Wednesday, November 8, 2017
On October 27, 2017, Justice Scott Crichton of the Louisiana Supreme Court took an unusual step and penned a concurring opinion in State v. Demesme. Why do I say this is unusual? Well, the concurring opinion was to the denial of a petition for certiorari, for which the Court ordinarily provides no reasons. In the ordinary course of business, one would not know why the Court denied the petition for certiorari, and, frankly, we still do not know why the Court denied the petition. We would not know Justice Crichton’s reasons if he had not told us what they were in that concurring opinion. And, that opinion has since “gone viral.”
So what happened? According to the concurring opinion, the Warren Demesme agreed, twice, to being interviewed. At the beginning of both interviews, the Demesme waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). At some point during the second interview, however, the defendant became overwhelmed, or frustrated, with the way the interview was proceeding. He told the police, “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.” __ So. 3d __, 2017-0954 (La. 10/27/17).
In his concurrence, Justice Crichton cited Davis v. United States, 512 U.S. 452, 462 (1994), and noted that the United States Supreme Court requires attorney requests to be unambiguous. Justice Crichton then stated, “In my view, the defendant’s ambiguous and equivocal reference to “lawyer dog” does not constitute an invocation of counsel….” __ So. 3d __, 2017-0954.
Orin Kerr, the Fred C. Stevenson Research Professor at GW Law School, weighed in on November 3rd, providing a defense for Justice Crichton, so long as we remove the reference to a “lawyer dog” from the concurring opinion. I cannot agree with Kerr in his assessment, as a court speaks through its written word, which in Justice Crichton’s concurring opinion was not ambiguous.
And this point highlights my concerns with this case: After all, unlike Warren Demesme, who likely did not take time to consider how best to punctuate his request, or who likely did not have the opportunity to consider which cases upon which he would rely to properly frame his request for a lawyer, Justice Crichton likely had days to consider whether to write a concurrence, and then had time to carefully frame how he would articulate his reasons. After careful consideration, away from the pressure of impending criminal charges, and seemingly relentless and repetitive questioning, Justice Crichton specifically quoted the term “lawyer dog” and stated that this phrase was not an unambiguous invocation of counsel.
On the other hand, in his discussion, Kerr does raise a good point. Taking the reference to dog out of the mix, is the sentence containing the “lawyer dog” reference sufficiently clear to make a reasonable police officer aware that one would like to invoke his right to counsel. After all, that sentence, taken out of context and transcribed onto paper, looks a hot mess. Kerr points out that Demesme’s sentence could be inferred as a conditional request for counsel, as an attempt to convince his interviewers that they are wrong, and as a polite question. All of these seem plausible once you reduce Demesme’s request to an inflectionless, punctuation devoid, black and white transcript that reflects none of the personalities, relationships, backgrounds, or experiences that were in that room.
I am certain that, during the interview, there was an understanding that Demesme was referencing the officer to whom he was speaking when he used the term “dog.” I am also certain that the officer, who had hopefully received training on the constitutional parameters and restrictions surrounding interrogations, probably understood that (1) Demesme was asking for an attorney and (2) Demesme likely did not know that his request could theoretically be construed as ambiguous.
Whether it is a lack of judicial understanding of the vernacular use of the word “dog,” or a defendant’s lack of understanding that the time for being polite is NOT when you are asking for an attorney, this case presents a learning opportunity for appellate attorneys. We must take the time to look beyond our own life experiences, beyond a transcripts’ emotionless appeal, and beyond an opinion’s seemingly simple answer to a complex legal issue, and figure out what has really happened and how to make the court see it. To do that we need to see what our cases actually look like, we need to understand what is actually happening out there, we need to keep up with the world’s constantly evolving language, and we need to make certain our advocacy helps fill the gaps.