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When a Brooklyn grand jury handed down an indictment last year against his client, defense attorney Ronald Aiello didn’t flinch. “A grand jury will indict a ham sandwich,” scoffed Aiello, whose client, Brooklyn Democratic party leader Jeffrey Feldman, had been accused of various acts of political corruption. (Feldman denies the charges.) Aiello did not come up with this zinger himself. 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 the law � is shrouded in mystery. In her memoir Mayflower Madam, Sydney Biddle Barrows, of the 1980s prostitution case, attributes the phrase to New York criminal defense lawyer Barry Slotnick. Senator Hillary Rodham Clinton (D�New York) cites a different source. In her memoir Living History, she writes, in “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 Williams & Connolly. Although such a quip would not have been out of character for him, 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, the state’s highest court. It is possible, however, that Wachtler was repeating something he heard elsewhere. Either way, Wachtler’s use of the phrase served to popularize it, and it has since become a courthouse staple. In what might safely be called an ironic twist, Wachtler was indicted seven years later for harassing his former lover and was later convicted. “Indict” itself is 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 seventeenth 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 caught on. And while we’re on the subject of indicting, what is so grand about a grand jury? The adjective simply comes from the French word for “big.” In medieval England, a jury charged with investigating a crime consisted of 23 persons, and was referred to as le graunde inquest, or grand jury, using the French that dominated British legal proceedings back then. The jury that would ultimately find the defendant innocent or guilty had only 12 members, thus the equally French “petit” jury. But back to that comestible. Like all clich�s, the ham sandwich remark has some basis in fact. A number of studies have criticized the traditional procedures of American grand juries � where defense counsel cannot appear and the prosecution is under no obligation to present exculpatory evidence � as making it too easy for prosecutors to obtain indictments. Still, 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 notorious 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 Cass confirmed that she did not choke on a sandwich, ham or otherwise, though she did choke to death. Ham sandwich or not, 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 eighteenth-century Britain. Despite his plundering of the Royal Treasury, Lord Sandwich was never indicted. Adam Freedman writes the “Lingo” column for Corporate Counsel‘s sibling publication New York Law Journal Magazine. He is a senior associate at Schulte Roth & Zabel in New York.

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