Talking while black cost Warren Demesme his Miranda rights in Louisiana.
In a 6-1 decision, on Oct. 27 the Louisiana Supreme Court refused to hear an appeal by Warren N. Demesme, in jail in Orleans Parish since January of the previous year while he awaits trial on a count of first degree rape and another of “sexual misconduct with a juvenile under the age of thirteen.” During questioning Demesme confessed, but he later asked the court to throw out that confession because police ignored his request for an attorney, one of the “Miranda” rights guaranteed by the Sixth Amendment.
The court is not required to explain why it refused to hear the appeal, but in order “to spotlight the very important constitutional issue regarding the invocation of counsel during a law enforcement interview,” Scott J. Crichton, one of the court’s judges, wrote in a concurrence that police did not have to stop their questioning after Demesme’s request because he asked for a “lawyer dog,” not a lawyer.
According to Crichton, this is what Demesme said to the detectives questioning him:
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.
Crichton found that request “unclear and ambiguous.” If the other judges agreed that Demesme was asking for a lawyer dog, then Demesme’s appeal was denied not because his words were ambiguous, but because he invoked his rights in Black English.
There’s no such thing as a “lawyer dog,” but that’s not what Demesme said. He asked the detective for a “lawyer, dawg.” To spell that out for the linguistically-challenged court, Demesme asked for a lawyer, and he called the detective “dawg,” a slangy synonym for ‘man, guy, fella, dude,’ instead of the more formal—and more deferential—‘officer.’
In Miranda v. Arizona (1966), the United States Supreme Court affirmed a constitutional right to silence and to an attorney. These Miranda rights can only be waived “knowingly and intelligently,” and they may be invoked at any time before or during questioning, even after a suspect waives them. While subsequent decisions affirmed and clarified Miranda, others narrowed these rights. Miranda rights may be suspended if a police officer thinks there’s an imminent public danger (New York v. Quarles, 1984; this public safety exception was asserted after the arrest of Dzhokhar Tsarnaev in the Boston Marathon bombing case). Four years ago an irony-challenged Supreme Court ruled that remaining silent is not enough to invoke the right to silence (Salinas v. Texas, 2013). And, in a ruling relevant to Demesme’s case, police may continue questioning a suspect who asks for an attorney if “a reasonable officer” finds the request to be “ambiguous or equivocal” and thinks “the suspect might be invoking the right to counsel” (Davis v. United States, 1994, emphasis added). However, Davis also affirms that “a suspect need not ‘speak with the discrimination of an Oxford don.’”
What this means is, you have to speak in order to invoke your rights, but you don’t have to speak in standard English.
Dawg is not standard English, even when spelled d-o-g by a learned judge who pretends it refers to a mythical attorney-canine hybrid, a modern-day centaur crawling out of the Louisiana swamps. (There is a lawyer dog internet meme, but it’s not likely that the judges were aware of this.)
Instead, dawg is a term of address popular in African American informal English, and one used by non-African Americans as well. And the New Orleans detectives, who live in a city with a large African American population, surely had no trouble understanding Demesme’s request, which means that the police and Judge Crichton willfully ignored the prisoner’s assertion of his rights and then pretended that they didn’t understand him. Not because he spoke ambiguously, or informally, but because he spoke black.
Throwing out the confession won’t materially alter Demesme’s case unless that case is very weak. The U. S. Supreme Court threw out Ernesto Miranda’s rape confession because he hadn’t been informed of his rights. Arizona immediately retried Miranda and secured a conviction without the confession. Although prosecutors feared that Miranda would put an end to confessions and their conviction rate would plummet, a study by the Los Angeles Police Department showed that a year after the landmark decision, confessions continued to occur in half of their cases—the same rate as before—and that anyway, confessions weren’t critical, playing a role in only ten percent of convictions.
Whether or not Warren Demesme is ultimately found guilty of rape, he’s entitled to an attorney if he asks for one. Even if he doesn’t ask in standard English. Even if he’s black.
Ernesto Miranda signed his name as “Ernest” when he wrote this confession on a form provided by the Phoenix police. The pre-printed statement at the top says, “I, Ernest Miranda, do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promise of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me.” Except that he had no knowledge of his rights, because no one told him his rights before he was questioned. Warren Demesme was read his rights, but the police ignored him when he tried to invoke those rights. [Image: Arizona State Library Archives and Public Records]
