Harper Lee's To Kill a Mockingbird (12 page)

The “she wanted it” defense in this case was particularly harsh. Here is what it said about Mayella: She was so starved for sex that she spent an entire year scheming for a way to make it happen. She was desperate for a man, any man. She repeatedly grabbed at Tom and wouldn't let him go, barring the door when he respectfully tried to disentangle himself. And in case Mayella had any dignity left after all that, it had to be insinuated that she had sex with her father.

It is useful, once again, to consider Finch's conduct in the light of the historical South of his time. The scholar Lisa Lindquist Dorr has examined two hundred and eighty-eight cases of black-on-white rape that occurred in Virginia between 1900 and 1960. Seventeen of the accused were killed through “extra legal violence”—that is to say, lynched. Fifty were executed. Forty-eight were given the maximum sentence. Fifty-two were sentenced to prison terms of five years or less, on charges ranging from rape and murder to robbery, assault and battery, or “annoying a white woman.” Thirty-five either were acquitted or had their charges dismissed. A not inconsiderable number had their sentences commuted by the governor.

Justice was administered unequally in the South: Dorr points out that of the dozens of rapists in Virginia who were sentenced to death between 1908 and 1963 (Virginia being one of the few states where both rape and attempted rape were capital crimes)
none
were white. Nonetheless, those statistics suggest that race was not always the overriding consideration in rape trials. “White men did not always automatically leap to the defense of white women,” Dorr writes. “Some white men reluctantly sided with black men against white women whose class or sexual history they found suspect. Sometimes whites trusted the word of black men whose families they had known for generations over the sworn testimony of white women whose backgrounds were unknown or (even worse) known and despised. White women retained their status as innocent victim only as long as they followed the dictates of middle-class morality.”

One of Dorr's examples is John Mays, Jr., a black juvenile sentenced in 1923 to an eighteen-year prison term for the attempted rape of a white girl. His employer, A. A. Sizer, petitioned the Virginia governor for clemency, arguing that Mays, who was religious and educated, “comes of our best negro stock.” His victim, meanwhile, “comes from our lowest breed of poor whites. . . . Her mother is utterly immoral and without principle; and this child has been accustomed from her very babyhood to behold scenes of the grossest immorality. None of our welfare work affects her, she is brazenly immoral.”

The reference to the mother was important. “Though Sizer did not directly impugn the victim herself, direct evidence was unnecessary during the heyday of eugenic family studies,” Dorr writes. “The victim, coming from the same inferior ‘stock,' would likely share her mother's moral character.” The argument worked: Mays was released from prison in 1930.

This is essentially the defense that Atticus Finch fashions for his client. Robinson is the churchgoer, the “good Negro.” Mayella, by contrast, comes from the town's lowest breed of poor whites. “Every town the size of Maycomb had families like the Ewells,” Scout tells us. “No truant officers could keep their numerous offspring in school; no public health officer could free them from congenital defects, various worms, and the diseases indigenous to filthy surroundings.” They live in a shack behind the town dump, with windows that “were merely open spaces in the walls, which in the summertime were covered with greasy strips of cheesecloth to keep out the varmints that feasted on Maycomb's refuse.” Bob Ewell is described as a “little bantam cock of a man” with a face as red as his neck, so unaccustomed to polite society that cleaning up for the trial leaves him with a “scalded look; as if an overnight soaking had deprived him of protective layers of dirt.” His daughter, the complainant, is a “thick-bodied girl accustomed to strenuous labor.” The Ewells are trash. When the defense insinuates that Mayella is the victim of incest at the hands of her father, it is not to make her a sympathetic figure. It is, in the eugenicist spirit of the times, to impugn her credibility—to do what A. A. Sizer did in the John Mays case:
The victim, coming from the same inferior stock, would likely share her father's moral character
. “I won't try to scare you for a while,” Finch says, when he begins his cross-examination of Mayella. Then he adds, with polite menace, “Not yet.”

We are back in the embrace of Folsomism. Finch wants his white, male jurors to do the right thing. But as a good Jim Crow liberal he dare not challenge the foundations of their privilege. Instead, Finch does what lawyers for black men did in those days. He encourages them to swap one of their prejudices for another.

One of George Orwell's finest essays takes Charles Dickens to task for his lack of “constructive suggestions.” Dickens was a powerful critic of Victorian England, a proud and lonely voice in the campaign for social reform. But, as Orwell points out, there was little substance to Dickens's complaints. “He attacks the law, parliamentary government, the educational system and so forth, without ever clearly suggesting what he would put in their places,” Orwell writes. “There is no clear sign that he wants the existing order to be overthrown, or that he believes it would make very much difference if it were overthrown. For in reality his target is not so much society as ‘human nature.'” Dickens sought “a change of spirit rather than a change in structure.”

