How Would You Rule?

posted by Judge_Burke @ 15:31 PM
November 6, 2017

When a suspect has invoked the right to consult with a lawyer is occasionally not clear. It surely helps when there is a record such as an audio or video tape, but even then it may not be clear. Professor Eugene Volokh had this recent piece in The Washington Post. How would you rule? 

From last Friday’s opinion by Justice Scott J. Crichton, concurring in the Louisiana Supreme Court’s denial of review in State v. Demesme (paragraph breaks added):

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. Nonetheless, the defendant argues he invoked his right to counsel. And the basis for this comes from the second interview, where 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.”

As this Court has written, “[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.” State v. Payne(La. 2002); see also Davis v. United States (1994) (agreeing with the lower courts’ conclusion that the statement “[m]aybe I should talk to a lawyer” is not an unambiguous request for a lawyer). 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 (1981).

Of course, amusing as this is, it’s possible that the transcript didn’t do the request justice: If there was a pause before and after “dog” (“why don’t you just give me a lawyer, dog”), then maybe the request was fairly clear. On the other hand, if the defendant did want a lawyer, he could have presumably asked again, and more clearly.

 


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