ENGL 2130 Final Research Paper Assignment for To Kill a Mockingbird by Harper Lee For the final research assignment, write an expository/literary analysis essay of approximately 750 to 1250 words based on one of the topic options. (Topic is listed below.) Your paper should be formatted and documented according to MLA 8.0 guidelines. Primary Source(s): Each paper should make reference to at least one primary source from the novel selected. Secondary Sources: Each paper must make reference to a minimum of two secondary sources from one of the Library Databases, using the 8th edition of MLA formatting. The sources should discuss some aspect(s) of any of the primary sources you use. Thesis: Your paper should have an identifiable three-part thesis and be thesis-driven. Title: All papers must have a TITLE. The title should reflect your thesis. The Scarlet Letter is not an appropriate title for a paper—it’s been taken! The Function of the Narrator in The Scarlet Letter is an appropriate title. Works Cited: Please include a separate page and make sure to include properly formatted citations for your primary source(s) and all secondary sources. The selected topic and novel is: To Kill a Mockingbird by Harper Lee Take one or more of the forms of discrimination in To Kill a Mockingbird and write an analytic essay in which you explain the forms and, if applicable, compare and contrast the types of discrimination. You should argue whether the lessons about discrimination that Scout learns are applicable to all types of prejudice, or whether they apply to racism alone. The most obvious form of discrimination in To Kill a Mockingbird is racism; however, there are other types of prejudice and discrimination that typify relationships among the novel’s characters. Scout, for example, is ridiculed in To Kill a Mockingbird because she is a tomboy. Boo Radley is ostracized despite the fact that hardly anyone knows him. Reverse racism is also present in the novel, as evidenced by the threats against Atticus Finch and his family as he defends Tom Robinson. 62 T S Q  To Kill a Mockingbird by Harper Lee (New York: Warner Books, 1982 reprinting.) Image courtesy of McCain Library and Archives (de Grummond Children’s Literature Collection and USM Libraries Digital Lab), University of Southern Mississippi, Hattiesburg. V. 54, .3/4 (S/S  2017) 63 Alabama Bound: Reading Harper Lee’s To Kill a Mockingbird While Southern J  S  Proud of the glory, stare down the shame duality of the Southern thing —Drive-By Truckers (“The Southern Thing”) When I was nine years old—which is the same age as Scout Finch at the beginning of Harper Lee’s To Kill a Mockingbird—my family packed into our Studebaker and headed south on the Dixie Highway from the suburbs of Chicago to our new home in the suburbs of Birmingham, Alabama. Just outside of Indianapolis, we merged on to US Highway 31 taking us down through Louisville, Kentucky; Nashville, Tennessee; and eventually crossing over the Alabama state line, where a billboard announced “Welcome to Alabama, the Heart of Dixie”—a motto that appeared on standard issued license plates beginning in 1955. As the Lead Belly song goes, I was “Alabama Bound.” Arriving in the heart of Dixie, we slowly made our way through Athens, Cullman, and finally into Birmingham, nicknamed The Magic City. The two-lane highway that we traveled on for years now has been replaced by an multi-lane expressway, but in many places, Highway 65 runs concurrent with old Highway 31. Things change, but they often stay the same. When I teach To Kill a Mockingbird in my college-level young adult literature course, I bring in James Agee’s and Walker Evans’s Let Us Now Praise Famous Men (1941), the nonfiction account of three families of white sharecroppers living in the same area of Alabama in the 1930s as the setting for Lee’s novel. Evans’s haunting, black-and-white photographs of the families and their homes serve as the introduction to Agee’s prose. The 64 T S Q  photographs provide a historical visual companion to the poverty of the lives of the Cunninghams and the Ewells in Lee’s novel. After showing students the photographs from Let Us Now Praise Famous Men, I then share the photographs from Dale Maharidge’s and Michael Williamson’s And Their Children After Them (1989), which revisits the locations and families that Agee and Evans interviewed and photographed in 1936. Between 1986 and 1988, Maharidge and Williamson were able to locate twelve of the original twenty-two individuals who were featured in Let Us Now Praise Famous Men (257). Williamson frequently pairs Evans’s earlier photographs with his more recent images of the same places and people. The children that Agee and Evans met have become adults. While trailers have replaced simple cabins, rural poverty remains a constant. Two years after Harper Lee’s To Kill a Mockingbird was published and awarded a Pulitzer Prize in Literature in 1960, my family moved to Alabama. It was the year of the release of Robert Mulligan’s popular film adaptation of the novel. The film went on to win three Academy Awards, including “best actor” for Gregory Peck, who played Atticus Finch. The roles of Scout and Jem Finch were played by the ten-year-old Mary Badham and the thirteenyear–old Philip Allford, both child actors from Birmingham; neither had much previous acting experience prior to the film. Badham was the youngest actress to ever be nominated for the best supporting actress role, but she lost that year to sixteen-year-old Patty Duke (who played Helen Keller, another Alabamian, in Arthur Penn’s The Miracle Worker). Mulligan’s film adaptation of To Kill a Mockingbird, with a screenplay by Horton Foote, is a rare example of a critically acclaimed novel being successfully translated to the movie screen. Taken together, the novel and the film have probably done more to help change and improve race relations in Alabama than any other literary work. While To Kill a Mockingbird appears to some contemporary readers and literary critics as dated and less progressive in its racial politics when viewed in light of contemporary attitudes toward racial justice, it was—and remains—an influential and enduring first step. Even before the publication of Go Set a Watchman (2015), in which Harper Lee presents the aging Atticus Finch as a racist, critics had begun to question the protagonist’s attitudes and his weak defense of Tom Robinson. Malcolm Gladwell in “The Courthouse Ring: The Truth about Atticus Finch,” published in The New Yorker in 2009, argues that Atticus is “about accommodation, not reform” (28) and that Lee’s novel informs readers of “the limitation of Jim Crow liberalism in Maycomb, Alabama” (32). However, in 2012, when John Grisham, the lawyer turned successful novelist, was asked to name the best book about the law in the “By the Book” section of The New York Times Book Review, he promptly responded, “To Kill a Mockingbird” (7). V. 54, .3/4 (S/S  2017) 65 In “It’s a Sin to Kill a Mockingbird: The Need for Idealism in the Legal Profession,” published in the 2016 Michigan Law Review, law professor Jonathan Rapping observed that in 2010 the American Bar Association named Atticus Finch as America’s favorite lawyer and that long after the novel’s publication, Atticus remains an inspiration for many progressive lawyers (852). While acknowledging Atticus’s flaws, Rapping argues that readers, including lawyers, “should continue to hold him up as a role model for the profession” (849). President Barack Obama, a former law professor, also invoked Atticus Finch as an inspirational figure in his “Farewell Address,” given in Chicago on January 10, 2017. Obama said: But laws alone won’t be enough. Hearts must change. It won’t change overnight. Social attitudes oftentimes take generations to change. But if our democracy is to work the way it should in this increasingly diverse nation, then each of us needs to try to heed the advice of a great character in American fiction, Atticus Finch, who said “You never really understand a person until you consider things from his point of view, until you climb into his skin and walk around in it.” (Obama) While To Kill a Mockingbird is frequently taught and discussed in law schools as well as high schools, it is a novel that works on the reader’s emotions rather than by the force of the argument. The novel sets out to change an attitude toward race, rather than to promote specific laws about race. President Obama recognized that the goal of the novel is to change hearts. That goal has been enormously successful in evoking empathy and encouraging readers to see the world as others do. Lee shows readers the actions and attitudes of adults as viewed from the point of view of three young children—Scout, Jem, and Dill—who transition from innocence to experience. In a similar manner, I came to understand Alabama through the eyes of a young person. The year after we moved, George Wallace was elected governor of Alabama for the first time. I can still remember asking my father how historians were able to recognize and separate the many ordinary and fleeting daily events from those that would be subsequently recognized as significant and form a lasting part of history. He walked over to the coffee table and picked up a copy of The Birmingham News featuring a headline about a march from Selma to Montgomery and explained, “This is history.” Until then, I had always assumed—based on my textbooks that I was provided in school—that American history was a series of events that had occurred many years ago and took place elsewhere, generally somewhere in New England. 66 T S Q  I had assumed that history was never local, but that assumption was about to be challenged. My family moved to Alabama after my father had accepted a faculty position at the Pharmacy School at Samford University, a Baptist college in Homewood, Alabama, a suburb just “over the mountain,” or the other side of Red Mountain. At the time, Birmingham was a steel town. The Sloss Furnace was in operation and made an impressive, if not frightening sight, especially at night. You could view it up close if you drove past the huge furance on First Avenue in downtown Birmingham. We could also see the rows of company houses that Walker Evans had photographed in the 1930s for the Farm Security Administration that were still being occupied by steel workers. Atop Red Mountain, overlooking the city was the impressive fiftyfive-foot statute of Vulcan, the symbol of Birmingham, the largest iron ore statue in world. Birmingham was famous for being the Pittsburgh of the South, or the Magic City, although its reputation would quickly change with the civil rights movement and subsequent events, not the least being the bombing of the Sixteenth Street Baptist Church in 1963. I first read To Kill a Mockingbird when I was in high school. I don’t recall the novel being assigned in any of my English classes, so I must have found a copy in the library. It has always been a popular—although rather controversial—book in Alabama. Harper Lee was a beloved, but somewhat reclusive figure, within the state. She had once stated her ambitions as, “all I want to be is the Jane Austen of south Alabama” (Blackall 19). As a careful observer of a select group of families in the country, with a keen eye and a wicked ear for social satire, Lee was amazingly successful. Referring to her by the name she used with those close to her, Lee’s childhood friend Truman Capote—the model for Dill—said, “Most of the people in Nelle’s book are drawn from life” (qtd. in Shields 127). For readers who have lived in Alabama, one of the most striking things about the novel is how accurately Lee captures the sense of place and people who live there. She gets the little details right. If you grew up in Alabama, when you read To Kill a Mockingbird, you can smell the pine trees, the azaleas, and the magnolias; you can see the red dirt and feel the oppressive, damp summer heat. Anyone who has spent quality time