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Puzzle Embedded in ‘Da Vinci Code’ Ruling
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By SARAH LYALL
Published: April 27, 2006

LONDON, April 26 — Justice Peter Smith’s 71-page ruling in the recent “Da Vinci Code” copyright case here is notable for many things: the judge’s occasional forays into literary criticism, his snippy remarks about witnesses on both sides, and his fluent knowledge not only of copyright law but also of more esoteric topics like the history of the Knights Templar.
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But there is more to it than that. Embedded in the first 13½ pages of the ruling is Justice Smith’s very own secret code, one that when partly solved reveals its name: the Smithy Code.

“The key to solving the conundrum posed by this judgment is in reading HBHG and DVC,” the judge writes in the 52nd paragraph of the ruling, alluding to his code and referring to the two works at issue in the case —”The Holy Blood and the Holy Grail” and “The Da Vinci Code” — by their initials. (In the United States, the book is called “Holy Blood, Holy Grail.”)

On April 7 Justice Smith ruled that Random House, publisher of the megaselling “Da Vinci Code,” did not violate the copyright of “The Holy Blood and the Holy Grail,” a nonfiction work published in 1982 that spins an elaborate theory about how Jesus married Mary Magdalene and how their descendants still live in southern France. Two of the book’s authors contended that Dan Brown, who wrote “The Da Vinci Code,” lifted the central “architecture” of their book and had thus violated their copyright. (The third author of “Holy Blood, Holy Grail,” Henry Lincoln, did not participate.)

The decision was a resounding slap in the face to the two plaintiffs, Michael Baigent and Richard Leigh. But it was also an opportunity for Justice Smith to indulge in a flight of judicial and cryptological fancy.

The first clue that a puzzle exists lies in the typeface of the ruling. Most of the document is printed in regular roman letters, the way one would expect. But some letters in the first 13½ pages appear in boldface italics, jarringly, in the midst of all the normal words. Thus, in the first paragraph of thedecision, which refers to Mr. Leigh and Mr. Baigent, the “s” in the word “claimants” is italicized and boldfaced.

If you pluck all the italicized letters out of the text, you find that the first 10 spell “Smithy Code,” an apparent play on “Da Vinci Code.” But the next series of letters, some 30 or so, are a jumble, and this is the mystery that needs to be solved to break the code.

In a brief telephone interview on Wednesday, Justice Smith declined to provide a solution for a puzzled reporter. Nor would he explain how he had put the code in his ruling, or how long it took him to figure out how to do it.

“I can’t discuss the judgment until after I retire,” he said.

But in a series of brief and ultimately frustrating e-mail messages during the last couple of days, the judge provided a series of intriguing clues. First he said that the different ways codes are broken in “Holy Blood, Holy Grail” and “The Da Vinci Code” should be considered. The idea for the italicized letters, he suggested, came from “Holy Blood, Holy Grail.”

He then suggested moving on to “The Da Vinci Code” and applying one of the code-breaking methods used by its protagonists to solve the mystery of the jumbled letters. “Think mathematics,” he wrote at one point. He drew attention to his own entry in Who’s Who — in which he lists an interest in the history of Jackie Fisher, an admiral who modernized the British Navy, a possible reason that his e-mail address contains the word “pescator,” implying fisherman — and said that the date 2006 was significant.

He even mentioned a page number in “The Da Vinci Code” by way of trying to help. But he declined to go further, saying that “anything else gives it on a plate.”

It has been nearly three weeks since he handed down the ruling. Probably disappointingly for Justice Smith, nobody seemed to notice anything unusual about it when it was first released. But he alluded to the possibility that there was something more soon afterward as a throwaway line in an e-mail exchange with a reporter for The New York Times, saying, “Did you find the coded message in the judgment?”

On vacation in Florida, the judge then declined via e-mail to elaborate much further, other than to refer to anomalies in the typeface. “Start with ’s’ and keep looking up to Page 18 approximately when the fonts stop,” he wrote.

Meanwhile, back in London, Daniel Tench, a partner at the law firm Olswang, was reading the ruling and noticed something odd about the type. “At first I thought it was a mistake,” he said on Wednesday. “It’s not usual practice for a High Court judge to issue a ruling in which he has hidden an encrypted message.”

Not knowing if there was anything there, though, Mr. Tench mentioned it to a reporter who compiles a column about legal affairs for The Times of London. After that paper printed a small item quoting him discussing the typeface, Mr. Tench was nonplussed to receive an e-mail message from Justice Smith confirming that yes, there was indeed a code, but that Mr. Tench had missed the first letter “s.”

“It is always best to start at paragraph 1!” the judge wrote.

Speaking to the Bloomberg news service late on Wednesday, Justice Smith once again declined to provide any answers. Explaining why he made up his own code, he said it was “a bit of fun.”

