"Just give me a lawyer dog cause this is not what's up"

A Louisiana Supreme Court ruling from last week is making the rounds on social media and news outlets over a request for a "lawyer dog." As can be expected, there is more to the story than meets the eye, and is somewhat convoluted. 

First, the shocking part of it. In a 6-1 decision in State of Louisiana v. Warren Demesme, the state supreme court denied a writ of certiorari (I'll explain that later) regarding the denial of the defendant's motion to suppress. The defendant, Warren Demesme, was interrogated twice by police regarding sexual misconduct with minors. During the second interrogation, after having been read his Miranda rights, he requested an attorney from police. At that point, the police should have stopped the interrogation and obtained an attorney for him. They didn't, he continued to talk, and those statements are at issue in the trial. Demesme's attorney filed a motion to suppress his statements (keep them out of the trial) because the police continued to interrogate him after he asked for a lawyer. That motion was denied by the trial court for reasons I have yet to discover. 

Now, the 'fun' part in understanding how this issue got to the state supreme court while the trial case was still pending. The legal procedures in Louisiana are different than those of most other states, including Florida. This post then is the result of a brief crash course I undertook and if I am wrong in any way, I will gladly accept any information from those 'in the know.' 

After the trial court denied the motion, Demesme's attorney filed an application for a 'supervisory writ' to the Court of Appeal for the Fourth District, asking for a review of the trial court's denial of the motion to suppress. This is a discretionary review, meaning the court of appeal is free to review it or not, and the court of appeal's denial is merely a decision not to exercise its jurisdiction at that time. The issue could still be brought up for review when the final judgment is on appeal. This type of 'supervisory writ' relief isn't available in Florida, and a defendant in a similar situation here would have to wait until and unless he was convicted at trial to appeal the trial court's ruling on the motion to suppress. 

The denial of the 'supervisory writ' was then appealed to the state supreme court based on an application for writ of certiorari. The defendant was asking the supreme court to review the denial of the supervisory writ, even though no opinion was given by the court of appeal for denying it. 

The state supreme court denied the application for the writ, without opinion, and the matter would have otherwise been left at that. The case against Demesme would then proceed to either a plea deal or trial and, if trial, the issue regarding the motion to suppress could again be appealed if he was convicted. 

But for some reason, Justice Scott Crichton wrote a concurring opinion stating he agreed with the denial and then gave his own reasons for denying the application for the writ.

It is his belief, he says, that "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.'" 

The justice seriously wants people to believe that Demesme made an "ambiguous and equivocal" reference to a "lawyer dog." 

The general law on this issue is that if a criminal defendant makes an ambiguous or equivocal reference to an attorney and a 'reasonable' officer understood that the defendant might be invoking his right to an attorney, the interrogation doesn't need to stop. That wasn't the case with Demesme.

While it isn't clear where Justice Crichton obtained the transcribed quote from (perhaps a court reporter from the hearing transcribing the video or his own transcription of the video if he had access to it on appeal), it is a strained belief to say that anyone of a reasonable mind would think that a criminal defendant would be asking for a dog trained in the art of the law and licensed by the state bar association. One doesn't need a comma between 'lawyer' and 'dog,' nor have the word dog spelled 'dawg,' to know that Demesme was unequivocally requesting an attorney during the interrogation. 

What I believe Justice Crichton has done, though, is telegraph a message to the lower courts in this case and perhaps others that he will view statements like these very liberally in terms being ambiguous requests for an attorney. Based on the limited information in the concurring opinion, there is limited legal, precedential applicability on future cases. But Justice Crichton wrote more than was required, with an absurd result from flawed reasoning. With his opinion, the lower courts could now have tacit cover for denying motions to suppress based on this issue knowing that at least one justice has their back.   

While not fake news, everything you've likely heard about the case has been highly inaccurate. The state supreme court didn't deny an appeal based on the request for a 'lawyer dog' and there is no conviction that has been sustained. The case against Demesme will proceed and, worst case scenario, he'll have another crack at the denial of his motion to suppress. I'd love to hear, though, what the practitioners in Louisiana have to say about Justice Crichton's peculiar concurrence and what effect it might have in other cases and other trial courts. 