in Birmingham’s Botanical Gardens or Mobile’s Bellingrath Gardens has overheard extended conversations of older women exhibiting their vast knowledge of gardening and the Old Testament, just like Miss Maudie Atkinson in the book. Monroeville, Alabama, didn’t have a public library when Lee was child. Alabama: A Guide to the Deep South (1941), the Works Progress Administration (WPA) guide for Alabama, makes little mention of V. 54, .3/4 (S/S  2017) 67 Monroeville, other than it having a modest population of 1,355 people (Jackson 363). The 1975 revised version of the WPA guide for Alabama does include a brief reference to Lee in the “Books, Arts and Crafts” section of the volume: “Harper Lee, who won national acclaim for To Kill a Mockingbird, is an Alabamian” (Walker 113). But “The Official Travel Site of Alabama” website has since made up for that oversight and features Alabama Road Trip No. 10: Monroeville: The “To Kill a Mockingbird” Experience. Alabama now celebrates Monroeville as the “Literary Capital of Alabama,” since it is the hometown of Harper Lee, Truman Capote, and Mark Childress, the author of Crazy in Alabama (Parten). Since 1990, the Monroeville County Courthouse has been transformed into a museum, and a theatrical version of the novel is performed there in the summers in which members of the audience can be selected to become members of the jury. Capote received a slightly longer mention in the 1975 WPA guide for Alabama, which noted that he is a native of New Orleans, but “widely known in Alabama” (Walker 113). One of the most impressive readings that I attended as an undergraduate at Samford University was witnessing Capote read in the early 1970s at the University of North Alabama in Florence. He was clearly drunk, and it looked like the reading was going to be bust. A scene from the play To Kill a Mockingbird, performed in Monroeville, Alabama, 23 April 2010. Photographed by Carol M. Highsmith. Image courtesy of the George F. Landegger Collection of Alabama Photographs in Carol M. Highsmith's America, Library of Congress, Prints and Photographs Division, LC-DIG-highsm-07105.. 68 T S Q  But once he began reading “A Christmas Memory,” his short story set in Alabama about a young boy who makes fruitcakes with his elderly cousin, an astonishing transformation occurred. Capote sobered up and gave—clearly from memory—one of the most impassioned and moving readings I have ever witnessed. Alabama is the home of such different and larger-than-life artistic personalities, such as Hank Williams, Sun Ra, and Zelda Sayre and its citizens are a bit more diverse than is often assumed. Harper Lee is part of the constellation of creative people from Alabama. Like Monroeville, Hoover (the suburb south of Birmingham where I grew up) didn’t have a library. Once a week, my family waited for the bookmobile to arrive in the parking lot near my elementary school. As fun as a traveling library can be to a young child, the book selection was limited. Eventually, my parents decided it would be better to drive to the Birmingham Public Library, an impressive four-story building adjacent to Woodrow Wilson Park. Built in 1902, the library features beautiful WPA murals of famous literary figures by Ezra Winters in its reading room on the first floor and fairy tale murals in its children’s department. We would drive Highway 31 on Saturdays, passing under the statue of Vulcan watching over Birmingham, and spend the afternoons in the library, wandering in a park, and visiting the nearby Birmingham Art Museum. It was on one of those trips that I first came across To Kill a Mockingbird. But as a child, I never realized that Kelly Ingram Park and the Sixteenth Street Baptist Church—the epicenter of the civil rights movement in Birmingham—were only four blocks away from the Birmingham Public Library. Even though we drove by the area on our trips to the library, it remained a separate world. In 1992, the Civil Rights Institute opened next to the Sixteenth Street Baptist Church; the area has been designated as the Civil Rights District and has become a popular tourist destination. My first recognition of segregation in Birmingham occurred when we visited Birmingham’s Jimmy Morgan Zoo. It was there that I saw water fountains marked “Colored” and “White.” I had assumed that the colored water fountains featured multicolored water and was disappointed when they did not. I quickly learned the actual meaning behind the two signs. Scout, Jem, and Dill go through a similar experience as they observe the trial of Tom Robinson. Jem is confident that his father has successfully presented the facts of the legal case and convinced the jury of Robinson’s innocence. But what Jem and the other children have not taken into account is that the members of the jury (like Mr. Cunningham, who had previously led the mob to the jail to lynch Robinson before the trial) have, “blind spots along with the rest of us” (Lee 179). After Tom’s conviction, Jem is forced to re-evaluate members of his hometown: “I always thought Maycomb folks were the best folks in the world, and least that what they seemed like” (246). V. 54, .3/4 (S/S  2017) 69 Like Mark Twain’s The Adventures of Huckleberry Finn, To Kill a Mockingbird could have only been written by someone who grew up in the South and eventually left. Lee wrote the novel in New York City, but it clearly reflects her knowledge and appreciation of Alabama. I suspect most white readers of To Kill a Mockingbird from Alabama prefer to identify with Atticus Finch, or perhaps Scout or Jem, but readers from outside of the state are more likely to assume Alabamians are versions of Bob Ewell or Miss Gates. The truth is more likely found somewhere in-between. As Lee would suggest, Alabama is full of all sorts of folks. Jem disagrees with Scout when she announces, “I think there’s just one kind of folks. Folks” (Lee 259). Lee clearly reveals that, “There was indeed a caste system in Maycomb” (149) and it makes deep and lasting divisions by race, social class, and gender. But is also a community made up of a range of folks who resemble Miss Maudie, Miss Stephanie Crawford, Mr. Cunningham, Mr. Underwood, Bob Ewell, and Dolphus Raymond. It is both a highly racist community and a place where, “Neighbors bring food with death and flowers with sickness and little things in between” (320). When I began third grade at Shades Creek School, the class would begin each day by standing next to our desks and singing. We would start with folk songs such as “I’ve Been Working on the Railroad,” “Erie Canal,” and “Oh Susanna” and then move on to more patriotic tunes such as “The Battle Hymn of the Republic” and, of course, “Dixie.” These were the songs that Pa sang to Laura in Ingalls Wilder’s Little House books, and the songs that Carl Sandburg collected in The American Songbag in the 1920s. It was a clever way to calm down a classroom of hyperactive third-graders. That year, the class was introduced to Alabama history, which included memorizing the names of all the previous governors. But it is also when I learned to sing and appreciate folk songs and develop my interest in local history. During my childhood, it seems to me that whenever my family traveled, we would stop at every historical marker that appeared along the road. There were quite a few historical landmarks in Alabama. My parents kept a copy of the state WPA guide in the car and read it out loud to entertain the three fidgeting children in the back seat as we drove through a seemingly countless series of small towns. It was a habit that I would later adopt as an adult, and I now own my parents’ well-used copy of Alabama: A Guide to the Deep South. My third-grade teacher was charmed by my Yankee accent and frequently called on me to read aloud to the class. After a few weeks, I wised up and managed to acquire a passing Southern accent and was no longer asked to read aloud. The ability to turn a Southern accent on and off is a skill that many Southerners who have left the South have learned. One quickly realizes that a Southern accent outside of the South is often viewed as a liability and a negative marker. Like Calpurnia, many transplanted Southerners cultivate 70 T S Q  “a modest double life” (Lee 142) when it comes to accents. I noticed that my Southern accent reappeared whenever I returned to visit my parents in Alabama. While the reading list of young adult literature is constantly in flux, I try to include a few historical texts such as The Catcher in the Rye and To Kill a Mockingbird to show students the evolution of the genre. I am not alone in using To Kill a Mockingbird as a classroom text. Lee’s novel remains one of the most frequently taught novels in public high schools. Claudia Durst Johnson reports that between 1895 and 1975, it was the third best-selling novel in the United States (13). Johnson also mentions that To Kill a Mockingbird is one the top ten books taught in high school. According to a study by the Library of Congress Center for the Book in 1991, it was second only to the Bible as the book most cited as making a difference in people’s lives (Johnson 14). While the publication of Lee’s Go Set a Watchman in 2015 has caused a re-evaluation by many readers of their feelings toward Atticus Finch, To Kill a Mockingbird remains one of the favorite books of students enrolled in young adult literature courses. While some readers and critics have found fault with Lee representing Atticus as a white savior figure, I think those criticisms overlook some events in the novel. Atticus loses in court; in fact, he knows he will lose, even before the case begins. His client, Tom Robinson, loses faith in the justice system and in Atticus as his lawyer and is killed attempting to escape from prison. Atticus cannot even defend his own children. It is Boo Radley who saves them from the vicious attack by Bob Ewell. While Atticus is no great white savior, he is a man trying to do the right thing by challenging and changing some of the racist attitudes of his community. In doing so, he becomes a role model for his children. This is no small thing. In many ways, To Kill a Mockingbird is as much a novel about the relationships between parents and children— Atticus and Scott and Jem; Dill and his disinterested parents; Mayella and her abusive father; Boo Radley and his controlling father and uncle—as it is about the law. Nevertheless, Lee, like most of the characters in her novel, has her own blind spots. Her African American characters—Calpurnia, Tom Robinson, the mixed race children of Dolphus Raymond—are stereotypes, and their own attempts to gain equality and justice are limited. They tend to be followers rather than leaders in the struggle for equality and look up to Atticus. After reading To Kill a Mockingbird, I have students read John Lewis’s March: Book One (2013), the first of the three-volume graphic novel adaptation of Lewis’s autobiography, Walking with the Wind: A Memoir of the Movement (1998). As an African American male growing up in Alabama in the 1950s and 1960s, Lewis became an active participant and leader in the civil rights movement. He was one of the speakers at the historic 1963 March V. 54, .3/4 (S/S  2017) 71 on Washington when Dr. Martin Luther King, Jr., delivered his “I Have a Dream” speech. He later participated in the 1965 “Bloody Sunday” March when he led peaceful protestors across the Edmund Pettis Bridge in Selma, Alabama (Lewis, March n. pag.). Lewis’s March makes a useful companion volume that helps fill in some of the gaps in Lee’s To Kill a Mockingbird. As an undergraduate, one of my favorite professors was Wayne Flynt, the author of Poor but Proud: Alabama’s Poor Whites (1990) and Alabama in the Twentieth Century (2004). He was one of a group of faculty members who team-taught an interdisciplinary, four-semester course on Western culture, which I took as a freshman and sophomore at Samford University. Flynt later relocated to Auburn University, where he continued