She Told Them I’m The Devil

You see a lot of the same things, doing trials over and over again: the same jury instructions; the same oath; the same admonitions.  Sitting in jury selection, the defense attorney will invariably explain the burden of proof and point at me.  She’ll say, “the government, the accuser, they have to prove my client is guilty.”  This is literally, true, I have accused her client of something.  But this little skit bothers me every time.  Partially because another lawyer should know that prosecutors don’t actually represent the government.  But mostly it’s the second part.  In ancient Hebrew (not that I’m familiar with it) the word for accuser is “satan.”  In the Hebrew bible, the word is used repeatedly to describe angels that get in the way of humans, for example, angels discussing Job and his trials.  But it is also used to refer to David and Rezon of Damascus.  The word satan as accuser is mentioned 18 times in the Old Testament, including 14 in the Book of Job.  In most of these references, the definite article precedes the noun: the satan.  It was a title: it didn’t refer to a red horned devil, it just described a role that anyone could play.

Later books in the New Testament, although written in Greek, follow this convention.  Strong’s Concordance gives only two words to define the original Greek word: prosecutor and accuser.  In Revelation 12:10, a voice from heaven says,

Now have come the salvation and the power
    and the kingdom of our God,
    and the authority of his Messiah.
For the accuser of our brothers and sisters,
    who accuses them before our God day and night,
    has been hurled down.”

The public defender doesn’t know any of this stuff when she does her bit; nobody does.  And I’ve been called lots of names.   But at least now I know why I don’t like this one.


“Felon” Means Something Vulgar and Unexpected

“Felon” might be more of an insult than you think.  Its meaning, like the meaning of so many legal words, is much less refined and academic than many of us would assume.

The noun “felon” was first adopted by the English language around 1300, to mean “an evil-doer, or someone who deceives, commits treason; is wicked, or is evil.”  The word was used to describe Lucifer and Herod.  It comes from the Old French word of the same spelling that first began use in the Ninth Century.  This word, which has the same meaning as its English descendant, comes in turn from the Medieval Latin “fello.”  This means “evil-doer” but is itself of uncertain origin.  Some have proposed that it comes from the Frankish “Fillo” which means “person who whips or beats, scourger.  This word went a different path in the German language, and became the source of the Old High German “fillen,” meaning “to whip.”

Others propose that the Latin “fel” is the source of “felon.”  “Fel” means “gall” or “poison,” with the connotation of a bitter person.  Still others propose Celtic origins.

But the origin of “felony” may be more vulgar and more interesting than all of these.  Philologist Robert Atkinson worked at Trinity College in Dublin.  He was a university professor of Romance Language, had the chair of Sanskrit, and also the chair of comparative philology.  In addition to the Latin and the Romance languages, he spoke Sanskrit, Tamil, Telugu, Hebrew, Persian, Arabic, several languages of Central and Western Asia, and other Indian vernacular languages.  He was also an botanist, amateur violinist, and jujitsu enthusiast.  I mention this so that the reader can be assured that this is a Very Serious Man.  Atkinson traced “felon” to the Latin “fellare” meaning “to suck.”  This, of course, has an obscene secondary meaning in classical Latin.  Readers of Martial and Catullus will know that “felon” in this sense, is derived from “cock-sucker.”

For example, here is a conjugated version of “fellare” in Martial:

Quod fellas et aquampotas, nil, Lesbia, peccas: / qua tibi parte opus est, Lesbia, sumis aquam.

Because you suck [cock] and drink water, Lesbia, you err in nothing: / in just the part you ought to be, Lesbia, you’re making use of the water.

(Martial, Epigrams 2.50.)

Or in Catullus:

Bononiensis Rufa Rufulum fellat

Rufa of Bononia sucks Rufulus

(Catullus, Poem 59.)

Fellatio” is derived from this usage of the word “felon,” but retains some of the original sense, even though it was not coined until 1894 by Havelock Ellis.  Despite being a virgin until the age of 32 and suffering from impotence, Ellis was somehow considered a sex expert and has a Wikipedia entry that is definitely worth reading.  The word, “homosexual” is attributed to him.

At the same time that “felon” was coming into use in English, it was also being used in a general legal sense to mean “criminal” or “someone who has committed a felony.”  The term was not applicable after legal punishment was completed.  Australian official James Mudie coined the term “felonry” around 1837.  It means “an order or class of persons in New South Wales, — an order which happily exists in no other country in the world.”  “Felony,” predictably, means “treachery, betrayal, deceit, villainy, wickedness, sin, crime, wrath, ruthlessness, or evil intention.”  As a class of crime in common law, the exact definition has changed over time and place.  Even the distinction from misdemeanor or trespass is not always observed.  In old use, “felony” was often a crime involving forfeiture of lands, goods, or punishable by death.  Someone who commits suicide is called a “felo-de-se,” meaning literally “one guilty concerning himself.”

The Etymology of “Prosecutor”

The Latin “prosequi” meant “to follow after, accompany, chase, pursue, attack, assail, or abuse.”  It is composed of the prefix “pro” meaning “forward” and “sequi,” meaning “follow,” in the same sense as “sequel.”  In its most literal sense, prosequi means, “follow forward.”  In Latin, prosequi was usually used in two ways: literally to mean “follow a path” or figuratively to mean “follow a course of action.”  The past participle of prosequi is “prosecutus.”    Prosequi became a Latin agent noun “prosecutor” in medieval times.  Prosecutus became “prosecute” in the early 15th century, usually meaning “to go into detail.”  The first recorded use of the word to mean “bring to a court of law” is in the 1570s.  At this time, the person who brought a case in a court of law was a “promoter.”  Prosecutor, in turn, acquired its modern meaning in the 1620s.

