Adventures in the Law: The Unspeakable Comma Strikes Again

The unspeakable comma has claimed another victim and reminded us once again of the danger of taking commas for granted and of relying on the spoken rather than the written word.

All lawyers know that when it comes to contracts, it’s always wise to put it in writing. As the old saying goes, an oral contract isn’t worth the paper it’s written on.

But a Louisiana Supreme Court opinion reminds us that the principle applies to criminal law, as well. In criminal law, the difference between the written and spoken word can mean the difference between freedom and prison.

Just ask Warren Demesme, of Harvey, Louisiana. Warren was questioned in connection with two sexual assault cases. According to police records, Warren voluntarily agreed to the two interviews, which were recorded. He was read his Miranda rights, said he understood them, and waived them. The recordings reveal that Warren admitted to one of the assaults and denied the other.

But before making the admission, Warren said—and the operative word is said—something about a lawyer. The argument over precisely what Warren said and meant made it all the way up the ladder to the Louisiana Supreme Court.

So precisely what did Warren say? According to the transcript, he said to the police interviewer,

“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.”

In the view of the prosecution, Warren’s statement—including the nine words why don’t you just give me a lawyer dog—was nonsensical or ambiguous, or both. After all, there is no such thing as a lawyer dog. So, asking for a lawyer dog didn’t constitute a request for an attorney and therefore didn’t require the police to end the interview.

But in the view of the public defender representing Warren at the trial and on appeal, the statement was a request for an attorney, requiring an immediate end to the interview and rendering the confession inadmissible. The public defender argued that Warren was requesting that his interviewer, whom he addressed with the vernacular dog (pronounced dawg), provide him with a lawyer.

In other words, Warren was not saying get me a lawyer dog, which would make no sense. Rather, he was saying, get me a lawyer, dog, which makes perfect sense—at least to Warren.

So in effect, the case turned on whether there was a comma between lawyer and dog. If there was, Warren had explicitly requested a lawyer. If not, he had spoken gibberish, asking for a lawyer dog—something that doesn’t exist.

Warren and his lawyer were in a tough spot. Why? Because you can’t say a comma. You can write a comma, but you can’t say a comma.

And because of the unspoken comma—you might say the unspeakable comma—the Criminal Court denied the motion to suppress Warren’s confession to the sexual assault. When Warren appealed, the Court of Appeal affirmed. And on the petition for certiorari, the Louisiana Supreme Court voted six-to-one to deny the petition.

Justice Crichton wrote a concurring opinion explaining his vote. As he saw it, Warren’s reference to a lawyer dog was “ambiguous or equivocal,” and decisions of both the Louisiana Supreme Court and United States Supreme Court hold that an ambiguous or equivocal reference to an attorney does not constitute an invocation of the Constitutional right to counsel.

So, Warren’s confession that he assaulted one of the victims was admissible in his trial—a trial on charges that could result in a life sentence.

All because of the unspeakable comma.