his career as a distinguished Southern historian. He also befriended Harper Lee, who lived nearby in Monroeville, and over the years became a trusted companion. When I read the 2016 New York Times article about Lee’s private funeral in Monroeville, which was attended by about forty people, I was not surprised to learn that Flynt was asked to give the eulogy. The New York Times article mentioned that Lee had requested Flynt only speak of her art, rather than her life (Howard, Webb, and Kovaleski). The article also quoted Hank Conner, Harper Lee’s eldest nephew, as saying that Flynt’s eulogy was “the most concise, accurate and fair assessment of To Kill a Mockingbird I’ve ever heard.” Flynt’s eulogy was a slight revision of an introduction he had previously given in 2016 when Lee was honored with a Lifetime Achievement Award by the Birmingham Pledge Foundation at the University of Alabama in Birmingham. After the event Lee wrote Flynt, “Hang on to ‘Atticus’s Vision of Ourselves’ because I want you to read it at my memorial service, should I die in Monroeville” (Flynt 101). He only added a sentence that addressed Go Set a Watchman five years later (198). Flynt published Mockingbird Songs: My Friendship with Harper Lee in 2017 in which he discusses his twenty-five- year friendship and correspondence with the author; the appendix includes his “Eulogy for Nelle Harper Lee: Atticus’s Vision of Ourselves” (201-10). In fifteen minutes, Flynt focused on what he felt were the five major truths that readers over the years have taken from To Kill a Mockingbird: Racial Justice, Class, Differences, Community, and Values Education. Flynt concluded Lee’s eulogy by observing: In one of the fine moments of irony for which Alabama is renowned, a novel written by a woman, a woman from the tiny town of Monroeville, on the southern edge of the state’s infamous and violent Black Belt, has become the primary literary instrument worldwide for teaching values of racial 72 T S Q  justice, civility, reconciliation, and tolerance for people different from ourselves, and the necessity for moral courage to confront community prejudice and ostracism. (210) The Drive-By Truckers are a progressive, alternative country, Southern band founded by Patterson Hood and Mike Cooley, who grew up in Florence and Muscle Shoals, Alabama. Hood is the son of bassist of David Hood, a member of the legendary Muscle Rhythm Shoals section. Greg ‘Freddy’ Camalier’s 2013 documentary Muscle Shoals shows the astonishing range of diverse popular music that has been produced by both at Rich Hall’s FAME Studio and its breakaway competition, the Muscle Shoals Sound Studio. The house studio musicians would be name-checked as “Swampers” in Lynyrd Skynyrd’s “Sweet Home Alabama,” a song written in response to Neil Young’s “Alabama” and “Southern Man” (Whitley 65-66). Hood and the Drive-By Truckers released their most ambitious and perhaps bestknown album—Southern Rock Opera—in 2001. It is a two-CD concept album that was recorded in Birmingham, and it combines the story of the rise of Lynyrd Skynyrd in the 1970s with a fictional Southern band named Betamax Guillotine.1 In Southern Rock Opera and subsequent albums, Hood and the Drive-By Truckers attempt to come to terms with growing up in Alabama after the civil rights movement. In his essay, “The South’s Heritage is So Much More Than a Flag,” published in 2015 in The New York Times Magazine, Hood explains that Southern Rock Opera was his attempt to express the multiple contradictions of the Southern identity. He writes, “The album wrestled with how to be proud of where we came from while acknowledging and condemning the worst parts of our region’s history.” In many ways, Harper Lee was attempting to do the same thing with To Kill a Mockingbird. One of the most striking and troubling songs on Southern Rock Opera is “Three Alabama Icons,” which is more of a spoken word piece than a typical rock song. Hood lists and describes the three great Alabama icons of his Alabama childhood in the 1970s: George Wallace, Bear Bryant, and Ronnie Van Zant. The first icon (George Wallace) was the Alabama governor best remembered for announcing in his 1963 inaugural speech, “segregation tomorrow, segregation forever” (McWhorter 311) and, later in the same year, for his “Stand in the Schoolhouse Door” when he tried to prevent the enrollment of African American students at the University of Alabama in Tuscaloosa (McWhorter 460-1). Hood’s second icon (Paul “Bear” Bryant) was the hound’s-tooth hatwearing head football coach at the University of Alabama who led his teams to six national championships and thirteen conference championships (Barra V. 54, .3/4 (S/S  2017) 73 viii). Football comes as a close second to religion as the major obsession in Alabama. Lee, who attended the University of Alabama as an undergraduate, understood this intense devotion to football. On the opening page of To Kill a Mockingbird, Lee explains that Jem “couldn’t care less” that one arm was slightly shorter than the other as a result of a broken arm caused by Bob Ewell’s attack “so long as he could pass and punt” (3). Hood’s third icon (Ronnie Van Zant) was the lead singer and songwriter for the popular Southern rock band Lynyrd Skynyrd whose best-known song —“Sweet Home Alabama” and “Free Bird”—celebrates the Southern redneck way of life.1 Growing up in Alabama in the 1970s as did Hood, I don’t question his choice of figures who cast a long shadow on Alabama, but I only wish he had added a fourth: Harper Lee. To Kill a Mockingbird is as much an exploration of the duality and contradictions of the Southern thing as is the Drive-By Truckers’ Southern Rock Opera or Lynyrd Skynyrd’s “Sweet Home Alabama.” With its combination of sweet and painful notes, To Kill a Mockingbird still sings for many readers, especially those readers who have grown up in the South. Illinois State University N 1 In the spirit of full disclosure, in the early 1970s I worked with the concert promoter, Peace Concerts, which organized rock concerts in Birmingham, including some by Lynyrd Skynyrd. I met the band, hung out back stage, and was responsible for making sure that there was enough alcohol for the band—no easy matter. Based on my limited interaction with them, I feel confident in suggesting that most stories about Lynyrd Skynyrd are probably accurate. They were an extremely hard-partying, heavy-drinking, but talented, bunch of musicians. W C Agee, James, and Walker Evans. Let Us Now Praise Famous Men. Boston: Houghton Mifflin, 1941. Print. Barra, Allen. The Last Coach: A Life of Paul “Bear Bryant. New York: Norton, 2006. Print. Blackall, Jean Frantz. “Valorizing the Commonplace: Harper Lee’s Response to Jane Austen.” On Harper Lee: Essays and Reflections. Ed. Alice Hall Petry. Knoxville: U of Tennessee P, 2007. 19-34. Print. Drive-By Truckers. Southern Rock Opera. Perf. Drive-By Truckers. Rec. 2001. Soul Dump Music. 2001. CD. ---. “The Southern Thing.” Southern Rock Opera. ---. “Three Alabama Icons.” Southern Rock Opera. Flynt, Wayne. Alabama in the Twentieth Century. Tuscaloosa: U of Alabama P, 2004. Print. ---. “Eulogy for Nelle Harper Lee: Atticus’s Vision of Ourselves.” Mockingbird Songs. ---. Mockingbird Songs: My Friendship with Harper Lee. New York: HarperCollins, 2017. Print. 74 T S Q  ---. Poor But Proud: Alabama’s Poor Whites. Tuscaloosa: U of Alabama P. 1990. Print. Gladwell, Malcolm. “The Courthouse Ring: The Truth about Atticus Finch.” New Yorker 10 & 17 Aug. 2009: 26-32. Print. Grisham. John. “By the Book.” New York Times Book Review 28 Oct. 2012: 7. Print. Hood, Patterson. “The South’s Heritage is So Much More Than a Flag.” New York Times Magazine 9 July 2015. NYTimes.com. Web. 15 Feb. 2016. Howard, Jennifer Crossley, Katherine Webb and Serge F. Kovaleski. “Harper Lee is Memorialized as She Lived: Quietly and Privately.” New York Times 20 Feb. 2016. NYTimes.com. Web. 24 Feb. 2016. Jackson, Harvey H. III, ed. The WPA Guide to 1930s Alabama. Previously published as Alabama: A Guide to the Deep South 1941. Tuscaloosa: U of Alabama P, 2000. Print. Johnson, Claudia Durst. To Kill a Mockingbird: Threatening Boundaries. New York: Twayne, 1994. Twayne’s Masterwork Studies 139. Print. Lee, Harper. Go Set a Watchman: A Novel. New York: Harper, 2015. Print. ---. To Kill a Mockingbird. New York, Harper, 1960. Print. Lewis, John. March: Book One. Marietta, GA: Top Shelf Prod., 2013. Print. ---. Walking with the Wind: A Memoir of the Movement. New York: Simon & Schuster, 1998. Print. Lynyrd Sknyrd. “Free Bird.” Pronounced “Lēh-nérd Skin-nérd.” Perf. Lynyrd Sknyrd. MCA, 1973. CD. ---. “Sweet Home Alabama.” Second Helping. Perf. Lynyrd Sknyrd. Audio Fidelity Records, 1974. CD. Maharidge, Dale, and Michael Williamson. And Their Children after Them: The Legacy of Let Us Now Praise Famous Men: James Agee, Walker Evans, and the Rise and Fall of Cotton in the South. New York: Pantheon, 1989. Print. McWhorter, Diane. Carry Me Home: Birmingham, Alabama: The Climactic Battle of the Civil Rights Revolution. New York: Simon & Schuster, 2001. Print. Muscle Shoals. Dir. Greg Camalier. Magnolia Home Entertainment, 2014. DVD. Obama, [Barack] President. “President Obama’s Farewell Address: Full Video and Text.” New York Times 10 Jan. 2017. NYTimes.com. Web. 2 Feb. 2017. Parten, Edith. “Monroeville: The ‘To Kill a Mockingbird’ Experience.” Alabama Road Trip No. 10. The Official Travel Site of Alabama. Web. 8 Sept. 2016. Rapping, Jonathan A. “It’s a Sin to Kill a Mockingbird: The Need for Idealism in the Legal Profession.” Michigan Law Review 114.6 (2016): 847-65. Print. Shields, Charles J. Mockingbird: A Portrait of Harper Lee. New York: Henry Holt, 2006. Print. To Kill a Mockingbird. Dir: Robert Mulligan. Screenplay Horton Foote. Universal Studio, 2012. DVD. United States. Works Progress Administration. Federal Writers’ Project. Alabama: A Guide to the Deep South. New York: R. R. Smith, 1941. Print. Walker, Alyce Billings, ed. Alabama: A Guide to the Deep South. 1941. New Revised Edition, New York: Hastings, 1975. Print. Whitley, Carla Jean. Muscle Shoals Sound Studio: How the Swampers Changed American Music. Charleston, SC: History P, 2014. Print. Young, Neil. “Alabama.” Harvest. Perf. Neil Young. Reprise, 1974. CD. ---. “Southern Man.” After the Goldrush. Perf. Neil Young. Reprise, 1970. CD. Copyright of Southern Quarterly is the property of University of Southern Mississippi and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. Legal Ethics, Volume 14, Part 1 BOOK REVIEWS Defending Atticus Finch Abbe Smith* INTRODUCTION Harper Lee’s classic To Kill a Mockingbird is now over 50 years old.1 No book is more celebrated in the US or more widely read.2 To Kill a Mockingbird won the Pulitzer Prize,3 was made into a popular and acclaimed movie,4 sells a million copies a year,5 and is required reading at most American high schools.6 Librarians named it the best novel of the twentieth century.7 Oprah Winfrey calls it ‘our national novel’.8 * 1 2 3 4 5 6 7 8 Professor of Law, Director of the Criminal Defense & Prisoner Advocacy Clinic, Co-Director of the E Barrett Prettyman Fellowship Program, Georgetown University Law Center, USA. With thanks to Sophia Heller and Jose Canto for helpful research assistance and Ilene Seidman and Tucker Carrington for helpful conversations. My friend and co-author Monroe Freedman, the first legal scholar to criticise Atticus Finch, tried to talk me out of writing this essay. But I love him anyway. See Monroe H Freedman and Abbe Smith, Understanding Lawyers’ Ethics (LexisNexis, 4th edn 2010). Harper Lee’s To Kill a Mockingbird was published on 11 July 1960. All references in this essay are to the special 50th anniversary hardcover edition (HarperCollins, 2010). See Julie Bosman, ‘A Classic Turns 50, and Parties Are Planned’ New York Times, 25 May 2010. See www.pulitzer.org/awards/1961 (accessed 27 May 2011). See To Kill a Mockingbird (Universal Pictures, 1962). The film was nominated for eight