Orwell didn't think that Dickens should have written different novels; he loved Dickens. But he understood that Dickens bore the ideological marks of his time and place. His class did not see the English social order as tyrannical, worthy of being overthrown. Dickens thought that large contradictions could be tamed through small moments of justice. He believed in the power of changing hearts, and that's what you believe in, Orwell says, if you “do not wish to endanger the status quo.”

But in cases where the status quo involves systemic injustice this is no more than a temporary strategy. Eventually, such injustice requires more than a change of heart. “What in the world am I ever going to do with the Niggers?” Jim Folsom once muttered, when the backlash against Brown began to engulf his political career. The argument over race had risen to such a pitch that it could no longer be alleviated by gesture and symbolism—by separate but equal inaugural balls and hearty handshakes—and he was lost.

Finch's moral test comes at the end of
To Kill a Mockingbird
. Bob Ewell has been humiliated by the Robinson trial. In revenge, he attacks Scout and her brother on Halloween night. Boo Radley, the reclusive neighbor of the Finches, comes to the children's defense, and in the scuffle Radley kills Ewell. Sheriff Tate brings the news to Finch, and persuades him to lie about what actually happened; the story will be that Ewell inadvertently stabbed himself in the scuffle. As the Sheriff explains:

Maybe you'll say it's my duty to tell the town all about it and not hush it up. Know what'd happen then? All the ladies in Maycomb includin' my wife'd be knocking on his door bringing angel food cakes. To my way of thinkin', Mr. Finch, taking the one man who's done you and this town a great service an' draggin' him with his shy ways into the limelight—to me, that's a sin. It's a sin and I'm not about to have it on my head. If it was any other man it'd be different. But not this man, Mr. Finch.

The courthouse ring had spoken. Maycomb would go back to the way it had always been.

“Scout,” Finch says to his daughter, after he and Sheriff Tate have cut their little side deal. “Mr. Ewell fell on his knife. Can you possibly understand?”

Understand what? That her father and the Sheriff have decided to obstruct justice in the name of saving their beloved neighbor the burden of angel food cake? Atticus Finch is faced with jurors who have one set of standards for white people like the Ewells and another set for black folk like Tom Robinson. His response is to adopt one set of standards for respectable whites like Boo Radley and another for white trash like Bob Ewell. A book that we thought instructed us about the world tells us, instead, about the limitations of Jim Crow liberalism in Maycomb, Alabama.

Note

1. Reprinted from
The New Yorker
, Politics and Prose, 10 August 2009: 26–32.

Ann Engar

Voted best legal film of all time by the American Film Institute, cited by numerous lawyers as the book and film that most inspired their decisions to pursue a career in law, claimed to be the impetus for constructive changes in Southern justice during the civil rights movement,
To Kill a Mockingbird
in its novel, film, and play versions has deeply influenced the legal profession in the past fifty years. In this essay, I will examine carefully the impact the story has had on the legal profession, an important component of the book's story particularly since it has inspired much more legal scholarship than literary criticism (“Note” 1685). How has the book been used by the legal profession, and what does the story—and, in particular, its character Atticus Finch—represent to lawyers? I will argue that Atticus Finch speaks to the deepest of attorneys' longings and insecurities: their desire for public respect and influence and for private balance and wholeness.

For at least the past two generations, the book and film have attracted numerous individuals to the legal profession through their depiction of a gallant, eloquent, and courageous attorney defending an innocent man. Voted the number one movie hero of the past one hundred years by the American Film Institute, Atticus Finch bestows respectability and honor upon the legal profession. Attorney Richard Brust, assistant managing editor of the
ABA Journal
, has described Atticus Finch as the “epitome of both moral certainty and unyielding trust in the rule of law . . . the self-assured lawyer and upright human being we all hope to be.” Steven Lubet, professor of law at Northwestern University, with a note of criticism, contends that Finch “saves” the legal profession “by providing a moral archetype, by reflecting nobility upon us, and by having the courage to meet the standards we set for ourselves but can seldom attain. . . . His potential justifies all of our failings and imperfections. . . . All of his choices are brave and noble, which is why the community of Maycomb ultimately put its faith in him” (Lubet, “Reconstructing Atticus Finch” 1340). Rob Atkinson uses similar religious and mythic language to describe how attorneys view Atticus Finch: “[Harper] Lee has given us the Gospel According to Atticus in the words of his chief disciple Scout. . . . But we [attorneys] are the ones who continue to work and worship Atticus' golden image” (1371). Atkinson deems Lee to be the maker and marketer of an icon. Though Atkinson's comments are somewhat sensationalistic, Lee does invite reverential respect for her character, especially in a scene oft quoted by lawyers—the scene in which Atticus exits the courtroom and Reverend Sykes tells Scout, “Miss Jean Louise, stand up. Your father's passin'” (
TKAM
241) as the black audience in the balcony all get to their feet.