George Palaidis is a personal injury and criminal defense attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Stand Your Ground Immunity Isn't as Immune as You Thought

You might determined immune from prosecution for standing your ground, but you can still be sued. That’s the message from the Florida Supreme Court last week in the newest ruling deciphering Florida’s Stand Your Ground law. In Ketan Kumar v. Nirav C. Patel, SC16-1457, the Court held that immunity granted in a criminal case based on the Stand Your Ground law does not also confer immunity in the related civil case.

The facts follow the general pattern of most in Stand Your Ground cases. Without provocation, Kumar attacked Patel at a Tampa bar. In response, Patel struck Kumar in the head with a drinking glass, which shattered on impact. Patel was charged in criminal court where he then filed a motion to dismiss based on Stand Your Ground immunity. The criminal court judge granted immunity and dismissed the case after an evidentiary hearing on the motion where witnesses testified as to what occurred.

While the criminal case was pending, Kumar filed a civil lawsuit against Patel seeking monetary damages for battery and negligence. The civil trial judge, though, decided not to follow the criminal judge’s immunity determination and ordered a separate Stand Your Ground evidentiary hearing in the civil case, resulting in Patel’s appeal. The Second District Court of Appeal, in Patel v. Kumar, held that the immunity determination by the criminal court judge conferred immunity in the civil case also, thereby preventing the civil case from proceeding.

The Supreme Court took the case up because it conflicted with the Third District Court of Appeal in Miami-Dade County, which had previously held in Professional Roofing & Sales, Inc. v. Flemmings that an immunity determination by a criminal court judge did not apply to the related civil court case, allowing the civil case to proceed and a separate hearing on immunity before the civil judge.

The Supreme Court, siding with the Third District, held that the immunity determination by a judge in one case did not automatically confer immunity in the other case. The decision, written by Justice Alan Lawson, listed many factors, of which all were largely based on ambiguities in the statute and lack of clarity from the Legislature. In analyzing the statute, the Court determined that the Legislature implied there would be separate determinations in civil and criminal courts when it allowed for an award of attorney’s fees and costs in a separate civil proceeding. The Court also noted that the 2017 amendment of the statute created different burdens of proof for determining criminal and civil immunity, again implying separate determinations without explicitly saying so.

The Court also found that the Legislature did not expressly abrogate the common-law doctrines of res judicata (claim preclusion) or collateral estoppel (issue preclusion), and thus each still applied to a determination on Stand Your Ground Immunity. To the non-legal readers, res judicata and collateral estoppel essentially stand for the premise that a claim or issue that has been decided by one court can’t be brought up again and re-litigated when certain factors are met. Those factors include the same issue or thing being litigated over, “mutuality of parties,” and a full and fair opportunity to litigate the issue in the prior proceeding.

A key element in both res judicata and collateral estoppel that is critical to a Stand Your Ground case is the element of “mutuality of parties.” Unless the same parties participated in the prior litigation that resulted in the judgment or determination, the determination isn’t binding in any other litigation. The element of “mutuality of parties” thus requires both Patel and Kumar be parties in the criminal case AND the civil case. In the criminal prosecution, though, the State of Florida, not Kumar, was the opposing party to Patel. Kumar was of course the witness/victim, but he was not an actual party to the criminal prosecution. Because of that, the criminal determination as to immunity could be re-litigated in the civil case since the element of mutuality of parties was not met.

Both the Second and Third Districts make compelling arguments in their opinions and I certainly recommend reading both. It seems clear to me, after reading the Supreme Court’s opinion, that the Court is not impressed with the Stand Your Ground law as drafted. The opinion could almost be read as a guide to the legislature in how to revise the law in order to resolve the constant issues that have arisen regarding the law due to its ambiguities.

As a result, though, a party in Florida must now file and litigate separate motions seeking immunity under the Stand Your Ground law in both the criminal and civil case, which could (and likely will) lead to opposing immunity determinations. Look for the Legislature to revisit this issue next session.  

George Palaidis is a personal injury and criminal defense attorney practicing in Miami, Fort Lauderdale, and the South Florida region.