Academy Awards: best picture, best director, best actor, best supporting actress, best adapted screenplay, best art direction, best cinematography, and best music score. It won for best actor (Gregory Peck), screenplay (Horton Foote), and art direction (a team of art and set directors). See www.imdb.com/title/tt0056592/awards (accessed 27 May 2011). See Maria Puente, ‘To Kill a Mockingbird: Endearing, Enduring at 50 Years’ USA Today, www.usatoday.com (accessed 27 May 2011). Ibid; see also Charles J Shields, Mockingbird: A Portrait of Harper Lee (Holt, 2007) 271 (noting that, according to a 1988 National Council of Teachers of English survey, Mockingbird was taught in 74% of the nation’s public schools, and only Romeo and Juliet, Macbeth and Huckleberry Finn were assigned more often). Puente (n 5). The librarians were polled by Library Journal in 1999. Ibid. 144 Abbe Smith Published in 1960, the book was born into the baby boom generation, on the eve of the most storied decade of the twentieth century.9 But the popularity and influence of To Kill a Mockingbird has transcended its cultural generation and time. On the book’s 30th anniversary, the Library of Congress and Book-of-the-Month Club commissioned a ‘Survey of Lifetime Reading Habits’ and discovered that To Kill a Mockingbird was second only to the Bible among books cited as making a difference in people’s lives.10 As the book is revered, so is its central character, Atticus Finch. The American Film Institute selected Atticus Finch as the greatest movie hero of all time.11 Of course, To Kill a Mockingbird’s Finch has moved and inspired legions of lawyers and would-be lawyers.12 Yet some people have been talking trash about Finch. They’re saying he’s not a hero at all. They’re saying Finch’s admirers are all a bunch of suckers. Among Finch’s detractors are people I admire: writer Malcolm Gladwell13 and law professors Monroe Freedman14 and Steven Lubet.15 There are others as well, and their ranks appear to be growing.16 The critics claim, among other things, that Finch isn’t worthy of being called a hero because he turns a blind eye to the local Ku Klux Klan,17 fails to suff9 10 11 12 13 14 15 16 17 Stephen Metcalfe, ‘On First Looking into To Kill a Mockingbird: How Sentimental and Nostalgic Is It?’, www.slate.com/id/2143319 (accessed 27 May 2011) (noting that Mockingbird is a book of the 60s). Christopher Metress, ‘The Rise and Fall of Atticus Finch’ (2003) 24 Chattahoochee Review 95 (reprinted in Harold Bloom (ed), To Kill a Mockingbird: Modern Critical Interpretations (Chelsea House, 2006)). The selection was made in 2003. See American Film Institute, AFI’s 100 Years … 100 Heroes and Villains, http://connect.afi.com/site/DocServer/handv100.pdf?docID=246 (accessed 27 May 2011). See Rob Atkinson, ‘Liberating Lawyers: Divergent Parallels in Intruder in the Dust and To Kill a Mockingbird’ (1999) 49 Duke Law Journal 601, 604–5 (noting the influence of To Kill a Mockingbird on legal education and the legal profession); Malcolm Gladwell, ‘The Courthouse Ring: Atticus Finch and the Limits of Southern Liberalism’ The New Yorker 10 August 2009 (calling Atticus Finch a ‘role model for the legal profession’); see also Mike Papantonio, In Search of Atticus Finch: A Motivational Book for Lawyers (Seville Publishing, 1996) (exhorting lawyers to be like Finch). I often tell people that the reason I became a criminal defence lawyer is because I read the book To Kill a Mockingbird and saw the movie too many times as an impressionable child. See Gladwell, ibid. See Monroe H Freedman, ‘Atticus Finch, Esq, RIP’ Legal Times, 24 February 1992; Monroe H Freedman, ‘Finch: The Lawyer Mythologized’ Legal Times, 18 May 1992; Monroe H Freedman, ‘Atticus Finch—Right and Wrong’ (1994) 45 Alabama Law Review 473. See Steven Lubet, ‘Reconstructing Atticus Finch’ (1999) 97 Michigan Law Review 1339. See eg Atkinson (n 12) (arguing that Finch is a paternalist and gradualist); Taunya Lovell Banks, ‘Why Should We Celebrate the 50th Anniversary of To Kill a Mockingbird?’ Quoth the Raven: The Maryland Law Faculty Blog, 15 June 2010, http://umlaw.typepad.com/quoth/2010/06/why-should-we-celebrate-the-50th-anniversary-ofto-kill-a-mockingbird.html (accessed 27 May 2011) (arguing that Finch was a ‘decent man practicing law in an unjust society who did his job, nothing more’ and was ‘not … especially heroic’); Note, ‘Being Atticus Finch: The Professional Role of Empathy in To Kill a Mockingbird’ (2004) 117 Harvard Law Review 1682 (arguing that Finch is overly detached); Thomas Mallon, ‘Big Bird: A Biography of the Novelist Harper Lee’ The New Yorker 29 May 2006 (calling Finch a ‘plaster saint’); Metcalfe (n 9) (calling Finch a ‘cartoonlike vessel of stoical wisdom’); Theresa Godwin Phelps, ‘The Margins of Maycomb: A Rereading of To Kill a Mockingbird’ (1994) 45 Alabama Law Review 511, 521 (arguing that Finch has a disturbing vision of the poor whites who live ‘on the margins’ in Maycomb). For a book of literary criticism on To Kill a Mockingbird, that includes critical commentary on Atticus Finch, see Bloom (n 10); see also Larry J Griffin and Don H Doyle (eds), The South as an American Problem (University of Georgia Press, 1995) (essay by Eric J Lundquist calling To Kill a Mockingbird a ‘historical relic’ that ‘might well have been entitled “Driving Miss Scout”’). Freedman, ‘Atticus Finch, Esq, RIP’ (n 14); Freedman, ‘Finch: The Lawyer Mythologized’ (n 14); Freedman, ‘Atticus Finch—Right and Wrong’ (n 14). Defending Atticus Finch 145 iciently challenge systemic racism in the Jim Crow South,18 and employs sexist and classist tactics at trial.19 In short, he is an accommodator 20 who perpetuates the prevailing white, male, upper-class power structure of which he is part and from which he benefits.21 It almost makes you want to tell Finch’s daughter Scout to sit back down in the most memorable scene in the book—what Gladwell calls ‘one of American literature’s most moving passages’22—when, after the jury finds the accused Tom Robinson guilty, Finch gathers his papers, says a word to his client, takes his coat from the back of his chair, and walks out of the courtroom. As Scout recounts: Someone was punching me, but I was reluctant to take my eyes from the people below us, and from the image of Atticus’s lonely walk down the aisle. ‘Miss Jean Louis?’ I looked around. They were standing. All around us and in the balcony on the opposite wall, the Negroes were getting to their feet. Reverend Syke’s voice was as distant as Judge Taylor’s: ‘Miss Jean Louise, stand up. Your father’s passin’.’23 This essay argues that Scout and the African Americans in court that day were right to stand when Finch passed by. That act of recognition was deserved then and still is—no matter the post-modern post-mortems. Finch should be considered a hero—a fictional hero, but an important one nonetheless. He is a hero because when called upon to defend a black man wrongly accused of raping a white woman in the 1930s south he did so unflinchingly. He is a hero because at a time when lawless mobs often replaced the rule of law, and injustice seemed inevitable, he insisted on justice. He is a hero because he literally put himself between a lynch mob and his client. That Finch prefers to see the best in people—even people who did evil things—does not make him less of a hero. That he plays upon people’s prejudices in zealously defending Tom Robinson instead of working to end all prejudice does not make him less of a hero. That he might be flawed in some significant ways does not make him less of a hero. Some of us prefer our heroes flawed. THE CRITICS’ COMPLAINTS As Monroe Freedman was the first major Finch critic, I’ll start with him. In three articles— two pieces in Legal Times and one in the Alabama Law Review—Freedman argues that Finch ‘tolerates … and sometimes … even trivializes and condones’ anti-Semitism and racism in 18 19 20 21 22 23 Gladwell (n 12); Freedman, ‘Atticus Finch—Right and Wrong’ (n 14). Lubet (n 15). See Gladwell (n 12) 28; see also Lance McMillian, ‘Atticus Finch as Racial Accommodator: Answering Malcolm Gladwell’s Critique’, http://ssrn.com/abstract=1537688 (accessed 27 May 2011). Gladwell (n 12) 32. Ibid, 27. Lee (n 1) 242. 146 Abbe Smith Maycomb, Alabama, the town where To Kill a Mockingbird takes place.24 Finch does this by playing down the violent history and purpose of the Ku Klux Klan—calling it a ‘political organization’,25 and failing to acknowledge the lynching of Leo Frank, which happened less than 20 years before in a town very much like Maycomb26 and which sparked a revival of Klan brutality against Jews and blacks.27 Freedman accuses Finch of hypocrisy, too. Notwithstanding his famous advice to Scout—that ‘“[y]ou never really understand a person until you consider things from his point of view … until you climb into his skin and walk around in it”’28—Freedman says Finch doesn’t come close to climbing into the skin of Jews and blacks terrorised by the Klan.29 Instead, Finch ‘complacently’ suggests that the Klan can be managed if you have sufficient moxie: When the Klan paraded by a Jewish family’s house one night, ‘“Sam [Levy] just stood on his porch and told ’em things had come to a pretty pass, he’d sold ’em the very sheets on their backs … [and] made ’em so ashamed of themselves they went away.”’30 Freedman rebukes Finch for not acknowledging the trauma of such a ‘night of terror’— the Levy family ‘alone against the hooded mob’.31 Freedman notes that the Levys ‘would have known what happened to Leo Frank, and of the Klan’s record of terrorism in the following years’.32 24 25 26 27 28 29 30 31 32 Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 479. Ibid (quoting Lee (n 1) 157). See generally Steve Oney, And the Dead Shall Rise: The Murder of Mary Phegan and the Lynching of Leo Frank (Pantheon, 2003) (recounting the wrongful conviction and brutal killing of a Jewish factory superintendent in Marietta, Georgia in 1915); see also Leonard Dinnerstein, The Leo Frank Case (University of Georgia Press, rev edn 2008) (same). Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 475. Lee (n 1) 33. Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 474. Ibid, 475, quoting Lee (n 1) 167–8. This fictional account may have been inspired by real events involving Harper Lee’s father AC Lee, a lawyer and newspaperman. On one occasion, AC came down from his porch, his suspenders hanging down, to confront the local grand dragon marching with a group of hooded Klansmen. He warned that he ‘would give them a drubbing in one of is editorials’, causing the group to drop its combative pose. Shields (n 6) 57. Another time, Harper’s friend Truman Capote was having a Hallowe’en party and some members of the Klan tried to break it up because they heard that black people had been invited. When they grabbed one guest—who was completely hidden by his robot costume but happened to be white—AC told them off: ‘“See what your foolishness has done? You’ve scared this boy half to death … You ought to be ashamed of yourselves.”’ Ibid, 57–58. Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 475. Freedman elaborates: ‘The Levys are alone … Atticus Finch is not there for them, nor are any of the other good people of Maycomb. Recall how Tom Robinson is unable to sleep and cringes, full of dread, behind the wall of his cell in Maycomb’s jail when the Maycomb lynch mob comes for him. In the same way, Mrs Levy and her children would be wide awake, cowering in terror behind the wall of their home, fearing that their husband and father would be shot by the mob, or that he would be carried away and later found hung, another piece of strange fruit swinging from the branch of a Southern tree. They also would know that Klan torches are used to burn down houses with people in them. The children would be crying, muffling their sobs so that the mob could not hear them.’ Ibid. Ibid. Defending Atticus Finch 147 Another example of Finch’s hypocrisy—or at least of failing to practise what he preaches—is counselling others to tell children the truth33 but lying to his own. Finch, who Freedman says knows better, tells his son Jem that the Klan doesn’t exist in Maycomb, that they disbanded when ‘“they couldn’t find anybody to scare”’.34 He says, ‘“[W]e don’t have mobs and that nonsense in Maycomb. I’ve never heard of a gang in Maycomb.”’35 When Jem mentions a Klan attack on some Catholics, Finch glibly says, ‘“Never heard of any Catholics in Maycomb either.”’36 Worse still, says Freedman, is what Finch tells his children after Finch’s own encounter with a lynch mob outside the jail where Tom Robinson is held. Finch calls Walter Cunningham, a leader of the mob, ‘“basically a good man … [who has] his blind spots along with the rest of us”’.37 Freedman ridicules this ‘blind spot’ as ‘a homicidal hatred of black people’38—a line Gladwell cheerfully repeats in his New Yorker piece.39 Freedman also takes Finch to task for accepting a court appointment to represent Tom Robinson—and reluctantly at that40—instead of ‘choosing’ to represent him.41 He says Finch ‘does not voluntarily use his legal training and skills—not once, ever—to make the slightest change in the pervasive social injustice of his own town’.42 Lubet agrees with Freedman’s analysis,43 but takes a different tack. Focusing on Finch’s trial advocacy, he criticises Finch for employing a sexist defence theory: ‘she wanted it’.44 Asking us to consider the possibility that Mayella Ewell was telling the truth about being attacked by Tom Robinson—after all, she was bruised and her father was an eyewitness— Lubet wonders whether Atticus Finch would still be considered ‘the lawyer’s paragon’ if he had employed his skills in aid of a guilty Tom Robinson.45 More pointedly Lubet asks, ‘What if [Atticus] were not a beacon of enlightenment, but just another working lawyer playing out his narrow, determined role?’46 This is a neat little feminist piece that builds on the work of legal ethics scholars David Luban and William Simon to raise questions about just how zealous criminal defence lawyers 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Ibid, 476 (citing Lee (n 1) 99: ‘“Jack! When a child asks you something, answer him, for goodness’ sake. But don’t make a production of it. Children are children, but they can spot an evasion quicker than adults, and evasion simply muddles ’em”’). Ibid (quoting Lee (n 1) 167). Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 475 (quoting Lee (n 1) 167). Ibid. Lee (n 1) 180. Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 476. Gladwell (n 12) 28. Freedman points to Atticus’ conversation with his brother Jack, in which he says he had ‘hoped to get through life without a case of this kind’. See Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 480; Lee (n 1) 100. Freedman, ibid, 480; Freedman, ‘Atticus Finch, Esq, RIP’ (n 14) 20 (‘Except under compulsion of a court appointment, Finch never attempts to change the racism and sexism that permeate the life of Maycomb …’). Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 481. Lubet (n 15) 1339 fn 3 (calling Freedman’s arguments ‘convincing’); ibid, 1360 (referring to Finch being ‘indulgent’ of racial prejudice and ‘almost amused by the Ku Klux Klan’). Ibid, 1345. Ibid, 1340. Ibid. 148 Abbe Smith should be. Like Luban,47 Lubet doesn’t like the consent defence to rape, and offers an extensive critique of it—even though Tom Robinson’s defence was fabrication, not consent.48 Like Simon, Lubet is critical of ‘overly aggressive’ cross-examination that seeks to embarrass or blame alleged victims.49 Lubet complains that Finch’s defence of Robinson ‘employed most, if not all, of the wellworn negative conventions historically used to debase and discourage rape victims … “the most insulting stereotypes of women victims” amounting to a judicial “requirement of humiliation”’.50 But he doesn’t go as far as Luban, who believes the bounds of zealous criminal defence should be drawn short of allowing cross-examination that ‘makes the victim look like a whore’, even if she is lying.51 Lubet disagrees with Luban that, even if Tom Robinson were innocent, Finch should have pulled his punches. ‘[I]f Tom was truthful, then Atticus simply had no choice but to attack Mayella as he did. Advocacy means nothing if it doesn’t mean bringing out the truth, no matter how painful, on behalf of the innocent.’52 But Lubet agrees with Luban and other ‘postmodernists’ that the consent defence would always be ‘suspect, since it represents an assault on human dignity’.53 He goes on to say that he thinks most lawyers would try to ‘steer a middle ground’, approving of the defence when convinced of its truth, but rejecting it otherwise.54 Lubet is harshly critical of Finch’s cross-examination of Mayella Ewell. He believes the cross-examination goes well beyond Simon’s victim-blaming, and calls it torture.55 Lubet 47 48 49 50 51 52 53 54 55 See David Luban, Lawyers and Justice: An Ethical Study (Princeton University Press, 1988) 150–3. See Randolph N Stone, ‘Atticus Finch, In Context’ (1998–9) 97 Michigan Law Review 1378, 1378 (‘In fact, Robinson’s defense was that no sexual intercourse of any kind had occurred, that the charge of rape was a lie’); but see Steven Lubet, ‘Reply to Comments on “Reconstructing Atticus Finch”’ (1998–9) 97 Michigan Law Review 1382, 1384 fn 12 (Lubet arguing that Finch’s claim that Mayella had been the sexual aggressor is ‘obviously a variant of the consent defense’). William Simon, ‘The Ethics of Criminal Defense’ (1993) 91 Michigan Law Review 1703, 1704–22; see also William H Simon, The Practice of Justice: A Theory of Lawyer’s Ethics (Harvard University Press, 2000) (arguing that adversarial advocacy should give way to lawyers doing ‘justice’); but see William H Simon, ‘Moral Icons: A Comment on Steven Lubet’s “Reconstructing Atticus Finch”’ (1998–9) 97 Michigan Law Review 1376, 1376 (agreeing with Lubet that Finch does ‘traumatize and humiliate’ Mayella Ewell in his cross-examination, but noting that Mayella’s accusation was ‘tantamount to a demand for [Tom Robinson’s] death’ in 1930s Alabama). Simon concedes that ‘[e]ven a truthful rape victim should understand that the stakes in this situation warrant efforts that may be painful to her to assure the soundness of the verdict’. Ibid. Lubet (n 15) 1349 (quoting Susan Estrich, Real Rape (Harvard University Press, 1988) 56). Luban (n 47) 151. Luban states: ‘[T]he cross-examination is morally wrong, even if the victim really did consent to sex with the defendant. Just as the rights of the accused are not diminished when he is guilty, the right of women to invoke the state’s aid against rapists without fear of humiliation does not diminish when a [woman] abuses it by making a false accusation. This implies that balancing the defendant’s rights against the rape accuser’s rights in order to determine the moral bounds of zealous advocacy must be done without considering either the defendant’s guilt or the accuser’s innocence. What’s good for the gander is good for the goose.’ Ibid, 152. Lubet (n 15) 1346. Ibid, 1356. Ibid. Ibid, 1348 (‘Atticus tortured Mayella’). Lubet explains: ‘He held her up as a sexual aggressor at a time when such conduct was absolutely dishonorable and disgraceful. Already a near outcast, Atticus ensured that Mayella could Defending Atticus Finch 149 argues that Finch deliberately designed his defence to ‘exploit a virtual catalog of misconceptions and fallacies about rape, each one calculated to heighten mistrust of the female complainant’.56 According to Lubet, Finch’s argument for why Mayella ‘wanted it’ includes a class-based slap at Mayella’s credibility: she is ‘unwashed and illiterate’, a product of ‘“cruel poverty and ignorance”’,57 poor white ‘trash’ unworthy of belief.58 The Ewells are ‘dirty, no-account, brutal, prolific, shiftless, diseased, and untrustworthy’.59 Gladwell takes a more historical approach than Freedman and Lubet by comparing Finch to progressive Southern populist ‘Big Jim’ Folsom, the governor of Alabama in the 1950s. He focuses on the ‘profound localism’ of the Alabama of Folsom and Lee: Political scientists call it the ‘friends and neighbors’ effect … Alabama was made up of ‘island communities,’ each dominated by a small clique of power brokers, known as a ‘courthouse ring.’ There were no Republicans to speak of in the Alabama of that era, only Democrats. Politics was not ideological. It was personal. What it meant to be a racial moderate, in that context, was to push for an informal accommodation between black and white.60 Gladwell says that Finch, like Folsom, is no civil rights activist ‘using the full, impersonal force of the law to compel equality’, but instead is part of a small circle of power brokers promoting ‘[o]ld-style Southern liberalism—gradual and paternalistic’.61 More harshly, he argues that Finch accommodates a regime of racial discrimination rather than seeking to reform it.62 have no hope whatsoever of any role in polite society. Mayella … 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.’ Ibid. Lubet later softens ‘torture’ and says that Finch ‘tormented’ and ‘harmed’ Mayella. Lubet (n 48) 1383 fn 6; see also Phelps (n 16) 525 (noting that Mayella never has an opportunity to tell her own story and the ‘story of her life is filtered through Atticus’s cross-examination’). 56 Lubet (n 15) 1351. Lubet lists the following (at 1352–3): Fantasy … According to the defense, Mayella obsessed over Tom for a ‘slap year’ … lur[ing] him into an assignation … Spite … Tom, though kind to Mayella when she needed help around the house, resisted her sexual advances and refused to fulfill her physical needs. In return, she branded him a rapist … Shame … Atticus told the jury that Mayella lied ‘in an effort to get rid of her own guilt’ … Sexuality … Since women can barely control, and sometimes cannot even understand, their desires, they proceed to victimize the men whom they ensnare … Confusion … Women may be so confused about sex that they do not even understand what they themselves have done … [Mayella] could not keep her story straight and she could not provide a blow-by-blow description … 57 58 59 60 61 62 Ibid, 1353 (quoting Lee (n 1) 232). See Lee (n 1) 141 (Scout explaining that, to Atticus, Mayella and Bob Ewell were ‘absolute trash’). Lubet (n 15) 1342. Lubet points out that even Scout sees Mayella and her family this way: ‘No tr[ua]nt 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.’ Lee (n 1) 194. Gladwell (n 12) 26 (quoting George Sims’ biography of Folsom). Ibid. See also Metcalfe (n 9) 2 (suggesting that ‘Atticus’ preposterously unblinking courtesy served to counsel gradualism and procedural nicety’). Gladwell (n 12) 28. 