Photo Credit: Jeff Reeves, WATE CBS North Carolina
By: Holly Howell
Editor-in-Chief, American Journal of Trial Advocacy
“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.”[1] This request, made by then-22-year-old Warren Demesme, may seem straightforward on its face, but it has proved controversial, requiring Louisiana law enforcement and, later, the Louisiana Supreme Court to analyze Demesme’s vernacular, what he was actually asking for, and whether or not his Constitutional rights were violated. The Court’s decision may now have serious implications—both for Demesme, who is potentially facing time in prison, as well as for those accused and interrogated in the future.
Demesme’s October 2015 Request and Admission
In October 2015, Demesme, now 24, was brought in and interrogated by New Orleans police.[2] Two of Demesme’s female cousins, both minors under the age of thirteen, claimed that he sexually assaulted them.[3] The New Orleans Police brought him in for questioning once, but got little information.[4] Upon gaining additional evidence, however, they brought Demesme in for questioning again.[5] Like the time before, Demesme voluntarily agreed to be questioned.[6] Additionally, in both recorded interviews, Demesme was read his Miranda Rights.[7] On both occasions, he reportedly told law enforcement officials that he understood his rights, but he chose to waive them and be questioned without a lawyer present.[8]
During the second round of questioning, an officer from the NOPD Sex Crimes Department put increased pressure on Demesme to admit that he had raped and assaulted the children who had accused him.[9] As officers pressed him, they reported that Demesme became more and more agitated, but, despite his exasperation with the questions, he continued to deny the questioner’s allegations.[10] It was at this time when Demesme made the above request, which he still maintains was his attempt to invoke his right to counsel.[11] While the law explains that it is appropriate to cease interrogation when an accused person asks for a lawyer, they only must do so under Louisiana law when that person’s request for counsel is unambiguous and unequivocal.[12] Not believing his request met the requisite levels of clarity required, the interrogating officers continued with the interview.[13] Soon after, Demesme reportedly admitted to one NOPD Sex Crimes Detective, Nijel Baddoo, that he had in fact sexually assaulted one of his two accusers.[14] He is currently in the Orleans parish jail awaiting trial.[15] While Fifth Amendment jurisprudence is settled, and has been for many years, there still exist questions about how to tell if an accused’s request for counsel was direct and clear enough.
The Present State of the Law Regarding a Defendant’s Right Against Compelled Self-Incrimination
The Fifth Amendment to the Constitution of the United States prohibits compelled self-incrimination.[16] Prior to 1966, the question of compulsion was decided by an evaluation of whether or not an accused person’s statement was made voluntarily.[17] This voluntariness assessment considered the totality of the circumstances surrounding the suspect’s statement.[18] This changed in 1966, however, with the precedent set in Miranda v. Arizona.[19] From this case came the Miranda Rights, a four-part recitation, the most relevant of which, for the purposes of the present case, is that the suspect has the right to an attorney, and that, if he or she cannot afford an attorney, that one will be appointed to him.[20] The four Miranda Rights are to be repeated by law enforcement officials to any alleged perpetrator before custodial interrogation.[21] As a result, it is no longer enough to consider whether or not the statement was voluntary—now, it is also necessary to determine if the police officials who took the statement were in compliance with Miranda when the statement was made.[22] Stated simply, any statements made by a defendant during custodial interrogation by the police are precluded from use in the prosecutor’s case-in-chief, unless the prosecutor is able to prove that the defendant understood his Fifth Amendment rights, but knowingly, voluntarily, and intelligently waived them.[23]
As previously stated, the safeguards of Miranda are only triggered during custodial interrogation.[24] Determining whether this was the case requires a factual analysis of what was going on when the statement took place.[25] Under the law, a suspect is considered to be “in custody” if he or she has been placed under formal arrest, but also if he or she has been otherwise deprived of his or her freedom of movement in a significant way.[26] Additionally, a suspect is interrogated when the police or other law enforcement officials directly question him or her, or when the officers use “words or actions . . . that they should have known were reasonably likely to elicit an incriminating response.”[27] If both of these factors are satisfied, the individual will be considered to be under custodial interrogation and it must be shown that he or she was properly made aware of his or her rights before the interrogation began.[28]
If it is found that the suspect was subject to custodial interrogation and had been given the proper Miranda rights, the next step in the analysis is determining whether he or she chose to invoke or waive those rights.[29] To effectively invoke the right to remain silent, or the right to counsel, the invocation must be clearly articulated.[30] Focusing specifically on a suspect’s right to counsel, the United States Supreme Court has established a relatively high evidentiary bar for showing that this right has been invoked.[31] For example, the Court has held that, a suspect who reasoned, “Maybe I should talk to a lawyer?” did not adequately indicate that they wanted to be provided with an attorney.[32] While many may view this statement as a relatively clear depiction of the suspect’s desires, the Court held that it was insufficient because it was not a clear and unambiguous invocation of the right to counsel.[33] In the same way, while some courts have held that a suspect may be assumed to have constructively waived his or her rights through his or her behavior, the suspect may not invoke a right solely through his or her behavior.[34] In order to assert one’s right to counsel under the Fifth Amendment, that suspect must ask for a lawyer in a way that can be interpreted only to mean that he or she would like to be represented by counsel[35]—“Give me an attorney” or “I would like to speak with an attorney,” for example.
