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Can two wrongs make a right under the Sixth Amendment?  Only Dr. Demento knows

On Behalf of | May 11, 2017 | Firm News

NOTE: this article was written at the suggestion of Lauren Avery Blumenthal after a hearing in a family law case

To get through law school, I became a devoted listener of Westwood One Radio Network and Dr. Demento.  His national radio show specialized in novelty songs, comedy, and strange or unusual recordings dating from the early days of phonograph records to the current day.  It was on Dr. Demento’s show that I first heard Deteriorata (deteriorata is a form of “desiderata” and the verb to deteriorate) from National Lampoon.  Deteriorata is a famous parody of Les Crane’s 1971 spoken word recording of Desiderata (for “Things to be Desired.”), the early 20th century poem by Max Ehrmann.  Deteriorata was written by Christopher Guest of “Spinal Tap” fame and sung by Melissa Manchester and contains these words:

Speak glowingly of those greater than yourself,
And heed well their advice, even though they be turkeys.
Know what to kiss, and when.
Consider that two wrongs never make a right, but that three do

I have always wondered if the wisdom embodied in the phrase “two wrongs make right” is true in the legal system.  If you think about it, the wisdom of the saying goes all the way back to Hammurabi’s code which states “An eye for an eye” as in if someone pokes out your eye, you deserve to poke out their eye.  In other words the wrong of taking one eye justifies another wrongful taking of another eye to make things right.  Maybe Hammurabi’s code was being employed to justify the past riots in Ferguson: because a police officer wrongfully shot Michael Brown, an unarmed black teenager, people were entitled to riot.  Instead of employing “two wrongs to make right,” it might have been wiser to turn the other cheek and think.  Thankfully someone did when the Justice Department called on Ferguson to overhaul its criminal justice system, declaring that the city had engaged in constitutional violations.  That’s the problem, of course, with an eye for an eye: it makes the whole world go blind.  So if we respond to violence with violence, all there would be is violence and everyone loses in the end.

It seems the doctrine of “two wrongs to make it right” is being urged upon the US Supreme Court in Weaver v. Massachusetts.  Rory Little explains the facts of the case: “Kentel Weaver’s jury was being selected, the courtroom was already overcrowded with potential jurors, so Weaver’s mother and other supporters were told the courtroom was “closed” when they arrived. When they later told Weaver’s lawyer about this, he raised no objection; he conceded post-trial that he did not understand it was a violation. After the jury was chosen the next day, the courtroom was open to all. But the damage – the error of denying a “public” criminal proceeding – was done.”

The Massachusetts Supreme Judicial Court agreed that a public-trial error had occurred, and that public-trial violations have been described as “structural” so that prejudice is presumed and a new trial is generally ordered. But Weaver was not alleging a direct public-trial violation (apparently because the failure to object might constitute “forfeiture” under Massachusetts law). Instead, Weaver was alleging a different Sixth Amendment violation: ineffective assistance of counsel. Because the Supreme Court has been very clear that prejudice must be demonstrated before a conviction will be reversed for ineffective assistance – and Weaver had not alleged prejudice at all.  The Massachusetts Supreme Judicial Court denied relief because he could not prove that this error affected the outcome of his trial.  The issue before the US Supreme Court is do two wrongs, two the guarantee to the effective assistance of counsel and the guarantee to a fair trial amount to the right of a fair trial?  Put another way, does an attorney’s failure to object to the closing of the courtroom for jury selection deprive a defendant of his right to the effective assistance of counsel without any showing of prejudice?  See Commonwealth v. Weaver, 54 N.E.3d 495, 519 (Mass. 2016).

With all due respect to Hammurabi and those who argue to me that two wrongs can make a right, you are wrong.  Two wrongs cannot make something right.  As argued by the ACLU prejudice should be presumed in these circumstances because specific prejudice, i.e., an effect on the outcome, is impossible to prove.  Requiring a case-specific prejudice would unfairly pose an insurmountable obstacle to relief, and that such a rule would disproportionately hurt poor people who are more likely to be represented by constitutionally deficient lawyers.