150 Abbe Smith Gladwell even turns Finch’s decency against him. According to Gladwell, Finch is entirely too gracious towards the ignorant, racist people of Maycomb who suffer from a ‘sickness, he tells Scout—the inability to see a black man as a real person’.63 He also turns Finch’s poise— some would say stamina—against him: Finch should be ‘brimming with rage’ at the unjust verdict against Tom Robinson when he walks out of that courtroom. Gladwell wishes Finch would use the law to pursue racial justice like Thurgood Marshall, instead of seeking change through ‘hearts and minds’ like Folsom.64 Gladwell shares Freedman’s critique of Finch as wilfully blind to the fact that ‘[a]ntiSemitism of the most virulent kind was embedded in the social fabric of the Old South’, preferring instead to ‘believe in the fantasy of Sam Levy, down the street, giving the Klan a good scolding’.65 Gladwell gives Finch his due, as does Freedman: for standing up to racists and using his moral authority to shame them into silence, especially when Finch spends the night in front of the Maycomb jail.66 But he complains that what Finch will ‘not do is look at the problem of racism outside the immediate context of … the island community of Maycomb, Alabama’.67 Gladwell seems to enjoy Lubet’s critique of Finch, calling it an example of ‘how badly the brand of Southern populism Finch represents has aged over the past fifty years’.68 Gladwell recounts Lubet’s hypothesis that Tom Robinson might not have been innocent, summarises the ‘devastating’ sexism of portraying a woman as a sexual aggressor in the Jim Crow South, and quotes at length from Lubet’s law review article.69 Gladwell also says that getting a jury to ‘swap one of their prejudices for another’—whether against poor white trash or aggressive women—was what lawyers for black men did in those days.70 At the end of the article, Gladwell adds his own indictment of Finch: when Finch goes along with Sheriff Tate’s story that Bob Ewell fell on his own knife, he both ‘obstructs justice’ and reveals once more his double standard based on class. He is willing to afford the respectable Radleys a level of kindness—notwithstanding truth or law—that he would never afford the white trash Ewells.71 63 64 65 66 67 68 69 70 71 Ibid, emphasis added; see also Freedman, ‘Atticus Finch, Esq, RIP’ (n 14) 20 (criticising Finch for being a gentleman). To Freedman, the idea of the ‘gentleman’ is fraught with exclusion and elitism: ‘Gentlemen tend to congregate together and to exclude others from their company and from their privileges on grounds of race, gender, and religion. In short, the gentleman has too often been part of the problem of social injustice and too seldom part of the solution. Aristotle himself was an elitist who taught that there is a natural aristocracy and that some people are naturally fit to be their slaves.’ Gladwell (n 12) 28. Ibid. Ibid; see also Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 482 (‘Finch has an enviable array of admirable qualities and, in one instance, he is truly courageous’). Gladwell (n 12) 28. Ibid. See ibid, 30. See ibid, 32. See ibid. Defending Atticus Finch 151 MY REPLY I confess that I am deeply attached to Mockingbird—in the most loyal, credulous, even childlike way. I love the book wholeheartedly: I am only mildly embarrassed to admit that it is a kind of bible72 to me. It was important in my development as a reader, an adolescent girl, a political progressive, and a criminal defence lawyer. I continue to relate to it as a lawyer and use it as a law teacher. I even named a book after a passage in it.73 Although I was aware of the criticism by Professors Freedman and Lubet, I never paid it much heed. I let others respond.74 But when the Gladwell piece came out—and on the eve of the 50th anniversary no less—I couldn’t be still. Before I get to it, it is important to note that none of Finch’s critics is wholly critical of him. Freedman acknowledges Finch’s ‘enviable array of admirable qualities’, including being a loving and patient single parent, having an abiding ability to treat everyone—rich, poor, black, white—with respect, his talent as an advocate, his pacifism.75 Lubet admits that he intended to be ‘provocative’,76 and notes the good Finch has done for the self-image and public view of the legal profession.77 Even Gladwell, who in some respects is the harshest critic, acknowledges that Finch ‘stand[s] up to racists’.78 I think that, mostly, what the critics meant to do was take a good hard look at a literary icon, a legendary legal figure, something approaching a sacred cow. This is as it should be; it’s what good, inquisitive scholars do. They take a skeptical look, they debunk myths. Nothing is beyond reproach or at least serious inquiry—not even To Kill a Mockingbird. Still, the gauntlet has been thrown down. There is a need to respond in a serious way. That is what I will attempt to do. (1) Atticus Finch’s Failure to Fully Acknowledge and Challenge the Klan and Jim Crow This is the most potent criticism, and the most difficult to rebut. This is partly because, in responding at all, there is a risk of sounding like an apologist. It is also because the history of small-town southern American life is troubling but complex and I am no historian. See n 10 above and accompanying text. See Abbe Smith, Case of a Lifetime (Palgrave Macmillan, 2008) (a memoir about the author’s effort to free an innocent woman who spent 28 years in prison). The title comes from a passage in Mockingbird: ‘“… by the nature of the work, every lawyer gets at least one case in his lifetime that affects him personally.”’ Lee (n 1) 86. 74 My favourite is Randolph Stone’s devastating three-and-a-half page reply to Lubet (Stone (n 48) 1380–1): 72 73 In a society … where one out of three young black men is under the control of the criminal justice system, where racism permeates the administration of criminal justice, and where black life is devalued, vigorous and zealous advocacy is not an option but a requirement. [G]iven the often inadequate level of representation provided to the poor, Lubet’s critique of Finch is … misguided. Atticus Finch … accepted a difficult and unpopular case, saved his client from a lynch mob, and tried to do an effective job in court. Did he harbor racist and sexist stereotypes? Yes, but for a fifty-ish white man in 1930s small-town Alabama, he was probably ahead of the curve. Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 482. Lubet (n 48) 1382. 77 Lubet (n 15). 78 Gladwell (n 12) 28. 75 76 152 Abbe Smith There is no question that Finch himself is a bit of an apologist, as both Freedman and Gladwell assert. He soft-pedals the Klan in the few instances in which he acknowledges it at all, instead of slamming it. But this may be for reasons other than a wilful disregard of reality or his own racism, such as his love for the town of Maycomb and the people in it notwithstanding their flaws,79 his knowledge of Klan activity in and around Maycomb in the mid-1930s,80 and his desire not to scare his children.81 Most importantly, he is a product of his time and place, even if he is more enlightened than most.82 But it is important to note that Finch is not a finished product when Mockingbird ends; he is only 50.83 Who knows what he has learned and where that might take him.84 As Professor Randolph Stone says: ‘Like most of us, he [is] a work in progress.’85 Indeed, the presumed model for Atticus Finch—Harper Lee’s father AC Lee—changed considerably in the latter part of his life, as a result of some key events in the 1950s and the budding civil rights movement.86 Supreme Court Justice Hugo Black, a contemporary of Finch’s and fellow 79 80 81 82 83 84 85 86 See Shields (n 6) 8–9 (‘I have come to believe that Harper Lee was inspired by love to create her great novel— love for the world of the South, for her little town, for her father and her family, and for the values she found among the people she most admired’). In the period in which Mockingbird takes place, the Klan was in decline in Alabama. In 1924 there were 115,000 Alabama Klan members. See Glenn Feldman, Politics, Society, and the Klan in Alabama 1915–1949 (University of Alabama Press, 1999) 16. By the end of the decade there were only 5,500. See ibid, 279. Those numbers continued to fall in the 1930s. Moreover, not all chapters of the Klan were alike. Some had a violent racist, antiSemitic, anti-Catholic agenda, while others wanted to uphold ‘Protestant values’, assist people in need, reform corrupt government, promote crime-free streets, build schools, or advance a legislative agenda. See Leonard Moore, ‘Historical Interpretations of the 1920s Klan: The Traditional View and the Populist Revisions’ (1990) 24 Journal of Social History 341; see also Stanley Coben, ‘Ordinary White Protestants: The KKK in the 1920s’ (1994) 28 Journal of Social History 155. Every reference Finch makes to the Klan is in response to questions from his children. Although he is a proponent of being truthful to his children, even the most honest parents sometimes downplay frightening truths—like a murderous mob—to young children. I think Freedman is too quick to dismiss the suggestion that Finch is ‘just a father trying to quiet his children’s fears’; see Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 476. In any event, the reader cannot say for certain what Finch actually believes about the Klan. See Stone (n 48) 1381; cf Adam Clymer, ‘A Pillar of the Senate, a Champion for His State: Robert C Byrd, 1917– 2010’ New York Times, 29 June 2010 (noting that Democratic Senator Robert Byrd was a former Klan member who ‘spent decades apologizing for what he called a “sad mistake”’). See Lee (n 1) 102. It could be said that, like most heroes, Finch is on his own journey. See generally Joseph Campbell, The Hero with a Thousand Faces (1949) (arguing that in all literature, there is no hero who is the same at the end of the story as he or she is at the beginning). I would argue that Finch shows himself to be capable of change throughout Mockingbird—and is a different person at the end, though still changing. Ibid. Once a ‘conservative on matters of race’, by the 1950s AC Lee was ‘an advocate for the rights of Negroes’. Shields (n 6) 125. According to Harper Lee’s biographer Charles Shields, the events that influenced her father included the 1954 lynching of Emmett Till and the acquittal of his murderers, and the violence that erupted at the University of Alabama in 1956 when African American Autherine Lucy tried to enrol, causing her to flee. See ibid. Shields points as well to the Ku Klux Klan forcing the cancellation of the annual Monroeville (on which Maycomb was based) Christmas parade by threatening to kill any members of the all-black Union High School band who participated. By the time Mockingbird was published, AC Lee was plainly on the side of civil rights activists, urging, amongst other things, the reapportionment of voting districts to provide fairer representation for black voters. Defending Atticus Finch 153 Alabaman, also changed enormously: he went from being a Klan member to a leading proponent of social and racial justice.87 None of this excuses the fact that Finch must have known about the Leo Frank case— he is an avid newspaper reader, after all.88 He surely knows what the Klan is capable of. Moreover, in the course of the novel, Finch has his own confrontation with the Klan,89 and intimate knowledge of another.90 Finch’s failure to challenge racially discriminatory Jim Crow laws and racial segregation in Maycomb is likewise undeniable in a broad sense. But it seems to me that it is beside the point. He is not, after all, a civil rights activist.91 He is a small-town lawyer. That his approach is more ‘gradual’,92 and that he prefers to change hearts and minds one by one—or juror by juror—is consistent with what trial lawyers do. Trial lawyers—perhaps especially criminal defenders—take people as they are and try to move them to be their best, most fair-minded selves. That is what Finch tries to do at trial—‘“Before I’m through, I intend to jar the jury a bit …”’93 It is also what he tries to do in his daily life.94 Perhaps Finch should have cried out against the segregation of African Americans in the courthouse balcony. It is hard to imagine defending a man charged with a capital crime whose wife is relegated to a balcony. Perhaps he also should have challenged the all-white male jury. It is hard to imagine defending a black man accused of raping a white woman before such a group. But it’s not as if Finch has nothing useful to do and is sitting around waiting for something to happen: he has his hands full. He is representing an unpopular client95—a young African American man in the Deep South—charged with a heinous crime that threatens all ‘southern womanhood’.96 He has a professional obligation that trumps every 87 88 89 90 91 92 93 94 95 96 See United Press International, ‘Justice Black Dies at 85; Served on Court 34 Years’ New York Times, 25 September 1971 (calling Black a ‘champion of civil rights and civil liberties’ and noting that his ‘liberal philosophy influenced the Supreme Court through 34 years of social change’). Indeed, Black’s breaking with the Klan in 1930 helped to hasten its decline in Alabama in the 1930s. See Feldman (n 80) 203. See Lee (n 1) 32, 119, 172, 255. See ibid, 172–4 (recounting Finch’s confrontation with a lynch mob at the Maycomb jail). See ibid, 167–8 (recounting Sam Levy’s confrontation with the Klan in full regalia). Freedman acknowledges this and does not require Finch to be an activist. See Freedman, ‘Atticus Finch, Esq, RIP’ (n 14) 23 (‘I’m not saying that I would present as role models those truly admirable lawyers who, at great personal sacrifice, have dedicated their entire professional lives to fighting for social justice. That’s too easy to preach and too hard to practice’). See Gladwell (n 12) 27. Lee (n 1) 100. See ibid, 173 (Atticus talking down the lynch mob at the jail). See generally Abbe Smith, ‘Defending Defending: The Case for Unmitigated Zeal on Behalf of People who Do Terrible Things’(2000) 28 Hofstra Law Review 925 (arguing in favour of zealous advocacy in criminal defence); see also Abbe Smith, ‘Defending the Unpopular Down Under’ (2006) 30 Melbourne University Law Review 495 (examining the culture and ethics of representing unpopular clients in Australia). See Lee (n 1) 168 (Finch responding to his sister Alexandra’s concerns about him defending Tom Robinson by saying that he is ‘“in favor of Southern womanhood as much as anybody, but not for preserving polite fiction at the expense of human life”’). 