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On the Wisdom of “Lawyer Dog.”

 

 

     When a criminal defendant asks police for a “lawyer dog,” is he invoking his constitutional right to counsel? 

     That question is making headlines at Reason, Fox News, Above the Law, Slate, Washington Post, and other media outlets, because Justice Scott Chricton of the Louisiana Supreme Court quipped in a concurrence that “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 . . . .”  Most stories are focusing on the phrase “lawyer dog” but, legally, that is the wrong question.

     First, a little background.  The police interrogated the defendant after two young girls accused of him sexually assaulting them.  During the second interview, frustrated by police persistence after he repeatedly denied the crime, the defendant said:

    “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.” 

     The police did not give him a lawyer. They kept questioning him and eventually secured incriminating statements from him.  At trial, the defendant moved to suppress those statements, arguing that the police had violated the Constitution by continuing to interrogate him after he asserted his right to counsel. The trial court denied his motion to suppress and he asked the Louisiana Court of Appeal to weigh in.  It summarily denied his writ without a decision.  He then sought review before the Louisiana Supreme Court.  It summarily denied his writ without a decision.  But Justice Chricton did write a short opinion concurring in the denial, in which he made the now infamous “lawyer dog” quip.

     That brings us up to date.  So the question is, did the defendant invoke his right to counsel?  Unfortunately, the answer is not clear. It turns on two cases.  In Edwards v. Arizona, a defendant in police custody sought to “make a deal” with the police and said “I want an attorney before making a deal.”  The United States Supreme Court held that that was an invocation of the right to counsel. In Davis v. United States, a defendant in police custody said “Maybe I should talk to a lawyer,” then when asked if he wanted a lawyer replied “No, I’m not asking for a lawyer,” and again, “No, I don’t want a lawyer.”  The United States Supreme Court held that that was not an invocation of the right to counsel. 

     The test is whether the defendant “articulate[d] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”  Davis v. United States.  A “reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel” is not enough.  Davis v. United States.  A prior Louisiana case applying that test (in our opinion wrongly) held that the statement “may I call a lawyer—can I call a lawyer?” said while reaching for a phone, did not qualify as a request for counsel because the police had not yet begun interrogating the defendant at that time.

     Applying that test to this case, the correct legal questions are (1) whether the defendant’s request for counsel was “equivocal” because it was prefaced by “if y’all think I did it”; and (2) whether his request for counsel was “ambiguous” because in context it was just bluster, not a sincere request to end the interview until he could consult an attorney.  Regardless of how you think those two questions should be answered – we think the defendant’s statement looks a lot more like Edwards than Davis – the fact that everyone is instead talking about a “lawyer dog” illustrates two points.

     First, lawyers and judges are wordsmiths.  Our briefs and a court’s written opinions will be scrutinized by other lawyers and judges and they are generally available to the public at large.  Precision, and concision, are key.  Irrelevant information should be omitted to ensure clarity. Here, the phrase “lawyer, dawg” incorrectly transcribed as “lawyer dog,” was clear to anyone with a passing familiarity with the English language and was irrelevant to whether the defendant’s request for counsel was ambiguous or equivocal.  There was no need to highlight it.

    Second, comedy generally does not have a place in the law. Most Lawyers and judges are not stand-up comics. For the most part, humor should be left out of briefs and decisions and used sparingly in court. In this case, the choice to include “lawyer dog” appears to have been intended as a joke.  If so, it fell flat.  Best practice for advocates – and perhaps also for judges – is stick to the task at hand and do not dabble in comedy.  A reputation takes a lifetime to build, and a moment to lose.

    In sum, by not being clear and unnecessarily injecting humor, you run the risk of distracting your audience from understanding your point. Here, instead of focusing on the critical question of whether the defendant’s statement as a whole clearly and unambiguously invoked his right to counsel, the media focused on the phrase “lawyer dog.” But for that phrase, this likely would not have been a story.

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