Saturday, November 04, 2017

"Lawyer dog" incident hardly unique; judges like loopholes that deny counsel

Recently, the Louisiana Supreme Court made national headlines by ruling 8-1 that a defendant who said, "Why don't you just give me a lawyer, dog?" wasn't really asking for a lawyer.

In the same vein, Texas 14th Court of Appeals in Texas ruled on October 31st that a defendant who said he wanted to call his sister to ask her to get him a lawyer also didn't unambiguously say he wanted a lawyer. In part, that's because the detective kept interrupting him to keep him from being more explicit! And at the end of the day, the ploy worked! The appellate court said the defendant's desire for representation was insufficiently explicit to be binding, even though it's obvious to any sentient person he wanted an attorney because it was "the only option I have."

This garbage has been going on as long as I've been around the criminal-justice arena and it's indefensible. When someone says they want a lawyer, cops should stop questioning them until they get one. Instead, they look for loopholes to argue that's not what the defendant really meant, and, since judges are reluctant both to throw out confessions or to make counties pay for counsel when defendants are indigent, they routinely allow those sorts of legalistic workarounds. It's bullshit, but the practice is as common as pine trees in East Texas.


Anonymous said...

the actual quote from the Washington Post

“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"

you have to admit that is a strange way to say "I want a lawyer"

Anonymous said...

So if the defendant is deaf and uses hand signs to request a lawyer and the police don't understand ASL then the defendant didn't specifically request a lawyer?

Our extended family is foster to adopt. All our kids are instructed to ask that their parents-caregivers be called and second 'I want a lawyer' in any Q&A that they don't understand. The rest of the instruction: repeat as necessary and say nothing more.

This applies when dealing with anyone claiming authority.

Anonymous said...

It's Justinian law out there, Dogs may legally be allowed to practice law :/

Anonymous said...

I understand that he had been told the Miranda warning, signed it, stated he understood it, was on video etc. "IF" is the key word. Not, "lawyer, Dog". Are you or are you not invoking your right to remain silent?

things that make you go hmmmm

James S. said...

Yeah, it's pretty much black letter law that a conditional request is an equivocal request.

As for the ASL hypothetical, that's interesting but ultimately kinda pointless. If an officer can't understand a suspect (in any language), it makes no sense to interrogate him in the first place. And if he isn't being interrogated, he doesn't have the right to a Fifth Amendment-instigated lawyer.

Finally, as for that Norris case, the guy clearly said he wanted to talk to police, he just wanted to talk to his sister to see if she could get him a lawyer. Doesn't sound like he wants an interrogation-lawyer, either (more like a 6th Amd lawyer).

Mark M. said...

8:22, when you recognize that a certain portion of the community uses the word "dog" the way that others use the word "dude", the request for a lawyer is clear. The fact that you (claim?) not to recognize that fact doesn't make it not so. Moreover, since the police spend a great majority of their time "policing" that community, undoubtedly the cops knew he was asking for a lawyer. I have great doubts that any of the judges who have looked at this case have ever experienced being referred to as "dog", or more accurately as "dawg."

Gritsforbreakfast said...

@8:22, it strikes me as a perfectly reasonable way to ask for a lawyer IN CONTEXT of the interrogation.

@4:41, a concurrence focused on the "lawyer dog," "lawyer, dog" distinction, so you're whitewashing a little there. Also, the "if" here was not very conditional, since the detectives did in fact think the guy did it and that was clear to the D from the conversation.

@James S, if he wants to call someone to get him a lawyer, doesn't that mean he wants a lawyer? Kind of a disingenuous interpretation there. That said, it's not "black letter law," which is written in the statutes. It's a judge-created loophole to preserve convictions where defendants 6th Amendment rights were denied.

FWIW, the first time I was called "dawg" was in 1995 (I remember the incident well), and it's happened literally thousands of times since. This is not some new slang term, it's common as dirt.

James S. said...

In context, he's (1) conditioning a any possible desire for a lawyer on the policeman's subjective belief in his guilt; and (2) he phrases this in the form of a question. I know that sounds draconian, but that's just the law. (Davis v. US - "maybe I should get a lawyer" isn't unambiguous enough).

About the "lawyer dog" part -- I agree that's stupid. And the State didn't even argue that (as no competent lawyer would). But it was only a concurrence, and it wasnt' the only reason he gave in his opinion -- and those other reasons were in line with Supreme Court precedent.

"if he wants to call someone to get him a lawyer, doesn't that mean he wants a lawyer?" No -- especially when he's saying "I want to talk to you" in the same sentence. At best, that is classically ambiguous.

So.... are you saying it's not black letter law if it's in a judicial decision? Kind of odd -- that would mean the restrictions put in place by Miranda aren't black letter law (which means that the concepts are fairly clear and easily understood). So I would disagree with your larger point -- that we're supposed to ignore clear Supreme Court precedent just because you don't like the result in an individual case.