Scenes from the book and film are frequently played and discussed at bar association conventions. At the 2006 Minnesota Bar Convention, for example, the film was used in continuing education courses by the Criminal Law Section. Panelists critiqued the legal performance of Atticus Finch as portrayed by Gregory Peck. Advice given by the panel included avoiding clutter (Atticus' defense table is bare), keeping it simple (Atticus' point that no doctor was called although the right side of Mayella's face was injured), and picturing the witness' home life (Mayella's lack of friends and alcoholic father) (“Legal Education Seminar”). The succeeding year at the convention, the History Theater presented “Atticus Finch: The Search for Humanity,” followed by Minnesota Supreme Court Chief Justice Russell A. Anderson moderating a panel on professionalism and ethics (“Minnesota Bar Buzz”).

As a public figure, Atticus is praised for his skill at advocacy, his concern for social justice, and his morality. In his analysis of the films
A Few Good Men
,
Body Heat
, and
To Kill a Mockingbird
, attorney Aaron Peron Ogletree points to Atticus Finch as a lawyer willing to do almost anything to protect his client, including risking his life. Ogletree asserts that these films present the image of lawyers as counselors who develop relationships with the family members of clients, who keep the family informed of case developments, and whose relationships never create an issue of conflict of interest (334). Atticus and the lawyers in the other films exhibit courtroom demeanors of preparedness, ability to think quickly when necessary, relentlessness in cross-examination, and flexibility in fitting changing circumstances. Atticus remains calm no matter what the trying circumstances are, including being spat upon and experiencing threats against his children's lives. Hofstra University law professor Monroe H. Freedman praises Finch for being a superb advocate, wise counselor, and conscientious legislator (76), one who Scout tells us is reelected year after year with no opposition (37). Similarly, Steven Lubet, while he criticizes much of the adulation of Atticus, does praise his skill in compelling a “bigoted Alabama jury to hesitate before convicting an innocent black man” (“Reconstructing Atticus Finch” 1361). Finally, Gary B. Pillersdorf discusses how in films and media, great lawyers give summations that are the most dramatic and dynamic part of the case, with Atticus being no exception. Pillersdorf does comment, though, that it is a myth that a great orator can salvage a far-fetched case (70).

Also, Atticus is concerned about justice not only for the rich but also for those like the Cunninghams, who can pay him only with a bag of nuts or whatever other items of produce they might have. As a white attorney defending a black man accusing of raping a white woman in Alabama in 1935, Atticus is viewed by some lawyers as a symbol of a fighter for civil rights and social justice. Freedman writes that, for some lawyers, Atticus' hero of justice is a “mythological paragon of social activism” (67). Atticus' fight for justice for the oppressed has even in recent years been transferred from the oppression of the poor and of African Americans to the oppression of political dissidents. The
St. Louis Daily Record
reported in 2005 that Joshua Dratel, the defense attorney for David Hicks, a man captured by the Northern Alliance in Afghanistan and transported to the U.S. naval station in Guantanamo Bay, sent his client a copy of
To Kill a Mockingbird
. Dratel recounts, “The whole Guantanamo experience was encapsulated for me when I sent him [the book]—and they [military officials] rejected it. A classic piece of American fiction that I don't think has caused a revolution yet. But maybe the story of someone wrongly charged with a crime hits too close to home!” (“A Guantanamo Test Case”).

One of Atticus' most moral moments comes as he explains to Jem and Scout why he will defend Tom Robinson:

All I can say is, when you and Jem are grown, maybe you'll look back on this with some compassion and some feeling that I didn't let you down. This case, Tom Robinson's case, is something that goes to the essence of a man's conscience—Scout, I couldn't go to church and worship God if I didn't try to help that man. . . . [People are] entitled to full respect for their opinions, but before I can live with other folks I've got to live with myself. The one thing that doesn't abide by majority rule is a person's conscience. (
TKAM
120)

Atticus certainly tries to live up to the demands of his conscience, his God, and his personal ethics as others concerned with social justice have.

It is this kind of reflective passage in the book that has led lawyers to invoke Atticus as a moral exemplar. Thomas L. Shaffer, emeritus law professor at the University of Notre Dame and the nation's most prolific legal scholar, wrote in 1991 that Atticus appears in all of his (Shaffer's) books and asserted that people the ages of his law students from 1963 to 1991 knew the novel better than they knew the Bible (Shaffer,
American Lawyers
223–224). Shaffer says Atticus has been cited as a paragon, role model, and professional exemplar; and he himself uses Atticus as an example of a good person (14), the embodiment of the American gentleman-lawyer (28). Shaffer also claims that it is significant that Atticus does not disassociate from his background but works conscientiously without losing his sense of self (35). Shaffer admiringly describes Atticus as he defines “discrimination humbly when he [tells] his children that before one acts with (or acts upon) the other fellow, he has to get inside his skin, a particularly poignant metaphor when one theme in the story is racism” (45). Moreover, Atticus is depicted as “heroic in telling the truth” (85) and as a protector of the weak (93).