The Supreme Court articulated this requirement in the landmark case Davis v. United States.[36] 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.”[37] Once a suspect has clearly and unambiguously invoked his or her right to counsel, all questioning about any subject must immediately cease, and questioning may not resume until the suspect is provided with counsel.[38] There are only two exceptions to this rule. The first allows police to resume questioning, even if the suspect has invoked his or her right to counsel, if the suspect is the one who re-initiates the conversation.[39] The other allows law enforcement to renew questioning after the suspect has been released from custody for fourteen days.[40] In this event, even if the suspect invoked his or her right to counsel during the first custodial interrogation, the police may reinitiate questioning fourteen days later and seek the suspect’s waiver of his or her Miranda Rights in hopes of garnering a confession.[41]
Subsequent Motions on Demesme’s Behalf and a Decision from the Supreme Court of Louisiana
The public defender for Orleans Parish, Derwyn D. Bunton took on Demesme’s case in the aftermath of his admission.[42] Bunton filed a Motion to Suppress the incriminating statement citing to the rule articulated in Davis.[43] “Under increased interrogation pressure,” Bunton wrote, “Mr. Demesme invoke[d] his right to an attorney, stating with emotion and frustration, ‘Just give me a lawyer.’”[44] Bunton reasoned that law enforcement unconstitutionally failed to stop questioning his client, even when his client had, in his opinion, “unequivocally and unambiguously asserted his right to counsel.”[45] The Orleans Parish District Attorney, Kyle Daly, disagreed with Bunton’s assessment in a brief he filed on behalf of the parish.[46] In his brief, he argued that even though Demesme referenced having the officers give him a lawyer, that he did not unequivocally invoke his right to counsel.[47] Instead, Daly reasoned, “whether [Demesme] actually wanted a lawyer was dependent on the subjective beliefs of the officers.”[48] In his view, a reasonable law enforcement officer would have understood, as the officers did in this case, that Demesme only might have been asking explicitly to be given an attorney.[49] Prosecutors focused, not on Demesme’s use of the word/nickname “dog”, but rather focused on where he said, “if y’all think I did it” before he asked for a lawyer.[50] They argued that this was evidence of equivocation, asking for representation only in the instance that the officers believed him to be guilty.[51] Prosecutors also made sure to point out that, in response to Demesme when he said the contested statement, officers immediately advised him again that “whether he wanted a lawyer was his choice,” but he did not respond to that, and he kept answering their questions.[52]
The Motion to Suppress Demesme’s incriminating statement was rejected, both at the trial court level and on appeal.[53] In response, Bunton appealed again, this time to the Supreme Court of Louisiana.[54] The State’s highest court too ruled against Demesme, denying the Motion to Suppress by a vote of 6-1.[55] This decision will likely be impactful in Demesme’s pending sexual assault trial that is expected to occur next year. This is because, with the denial of his Motion, the Supreme Court of Louisiana ruled that his confession made during interrogation was intercepted properly by police, and that it may be used as substantive evidence during the State’s case-in-chief.[56]
The Court’s ruling, which came down Friday, October 27th, 2017, could have denied Demesme’s Writ of Certiorari without publishing a written decision.[57] However, State Supreme Court Justice Scott J. Crichton wrote his own brief concurring opinion explaining his rationale for voting the way he did, shining light on what he called “the very important constitutional issue regarding the invocation of counsel during a law enforcement interview.”[58] Justice Crichton based his rationale on one Louisiana case, State v. Payne,[59] which largely mirrors the United States Supreme Court’s precedent set in Davis.[60] He quoted perhaps the most famous passage from Payne, writing that, in the state of Louisiana, “[i]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking his right to counsel, the cessation of questioning is not required.”[61] It was Justice Crichton’s view that, instead of asking for counsel at all, that Demesme was asking for something different entirely: a “lawyer dog”.[62] Because Justice Crichton believed he asked for something other than representation, he, along with his fellow justices, upheld the rulings of the lower courts that Orleans Parish officers had acted rightly when they continued questioning Demesme, resulting in a confession.[63]