154 Abbe Smith other obligation: he must defend his client.97 That is no easy task. As Finch says, ‘“It couldn’t be worse … The only thing we’ve got is a black man’s word against the Ewells’. The evidence boils down to you did—I didn’t. The jury couldn’t possibly be expected to take Tom Robinson’s word against the Ewells’ …”’98 Moreover, the judge and jury might hold it against Finch—and his client—if he challenges racial inequality more generally.99 Why isn’t Finch’s ‘recogni[tion] [of] his duty as a member of the bar’ and his ‘carr[ying] out the representation zealously … even risk[ing] his own life to protect Robinson from a lynch mob’ enough?100 Why isn’t this sufficient for a criminal defence hero? There is no question that in his private life, Finch regularly stands up to racists and speaks out against racism. He tells his children not to use racial epithets,101 proudly admits to being on the side of black people,102 refuses to treat housekeeper Calpurnia with anything other than respect despite the conventions of the day,103 and says he must defend a black man against spurious charges as a matter of moral conscience—no matter the cost to him or his family.104 His defence of Tom Robinson and especially his closing argument can be seen as a sermon against racism.105 97 98 99 100 101 102 103 See generally Freedman and Smith (n *) (discussing ‘Zealous Representation: The Pervasive Ethic’). Lee (n 1) 100. See Michael J Klarman, ‘Is the Supreme Court Sometimes Irrelevant? Race and the Southern Criminal Justice System in the 1940s’ (2002) 89 Journal of American History 119, 130 (noting that southern white attorneys sometimes declined to object to race discrimination in jury selection because it created ill will). Freedman, ‘Atticus Finch, Esq, RIP’ (n 14) 20. See Lee (n 1) 85 (telling Scout not to use the word ‘nigger’); ibid, 124 (Finch explaining to Scout that ‘niggerlover’ is an expression that ‘“ignorant, trashy people use … when they think somebody’s favoring Negroes over and above themselves … [and] when they want a common, ugly term to label somebody”’). See ibid, 124–5 (Finch admitting to being a ‘nigger-lover’: ‘“I certainly am. I do my best to love everybody … baby, it’s never an insult to be called what somebody thinks is a bad name. It just shows you how poor that person is”’). See ibid, 179: She waited until Calpurnia was in the kitchen, then she said, ‘Don’t talk like that in front of them.’ ‘Talk like what in front of whom?’ he asked. ‘Like that in front of Calpurnia. You said Braxton Underwood despises Negroes right in front of her.’ ‘Well, I’m sure Cal knows it. Everybody in Maycomb knows it … Anything fit to say at the table’s fit to say in front of Calpurnia. She knows what she means to this family.’ ‘I don’t think it’s a good habit, Atticus. It encourages them. You know how they talk among themselves. Everything that happens in this town’s out to the Quarters before sundown.’ My father put down his knife: ‘I don’t know of any law that says they can’t talk. Maybe if we didn’t give them so much to talk about they’d be quiet.’ See ibid, 120 (‘This case, Tom Robinson’s case, is something that goes to the essence of a man’s conscience … The one thing that doesn’t abide by majority rule is a person’s conscience’). 105 See ibid, 233–4: 104 ‘And so, a quiet, respectable, humble Negro who has had the unmitigated temerity to “feel sorry” for a white woman has had to put his word against two white people’s … The witnesses for the state, with the exception of the sheriff of Lincoln County, have presented themselves to you gentlemen, to this court, in the cynical confidence that their testimony would not be doubted, confident that you gentlemen would go along with them on the assumption— the evil assumption—that all Negroes lie; all Negroes are basically immoral beings; that all Negro men are not to be trusted around our women, an assumption one associates with minds of their caliber. Which, gentlemen, we know is in itself a lie as black as Tom Robinson’s skin, a lie I do not have to point out to you. You know the truth, and the truth is this: some Negroes lie, some Negroes are immoral, some Negro men are not to be trusted around women—black or white. But this is a truth that applies to the human race and to no particular race of men. There Defending Atticus Finch 155 (2) Finding the Good in People Here is the passage that Freedman finds so offensive. It takes place after Finch confronts the lynch mob at the jail, which is led by the father of one of Scout’s classmates, a man Scout manages to disarm: ‘Why don’t you drink your coffee, Scout?’ I was playing in it with a spoon. ‘I thought Mr Cunningham was a friend of ours. You told me a long time ago he was.’ ‘He still is.’ ‘But last night he wanted to hurt you.’ Atticus placed his fork beside his knife and pushed his plate aside. ‘Mr Cunningham’s basically a good man,’ he said, ‘he just has his blind spots along with the rest of us.’ Jem spoke. ‘Don’t call that a blind spot. He’da killed you last night when he first went there.’ ‘He might have hurt me a little,’ Atticus conceded, ‘but son, you’ll understand folks a little better when you’re older. A mob’s always made up of people, no matter what. Mr Cunningham was part of a mob last night, but he was still a man. Every mob in every Southern town is always made up of people you know—doesn’t say much for them, does it?’ ‘I’ll say not,’ said Jem. ‘So it took an eight-year-old child to bring ’em to their senses, didn’t it?’ said Atticus.106 I honestly don’t know why Freedman finds this passage so disturbing. Finch’s description of Cunningham sounds to me like something any good criminal defence lawyer might say. Defenders try to understand why otherwise decent, law-abiding people might do bad things—not as a matter of moral or cultural relativism,107 but in order to try to defend them.108 Finch is certainly not the first defence lawyer to argue that ordinary people can get swept up in mob violence.109 is not a person in this courtroom who has never told a lie, who has never done an immoral thing, and there is no man living who has never looked upon a woman without desire. … Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.’ Ibid, 179–80. Freedman describes Finch’s reply to Jem as ‘condescending’ and ‘fatuous’. Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 476. 107 Freedman, ibid, 477. 108 Clarence Darrow was known for his curiosity about the causes of crime and the motivations of criminals. See generally Clarence Darrow, The Story of My Life (1932); Clarence Darrow, Crime: Its Cause and Treatment (1922). As Darrow wrote: ‘Strange as it may seem I grew to like to defend men and women charged with crime. It soon came to be something more than winning or losing a case. I sought to learn why one man goes one way and another takes an entirely different road. I became vitally interested in the causes of human conduct … I was dealing with life, with its hopes and fears, its aspirations and despairs.’ Darrow (1932) 75–76. 109 See Anthony Alfieri, ‘Defending Racial Violence’ (1995) 95 Columbia Law Review 1301 (examining the defence theory raised on behalf of two African American men accused of beating a white man in the aftermath of the Rodney King trial in the 1990s); see also Anthony Alfieri, ‘Prosecuting Race’ (1999) 48 Duke Law Journal 1157 (examining the defence theory of police officers charged with a racially motivated attack). 106 156 Abbe Smith What Finch said about Walter Cunningham is something prominent death penalty lawyers Stephen Bright and Bryan Stevenson might say about their clients. Each has a catchphrase that explains why they have no trouble representing death row inmates: Bright says, ‘There is good in the worst of us and bad in the best of us’,110 while Stevenson says, ‘Each of us is more than the worst thing we ever did’.111 To Bright and Stevenson—and to Finch—there is a fundamental human dignity in everyone, no matter what a person may have done. This is true even for people who engage in the most hateful conduct.112 I once represented a young white woman who was in a park late at night with a group of other young white people, including her boyfriend. The park was in a working-class white neighbourhood; the group reflected this demographic. They had all been drinking. Suddenly, a small group of well-dressed young African Americans—men and women—came into the park. They had been to a concert and their car had broken down on the way home. They were looking for help. The response of the white males was to assault the African Americans. They told them to get the hell out of the park because they didn’t belong there, and then chased them out with baseball bats. One young black man was beaten badly. During the attack, one of the black women approached my client and begged her to help stop the violence. My client’s response was to push the woman to the ground. My client, along with several others, was charged with felony assault and ethnic intimidation.113 When I asked her about the incident, she did not deny her conduct but could not explain it. She had never been in trouble before, and would never have imagined that she would do something like this. She did not consider herself a racist; she had dated African American boys as well as white ones. She understood that the woman who approached her was reaching out—woman to woman. She acknowledged that her response to that entreaty could not have been uglier. She was ashamed. She tried to uncover her own motivations. She had had a lot to drink. She hoped that she would have made different choices had she been sober. She thought it was possible that she was showing off—for her boyfriend or the rest of the group. She couldn’t say why. She felt she had been swept up into a kind of mob mentality over turf—even though she didn’t take particular pride in her neighbourhood or the park being white. She honestly didn’t mean to hurt anyone. Smith (n 73) 227. Ibid. 112 Finch even tries to offer a sympathetic account of Bob Ewell. When Ewell spits in Finch’s face, Finch says: ‘“I destroyed his last shred of credibility at that trial, if he had any to begin with. The man had to have some kind of comeback, his kind always does. So if spitting in my face and threatening me saved Mayella Ewell one extra beating, that’s something I’ll gladly take. He had to take it out on somebody and I’d rather it be me than that houseful of children out there.”’ Lee (n 1) 250. Even after Ewell attacks the Finch children, Finch says he must have been ‘“out of his mind”’. Finch cannot ‘“conceive of a man”’ in his right mind who would do such a thing. Ibid, 309. 