Also, your use of the word "loophole" is strange. The rules in Miranda and Escobedo were created (again, by courts) to help give a suspect's Fifth Amendment rights some heft in a custodial interrogation situation. The remedy for restarting an interrogation once the suspect has asked for a lawyer is so severe (i.e., throwing out an otherwise voluntary confession) that the Supreme Court wanted to make clear that the request has to be unambiguous. That seems like a reasonably fair trade off to me.

James S. said...

Sorry, I meant Edwards not Escobedo.

Gritsforbreakfast said...

@James S, clearly they did believe in his guilt, they arrested him.

RE: "black letter law," to me, connotes a statute, your definition is more expansive than is traditional.

Paul Cassell calls Miranda a "loophole." I'm not sure why it's strange for me to use the word here. SCOTUS created the 6A loophole re: ambiguity, I completely grant. But in practice the exception has come, in many cases, as in these two, to swallow the rule. Which is my complaint. I'm not sure if that's really so difficult for you to understand, or if you're being tactically dense. But my position is pretty straightforward.

James S. said...

Miranda itself is indeed a loophole. My only point was that it was strange to call an exception to a loophole a loophole. Maybe that part is unimportant. What is, however, is that these cases only come up where a suspect waives his rights (both to silence and to an attorney, per Miranda and Edwards), but then gets cold feet in the middle and starts to wonder aloud about whether he should "maybe get an attorney" or whatever. The law doesn't want to put on the officer the onus of trying to divine what the guy really wants. So it's really not a difficult concept -- an invocation of one's right to an attorney won't work unless it's really unambiguous. I don't think the "exceptions" swallow the rule. The rule is, if you want a lawyer, say you want a lawyer.

Look, if you wanna have a policy discussion about whether that's a good idea, fine. I'm sure you could put forward some good arguments. But it's not really helpful to complain about routine 5th amendment cases (and, yeah, we're talking 5th, not 6th) that are simply following Supreme Court precedent.

As far as black letter law is concerned, it's original use was pretty much ONLY for court-made precedents, like 200 years ago. (Really, look it up.) It actually makes sense (as a statute should be clear enough that you shouldn't have to argue about whether the underlying principle is "black letter").

Gritsforbreakfast said...

The loophole I'm talking about is the loophole created to the right to counsel, not to Miranda.

You seem to want to keep repeating the word "strange" to make it seem unreasonable that I disagree with court precedent. But I do. And my disagreements are entirely rational. I am NOT a lawyer and this IS a policy discussion. Why you would think it isn't, I don't understand. The debate is over the best policy. The judges' loophole created a bad one that fails to adequately enforce the right to counsel. That's the whole friggin' point of this post!

We discuss this in the upcoming podcast, but there is context here you're ignoring. The Reid technique teaches detectives doing interrogations to convince the suspect that if they don't talk it must be bc they have something to hide. So when the def says "I want to talk to you," he's protesting his innocence. He's been told if he doesn't talk they'll assume guilt. But he knows there's more going on there and wants a lawyer. That's the situation, and under that situation, he should get a lawyer. Because, as the fellow said in the TX case, it's "the only option I have."

James S. said...

I didn't mean to sound critical -- or obtuse. I just assumed your comments were directed more at the individual judicial decisions than the law which they're bound to follow.

As for the rest, I guess I'll just have to disagree. The context you're talking about I think makes the guy's "request" even more ambiguous. OF COURSE he wants to talk. That's why he signed a waiver. So when a suspect clearly wants an interrogation to continue, but at the same time also vaguely starts talking about a relative hiring a lawyer (or whatever), one looks at that and thinks "Oh, he's worried that he's actually gonna have to face a trial sooner or later -- he's wanting to lawyer-up for that." You think that's bullshit, obviously, but the alternative (if he really wants a lawyer for interrogation purposes) is for questioning to stop. Which he obviously doesn't want....

Anonymous said...

"...Viewed from the standpoint of a reasonable officer in [Detective] Mutchler’s position and under the totality of the circumstances, Appellee’s statement was not an unambiguous and unequivocal invocation of the right to counsel..."

So now we have to determine what a "reasonable" police officer is? Arguably the detective was not "reasonable" in that he had, after all, threaten to hold the defendant indefinitely inside the interrogation room, presumably without food, water, or life-sustaining needs.

Appellee: Am I gonna be here all day do doin’ this?

Mutchler: It looks like.


Appellee: Oh, it’s okay talking to you. I’m just sayin,’ I can talk to you, I just want to make a phone call and call my sister and see if she could—

Mutchler: Well, not ‘til we’re through here

If the Courts can argue that "lawyer dog" was ambiguous, then the Appellee can argue that he was threatened with perpetual detainment and therefore coerced into a false confession. After all, a "reasonable" Appellee could determine that no matter what he stated, under the totality of the circumstances, he was not going to get out of the room until the he stated what the detectives wanted to hear -- no matter how false the statements.

Anonymous said...

I've heard of color of law but never black letter law. Guess that is to say bogus? Point is a rose is not always a rose.
That aside yes the judges and cops are crooks themselves and they use color of law not the real law to convict those they prey upon. They call them defendants.
I call them the defenseless.