Five days ago, a reason.com blog called "Hit and Run" observed that Justice Scott Chricton of the Louisiana Supreme Court wrote a concurring opinion to explain why he agreed that the court need not review the case of Warren Demesme. It seems that Demesme said to his interlocutors, "If y'all, this is how I feel, if y'all think I did it, I know that I didn't do it so why don't you just give me a lawyer dog cause this is not what's up." The police continued the interrogation. Demesme made some admissions. Now he is in jail on charges of aggravated rape and indecent behavior with a juvenile.
Reason.com writer Ed Krayewski (formerly with Fox Business and NBC) read the Justice's opinion and thought
Credulous writers at Slate, the Washington Post, and other news outlets promptly amplified and embellished Krayewski's report. Slate writer Mark Joseph Stern announced thatChricton's argument relies specifically on the ambiguity of what a "lawyer dog" might mean. And this alleged ambiguity is attributable entirely to the lack of a comma between "lawyer" and "dog" in the transcript. As such, the ambiguity is not the suspect's but the court's. And it requires willful ignorance to maintain it.
This Slate article also urged the U.S. Supreme Court to review the case (if it were to receive a petition from the as-yet-untried defendant). The Post's Tom Jackman joined the bandwagon, arguing thatJustice Scott Crichton ... wrote, apparently in absolute seriousness, that “the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.”
Reason’s Ed Krayewski explains that, of course, this assertion is utterly absurd. Demesme was not referring to a dog with a license to practice law, since no such dog exists outside of memes. Rather, as Krayewski writes, Demesme was plainly speaking in vernacular; his statement would be more accurately transcribed as “why don’t you just give me a lawyer, dawg.” The ambiguity rests in the court transcript, not the suspect’s actual words. Yet Crichton chose to construe Demesme’s statement as requesting Lawyer Dog, Esq., rather than interpreting his words by their plain meaning, transcript ambiguity notwithstanding.
Yet, the case clearly does not turn on "the lack of a comma between 'lawyer' and 'dog,'" and Justice Chricton did not maintain that Mr. Demesme's request was too ambiguous because "lawyer" was followed by "dog." Public defender Derwyn D. Bunton contended that when “Mr. Demesme said "with emotion and frustration, 'Just give me a lawyer,'" he "unequivocally and unambiguously asserted his right to counsel." (At least, this is what the Washington Post reported.) If this were all there was to the request, there would no doubt that the police violated Miranda.When a friend says, “I’ll hit you up later dog,” he is stating that he will call again sometime. He is not calling the person a “later dog.”
But that’s not how the courts in Louisiana see it. .... It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case ... .
The problem for Mr. Demesme is that the "unambiguous" assertion "just give me a lawyer" did not stand alone. It was conditional. What he said was "if y'all think I did it, I know that I didn't do it so why don't you just give me a lawyer ...[?]" For Justice Chricton, the "if" was the source of the ambiguity. That ambiguity did not arise from the phrase "lawyer dog." It would have made no difference if defendant had said "lawyer" without the "dog." Contrary to the media howling, Justice Chricton was not taking the phrase "lawyer dog" literally. He was taking the phrase "if y'all think" literally. Here is what the judge actually wrote:
The Justice cited a Louisiana Supreme Court case and the U.S. Supreme Court case, Davis v. United States, 512 U.S. 452 (1994). In Davis, Naval Investigative Service agents questioned a homicide suspect after reciting Miranda warnings and securing his consent to be questioned. An hour and a half into the questioning, the suspect said "[m]aybe I should talk to a lawyer." At that point, "[a]ccording to the uncontradicted testimony of one of the interviewing agents, the interview then proceeded as follows:"I agree with the Court’s decision to deny the defendant’s writ application and write separately to spotlight the very important constitutional issue regarding the invocation of counsel during a law enforcement interview. The defendant voluntarily agreed to be interviewed twice regarding his alleged sexual misconduct with minors. At both interviews detectives advised the defendant of his Miranda rights and the defendant stated he understood and waived those rights. ... I believe the defendant ambiguously referenced a lawyer—prefacing that statement with “if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.”... In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview ... .
[We m]ade it very clear that we're not here to violate his rights, that if he wants a lawyer, then we will stop any kind of questioning with him, that we weren't going to pursue the matter unless we have it clarified is he asking for a lawyer or is he just making a comment about a lawyer, and he said, [']No, I'm not asking for a lawyer,' and then he continued on, and said, 'No, I don't want a lawyer.'They took a short break, after which "the agents reminded petitioner of his rights to remain silent and to counsel. The interview then continued for another hour, until petitioner said, 'I think I want a lawyer before I say anything else.' At that point, questioning ceased."
The Supreme Court held that the initial statement “[m]aybe I should talk to a lawyer,” coming after a previous waiver of the right to consult counsel and followed by the clarification that "I'm not asking for a lawyer," could be deemed too equivocal and ambiguous to have forced the police to have terminated the interrogation immediately.
The Louisiana case obviously is different. Police did not seek any clarification of the remark about a lawyer "if y'all think I did it." From what has been reported, they continued without missing a beat. However, in the majority opinion for the Court, Justice Sandra Day O'Connor went well beyond the facts of the Davis case to write that
Of course, when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. That was the procedure followed by the NIS agents in this case. Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.The Louisiana courts -- and many others -- have taken this dictum -- repudiated by four concurring Justices -- to heart. Whether it should ever apply and whether Justice Chricton's application of it to the "if ..." statement is correct are debatable. But no responsible and knowledgeable journalist could say that the case turned on an untranscribed comma or on the difference between "lawyer" and "lawyer dog." The opinion may be wrong, but it is clearly unfair to portray it as "willful ignorance" and "utterly absurd." The majority opinion in Davis and the cases it has spawned are fair game (and the Post article pursues that quarry), but the writing about the dispositive role of the lawyer dog meme in the Louisiana case is barking up the wrong tree.
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