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Several Language Log readers have asked me what a linguist might be able to do with the undercover tapes in the escalating case of Illinois governor Rod Blagojevich. The simple answer is, “I don’t know; I haven’t heard them.” That puts me in the same predicament with his lawyer, Ed Gensen, who faces the problem of having to defend the governor on charges that, so far at least, have not been accompanied with the hard evidence allegedly on the tapes. But hey, that’s how the system usually works. Prosecutors wait as long as possible before revealing their best evidence. Among other things, this helps to delay the defense from preparing as quickly as it could.

For all we know at this time, the tapes may contain very damaging evidence that the prosecutor has not yet chosen to reveal. On the other hand, the tapes might be like those in many other cases I’ve worked on in the past — they just look bad. For example, we’re told that they are full of foul language. That’s not enough to convict the governor of a crime but it certainly helps build the impression that something much worse is there. The appearance of guilt goes a long way toward convincing the jury (or the public, for that matter) that what they eventually will hear is worse than the actual words on the tapes may reveal.

To begin with, people indicted in cases where there are tape recordings start with two strikes against them: (1) they are indicted, therefore they are thought to be guilty; (2) there are those dreaded tape recordings and many people feel that the government wouldn’t indict unless the tapes showed guilt. In the Blagojevich case, the prosecution is also aided greatly by the cocky, gangster-like persona that the governor exudes. It’s not easy to like him or to believe him. And then there is the long history of crime among Illinois politicians. You see where this is going? Well-placed affect gives his lawyer a steep hill to climb.

I have no idea what lawyer Gensen has in mind as he prepares his defense plans. But I have worked with him several times in the past and I know that he’s quite good at using the government’s tape-recorded evidence to cause it to backfire on them. Sometimes this can be done even when you begin with two (or more) strikes against you. Often it involves asking several questions that linguists commonly ask in such cases, such as:

• Are the potentially damaging speech acts of promising, offering, denying, agreeing, etc. even on the tapes? If so, are they felicitous and explicit or are they implied or inferred? And were they made by the target or by other speakers?

• Does the context of the alleged inculpatory language indicate that the topic was about something else or something more benign and is not explicitly relevant to the charges?

• Do the taped passages selected by the prosecution from the hours and hours of conversation accurately represent the charges against the governor? Do the “snippets” (as Gensen calls them) selectively omit parts in which you can hear exculpatory statements?

• Are feedback markers, like “uh-huh” and “okay” treated as agreements rather than as indicators that the speaker is simply uttering noises that tell the speaker to keep talking?

• How accurate are the transcripts? The jury (or the legislature during an impeachment process) will probably be given transcripts of the tape recordings. They are likely to rely on the transcripts rather than the tapes. It takes careful listening to determine crucial differences such as the ones between positive “would” and negative “wouldn’t.” And does the transcript indicate clearly who was present in the conversations and whether the listeners were close enough to the speakers to be likely to have heard what was said? Does it delete parts of the conversations that do not show what the prosecution wants it to show?

• What is the contextual meaning of expressions cited in the criminal complaint, such as “something tangible,” “a valuable thing,” “anything of value,” “golden,” “negotiation,” and “for free”?

• Have the tapes been altered in any way? This is a matter for an acoustic engineer to determine, but once in a while there is reason to suspect that convenient alterations were made. And are the copies of the evidence tapes that are given to the defense as clear and accurate as the original copy used by the prosecutor?

I am by no means trying to suggest that the prosecution is guilty of any of the above things or that the governor is innocent. It may turn out that he is as guilty as the public has been led to believe by the information so far made available. But tape cases are different from other types of criminal cases. Good defense lawyers are likely to make their own intelligence analysis that differs from the prosecution’s.

We’ll have to wait and see how Gensen handles this.

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