Wednesday, April 03, 2019

When Do Two Wrongs Make a Right?

by Michael C. Dorf

In my Verdict column last week, I discussed the seeming premises behind the questions that Justice Thomas asked during the recent oral argument in Flowers v. Mississippi. The case raises questions about a prosecutor's racially discriminatory use of peremptory challenges to African American jurors. At the very end of the argument, Justice Thomas asked whether defense counsel used her peremptory challenges in a manner that discriminated against white jurors.

As I discuss in the column, that was an odd question. My colleague Prof Sheri Johnson--who argued the case for Flowers in the Supreme Court--quickly answered that no issue of improper conduct by defense counsel was presented as the case came before the SCOTUS. With an assist from Justice Sotomayor, she also explained that it was, in any event, impossible to say that defense counsel engaged in race discrimination, because, with one exception, she only had the opportunity to use peremptory challenges against white jurors.

I conclude the column by arguing that, even if there were race discrimination by defense counsel, that would hardly cancel out the race discrimination by the prosecutor. That should be especially true for someone like Justice Thomas, whose votes in favor of "color-blindness" in affirmative action cases categorically reject any notion that disadvantaging one racial group can make up for disadvantaging another. But the point seems true more generally. As the adage goes, "two wrongs don't make a right."

And yet, sometimes they seem to. Here I want to say a few words about the interaction of the two-wrongs principle and the doctrine of unclean hands.
Let's begin with a couple of examples that are fairly far afield from the Flowers case. Consider self-defense. The use of force, including, under appropriate circumstances, deadly force, that would otherwise be criminal, can be completely lawful in response to the unlawful threat or use of force. However, that is not because the combination of two wrongs results in a right. Rather, we do better to characterize the justified use of force in response to unlawful force as not a wrong at all. It's true that in the absence of the initial unlawful threat or use of force the "response" would be unlawful, but the presence of that initial unlawful threat or use of force effectively makes the response a different act. In general, the law of justification works this way.

What about excuses rather than justifications? (For an excellent discussion of the distinction between justifications and excuses, see this 1986 article by my former colleague Prof Kent Greenawalt.) An excused act is not justified and thus might be said to be wrongful, but the criminal law permits excuse as a defense. Is that an example of a wrong becoming a right in virtue of some other wrong?

In a word, no. Most excuses have nothing to do with any other wrong. A person who offers an excuse of temporary insanity does not say that her otherwise wrongful act became permissible or excusable (for current purposes, "right") in virtue of someone else's wrong. The excuse is simply freestanding. Moreover, even where some other actor's initial conduct at least partly gives rise to the excuse--as when it gives rise to a mistake-of-fact defense--we would not properly characterize the result as a violation of the two-wrongs principle. In such circumstances, it is the mistaken factual belief itself rather than the wrongfulness of the initial actor's conduct that produces the excuse.

Now let's circle back to Flowers. A regular commenter on this blog posted an astute comment on my Verdict column wondering whether Justice Thomas in his question "was trying to show some sort of hypocrisy on the" part of the lawyers for Flowers and the justices who expressed sympathy for his position. Yet suppose that the claim of hypocrisy were true. Even so, "tu quoque"--or "you too"--is generally regarded as a logical fallacy. Critiques of so-called whataboutism invoke the familiar critique of charges of hypocrisy: Even if the person making the charge is a hypocrite, the charge may nonetheless be valid.

And yet the law sometimes allows a tu quoque defense. In particular, the doctrine of "unclean hands" will deny relief to a wrongdoer where his wrongdoing is of the same sort and size as the wrongdoing he alleges has been perpetrated against him. Zechariah Chafee, who was an equity scholar as well as a free speech scholar, disliked the unclean hands doctrine. So do other scholars, who sometimes criticize it on the ground that it amounts to saying two wrongs make a right.

I think that's a fair criticism, but it suggests two important qualifications. First, because it violates the two-wrongs principle, commentators and courts have tended to recognize an unclean hands defense only sparingly in recent years.

Second, unclean hands is an equitable doctrine. That means it developed in the courts of equity, where the chancellor was supposed to do substantive justice overall, and it's relatively easy to see how an equity chancellor might conclude that the balance of equities disfavors granting injunctive relief to someone who has committed roughly the same wrong as the one about which he is complaining. For modern purposes, however, the key point is that unclean hands is a limit on equitable relief and not applicable in so-called actions at law--including civil actions for damages and criminal prosecutions.

Indeed, it would be particularly odd to adopt a doctrine of unclean hands in the context of constitutional criminal procedure, given that in many of the cases that reach the courts, the defendant will have unclean hands. Suppose the state charges X with receiving stolen property and wishes to introduce evidence the police discovered in X's home when conducting a warrantless search. X argues that the search violated his Fourth Amendment rights. Even though the evidence obtained via the search overwhelmingly points to X's guilt, he will be permitted to raise his objection. His unclean hands -- the fact that he committed a crime -- does not bar relief.

To be sure, the SCOTUS cases treat the Fourth Amendment exclusionary rule as "prophylactic" rather than required by the Fourth Amendment itself. But that simply underscores the inappropriateness of the unclean hands principle in this context: The Court is willing to fashion a remedy for a constitutional violation that is not even required by the Constitution itself and to make it available to actors with unclean hands, i.e., criminals.

One might object that my exclusionary rule example wouldn't fit an ordinary unclean hands defense, because the unclean hands defense typically applies where the party estopped has engaged in the same sort of wrong as the conduct he is complaining about. Receiving stolen property--as in my hypothetical example--differs substantially from the privacy invasion that is a Fourth Amendment violation. Thus, the objection goes, if the unclean hands doctrine wouldn't apply of its own force, the fact that the courts don't estop criminal defendants based on it doesn't really show that it has no application in constitutional criminal procedure cases.

Yet we can construct an example in which the defendant's alleged crime is the same sort of wrong as a Fourth Amendment violation. Suppose the defendant is charged with burglary for having broken into the alleged victim's home for the purpose of stealing her computer to learn private facts about her. Suppose that the police violate the Fourth Amendment by entering the defendant's home in order to deprive him of his property in an effort to learn facts about him -- namely, whether he committed the crime. Here the wrong of the Fourth Amendment violation very closely resembles the wrong of the defendant's alleged crime. And yet there is no exception to the exclusionary rule for cases in which the charged offense resembles a Fourth Amendment violation. Why not? Because unclean hands is not a principle of constitutional criminal procedure.

Accordingly, even understood as raising an unclean hands objection, Justice Thomas's questions in Flowers were based on faulty premises.