“Plaintiff” by contrast, arose in the 14th century from the Anglo-French “pleintif,” which in turn was a noun made from the old French adjective “plaintif” meaning “complaining; wretched, or miserable.”  At first, Plaintiff was used interchangeably with “plaintive,” but eventually the modern form prevailed.

Prosecutors are often called a “District Attorney” or “DA,” as I do on this blog.  This title originated with the federal government.  The United State Judiciary Act of 1789, Section 35, provided for the appointment of a person in each of the 13 existing judicial districts to represent the United States in civil suits.  These judicial districts were not coextensive with counties or states, but rather their own geographical entities.  The Act did not confer a title on these people, but court decisions and subsequent laws referred to them most frequently as “district attorneys.”  States followed the federal government and appointed prosecutors to multi-county judicial districts.  For example, New York kept up this practice until 1813.  Even after those states broke up such districts and started appointing or electing prosecutors for individual counties, they continued to use the title “district attorney” for the most senior prosecutor in a county rather than switch to “county attorney.”  Ironically, the federal government, which started the use of the title “district attorney” abandoned it and adopted the term “United States Attorneys” in 1948.

Back I Fall

The word recidivism comes from the Latin recidīvus, which is composed of re- “back” and cedō “I fall”.

California has one of the highest rates of recidivism in the nation.  According to a 2014 report by the California Department of Corrections and Rehabilitation, 61% of those released from California’s prison system return within three years.  And nearly 50% of inmates who recidivate within three years do so within the first six months.

Definitions are important here.  The CDCR rate is calculated by counting those released from prison who return to prison, either in the form of parole violations or new crimes.  It does not count the number of former CDCR inmates arrested, convicted, or given probation.  Thus, a CDCR inmate may be released, commit a misdemeanor, be convicted, and sent to county jail, and still not be counted in the CDCR recidivism rate.  Nor does this rate include those who re-offend out of state.  As the Public Policy Institute of California points out, realignment also reduces the recidivism rate under the CDCR definition by moving prisoners to county jails.  Thus, even though the CDCR rate is shockingly high, it actually understates the problem of recidivism by using a narrow definition.

As the California Innocence Project puts it, these recidivism rates “represent a complete failure of the prison system to achieve its supposed goals of deterrence and rehabilitation.”

These statistics have implications for prosecutor during plea bargaining and sentencing.

Plea bargains should anticipate the likelihood that the Defendant will recidivate.  This may mean more incarceration time.  Studies show that an extra month in prison reduces the recidivism rate by 1%.  If a judge is resistant to this fact, prosecutors may want to suspend execution of sentence in order to make sure that the Defendant suffers actual consequences from a parole violation.  Judges are often resistant to these types of plea bargains because they take away a judge’s decision as to what kind of punishment to impose for a parole violation.  But light sentences given by these same judges may play a role in the sky-high recidivism rate.  Moreover, if a Defendant’s parole violation is merely run concurrent with a new violation, she suffers no actual consequence for the violation.  She will serve the same amount of time that she would if she had just committed the crime the constituted the parole violation.

Prosecutors and judges should craft sentences that reduce the risk of recidivism, particularly during the first six months, when most parolees reoffend.  The seriousness of an inmate’s commitment crime is often inversely related to her recidivism risk.  For example, second-degree murderers have a recidivism rate of 10.3% while car thieves have a 72.5% recidivism rate.

Both of these goals are especially difficult now that realignment has weakened the threat of returning the parolee to prison.

The Etymology of “Misdemeanor”

The crime of the century is not going to be a misdemeanor, but the history of the word itself may be more interesting than some of the crimes it describes.  Looked at the right way, it could be construed to mean “misconducting animals by threatening them,” which might be poetic or might not, I haven’t decided.

Wiktionary gives the etymology of misdemeanor by breaking the word down into two pieces: “mis” (against, opposing) and “demeanor.”  Demeanor comes from the latin de + mener + or.  Mener was latin for “to conduct” or “to lead.”  Mener may also have come from minari, which meant, “to threaten.”

The Online Etymology Dictionary has “demeanor” a little differently.  They say that Middle English had a now-obsolete word demean, which meant “handle, manage, conduct” and by the 14th Century came to mean “behave in a certain way.”  They trace this word by to the latin de + mener, just like Wiktionary does, and like Wiktionary, they trace that word to the latin “minare” meaning “to threaten,” in the way that a person might lead a herd of animals by threatening them.

According to Merriam Webster, the first known use of the word “misdemeanor” was in the 15th Century.  How we got from there, to the word’s modern meaning, which a lesser criminal act in some common law systems, is anyone’s guess.  Misdemeanors are often contrasted with their more serious cousins, felonies, a word that has an etymology that is much more surprising and raunchy than you might guess.

A misdemeanor in its original sense.


Missy “Misdemeanor” Elliot got her nickname from rapper Magoo, according to Jet magazine.  “Magoo gave is to me.  He said it would be cute.  It doesn’t mean anything.  He just thought it would b e cute for me.”  Her name Missy is actually another nickname for her birth name, Melissa.

The word appears occasionally in popular music.  The band Sweet has a song called “Miss Demeanor” on their album Desolation Boulevard.  Foster Sylvers also has a song called Misdemeanor.  British band UFO has an album called Misdemeanor.  And finally, according to Wikipedia, there is a female stoner rock band from Sweden called Misdemeanor.