Equivocal Questions, Missing Punctuation, and the Invention of the Lawyer Dog
So, based on the analysis above, did the suspect ask for a lawyer dog? Or did he call a detective “dog,” while seeking a lawyer? Justice Crichton’s concurring opinion has drawn opinions from all sides, with many finding humor in the fact that he likely misunderstood the vernacular “dawg,” which is used as a nickname, especially among younger people, to be a reference to an actual “dog.”[64] Part of the reason for his confusion probably also stemmed from the fact that, as it was transcribed in a court document, there was no comma between the words “lawyer” and “dog.”[65] Normally, when a person is giving a directive to another that he or she calls by name, there will be a comma before the person’s name, representing a “pause” between the directive and the person’s name. However, its absence in the brief that came from the District Attorney’s office allowed Justice Crichton to create from Demesme’s words the “lawyer dog” interpretation. This missing punctuation may be the catalyst that stands between Demesme and time in prison.
It is not totally certain, however, that, even had the comma been included, that Demesme’s request would have been deemed an affirmative invocation of his right to counsel under existing case precedent.[66] The Supreme Courts of both the United States and the state of Louisiana have held that, in order for a suspect to invoke this right, his or her request must have been unambiguous and unequivocal.[67] An analysis of what Demesme actually said that day, even operating under the assumption that when he said the word “dog” he was referring to the questioning officer, shows that he likely put a qualifier on his request that would make it ambiguous or equivocal to any normal officer.[68] Removing the word “dog,” Demesme said, “. . . 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.”[69] While it does appear that Demesme asked for a lawyer, one may interpret his statement to have been conditional, only asking for a lawyer if the police think he is guilty. Additionally, he continued to maintain his innocence within the request.[70] It could be argued that he was merely trying to make a point with what he was saying—Basically, he told them he was innocent, but the police thought he was guilty, so why don’t they just give him a lawyer, because the police had the story wrong.
One could also compare the insufficient requests made in the Davis case, “Maybe I should talk to a lawyer,”[71] and in the Louisiana Payne case, “may I call a lawyer-can I call a lawyer?”[72] to Demesme’s, “so why don’t you just give me a lawyer[?]”[73] It is uncertain whether this on its own, absent the rest of his statement, would be deemed unequivocal under the precedent cases. Any assessment of the intent behind Demesme’s statement is purely conjecture, but in comparing the actual text of his statement to the ones in the precedent cases, it is questionable that Demesme’s request would be satisfactory to constitute an invocation of his right to counsel—no matter who he was calling “dawg,” or what “dog” Justice Crichton believed him to be calling.
Conclusion
While the image Justice Crichton’s concurrence evokes is humorous, and much of the analysis surrounding Demesme’s statement is based largely on technicalities, the law on this issue is well established. Fifth Amendment jurisprudence, specifically the notable cases regarding a person’s right against compelled self-incrimination—Miranda, Davis, and Edwards—are clear in their holdings and application. Whether or not the Supreme Court of Louisiana was correct in their assessment of Demesme’s intent when making the statement, the law on this matter is unlikely to change. Justice Crichton’s decision has been under fire and the butt of jokes, but it has been in the public eye. While the law may not be likely to change, the viral nature of this case may result in more Americans understanding what it takes to invoke their constitutionally protected right to counsel. That would be a change for the better.
[1]State v. Demesme, No. 2017-KK-0954, 2017 WL 4876733, at *1 (La. Oct. 27, 2017) (Crichton, J., concurring) (emphasis added).
[2] Tom Jackman, The suspect told police ‘give me a lawyer dog.’ The court says he wasn’t asking for a lawyer., Wash. Post (Nov. 2, 2017), https://www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/?utm_term=.c9eea47e4ea6.
[3] Id.
[4] Id.
[5] Id.