September|October 2005
Point-Blank Verse By David Skeel
Windier City, Bigger Apple By Minor Myers III
Elsewhere
Trial of the 5th Century B.C. By Adam Cohen

Point-Blank Verse

A school of poetry says the words of judges provide a more vivid record of what we see and feel than the stanzas of Shelley or Wordsworth.

By David Skeel

IN 1928, SEVERAL YEARS AFTER STUDYING JOURNALISM at the University of Missouri and graduating second in his class at New York University’s law school, a man named Charles Reznikoff landed a job at Corpus Juris, the legal encyclopedia that many lawyers still turn to when they’re trying to make sense of an unfamiliar area of law. Corpus Juris (now known as Corpus Juris Secundum, or CJS) divides American law into numerous categories and provides brief descriptions of the case law for each of the issues covered. Reznikoff was hired to slog through judicial opinions and create bite-sized summaries for the encyclopedia.

Reznikoff’s career at Corpus Juris didn’t last long. He labored over the opinions and was soon fired. Fascinated by the endless variety of stories he was encountering in the cases, though, he began to shape them into a book of poems entitled Testimony. He focused on 19th-century judicial opinions, many dating back to the antebellum era of slavery. Once he selected the cases he wished to include in his book, Reznikoff discarded the legal analysis and concentrated instead on the descriptions of facts. Nowhere do we find any discussion of legal doctrine in his writing, nor do we even learn the outcomes of any of the cases. What remains are the stories, edited and fashioned into a sequence of prose poems. As originally published, the book is divided into three geographical sections, each further divided into subsections that reflect the source of injury that gave rise to the case (as in “Gunshot Wounds” and “Machinery” in the “East and West” section) or the person or occupation (“Of slaves,” “Passengers,” “Mistress”).

The first installment of Testimony was published in 1934 by the Objectivist Press, which had been started several years earlier to promote the views of poets including William Carlos Williams, Louis Zukofsky, George Oppen, and Reznikoff himself. They were believers in Objectivism, a short-lived but still influential offshoot of poetic Modernism, the early 20th-century assault by T. S. Eliot, Ezra Pound, and others on the Enlightenment-influenced poetics of their predecessors. For the Objectivists, the poem was an object, not a report by the poet of what he or she thought or felt. They rejected the emphasis by 19th-century Romantic poets like Wordsworth and Shelley on the poet’s subjective experience of transcendent meaning as depicted through metaphor and symbol. (The title and opening line of Wordsworth’s well-known poem about daffodils, “I wandered lonely as a cloud,” is a good example of the tendencies that the Objectivists judged artificial and misleading.) The Objectivists believed that feeling and emotion should come through the choice of details and the sound and appearance of words on the page.

Testimony vividly illustrates these Objectivist credos, displacing the subjective, first-person voice of the Romantic poet altogether. “Dun had been down to a sunken boat,” the 1934 edition begins, “and was coming back in his skiff about dark when he met Broadus and Lucas.” From this ominously matter-of-fact description of a lurid murder to the depiction of a broken looking glass in the book’s final vignette (“The pieces were wedge-shaped; the cracks radiated from a center, as if the glass had been struck by a pointed instrument”), the entire work unfolds from the same detached, third-person perspective. “In these little pieces by Charles Reznikoff,” the respected critic Kenneth Burke wrote in a preface to the book, “which in their neatness and succinctness and swiftness of effect might at an earlier time have been called ‘vignettes,’ the scientific and fictive qualities of the ‘document’ are both easily discernible.”

Reznikoff continued to work on Testimony throughout his life. In the 1960s, he published two new volumes (the first drawn from judicial opinions of 1885-1890, the second from opinions of 1891-1900); two additional volumes (1901-1910 and 1911-1915) were published after his death. In each of the later volumes, Reznikoff revised his art, reshaping the documentary material into syncopated lines of poetry. “The Negro was dead/when the doctors examined him,” a characteristic poem begins:

They found upon his belly bruises:
he died, the doctors said, of peritonitis.
While the shift in form draws even more attention to the language (as in the isolation of “bruises” in the lines just quoted), the later editions employ the same third-person perspective, looking to the objective language of a judicial opinion, the words as words, rather than subjective experience or metaphor, for the emotional intensity of the poem.

With its use of judicial opinions as the raw material of poetry, Testimony radically undercuts the traditional assumption that the poet works in a private sphere that is somehow separate from the pressures and pulls of the public domain. Not only is the poem an object, but it is an object taken from the workaday world that poets traditionally have viewed as unsuitable for poetry. Testimony never lets us forget that it is judicial opinions the poet is expounding.

