Legal Commentary

I know I promised to continue my earlier post John Brown, Dred Scott, Obama, and Citizenship, but since I?m of the generation that?s easily distracted?actually I?m a bit older, but who?s counting??I?m claiming license to write about something entirely different:  Malcolm Gladwell and Atticus Finch.

In a provocative article in the New Yorker, Gladwell argues that Atticus Finch, the idealized lawyer in Harper Lee?s To Kill a Mockingbird, is neither the civil rights activist he?s made out to be, nor a proper role model for lawyers.   Rather, Finch?s approach to race discrimination was much closer to accommodation than reform.  For example, Gladwell notes Finch?s passivity when the jury returns a guilty verdict against his client Tom Robinson, who is black, on the charge of attempting to rape Mayella Ewell, who is white.   (For those of you who haven?t read the book or seen the film, it?s pretty obvious that the verdict is an unjust one, though Steven Lubet, in his article ?Reconstructing Atticus Finch? in the Michigan Law Review, argues for the possibility of actual guilt.)  Gladwell writes:  ?If Finch were a civil-rights hero, he would be brimming with rage at the unjust verdict. But he isn?t. He?s not Thurgood Marshall looking for racial salvation through the law.?

Gladwell is also critical of Finch?s defense of Tom Robinson.  And again, Gladwell has a point here.  To defend Robinson, Finch essentially portrays Robinson as a ?good negro??subservient, obsequious, deferential to whites?and portrays Mayella Ewell, his accuser, as representing the lowest breed of white trash and likely the victim of incest with her father.  Finch is not a racist.  But he?s definitely a classist. 

Gladwell has been roundly criticized for being critical of Finch.  But here?s the thing.  I don?t think Gladwell is nearly critical enough.  Not only is Finch an example of racial accommodation.  He?s also an example of a bad lawyer.  There are many examples of bad lawyering in To Kill a Mockingbird, beginning with his failure to move to strike Mayella?s testimony once she refuses to answer questions, or object to Robinson?s being addressed as ?boy? and ?buck,? but given the limited space here, I?ll focus on just one.

To defend Robinson, Finch argues that Mayella Ewell was so hard up for sex that she spent a year scheming of a way to lure Robinson into the house at a time when the house would be empty.  (She saved up nickels to send the children into town for ice cream; she waited until Robinson was passing by and asked him to come in to dismantle some furniture for her.)  Once inside the house, Mayella throws herself at Robinson, tries to kiss him, and demands that he kiss her back.  Robinson, knowing what happens to black men caught with white women, pushes her away, and makes a beeline for the door just as Mayella Ewell?s father shows up.  Seeing Mayella with Robinson, the father screams, ?You goddam whore!  I?ll kill ya.?  Almost all of this is based on Robinson?s testimony, and to the reader of the book (or viewer of the film version), smacks of the truth.  

Here is the problem.  In arguing that Mayella ?wanted it? and fabricated the rape allegation to conceal her desire for Robinson, Finch was essentially guaranteeing a verdict of guilty.  It was on par with Samuel Liebowitz?s misguided cross-examination of the prosecutrix Victoria Price in the famous Scottsboro Boys case.  By pointing out Price?s inconsistencies and questioning her professed virginity, Liebowitz in fact hardened the all-white jury against the defense, since his questions were seen as an attack on a symbol of white Southern womanhood.  As a spectator told a reporter afterwards, Price ?might be a fallen woman, but by God she is a white woman.? 

Finch makes the same mistake.  And it was an easily avoidable mistake.  Instead of eliciting that Mayella had tried to kiss Robinson after luring him into the house, Finch could have coached Robinson to tell a very different, but still true, story.  He could have coached Robinson to leave out the middle.  In other words, Robinson could have testified that he was passing by the Ewell house as he always did, when Mayella Ewell invited him in to dismantle some furniture.  He was in the process of doing that when Mayella?s father arrived and, spotting Robinson in the house alone with Mayella, yelled, ?You goddam whore!  I?ll kill ya.?  From this, Finch still would have argued that Mayella fabricated the rape allegation, but the reason for the fabrication would be more palatable to an all-white southern jury.  It wasn?t because ?her desires were stronger than the code she was breaking.?  Rather, she claimed rape to avoid the wrongful perception that she was not a virtuous woman.  This is a defense the jury might have understood, since it both exculpates Robinson (as an attempted rapist) and Mayella (as a sex-starved white woman.)

For those who suggest it would have been unethical for Finch to advance this argument, my response is two-fold.  First, was it more ethical to allow his client to be wrongfully convicted, especially since such a conviction carried a death sentence?  (This is before the Supreme Court?s Coker v. Georgia decision eliminating capital punishment for the crime of rape of an adult woman.)  And second, Finch agrees to conceal a killing at the end of To Kill A Mockingbird?when his neighbor Boo Radley kills Papa Ewell.  Where are the ethics in that?