[6] Ken Dailey, Orleans rape suspect’s ‘lawyer dog’ request lacking, state Supreme Court finds, The Times-Picayune (Oct. 30, 2017), http://www.nola.com/crime/index.ssf/2017/10/orleans_rape_suspects_lawyer_d.html.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Demesme, 2017 WL 4876733, at *1.
[12] Id. (citing State v. Payne, 833 So. 2d 927, 935 (La. 2002)).
[13] Jackman, supra note 2.
[14] Dailey, supra note 6 (While Demesme admitted to sexually assaulting the first child, he still maintained his innocence with regard to the accusations made by the second female minor).
[15] Jackman, supra note 2 (It is important to note that, if Demesme is convicted of the rape charge when this case goes to trial next year, he faces a mandatory life sentence).
[16] U.S. Const. amend. V.
[17] Welsh S. White, Miranda’s Waning Protections: Police Interrogation Practices After Dickerson 198-99 (2003).
[18] Id. at 199.
[19] 384 U.S. 436 (1966).
[20] Id. at 444.
[21] Id. at 444-45 (“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.”).
[22] Ric Simmons & Renée McDonald Hutchins, Learning Criminal Procedure: Investigations 732 (2015).
[23] Dickerson v. United States, 530 U.S. 428, 432 (2000).
[24] Id.
[25] Id.
[26] See Berkemer v. McCarty, 468 U.S. 420, 437 (1984) (This does not include brief, public detentions such as Terry stops or traffic stops because detentions of this nature are “comparatively non-threatening” to a person’s freedom of movement next to a formal arrest).
[27] Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)).
[28] Simmons & Hutchins, supra note 22, at 732.
[29] Id.
[30] Davis v. United States, 512 U.S. 452, 462 (1994) (“But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue.”).
[31] Id.
[32] Id.
[33] Id.
[34] Simmons & Hutchins, supra note 22, at 734; see also Berghuis v. Thompkins, 560 U.S. 370 (2010) (holding that a suspect may not invoke his or her right to remain silent merely by being silent, but that there must be some affirmative invocation of the right).
[35] Id.
[36] 512 U.S. 452 (1994).
[37] Davis, 512 U.S. at 459.
[38] Id. at 462 (Note, however, that if a suspect’s statement is ambiguous or equivocal and it is unclear whether or not it was a request for counsel, officers have no obligation to stop questioning him.).
[39] Simmons & Hutchins, supra note 22, at 732.
[40] Id.
[41] Id.
[42] Jackman, supra note 2.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Id.
[48] Jackman, supra note 2.
[49] Id.
[50] Response to man’s plea for ‘lawyer dog’ has internet howling, American Press (Nov. 3, 2017), http://www.americanpress.com/news/state/response-to-man-s-plea-for-lawyer-dog-has-internet/article_88f1cfb8-c0da-11e7-b109-7739bcf1fb5c.html.
[51] Id.
[52] Id.
[53] Jackman, supra note 2.
[54] WATE Staff, Court rules suspect asked for a ‘lawyer dog,’ not a ‘lawyer, dog,’ WATE (Nov. 3, 2017, 9:39 AM), http://wncn.com/2017/11/03/court-rules-rape-suspect-asked-for-a-lawyer-dog-not-a-lawyer-dog/.
[55] Id.
[56] Dailey, supra note 6.
[57] Jackman, supra note 2.
[58] Demesme, 2017 WL 4876733, at *1.
[59] 833 So. 2d 927 (La. 2002).
[60] Demesme, 2017 WL 4876733, at *1.
[61] Id.
[62] Id.
[63] Id. (aligning with the precedent set in Edwards v. Arizona, 451 U.S. 477 (1981)).
[64] Orin Kerr, The ‘lawyer dog’ decision isn’t obviously wrong, Wash. Post (Nov. 3, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/11/03/the-lawyer-dog-decision-isnt-obviously-wrong/?utm_term=.e4a0ced114c4.
[65] Jackman, supra note 2.
[66] See Kerr, supra note 64 (theorizing that there may have been even more complicated problems with Demesme’s request than his use of the nickname “dog” when referring to his questioner).
[67] Davis, 512 U.S. at 462.
[68] Demesme, 2017 WL 4876733, at *1.
[69] Id.
[70] Id.
[71] Davis, 512 U.S. at 452.
[72] State v. Payne, 833 So. 2d 927, 930 (La. 2003).
[73] Demesme, 2017 WL 4876733, at *1.
American Journal of Trial Advocacy 