Reznikoff’s most important innovation and chief legacy to subsequent poets was this use of social speech, the public language of lawyers, to further the Modernist project of drawing attention to the linguistic qualities of a poem. By juxtaposing the descriptions of fact—the underlying story—of one case after another, he created an emotionally powerful collage from the apparently impersonal language of judicial opinions, a collage that chronicles America’s struggle with slavery and its emergence as a commercial and industrial power.

REZNIKOFF DIED IN 1976, not long after James Boyd White took aim at the assumption that the lawyer’s life is specialized and technical and thus far removed from the excitement of poetry and novels. The “law is not a science. . . but an art,” the University of Michigan law professor proclaimed in The Legal Imagination, and since “everything he does—counseling, arguing, brief-writing, negotiating—is done with words,” the lawyer is “a literary man.”

White was not the first to consider the connections between law and literature. In 1908, the evidence scholar John Wigmore had published a bibliography of “legal novels” (the list included Bunyan’s Pilgrim’s Progress, Cervantes’ Don Quixote, and scores of others). Seventeen years later, the prominent New York judge (and later Supreme Court justice) Benjamin Cardozo wrote an article exploring the literary quality of legal texts and arguing that judges use many of the same rhetorical strategies in their opinions as the writers of imaginative literature. But it wasn’t until the publication of The Legal Imagination that the connections received continuous and sustained attention.

The Legal Imagination launched a vibrant debate characterized by sharply differing conceptions of what it means to say that law and literature are related. One group of scholars proposed that lawyers should read literary classics to better understand the human condition and the impact of law and legal outcomes on individual lives. In the best-known example of this genre, Georgetown law professor Robin West compared the rational, self-interested model of human behavior favored by the Chicago school of law and economics to the nightmarish world of Franz Kafka’s novella The Trial, which portrays a penal system so impersonal that the victim-hero, Joseph K., does not know the crime with which he has been charged.

Others focused, as Wigmore had, on the portrayal of law and lawyers in literature. The lawyers who populate Charles Dickens’s Victorian England—from Mr. Jaggers in Great Expectations to David Copperfield’s Uriah Heep—and Jonathan Harr’s contemporary America, like Jan Schlichtmann in A Civil Action, each, according to this view, has something to say to lawyers about their profession and how it is perceived by others, whether it’s the cold efficiency of the inscrutable Jaggers or the heroic persistence of Schlichtmann.

White emphasized a third theme, the linguistic similarities between law and literature. He has argued, for instance, that judicial opinions should be read in the same way as poems. Like a successful poem, the best judicial opinions should wrestle with the opposing arguments in the case and do justice to both in resolving the parties’ dispute.

White’s poetic conception of law is drawn from a different strand of poetic Modernism than Reznikoff’s Testimony. The poets and critics of this mid-20th-century movement, which is known as New Criticism, praise poems that develop a tension between opposing perspectives and then reconcile it at the climax of the poem. Because the work of Reznikoff brought law and literature together in another way, offering a different perspective on White’s claim that law is a kind of literature, the poetry has been oddly overlooked in the law and literature debates. In the years since Reznikoff’s death, however, two other prominent poets have taken the poetic exploration of legal language in new but very much related directions and have made clear that, to a range of respected poets, law and legal documents are quite literally the stuff of poetry.

LAWRENCE JOSEPH, A LAW PROFESSOR AT ST. JOHN’S UNIVERSITY and the most important lawyer-poet of our era, seems to have come to Reznikoff indirectly, through an intense engagement with the Objectivists and other early-20th-century Modernist poets. In striking contrast to the perspective of Testimony, many of Joseph’s poems are written in the first person. And like Joseph himself, the “I” of the poem is often a lawyer. “I believe I told you I’m a lawyer,” the narrator announces in “The Game Changed,” near the end of Joseph’s forthcoming (and fourth) book of poems, Into It. Joseph’s lawyer-narrators have little in common with the subjective “I” of the Romantic poets, however. Rather than purporting to speak directly to the reader, the “I” of the poems is multifaceted (not just a lawyer but a Catholic of Lebanese descent, a child of Detroit, a resident of the blocks around Ground Zero, as Joseph himself is) and is continuously shaped by the pressures of the external world.

In several of his most important poems, Joseph uses the language of the law to explore both the legal terms themselves and the narrator’s fragmented sense of self. “Material Facts,” in Joseph’s third book of poems, Before Our Eyes, draws much of its power from the tension between the legal term of art serving as the poem’s title—which refers to the plaintiff’s obligation in a securities fraud case to show that a lie told by the defendant dealt with something investors would care about—and how a layperson might construe the term if she didn’t happen to have Black’s Law Dictionary handy. In “Admissions Against Interest,” another poem in the same book, Joseph makes similar use of the basis in the rules of evidence for admitting at a trial damning proof that might otherwise be inadmissible.

