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Sunday, February 22, 2004

Column: Ham on Wry

When a Brooklyn grand jury recently handed down an indictment against his client, defense attorney Ron Aiello didn’t flinch.

“A grand jury will indict a ham sandwich,” scoffed Aiello, whose client, Jeffrey Feldman, has been accused of committing various acts of political corruption, along with his boss, Brooklyn Democratic Party leader Clarence Norman.

His point, of course, was that a grand jury will indict – that is, bring formal charges against – anybody, even certain foodstuffs.

Aiello did not come up with this zinger himself. In fact, the phrase has been bandied about so much in recent years that most people are probably a little afraid to order a ham sandwich, lest they be indicted as accomplices.

The exact origin of the indictable ham sandwich – like so much else in law – is shrouded in mystery. Some sources attribute the phrase to defense lawyer Barry Slotnick in connection with the “Mayflower Madam” prostitution case of the mid-1980s.

Hilary Clinton cites a different source. In her memoir Living History, the former First Lady turned Senator refers to the “the immortal words of Edward Bennett Williams, ‘a prosecutor can indict a ham sandwich if he chooses.’” Williams, now deceased, was a giant of the Washington, D.C. bar, and founder of the firm of Williams & Connolly. Although such a quip would not have been out of character for the legendary Williams, I can find no further evidence to support his authorship.

The most commonly-cited source of the “ham sandwich” critique is a 1985 interview with then-Chief Judge Sol Wachtler of the New York Court of Appeals. It is possible, however, that Wachtler was repeating something he had heard elsewhere. Either way, Wachtler’s use of the phrase served to popularize it and it has since become a courthouse staple.

Life Imitates Art

In what might safely be called an ironic twist, Wachtler himself was indicted seven years later for sexual harassment. Trapped within his own piquant metaphor, Wachtler had now become the equivalent of a ham sandwich.

Wachtler was convicted and sentenced to serve time. Because he was diagnosed with a severe mental illness, he was ultimately referred for psychiatric treatment at Rochester Prison, a federal facility associated with the Mayo Clinic. The moral of the story, I suppose, is that even if a ham sandwich is indicted, it still needs Mayo.

The Sandwich in History

Indict is itself a curious word – many people wonder where that silent “c” came from. The word began its life in early Renaissance England with the admirably phonetic spelling indite, meaning “to write down.” In the 17th Century, when the word took on its narrower meaning of “to write down legal charges,” some scholar added the “c” to make the word more faithful to its Latin ancestor, indictare. The innovation, evidently, caught on.

And while we’re on the subject, what is so grand about a grand jury? The adjective simply comes from French word for “big.” In Medieval England, an accusatory jury consisted of 23 persons, and was referred to as le graunde inquest or grand jury, using the Law French that dominated British proceedings at the time.

The jury that would ultimately decide the guilt or innocence of the suspect had only 12 men, and thus became known in similarly gallic terms as the petit jury. For some reason, modern English has preserved the “grand” but dropped the “petit,” although the latter word survives in the criminal context in phrases such as petty theft.

Like all clich├ęs, the ham sandwich remark has some basis in fact. A number of studies have criticized the traditional procedures before grand juries – like, defense counsel cannot appear and the prosecutor is under no obligation to present exculpatory evidence – as making it too easy for prosecutors to obtain indictments. The institution was abolished in its native Britain in 1948. But in the U.S., the grand jury is more difficult to get rid of, at least at the federal level, because it is enshrined in the Constitution.

Research fails to disclose any instance of a ham sandwich actually being indicted – nor is there any evidence that a ham sandwich has ever committed a crime. The closest I can find is the infamous ham sandwich that was rumored to have caused the choking death of Mama Cass, the beloved lead singer of the 1960s pop group, the Mamas and the Papas. However, an autopsy on Ms. Cass confirmed that she did not choke on a sandwich, ham or otherwise.

Historically, the law appears to be lenient even on people named “Sandwich.” I refer, of course, to John Montagu, the Fourth Earl of Sandwich, for whom the sandwich is named (he ordered his servants to bring him meat between two slices of bread so that he would not have to interrupt his card game). He was a politician of legendary corruption, even by the standards of 18th Century Britain. Despite his plundering of the Royal Treasury, Lord Sandwich was never indicted.

Throwing the Book

Crime and criminal law has long been a rich source of slang. A stooge, for example, is an informant, a suit is a lawyer. Oddly enough, since the late 1960’s, counter-culture types have referred to the police as pigs, which would put them in an awkward position if they ever did have to prosecute a ham sandwich.

And let’s say a ham sandwich were to be indicted. What would happen then? The sandwich would have to stand trial and decide whether to testify, or just sit there wearing a honey-glazed expression. It would be an ordeal, even for one with such an admirable mixture of protein and carbs.

If the sandwich were found guilty, the judge might throw the book at it. Here we see up close what a dangerous business it is to mix metaphors. If a judge were to throw the book at a ham sandwich, or indeed any sandwich, the result would be an awful mess – cold cuts, tomato, and mustard splattered all over the courtroom.

“To throw the book” at someone was originally an underworld phrase, probably from the 1930s. The basic image, which still survives, is that of a judge convicting a criminal with every crime in “the book,” an imaginary book of penal laws.

The fact that this metaphor exists at all just shows you how much criminal law has changed over the last century or so. Throughout most of the 19th Century, the phrase would have made little sense, since criminal law was still largely a matter of common law, and therefore not compiled in a single book. A harsh judge would have to “throw the precedents” at a criminal – which doesn’t have quite the same menacing ring to it.

It was only after 1900 that most states got down to the business of enacting all-inclusive penal codes. But the codification of the law penetrated the popular mind sufficiently quickly so that by the 1930’s, criminals knew that the law was written down in “the book.”

Book ‘em!

Before a suspect can be convicted, or even indicted, the police must arrest him – or “book him,” as the saying goes. It is not at all clear where the phrase comes from – or whether the book of “book him” is the same book that judges like to throw. What is clear is that the phrase became universally known through Hawaii Five-O (which ran from 1968 to 1980). In the show, Detective McGarrett, memorably played by Jack Lord, would typically end each episode by calling out to his second-in-command: “Book ‘em, Danno!”

But not even McGarrett would try to book a ham sandwich. Unless it came with a slice of pineapple.

(This column originally appeared in the February 2004 issue of New York Law Journal).