Let’s talk about the meme in the room, okay? This Film Friday, I’m eschewing a discussion of traditional media and the law and diving into the depths of internet memes and news stories to talk about a current events issue and, hopefully, put people on notice that the police are not your fucking friends when they’re talking to you and, even if you think you’re being absolutely clear, you have to literally use magic words to be entitled to your full constitutional protections.
That said, let’s dive into the case of the “lawyer dog.”
The “Lawyer Dog” Case Background
On October 27, 2017 the Louisiana Supreme Court, in a case captioned State of Louisiana v. Demesmes, denied a writ of certiorari. To put it very simply, it means that the court declined to hear the case, something that can absolutely happen. A lot of appeals to state supreme courts, and even SCOTUS, get denied at this stage, many times because the appeal concerns what the court considers an issue of well-settled law. For reference, on the same day that the Louisiana Supreme Court announced it was denying Demesme’s appeal, it approved only 8 writs and denied roughly another 56 writs. The ratio is about 1 writ granted for every 7 denied there.
So, right off the bat: guys, appeals don’t get granted very often.
Here’s what the issue was that they were trying to appeal up: Should Demesme’s statements to the police, which were apparently incriminating in nature, be suppressed (kept out of evidence) because they were gotten after Demesme made a reference to a “lawyer dog.” At least, that’s what Justice Crichton of the Louisiana Supreme Court said he said in a concurring opinion.
I’m gonna pause and explain real fast what a concurring opinion that assigns reasons is.
First, the Writ here was done without the official issuance of an opinion. There wasn’t a single justice willing to write a majority opinion explaining the reasons for the writ denial, and that’s not really uncommon. The court doesn’t have to explain why it isn’t hearing a case, it just gets to say “Yeah, we’re not hearing it.” But Justices reserve the right to write a “concurring opinion” that states “I agree with the outcome but I specifically have more to say.” A concurring opinion is, in effect, not necessarily the logic or reasoning used by the court to deny the case.
Why is this important?
Well, it’s pedantic as hell to say this, but Crichton’s opinion is not the official opinion of the Louisiana Supreme Court, which is what it’s being reported as. It’s a concurring opinion written by one justice on that court, and likely doesn’t represent the reason the court made the decision to deny the writ.
Second, it highlights the fact that Crichton literally did not have to write this opinion, he fucking chose to. Why? I dunno, man. Maybe he thought he was being cute. Maybe he thought he was being funny. Maybe he’s an asshole who can’t keep his mouth shut (I would know nothing about that). But in any case, let’s be clear that Crichton wasn’t happy to just deny the writ and move on, he had to write an opinion about it.
And in doing so, he reached the ostensibly right result…but for the wrong fucking reason.
You think they were RIGHT?
Legally right, but only because the current state of the law surrounding requests for counsel during interrogation sucks.
The current state of the law is that, under Davis v. United States, 512 A.2d 452 (1994), a person has to invoke their right to remain silent and their right to counsel so “sufficiently clearly that a reasonable police office in the circumstances would understand the statement to be a request for an attorney.” Id. at 459 (Internal quotations and citations omitted). In other words, the right to silence and the right to counsel do not currently apply under law unless the reference to a lawyer is made clearly in a way that, under the circumstances, the officer would understand it to be a request for a lawyer to be present. In other circumstances, no go.
For example, in Davis itself, the Supreme Court held that the statement “Maybe I should talk to a lawyer” was not a clear request for an attorney, because it was not a “clear and unequivocal request” for an attorney. Id. at 462. The reasoning is the phrasing: “Maybe I should.” That’s where SCOTUS put the emphasis in Davis: on the words that aren’t definite, and therefore, according to SCOTUS, shouldn’t have alerted the police to the fact that Davis was requesting an attorney.
Turning that to the current case, let’s take a look at Demesme’s statement as reported by the court:
“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.”
Here’s why this statement fails the Davis test for an unequivocal statement, and it has nothing to do with canines:
“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.” – emphasis added
That seems a hell of a lot like the “Maybe I should talk to a lawyer” statement made in Davis. And, while we likely will not know the opinion of the 5 other justices that found to deny the writ, I’m pretty sure that’s where their hats are being hung: “This is not a clear and unequivocal statement asking for a lawyer, this is a statement that’s like suggesting they need an attorney.”
But Crichton’s an asshole, and being an asshole, Crichton wrote an opinion. And being an asshole on the bench who considers himself a step above Jesus and below God, Crichton used this opportunity to highlight the patois of the suspect and make that a fucking issue. And that’s the issue everyone is losing their shit about, which…I dunno.
