The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The 'lawyer dog' decision isn't obviously wrong
A lot of people have been having good fun with a short opinion by Justice Scott J. Crichton, concurring in the Louisiana Supreme Court's denial of review in State v. Demesme, which seemed to treat a request for a lawyer as a request for a "lawyer dog." Eugene flagged the opinion here a few days ago. I thought I would flag that, as strange as it sounds, the result advocated by Crichton isn't obviously wrong.
The funny part of Demesme, of course, is that there's a sentence in the opinion suggesting that Crichton may have misunderstood the vernacular "dawg," roughly meaning "friend," as if it meant "dog" as in the animal. Here's the sentence:
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 and does not violate Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
If that's what Crichton meant, it's pretty embarrassing. Demesme obviously meant "friend," not the animal, and the police surely understood that. So if that's the criticism, it seems pretty fair.
With that said, it's not clear to me that Crichton is actually wrong on the facts of the case. Here's the context. The Supreme Court has created a rule that when you ask for a lawyer in the context of custodial interrogation, the interview must stop and cannot continue so long as you remain in custody (plus 14 additional days). It's the most powerful of the rights that originated with Miranda v. Arizona. The interview must end, and the police can't restart it, once you say you want to speak to a lawyer.
Because that is a pretty severe rule, the Supreme Court has required that the invoking of the right to counsel must be clear. If, in the middle of an interrogation, you stop and say, "maybe I should talk to a lawyer," that's not enough. You need to make it clear that you are requesting a lawyer or the stop-the-interview rule doesn't apply. Of course, we can debate whether that's the right approach - this being the Internet, that's to be expected - but that's the gist of the Supreme Court's applicable decision in Davis v. United States. In the language of Davis, "the suspect must unambiguously request counsel," articulating that request "sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney" that requires the interview to stop.
Going back to Demesme, I think the ambiguity is not in the word "dog" but in what Demesme said before that. Here's what he said in the second interview, with the word "dog" removed:
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 cause this is not what's up.
It seems like something of a close call as to whether this satisfies the Davis test. On one hand, he did say "give me a lawyer." On the other hand, that phrase seems to have some conditions on it. He only wants a lawyer, he says, if the police think he did it. He did't do it, he says, so the police are wrong. Maybe, in the context of that sentence, he's trying to persuade them they're wrong rather than actually ask for a lawyer. Unfortunately we don't know the rest of the conversation to make a better judgement on that.
Demesme also phrases the point as a question instead of a statement. "Why don't you" get him a lawyer, he asks, rather than a clear statement to get him one. Granted, my sense is that "why don't you" is usually a polite way to make a request. In class, for example, I'll often say to a student, "why don't you tell us the facts" of a particular case. I mean that as a polite instruction to start a Socratic discussion rather than a genuine question about why they aren't already telling us about the facts. Everybody understands that. But then a similar argument was made and rejected in Davis about the phrase "maybe I should talk to a lawyer," which in the context of an interrogation very likely means "I want to talk to a lawyer." Davis said that it wasn't clear enough, so it's not totally obvious to me that this is on the other side of the line.
To be clear, I'm not saying that Crichton was right that this was an ambiguous request that is insufficient to trigger the stop-the-interview rule. But once you take out the misunderstanding about the "lawyer dog," it's not obvious to me that he's wrong on the facts of the case.
