Words Matter

Attorney Josh Tepfer
Two recent stories remind me of the power of language and how the words we use matter.

Story #1

For two days on October 30-31, 2018, my colleagues and I were on trial in Winnebago County in Rockford fighting for a certificate of innocence for our beloved client John Horton. Since the moment of his formal arrest after 1:00 a.m. on September 25, 1993—when John was a skinny, baby-faced, 17-year-old mama’s boy—he was branded with a title he never wanted: Defendant. It was an accurate descriptor—Defendant—as John spent the next 24 (23+ years of which were in a cage) defending himself against the false allegations that he murdered Arthur Castaneda. John, of course, did not do so. John never wanted that title—Defendant. The State of Illinois thrust that title upon him.

It took 24 years, but John, finally, successfully defended himself against these false allegations. Roughly a year after his conviction was vacated, approximately 8 months after he finally was released from behind bars, a Special Prosecutor dropped all charges against him. At that moment, John was stripped of that label—Defendant. It was over. He never had to walk into a courtroom to defend himself again.

When John walked into court on October 30, 2018 seeking a certificate of innocence, he was something quite different. He was a voluntary participant. He was a Petitioner. He was defending nothing. It was the State of Illinois that was now defending against John choosing to take his case to court.

As my co-counsel Karl Leonard noted, the prosecutor couldn’t get it right—he repeatedly referred to John as a Defendant throughout the proceeding. It was “habit,” said the prosecutor later, and I will admit that I didn’t even catch it myself as it was happening.

In closing argument, however, we noted it. The words felt powerful as I said them in court. Having helped defend John against the false allegations for 8 years, I felt a tremendous sense of relief as I pointed out to the court we were defending nothing. The narrative had changed—John and I would never have to defend against these false allegations again. We were in court seeking a new branding, the correct label—An Innocent Man.

John deserves that new branding from the State of Illinois. We hope to learn by Christmas whether he gets it.

Story #2

On November 2, 2018, the Cook County State’s Attorney’s Office voluntarily dismissed charges against six more men and one woman whose convictions stemmed from disgraced Sergeant Ronald Watts and his tactical team. That brought the number to 50 individuals whose convictions have been overturned.

Fewer than six weeks earlier, after the State’s Attorney’s Office agreed to dismiss 18 convictions, the elected prosecutor, Kim Foxx, did something special: She publicly apologized to my clients. In fact, perhaps even more poignantly, Ms. Foxx came to court, shook each of my client’s hands, and privately apologized to them. That was special—and rare.

But the truth is Ms. Foxx was not the one who really needed to apologize. Ms. Foxx wasn’t one of the officers who abused citizens on the southside for more than a decade. (That’s Watts and his team.) Ms. Foxx didn’t sit by and stay silent while this abuse went on. (That’s all the Chicago Police Officers who knew what was going on but didn’t care enough to speak out and cross the thin blue line.) Ms. Foxx didn’t cover it up. (That’s the top brass at the Chicago Police Department and City Hall.) In fact, Ms. Foxx has dedicated resources to working cooperatively with us to go back and fix these injustices. It was gracious and kind of her to apologize, but she’s not the one who needs to apologize. The apologies should come from the City and the Chicago Police Department. It probably surprises no one that we are still waiting.

On November 2, 2018, Ms. Foxx made a statement. In that statement, she chose words that were even more meaningful than an apology she didn’t have to make. The relevant portion is as follows:

“We found a pattern of misconduct by Watts and other officers in these cases, which caused our office to lose confidence in the initial arrests and validity of these convictions,” Foxx said. “May the defendants, who we now believe were victims, find a path forward in healing and justice.”

There is that word again—defendants. Ms. Foxx changed the narrative by explicitly saying these individuals are not defendants. They are victims.

What a tremendously powerful, and deliberate, choice of wording—victims. Prosecutors consistently—and appropriately—align themselves with crime victims. They represent the State and through their position can give a voice to victims of crime. They have units in their office dedicating to helping crime victims find “healing and justice.”

Ms. Foxx recognized that my clients—formally defendants—were actually the crime victims her Office tries to give a voice to daily. Ms. Foxx said it without qualification. I just can’t quite stop thinking about this. All it is one word. But it is an extraordinarily powerful statement from the top law enforcement officer in our County.