Joseph is admired for his use of the public language of law, finance, politics, and international conflict, in poems that investigate the corridors of power, often from the inside. “I’ve Already Said More than I Should,” from Joseph’s second book, Curriculum Vitae, juxtaposes an elaborate law firm dinner (“410 glasses/await 1979 Chateau Chasse-Spleen”) with the narrator’s working class Detroit childhood (“and in the past my grandma/walks with two oak canes. . . to the house I lived in”). “This isn’t an apology,” the narrator continues, making clear that his life as an associate in the “great firm whose name might matter” is as much a part of who he is as his less-privileged background. “You’re a monkey and you work for him,” the lawyer-narrator in another poem concludes, with the “him” referring to a prominent partner; you “decide for him whether his clauses should be restrictive,/whether to replace every ‘any’ with ‘all.’ “

Jena Osman, a poet who teaches English and creative writing at Temple University, was quite explicitly inspired by Reznikoff. Though not a lawyer herself, Osman has drawn on Supreme Court opinions and transcripts in much of her recent work, some of it included in her book An Essay in Asterisks. “For a while now,” Osman writes in the working notes to her ongoing project, “Court Reports,” “I’ve been receiving summaries (via e-mail) of Supreme Court decisions through the Legal Information Institute at the Cornell Law School.” Like Reznikoff, Osman works directly from the judicial opinions and summaries. But she focuses less on factual description in the cases than on their discussions of doctrine and precedent.

In the judicial decision Osman uses for “Gray v. Maryland,” to take a recent example, the trial judge had ruled that a redacted version of the confession of one of two murder defendants, Bell, could be read to the jury by a detective. (To redact means to black out words that a court considers inappropriate for a jury to hear, for example, because they are too crude.) But the confession was not admissible against Gray, the other defendant, so the detective said “deleted” or “deletion” each time Gray’s name was mentioned, and the jury was instructed to consider the confession as evidence against Bell but not Gray.

The first part of “Gray v. Maryland” is a one-paragraph description of the case distilled from the Cornell summary excerpt. The poem then offers Osman’s own version of the rule, which is labeled “Procedure: Erasing Gray (Deletion as Protection) [X] v. MXXXLAND.” In Osman’s version, an X is inserted into the language of the Cornell summary each time one of the letters of Gray’s name appears, and each explicit mention of Gray is replaced with [X]. “Anthony Bell confessed to the police,” the edited summary begins, “thXt he, petitioneX [X] Xnd XnotheX mXn pXXticipXted. . . .” The reconstructed summary reworks the opinion into forceful testimony about Gray’s ghostly presence in his co-defendant’s confession. “He wants to become the X, the blank spot,” the poem concludes at the end of a “literary addendum” that follows the reconstructed summary, “but the mark is still there. The X is both an absence and a presence.”

The words Osman uses to praise Testimony—that Reznikoff has employed “what appears to be the most neutral of sources, the language of law, and has discovered within it an emotional field”—aptly describe her own experiments with Supreme Court opinions. Osman’s poems force us to take a second look at seemingly familiar language. Through the selection of cases and her “interventions” into the text, she reveals both the absurdity of legal language and its moments of genuine feeling, as in her funny yet poignant poetic response to the instruction that the jurors in a capital punishment case “not be governed by passion, prejudice, sympathy or any motive whatsoever except a fair and impartial consideration of the evidence”:

In other words, don’t tamper with the
grammar.

If facts are empty masks
or velvet robes

Must we give ourselves over to an
astounding belief in completion

Or can a new grammar of decision
defy execution

And propose more useful scenarios
IN THE ENDLESS DEBATES OVER THE RELATIONSHIP between literature and law during the past 30 years, one frequently repeated point has been that legal language aspires to precision, whereas the language of poetry and other imaginative writing is more multifaceted and deliberately ambiguous. Another is that the law, unlike poetry, is backed by the coercive power of the state and has enormous practical consequences. It takes place, in the words of the late Yale law professor Robert Cover, “in a field of pain and death,” and for this reason cannot be equated with the language of literature.

In the poetic tradition inaugurated by Reznikoff’s Testimony, however, these distinctions begin to collapse. The poet doesn’t work in a private sphere, somehow isolated from the pressures and pulls of politics and law. Poetry must reflect in some way the intensity of the time; in a culture as law-saturated as America’s, this intensity always, in one way or another, finds its way into the legal system. And judicial opinions and other legal documents are neither different nor separate from the language of poetry. They tell the story of our time in words that may seem technical or impersonal, but, to poets who are worth reading and heeding, they are the best and most accurate record of what we see and feel.

David Skeel is a professor of law at the University of Pennsylvania Law School.

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