113 This is a Model Penal Code offence. See eg Pennsylvania Crimes Code, §2710 (‘A person commits the offense of ethnic intimidation if, with malicious intention toward the actual or perceived race, color, religion, national origin, ancestry, mental or physical disability, sexual orientation, gender or gender identity of another individual or group of individuals, he commits an offense under any other provision of this article …’). 110 111 Defending Atticus Finch 157 I don’t offer this story to excuse my former client’s conduct, or that of Walter Cunningham. It was a memorable case, partly because I haven’t represented many women accused of hate crimes.114 But the case also supports what Finch said about that lynch mob. Mobs are made up of people with blind spots. Hopefully they come to see their own blindness—and meanness—and are ashamed of themselves. Hopefully, they learn. In To Kill a Mockingbird, the lone hold-out juror, the one who causes the jury to deliberate far longer than anyone predicted,115 is a Cunningham—a first cousin of Walter Cunningham. Finch maintains that the Cunningham on the jury learned something from what happened that night at the jail—that the incident, like a ‘thunderbolt’, made the Cunninghams respect Finch.116 Finch believes that, if there had been two Cunninghams on the jury, ‘“we’d’ve had a hung jury”’.117 Is this an example of Finch’s naive hopefulness about the ability of racists to change, or an example of what Gladwell calls his paternalistic gradualism? Or is it just his brand of Christianity?118 Maybe. But I’d like to think that my former client had the capacity to learn and change, just like Walter Cunningham. (3) Taking Robinson’s Case Reluctantly and Failing to Voluntarily Use his Legal Training and Skills to Change Pervasive Social Injustice Freedman excoriates Finch for ‘accept[ing] a court appointment’ rather than ‘choosing’ or ‘deciding’ to represent Tom Robinson.119 Frankly, I don’t see the difference. I certainly don’t think ‘accepting’ and ‘choosing’ are mutually exclusive here. Although Freedman uses strong language to suggest that Finch agrees to represent Tom Robinson only ‘under compulsion of a court appointment’,120 I think the circumstances of the appointment are more ambiguous than that, and more subtle. 114 115 116 117 118 119 120 For another example of female brutality see Isabel Kershner, ‘Women’s Role in Holocaust May Exceed Old Notions’ New York Times, 18 July 2010 (reporting on the research of historian Wendy Lower, who has found that thousands of ordinary German women willingly went to Nazi-occupied territories as part of the war effort, were present at scenes of genocide, and sometimes engaged in acts of brutality, including murder). See Lee (n 1) 247 (Maudie Atkinson saying, ‘“Atticus Finch won’t win, he can’t win, but he’s the only man in these parts who can keep a jury out so long in a case like that”’). Ibid, 254. Ibid. See ibid, 247 (Maudie Atkinson saying, ‘“We’re so rarely called on to be Christians, but when we are, we’ve got men like Atticus to go for us”’); see also McMillian (n 20) 7–21 (arguing that Finch is a Christian hero). Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 480; cf Michael E Tigar, ‘Setting the Record Straight on the Defense of John Demjanjuk’ Legal Times, 6 September 1993 (saying that Finch ‘decided’ to represent Robinson even though he ‘incurred the obloquy of his friends’). Freedman argues that Tigar is wrong about Finch’s friends turning against him, suggesting that the people ‘whose opinions he values’ admire Finch for taking the case and fighting for Robinson. See Freedman ibid, 480. But Finch himself says to Scout, ‘“This time … we’re fighting our friends. But remember this, no matter how bitter things get, they’re still our friends and this is still our home.”’ Lee (n 1) 87. Freedman, ‘Atticus Finch, Esq, RIP’ (n 14) 20. 158 Abbe Smith The book does not depict the scene in which Judge Taylor asks Finch to take the case; that is in the movie only.121 Although there are references to Judge Taylor ‘naming’ Finch to represent Robinson,122 the only significant discussion about why Finch takes the case is between Finch and Scout: ‘Do all lawyers defend n-Negroes, Atticus?’ ‘Of course they do, Scout.’ ‘Then why did Cecil say you defended niggers? He made it sound like you were runnin’ a still.’ Atticus sighed. ‘I’m simply defending a Negro—his name’s Tom Robinson. He lives in that little settlement beyond the town dump. He’s a member of Calpurnia’s church, and Cal knows his family well. She says they’re clean-living folks, Scout, you aren’t old enough to understand some things yet, but there’s been some high talk around town to the effect that I shouldn’t do much about defending this man. It’s a peculiar case—it won’t come to trial until summer session. John Taylor was kind enough to give us a postponement …’ ‘If you shouldn’t be defendin’ him, then why are you doin’ it?’ ‘For a number of reasons,’ said Atticus. ‘The main one is, if I didn’t I couldn’t hold up my head in town, I couldn’t represent this county in the legislature, I couldn’t even tell you or Jem not to do something again.’ ‘You mean if you didn’t defend that man, Jem and me wouldn’t have to mind you any more?’ ‘That’s about right.’ ‘Why?’ ‘Because I could never ask you to mind me again. Scout, simply by the nature of the work, every lawyer gets at least one case in his lifetime that affects him personally. This one’s mine, I guess.’123 Nowhere in this scene does Finch say he has to take the case, is compelled to take the case, or has no right of refusal. When he says that every lawyer ‘gets’ one case, he does not say ‘gets and then is forced to accept’ under the threat of criminal contempt.124 The imperative here is a moral one: Finch won’t be able to hold his head up if he doesn’t defend Tom Robinson. Finch has a personal stake in the case, not merely a professional one. Importantly, Finch never tells his family that he ‘has to’ take the case. When Scout overhears a group of ‘white-shirted, khaki-trousered, suspendered old men’ who regularly watch court proceedings, she understands for the first time that the court appointed Finch to defend Tom Robinson.125 But she also begins to appreciate that this isn’t how her father sees it: See Lee (n 1). See Lee (n 1) 100. 123 Ibid, 86. 124 See Freedman, ‘Atticus Finch, Esq, RIP’ (n 14) 20 (‘[A] refusal to accept a court’s appointment is punishable by imprisonment for contempt’). 125 Lee (n 1) 186. 121 122 Defending Atticus Finch 159 This was news, news that put a different light on things: Atticus had to, whether he wanted to or not. I thought it odd that he hadn’t said anything to us about it—we could have used it many times in defending him and ourselves. He had to, that’s why he was doing it, equaled fewer fights and less fussing. But did that explain the town’s attitude? The court appointed Atticus to defend him. Atticus aimed to defend him. That’s what they didn’t like about it. It was confusing.126 Moreover, the book suggests that this was not an ordinary appointment. Judge Taylor asks Finch despite the fact that court-appointed criminal cases are usually given to a young lawyer named Maxwell Green—‘Maycomb’s latest addition to the bar, who needed the experience’.127 This is consistent with the film version, in which Judge Taylor comes by the Finch house to tell Atticus he was ‘thinking about appointing’ him to the Robinson case, even though he knows Finch is busy with his children and his practice, and Finch immediately replying, ‘I’ll take the case’.128 I see no support for Freedman’s assertion that Finch takes the case reluctantly or ‘unwillingly’,129 or that he wishes he ‘ha[d] not … been appointed’.130 There is no evidence that Finch hesitates or hedges; to the contrary, he appears from the start to be fully committed to the case. His willingness to fight for Robinson—and his real, vigorous defence of him—is what upsets many in Maycomb.131 This is a direct challenge to Jim Crow criminal justice.132 Freedman points to a conversation Finch has with his brother Jack, during which Finch says he ‘hoped to get through life without a case of this kind’.133 Freedman ‘disparages’ Finch for this and uses it to argue that Finch does not ‘voluntarily take … a pro bono case … to ameliorate the evil … in the apartheid of Maycomb, Alabama’.134 But does Finch’s honesty make him less heroic? Of course, he hoped to go through life without having to undertake a hopeless case on behalf of an innocent black man destined for a death sentence. Who wouldn’t feel this way; what could be more awful?135 Does Freedman require heroes to keep to themselves how terrifying and heavy their burden is? I think Finch’s honesty makes him a more authentic and accessible hero. Like many heroes, Finch does not see himself as a hero and is not looking to be heroic. He has ‘greatness 126 127 128 129 130 131 132 133 134 135 Ibid, 186–7. Ibid, 247; see also 100 (Finch saying, ‘“John Taylor pointed at me and said, ‘You’re It’”’ and his brother Jack replying, ‘“Let this cup pass from you, eh?”’). To Kill a Mockingbird (n 4). Freedman, ‘Finch: The Lawyer Mythologized’ (n 14) 25. Freedman, ‘Atticus Finch, Esq, RIP’ (n 14) 20. See Lee (n 1) 186 (‘“Lemme tell you somethin’ now, Billy,” a third said, “you know the court appointed him to defend this nigger.” “Yeah, but Atticus aims to defend him. That’s what I don’t like bout it”’). See Klarman (n 99) 120 (finding that criminal case files from the 1930s and 1940s involving allegations of serious black-on-white crime reveal that southern blacks experienced ‘nearly universal exclusion from criminal juries … endure[d] beatings aimed at coercing them into confession crimes, and … suffer[ed] convictions for capital offenses after sham trials in which court-appointed lawyers barely went through the motions of providing a defense’). Freedman, ‘Atticus Finch—Right and Wrong’ (n 14) 481 (quoting Lee (n 1) 100). Ibid. See Smith (n 73) 227 (‘[D]efending the innocent is an extraordinary burden. It is constant and unrelenting. It is both a professional burden and a deeply personal one’). 160 Abbe Smith thrust upon him’.136 He may not want this burden but he steps up.137 Borrowing a phrase from Freedman, expecting Finch ‘at great personal sacrifice [to] … dedicate [his] … professional li[fe] to fighting for social justice’ and never complain or acknowledge the cost is ‘too easy to preach and too hard to practice’.138 I want law students and young lawyers to know that indigent criminal defence, though rewarding, can also be gruelling. It is important to acknowledge this in order to cope with it. Freedman’s complaint that Finch doesn’t do enough to alter things in the segregated South suggests that taking a single case—a small case—cannot lead to social change. But Finch’s representation of Tom Robinson is a significant contribution to social and racial justice in Maycomb.139 Big cases—civil rights cases, class actions, and so on—are not the only way to make change.140 (4) Finch’s Trial Tactics I suppose I am an incorrigible, old-school trial lawyer, but I am not persuaded by Lubet and Gladwell’s critique of Finch’s trial tactics. I have no problem with Finch’s cross-examination of Mayella Ewell, his closing argument, or his theory of the case generally. Finch effectively cross-examines Mayella Ewell, consistent with his professional obligation. What’s more, there is art in Atticus’s cross-examination: ‘cloaked in … courtesy’, it is ‘without cruelty, but also without mercy’.141 Lubet agrees that Finch’s cross-examination is ‘deft, courtly, and persistent’.142 136 137 138 139 140 141 142 William Shakespeare, Twelfth Night: ‘Some are born great, some achieve greatness, and others have greatness thrust upon them.’ See Klarman (n 99) 130 (noting that ‘[w]hite lawyers [in the Depression-era South] faced p...
Purchase answer to see full attachment