In one of my favorite scenes from The Wire, the great HBO television series about crime, cops, and life in Baltimore, detectives Bunk Moreland and Jimmy McNulty sit in an interrogation room across the table from a young African American man they call Cheese. The detectives suspect Cheese in one of several recent murders, and for good reason: they have him recorded, on tape. When Cheese refuses to tell them anything, Bunk re-enacts Cheese's recorded statement: "Oh, he was my dawg, man…I didn't sleep since I capped his ass. Lookin' up at me, all bloody and shit…He had much love for me, even then. I ain't never gonna find another…" The detectives know they've hit pay dirt when Cheese becomes emotional, fighting back tears. They point at the pictures of the bodies of murder victims they've put in front of Cheese, and they ask him: which one was his dawg? "Which one of these is he?"
What the detectives don't know, because they weren't there — they have Cheese's voice on tape, but no video or other witnesses to fill in the details of the scene — is that Cheese was talking about an actual dog. The dog — a fighting dog belonging to him — had lost a fight, and Cheese killed the animal. The detectives naturally assume that Cheese's statement — "he was my dawg, man" — refers to a human friend or acquaintance of Cheese, because that's what "dog" almost always means. Everyone knows this, including Bunk and McNulty. According to the website Urban Dictionary, the slang term "dawg" means "my close acquaintance of an African-American ethnic background."
I recalled this scene as I read about a recent case from the Louisiana Supreme Court. It seems that Justice Scott Crichton might need a lesson or two on the meaning of "dawg." He might have made a mistake — though a different one than Bunk and McNulty's. But he also turns out to be correct about the law.
The Louisiana case involved a police interrogation of a defendant accused of sexual misconduct. The police interviewed the defendant twice, both times advising him of his Miranda rights, including the right to an attorney; defendant waived his rights and agreed to talk without a lawyer present. During the second interview, the defendant called a halt to the questioning; he seems to have decided he didn't like the direction things were going. He 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 get the defendant a lawyer, and he made further incriminating statements. The defendant moved to suppress all the statements that followed, because the police had not honored his request for a lawyer. The trial court refused, and the statements became part of the evidence used to convict the defendant.
The defendant appealed, and eventually asked Louisiana's Supreme Court to take the case for review. The court refused, 8-1, without writing any opinion. Refusing a case without any statement or explanation happens every day, in state and federal appeals courts and supreme courts (including the United States Supreme Court).
Occasionally, a judge writes an opinion to explain his or her vote in favor of or against taking a case up for appeal. And that was where Justice Crichton came in. He agreed with the majority of his colleagues that they should not take the case, and he could have simply voted with them, without uttering a word. But he decided to speak up and add a concurring opinion, to explain why he thought his court was right to refuse to hear the appeal. The statement of the defendant asking for a lawyer, Justice Crichton said, was ambiguous.
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…
Because the defendant asked for a "lawyer dog," it was not clear that he was asking for a lawyer. If he had asked for a lawyer, under Edwards v. Arizona, interrogation would have to cease, and the prosecution could not use anything the defendant said after that point to prosecute him. But asking for a "lawyer dog" isn't asking for a lawyer. End of story.
One can explain Justice Crichton's statement in a few different ways.
First, perhaps Crichton just read the words on the page in the most literal way. Whatever a lawyer dog is, he might say, it sure isn't a lawyer. Call this the Cool Hand Luke theory: what we have here is a failure to punctuate. The defendant's statement should have had a comma between the words lawyer and dog. What he said, which didn't make its way onto the page, was "why don't you just give me a lawyer, dog." That would make it clear.
Or perhaps Justice Crichton is one of the few people living in the U.S. today who doesn't understand that the word "dog," as used in the defendant's statement, means the same thing as "pal" or "buddy." One would hope that a law clerk or a staff person, someone younger and less sheltered, or maybe just anyone who has watched television or a movie in the last 15 years, would have caught this "dog" reference before Justice Crichton's opinion went out, and that would have saved Judge Crichton the embarrassment. Alas, not.
