254. Misunderestimating

Orwell long ago observed that unclear prose is usually evidence of unclear thinking.  So what are we to conclude about the following words written by a New Jersey judge?  The judge, Jack M. Sabatino, is describing the effect of Crawford v. Washington, the opinion in which Justice Scalia confessed that for over two centuries the U.S. Supreme Court  wickedly required all lower courts in the country to violate the Constitution's sixth amendment.  (See post 127 and post 238.)

Here's Judge Sabatino:

Crawford has dramatically affected the day-to-day prosecution of criminal trials and appeals across the nation. ... This sea change in criminal practice cannot be underestimated.

In response to Judge Sabatino, I would say: Crawford is no big deal.  There, see?  I've just proven that the sea change can be underestimated.

(Of course, it's possible Judge Sabatino's point was that a "sea change" cannot be estimated, much less under- or overestimated, because the cliche is  completely devoid of meaning.  Non-meaning, by its nature [or non-nature], resists estimation.  But, viewing his words in context,  I don't think that's what he was getting at.)

Sabatino isn't alone in his confusion about the meaning of a relatively simple English word.  A few years ago, England's Guardian ran this correction:

In an item headed, No to a DNA database ... we said, "The seriousness of the threat to individual liberty cannot be underestimated." Yes it can. The writer meant that the threat is so great that it cannot be overestimated or overstated. It is a frequently recurring error.

I picked up the link to the Guardian correction from the U.-Mass. Amherst's Department of Linguistics newsletter (researching a blog isn't for the faint-hearted), which reports the appalling datum that as of January 27, 2005,

A Google search for the two phrases shows approximately 54,200 examples of "cannot be overestimated" vs.132,000 for "cannot be underestimated." ...  Presumably those speakers of English who use "cannot be underestimated" in the sense intended by The Guardian understand "cannot" to mean "should not" or "must not."

So there you have it: statistical proof that a majority of people writing in English today don't speak the language.  The U.-Mass. linguists, who appear to be (like most modern linguists) a descriptive rather than proscriptive bunch, wonder: "Is this another case like 'I could(n't) care less' (but without the stress difference)?"  The "stress difference", as explained by Steven Pinker, the Boston-based linguist who buys his wigs from the same place as Howard Stern, is that "I could care less" is sarcastic.   

But I'm pretty sure Judge Sabatino wasn't being sarcastic, either. 

Evidence that, instead, he just wasn't thinking about what he was saying can be found in the case that inspired him to display his inattention.  The case involved a man accused of injuring his girlfriend's 3-year-old son.  A doctor who examined the boy 

found extensive injuries to the child's head, scalp, eyes, ears and neck, with lesser injuries to his left flank and scrotum. His eyes were dark and swollen, as were his ears. There were also large areas of blood collecting under his scalp. The manifestation of the injuries had worsened significantly from the night they were discovered, on October 18, and the child had lost a lot of blood internally. The doctor testified that the injuries to the child were purposely inflicted upon him and were not the result of a fall, as evidenced by their type and pattern.

The child spent two weeks in a pediatric intensive care unit recovering from his injuries.

Now, as you predict how the case will come out, remember the analytical tools set out in post 250.  The defendant was prosecuted by the executive branch and convicted by a jury.   The Appellate Division could go along with their decisions, or it could exert its own power by reversing the perpetrator's conviction.  Which would be better for the Appellate Division? 

That, however, is only a weak positive result, so we need to proceed to the next step.  The victim was a very young person.  The perpetrator, by contrast, was an adult male.   Who has greater social status? - which is another way of asking: Who would adult male judges find it more psychologically comfortable to identify with, the helpless, terrified and bleeding toddler, or the cleaned-up young man in the business suit sitting beside his lawyer in the courtroom?

The legal question was whether the perpetrator was denied his right to cross-examine the 3-year-old regarding statements the boy made to a social worker.  What the boy said was: "I fell down in my room. I want to go home to grandma" and "Dad says nobody beat me. I fell when I was sleeping in my room".  (The perpetrator wasn't the real father, but as part of his campaign of domination required his victim to call him "Dad.")

Judge Sabatino and his two colleagues ruled that the perpetrator was denied his constitutional right to confront the child about those statements.   In their view, the defense lawyer should have been able to put the boy on the witness stand and, leaning in close for the kill (but with the occasional sly sideways glance at the jury), demand in a voice heavy with menace:

"Now, when you told the social worker that you fell in your room, you meant that you fell in your room.  Isn't that right?"

"Directing your attention to your statement that Dad says nobody beat you.  What you meant was that nobody beat you.  Is that not correct?  Remember, you're on oath now."

"Isn't it true that when you said, I fell when I was sleeping in my room, what you meant to say was that you fell when you were sleeping in your room.  Isn't it?  Isn't it?"

I think it's pretty obvious that the Appellate Division judges weren't thinking in these concrete terms.  It's just silly to think that the defendant had any wish at all to attack the truth of the boy's statements (with one exception, discussed below).  Which explains Judge Sabatino's inability to express himself coherently: "As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse."

So let's look at at the abstract level on which the New Jersey judges pretended to operate.  The technical legal question before them was whether the prosecution offered the boy's statements "for the truth of the matter asserted."  Crawford itself says: "The Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."

But although two of the three judges who joined in the decision published opinions, neither opinion gives the least sign that the judge recognized the obvious point that the boy's statements were damaging only because they were so obviously - so piteously - untrue.

The only little bit that might arguably have been offered for the truth was the phrase that began: "Dad says ..."  But if those words were true (as of course they were), then the boy was authorized by Dad to say what followed ("nobody beat me").   It was fake-Dad's own statement, and therefore Crawford didn't apply.  After all, he could always cross-examine himself.  ("Why did you tell the boy to lie?"  "Because I didn't want to go to jail."  "Oh.  Okay.")

It's not as if these are difficult legal doctrines.  It's just that the New Jersey judges were so eager to pontificate about sea changes and Copernican revolutions (yes, that cliche is in Sabatino's opinion, too) that they didn't pause to think about the case in front of them.   The absence of thought explains Sabatino's use of "underestimate" for "overestimate" - although it must be said that the latter word would have been just as absurd as the former, because while Crawford makes it harder to convict the people who drive drunk and beat children and women, it doesn't exactly qualify as "a central and defining epiphany in all the history of science."  By dragging poor Copernicus into it, Sabatino shows that it's every bit as easy to overestimate Crawford's importance as it is to underestimate it. 

Sabatino's opinion came out last December.  Since then, surely, the judges on his court have had time to become deeply embarrassed, right?  He himself, doubtless, spent hours on the telephone with the publishers, trying desperately to withdraw his misbegotten draft?

Of course not.  Just two weeks ago Sabatino's meaningless words were quoted with a pompous show of approval by the Chief Judge of his court.  Time alone is insufficient to introduce judges to English, when thinking about what they're saying would only interfere with what they're doing.