It is evident that present-day attorneys play upon this image of Atticus in pleas for their colleagues to become involved in pro bono and low-cost legal work. Nevett Steele, Jr., director of a Baltimore organization that helps solo and small-firm attorneys provide low-cost legal help to the traditionally underserved, identifies Atticus as a great legal hero and says, “I know this is an idealized sort of thing, but you seek to have [lawyers] make a living and also to provide some tremendous service to individuals and the community and really set an example” (
The Daily Record
). One of the most extreme uses of Atticus as a moral exemplar and pro bono savior appears in the writing of Ted D. Lee in the
Texas Intellectual Property Law Journal
. Lee calls Atticus his “all time favorite hero” because he “stood up for what was right even though he knew it was unpopular and he would never be paid for his services.” Invoking the earlier-mentioned reverential worship of Atticus, Lee gives the same advice about moral decision making and Atticus that preachers give about Jesus: “Each of us, when considering whether to undertake a representation or how best to represent our client, should ask ourselves, ‘What would Atticus Finch do?' Do the right thing. You may not receive monetary rewards here on this earth, but you will receive respect from those who matter” (593–595). Having worked his readers into moral fervor in Southern preacher–style rhetoric, Lee then invites attorneys to work for the Pro Bono Task Force.

Why does the character of Atticus speak so strongly to attorneys? In popular culture lawyers are one of the few groups about whom it is politically correct to joke. They often appear as “parasitic, devious, greedy and cynical” immoralists (Economides and O'Leary 16). Associating with criminals, they at times are depicted as not far from criminals themselves. The generation that, as juveniles, read
To Kill a Mockingbird
as it was first published and were inspired by the movie version, watched as young professionals the corruption of Watergate fueled by the actions of attorneys Richard Nixon, John Dean, John Ehrlichman, G. Gordon Liddy, John Mitchell, and others. Far from being Supermen who defend “truth, justice, and the American way,” today's lawyers often seem to have a reputation in the public eye for twisting truth or for being unconcerned with it and for flouting justice in favor of winning for their wealthy clients. A
New York Times
review, for instance, stated that “the greatest of all oxymorons” is the term “legal ethics” (quoted in Dershowitz 151). Dershowitz goes on to label law an “ethically treacherous profession” (151) and has created a litany of charges against lawyers: they “overprepare witnesses, oversell their relationships with prosecutors and judges, and overbill or charge for hours when they are doing over things” (182).

Yet many attorneys originally choose law precisely because they see themselves as champions of the oppressed and because they care deeply about justice, equity, and rules. In a survey taken by Mike Papantonio of over two hundred attorneys in the southeastern United States in the 1990s, some 48 percent of respondents said, “I have or will have made meaningful impact to better society as a whole by the time I leave my practice as a trial lawyer” (27). Besides Watergate, another lesson about law in the twentieth century came from the civil rights movement, which was championed by lawyers such as Thurgood Marshall, who used the courtroom rather than relying on recalcitrant legislatures to abolish the inequities of segregation, inequities that take so prominent a place in
To Kill a Mockingbird
.

Added to the controversial public image of attorneys is the very complexity of the legal system itself. Lay people are often incensed that defense attorneys argue effectively for clients who they know are guilty. They are appalled when they hear professors like Abbe Smith of Georgetown state things like “Proof, not truth, is the currency in our courtroom.” They do not realize that attorneys and judges are often lifetime associates, while many clients are “one-shotters” who can easily misunderstand or be run over by the system. Alan Dershowitz has his “Thirteen Rules of the Criminal Justice Game,” which most participants in the criminal justice system understand but many lay people do not:

Rule I. Most criminal defendants are, in fact, guilty.

Rule II. All criminal defense lawyers, prosecutors, and judges understand and believe Rule I.

Rule III. It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution.

Rule IV. Many police lie about whether they violated the Constitution in order to convict guilty defendants.

Rule V. All prosecutors, judges and defense attorneys are aware of Rule IV.

Rule VI. Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants.

Rule VII. All judges are aware of Rule VI.

Rule VIII. Most trial judges pretend to believe police officers who they know are lying.

Rule IX. All appellate judges are aware of Rule VIII, yet many pretend to believe the lying police officers.

Rule X. Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.

Rule XI. Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged (or a closely related crime).