So far, so funny. And the media and internet web sites and commentators have all had a good laugh over this. But the unfortunate truth is that, with or without those explanations, Justice Crichton turns out to be correct: the defendant probably did not have a right to a lawyer. And the reason for this does not turn on an omitted comma, or a stray "dog." Rather it turns on the defendant's use of the word "if" — and how that word fits into a U.S. Supreme Court case Justice Crichton cited in his opinion. That's the real lesson here.
In Davis v. U.S., 512 U.S. 452 (1994), the Supreme Court set out rules for the moment when a defendant decides to invoke his or her Miranda rights: hearing the police officer say in the Miranda warnings that he or she has a right to have a lawyer, the defendant says yes, that's a good idea — I'd like a lawyer. The facts of the Davis case explain this. In Davis, the defendant waived — gave up — his right to a lawyer, and talked. While giving statements to investigators, he seemed to change his mind midstream, saying, "maybe I should talk to a lawyer." After backing away from that, and giving more statements, the defendant said, "I think I want a lawyer before I say anything." Questioning then stopped.
At trial, the prosecution used the defendant's statements to convict him, despite his attempt to invoke his Miranda rights. The U.S. Supreme Court ruled that, despite the defendant's statements, he had not invoked his right to a lawyer. Speaking for the Court's majority, Justice O'Connor said that to invoke Miranda's right to have a lawyer, "the suspect must unambiguously request counsel…[H]e must articulate 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." One could only understand what the defendant had said — "maybe I should talk to a lawyer" — as "a statement that might be a request for an attorney…" This, O'Connor said, isn't enough.
The problem with the Supreme Court's Davis opinion is that it ignores both the practicalities of how people actually communicate, and the social science that confirms what we know. When a person says "maybe I should talk to a lawyer" or "I think I need a lawyer," we would understand that as, "yes, I think a lawyer is a good idea — I want one." We would not understand them to say, in any serious conversation, "hmm, I'm considering that option." And the research confirms our understanding: people tend to speak in indirect, hedged speech patterns. These indirect speech patterns tend to show up most often in the speech of women and most minority racial and ethnic groups; moreover, this way of speaking also occurs most often in situations in which the person speaking (here, the suspect) confronts a person of much greater power in the context of the situation (the interrogating police officer).
Justice O'Connor seems to have known this. She says, in the Court's opinion, that "[w]e recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who — because of fear, intimidation, lack of linguistic skills, or a variety of other reasons — will not clearly articulate their right to counsel although they actually want to have a lawyer present." But that wasn't enough to convince her or the majority that police ought to clarify these ambiguous assertions before questioning further. Thus only a clear, direct and assertive statement — "I want a lawyer" — using words atypical of the way so many people, especially those most likely to be a power disadvantage in the interrogation room — will suffice.
This explains why Justice Crichton might be right after all. The defendant said, "If y'all. This is how I feel, if y'all think I did it…" Those "ifs" seem to put the case into the Davis category of ambiguous requests.
So what Justice Crichton's opinion tells us might be funny, if we focus on the "lawyer dog" comment. But what's more important is the way the case highlights Davis, and its rule that speaking like we usually do — "I think it's time for lunch" or "I'm not sure doing this is a good idea" — doesn't count for anything in the legal system, when we want to do something as bold as exercising our rights. That's what's unfortunate, and it isn't funny at all.
In a case like the one involving the "lawyer dog" statement, or Davis itself, where the suspect is trying to assert his or her rights, we ought to look for ways to respect those attempts, not excuses to disregard them.
David A. Harris is Professor of Law and John Murray Faculty Scholar at the University of Pittsburgh School of Law, and the host of the Criminal Injustice podcast, available on iTunes and at www.criminalinjusticepodcast.com.
Suggested Citation: David A. Harris, Dog eat dawg: Lousiana may be right but that doesn't mean they're right, JURIST — Academic Commentary, Nov. 07, 2017, http://jurist.org/forum/2017/11/harris-dog-eat-dawg.php.
This article was prepared for publication by Erin McCarthy Holliday, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at firstname.lastname@example.org