2. Rick Horowitz

    Years ago I did something like this, filing motions titled, “Motion for Fair Trial.” It brought laughter to the courtroom once, when a judge actually said out loud, “The defense motion for a fair trial is denied.”

  3. ShelbyC

    Out of curiosity, would one be allowed to tell the jury that the government had sought to avoid admitting that it was the government, presumably because it knew it couldn’t be trusted?

    1. SHG Post author

      When you preface a question with “out of curiosity,” it completely changes the fact that this isn’t a free legal Q&A site for nonlawyers.

      And if you ask yourself, “is this material and relevant,” you will get your answer. Think hard, though.

  4. Charles Platt

    I vividly remember receiving documents headed “State of Arizona vs. Platt.” My God, Platt was in a battle with an entire state–what chance would he have? And I think that was exactly how they wanted me to feel. Intimidated, and impressed by their status.

    Rather than “The State,” or “The People,” or even “The Government,” I would go for an appelation such as “The Attorney Funded with Tax Money,” as in,

    “Members of the Jury, the Attorney Funded with Tax Money has asked you to believe that the Defendant is guilty….”

    Make it personal.

Comments are closed.