November 29, 2007

On explicitness and discourse markers

It seems that Language Loggers have done a lot of posting about Thanksgiving this season. The holiday is now over but I have one more thing to say about the "thank-you" part of Thanksgiving (however it's pronounced). Last week I  got a thank-you message from a young lawyer I had helped defend at his criminal trial back in 2001. I've consulted in some 500 cases over the years but I  don't remember ever before receiving a thank-you for my efforts. I've posted about thanking in the past. It seems that we may be forgetting how to use this speech act.

This young lawyer, Brian Lett, had just graduated from law school and his first client was a telemarketer who had some serious legal problems. The police had made tape recordings of two undercover conversations that led them to think that Lett had conspired with his client to obstruct justice. He was accused of trying to steal investigative records from the U.S. Postal Service and was also charged with trying to use his influence to get the prosecutor removed from the case.

Here's the story. It was early in the telemarketing case and the government had not yet turned over the discovery records that Lett needed to defend his client properly. Lett's trouble began when an undercover agent, posing as a Visa investigator, telephoned him. This conversation was the evidence used against him (Lett was not on the second tape). The agent began by telling Lett that copies of those needed files had been made. Then he asked Lett if he'd like to have a copy of them, wording it oddly: "Do you want those retrieved?" Of course Lett wanted them. To him (and I would guess to most of us) the dictionary definition of "retrieved" is discovered, brought in, or recovered from storage. The agent's question contained nothing to suggest that the records would be stolen or otherwise obtained illegally.

Next, the agent upped the ante, saying: "Those things, they gotta disappear. If you don't get rid of 'em all, then you're gonna be stuck." To this, Lett replied: "The huge thing now is the prosecutor." What did the agent's "get rid of 'em all" mean to Lett? As a lawyer, it was his job to get rid of the charges. He hadn't seen the evidence yet and he wanted the prosecutor to turn over the required discovery material so that he could learn the basis of the charges against his client. Picking up on Lett's mention of the prosecutor, the agent then asked, "What do you think the best thing to do with him?" Lett didn't catch the agent's opening to have the prosecutor removed from the case and so he responded: "Just get him to stop doing what he's doing."

At trial the investigator claimed that Lett's observation about getting the prosecutor "to stop doing what he's doing" meant that he wanted that agent to use his influence to do something far stronger than to stop the prosecutor's continuing efforts to block the discovery process. His inference was not supported by the actual language used. But the agent didn't stop there. He tried again: "It would take somebody puttin' pressure on him and then somebody actually obtaining the files that he's got," to which Lett said that this sounded good, if it can be done. "Obtaining" seemed harmless enough and "somebody puttin' pressure on him" could be understood to mean somebody putting pressure on the prosecutor to turn over the files.

To this point the agent had been trying to get Lett to incriminate himself. He had already used "obtain the files" and "retrieve the files" and this hadn't worked well so he decided to be more explicit by using the dreaded S-word, "steal." In undercover cases it's usually prudent first to get the target to implicate himself. But when that fails, you have to use a more direct approach. So the following exchange then took place (discourse markers highlighted):

Agent: Okay, well let me tell you something now. Uh, we're talking about, we, we're talking about, I got somebody stealing these files.
    (short pause)
Lett: Oh!
Agent: They have to be destroyed. You understand that, don't you? Because they don't exist no more.
Lett: But who, who, where are they  going then?
Agent: I thought you wanted them at your office.
Lett: Yeah, I do, but, I mean, okay, I just wanted to know and then---
Agent: (interrupting) Didn't your client say he needed to go through them or something?
Lett: No. We can, I mean, I don't know, I don't think it's, you know, as long as it's done, done with, then that's fine.

When the agent finally uses the explicit verb, "steal," Lett replies with the discourse marker, "oh," an indication that this is new information in which the speaker is undergoing some kind of change in his current knowledge, information awareness, or orientation. His "but" discourse marker indicates a contrast, a challenge, or a disagreement. His "okay" marker is also significant, for this discourse marker of clarification indicates that Lett was about to clarify his intentions. The agent blocks this by interrupting Lett before he can finish explaining his surprise, challenge or desire to clarify.

In my book, Creating Language Crimes (Oxford U Press, 2005) I describe eleven powerful conversational strategies sometimes used by law enforcement in criminal investigations. Three of these occur in this case: (1) camouflaging illegality; (2) interrupting at the point when a target is leading up to an exculpatory clarification; and (3) employing the hit and run strategy after first suggesting something potentially illegal. First, the agent camouflages the illegality with words like "retrieve" and "obtain." Failing to catch his prey in this, the agent then resorts to the explicit use of "steal," which might have worked if Lett had any criminal intent in the first place. His response of surprise, "Oh!' indicates that he didn't have that scenario in mind at all. Growing bolder, the agent then says the records have to be "destroyed." Lett is still in the dark and asks where the records are going, hardly words of agreement. Finally, when Lett stumblingly says, "I just wanted to know and then--" the agent calls on the old favorite conversational strategy of interruping the target before he can say anything that might be exculpatory, then follows with the hit and run strategy of changing the topic to Lett's desire to see the files. By then, Lett appears to be thoroughly confused, concluding that if it's "done with, then that's fine." The remaining issue is what Lett means by "done with." If it's true that the files no longer exist, his client's case is in good shape -- a defense lawyer's dream.

Lett was acquitted at trial. After I gave my testimony, I flew home and never heard from him again until last week, when his thank-you message popped up in my in-box. He told me that he is now a successful lawyer, practicing law in Canada, where he now lives with his wife and new baby. Thank-you messages can do a great deal for both the writer and the receiver. We ought to be doing more of this. It certainly made my Thanksgiving pleasant.

Posted by Roger Shuy at November 29, 2007 12:36 PM