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Come’on, dawg

chaz-ballThe recent Louisiana Supreme Court denial of certiorari in a matter in which the petitioner’s interrogation request for a “lawyer dog”/”lawyer, dawg” was held to be an equivocal request for an unknown and likely not barred canine — as opposed to a clear invocation for counsel — seems to be another example of a result-driven constitutional ruling. Even without reading the entirety of the opinion or knowing the facts of the case, there is a fair assumption that the petitioner almost certainly committed the crime for which he was charged and ultimately the Louisiana Supreme Court opted not to upset that trial verdict.

I have often said that a holding like Miranda, in which the court makes a decision to grant a new trial to an individual who so clearly committed a repugnant crime, likely does not happen today. As an elementary school teacher was quick explain to my class after the O.J. Simpson verdict, there is a difference between not guilty and innocent. (But that’s another blog for another day). Ignoring the principle that one is innocent until proven guilty, and instead diving into the more layperson understanding of “innocent” (one who did not commit a crime) and “not guilty” (one who cannot be held legally responsible for the crime), the heavy burden on the court in the current era is even more clear.

With court proceedings on every level being more public, by virtue of being more widely and extensively reported, court rulings are scrutinized and criticized and evaluated in hindsight. From district and circuit courts to appellate courts, that scrutiny, instead of permitting public access to inspire more fair and equal outcomes, encourages more conservative and draconian rulings. After all, our constitutional rights are more often than not established, expanded or retracted by the “not guilty” than the “innocent.”

A person who is pulled over and has his or her car searched in a manner that may be unconstitutional, but has nothing found, will not have a suppression hearing, trial or appeal to determine lawfulness. Even if a civil case arises out of the search, because of the relatively de minimis intrusion, the case would likely settle as opposed to impacting legal standards. However, if in the course of the search, contraband is recovered, suppression hearings, trials or appeals could take place.

The same goes with interrogations. Someone not involved with a crime is much less likely to incriminate him or herself than someone who is. So when judges make decisions at trial levels and appellate levels, those decisions are not based merely on academic questions but real controversies with real defendants who may often be “not guilty” instead of “innocent.”

Judges are human, and as humans, as much as the legal questions of constitutionality should be decided irrespective of result, results always have some impact on analysis. But now, instead of simply the consideration of the potential result and the potential for releasing an individual who is not “innocent” but potentially “not guilty,” judges can be impacted by public pressure.

While the “Lawyer Dog” case is an example of the contrary, more often than not trial judges are criticized for making findings in favor of the accused, for not guilty findings, for granting suppression motions, and for arguably lenient sentencing. That public criticism motivates more conservative rulings, more restrictions of constitutional rights, and more result driving holdings.

So to the recent and continued efforts to politicize the courts and encourage rulings based upon public pressure instead of the law, all I can say is: Come’on, dawg.

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