Quick note, Justices are elected to the Louisiana Supreme Court for 10 year terms. So, just throwing that out there: in about 6 years Crichton will be up for re-election.
Dog or No Dog, This is Fucked Up.
I think the bigger issue is the current state of the law requires a suspect to essentially demand an attorney by screaming from the treetops “Give me a lawyer, assholes” before the courts are willing to smack the police and interrogators who act like they couldn’t tell Demesme was essentially asking for an attorney. Because if you take the “lawyer dog” statement out of Demesme’s statement, it likely will have no effect on the denial of the writ.
We focus a lot on the “lawyer dog” part of this, because that’s the inciting part. Either the judge is a racist (possible) or an idiot (possible), or both, to think that “Lawyer dog” was a reference to an actual lawyer dog or imply such. But that’s not the real story, because even if you remove that from the decision, even had Demesme’s not said that (“Talked white” as one of my detractors put it), the fact remains that the rest of his statement could be, and likely actually was, the grounds the court relied on in denying the writ: “Suggested they may want a lawyer, but didn’t demand a lawyer.”
It’s an asinine distinction for most people, and one that since Davis has become a tool for the police, the state, and everyone involved in that system to throw up their hands and say “We didn’t know they wanted a lawyer! They were unclear!” while depriving suspects of their rights. It banks on ignorance of the law and a twisting of “common sense.” “If he really wanted a lawyer,” the police and courts now say, “He should have been clearer.”
“Dog,” “dawg,” or neither. Demesme was going to have his words twisted to justify a deprivation of criminal counsel in an effort to make him incriminate himself, and then justify it afterwards.
And it’s shitty, and it’s a miscarriage of justice, and it only encourages abuse of these rulings by overzealous law enforcement and the courts.
And it can happen to you.
So what can you do?
You should talk to the police when questioned about a crime, and you should do so as follows:
“I’m invoking my right to remain silent, and I’m invoking my right to have an attorney present.”
Memorize that phrase. Recite it in your sleep. Practice it in front of the mirror. And then fucking use it. Because it doesn’t matter how clear you are, or you think you are, Demesme’s case makes it even fucking clearer: if your statement leaves the barest room for doubt that you’re invoking your right to remain silent and clearly demanding a lawyer, they’re going to use it to twist your definite statement into an ambiguous one and use it to fuck you.
Especially if you have a smartass S.O.B. like Crichton sitting on the bench.
Tell Us What You Really Think.
One of the things you learn in law school, especially in Criminal Procedure, is how fucking defanged some of the constitutional protections available under the Fourth, Fifth, and Sixth Amendments have become over time. We’ve taken shit like “fruit of the poisonous tree,” which excludes evidence that is the result of an illegal search, and made exception after exception to it, like “inevitable discovery” and “good faith exceptions” which fall way, way, way under the discretion of the court that is hearing the suppression argument.
Likewise with this bullshit. Personally, I think Demesme was pretty clear to a reasonable police officer: “Hey, if you think I did this I want a lawyer.” But the court disagreed, and essentially said that Demesme wasn’t asking for a lawyer (not just a “lawyer dog”…Fucking assholes…) because he hadn’t just said “Give me a lawyer, now.” The sad fact is, we make the question of whether or not a person has sufficiently exercised their constitutional rights far too dependent on the surrounding circumstances, and those circumstances, like everything else in the hands of the government, are meant to be twisted when argued to the court to make the judge see things in the manner that sufficiently allows folks to say “Fuck off with your rights, we’re the motherfuckin’ POLICE.”
That, folks, is the issue: There are a shit-ton of Catch-22’s in criminal law and your constitutional rights as a suspect in an investigation, and people don’t fucking tell you about them. You may say “If you’re accusing me of this, I want a lawyer” and assume that, because the police haven’t stopped questioning you, you aren’t being suspected of a crime. You may even believe the police have to tell you the truth (newsflash, they don’t ) about shit when talking to you. But you shouldn’t assume, because that shit is deadly.
I mean, for fuck’s sake, we live in a system where to exercise your right to remain silent you have to specifically say that you’re doing it. If you just remain silent, your silence will be used against you.
It’s an infuriating dichotomy that the law is meant to protect the rights of the accused, and we keep swiss-cheesing the fuck out of it to create ways for you to get fucked. And in that case, it’s important as hell to highlight the fact that you have to use the magic words or you’ll get disregarded, and a court will uphold them disregarding you.
We can bitch about the fairness or unfairness of it all day, and we should. We can discuss the apparent racial motivations, and we should. But we also need to make sure that, in the midst of highlighting that shit, we don’t forget to use this to teach other people how not to get fucked over, because until the system changes they need to fucking know that.