« Scholarly "Dead Ends" | Main | Does Legal Scholarship Have Any International Rock Stars? »

Friday, August 07, 2009

Malcolm Gladwell and Atticus Finch: Neither Goes Far Enough

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

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

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

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

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

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

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

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

Posted by Bennett Capers on August 7, 2009 at 11:00 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Malcolm Gladwell and Atticus Finch: Neither Goes Far Enough:


Wait, as a matter of legal ethics, it was unethical for a (make-believe) attorney NOT to suborn perjury?

Posted by: Joe (Accidental Blogger) | Aug 9, 2009 5:30:38 PM

First, it is not only that Mayella is "hard up for sex," but more so that she is hard up for any sort of human decency. Tom Robinson was nice to her. That was the true kicker. Just having him alone, for company, would be liable to get him accused of rape.

Second, the movie addressed how Atticus Finch's idealism got him in trouble. It showed the glean in the eye of the prosecutor when Tom said he felt 'sorry' for her -- a trap that Atticus' strategy (and sense of right and wrong) helped him walk into. The idea he (or any lawyer really) would suborn perjury therefore is risible to suggest. BTW, he had to be talked into not having Boo Radley brought in. And, suborning perjury is something a "bad lawyer" would do.

Finally, the article is slanted in various respects. For instance, it ridicules Atticus for thinking someone deep down is a good person. Turns out the "racist" in question was the one person who actually wanted to vote 'not guilty.' Not mentioned to advance the slant of the piece. This stacking the deck pops up in other places. OTOH, even the article notes that Atticus had a credible, if distasteful, approach -- use a "good Negro" approach against the "poor white trash."
This required the testimony of Tom, and Atticus not someone who would suborn perjury, he couldn't take the approach raised here.

In fact, it is a tad outrageous to think an ethical lawyer would. The "ends justifies the means" argument doesn't really help.

BTW, Scout is 5/6, not 9.

Posted by: Joe | Aug 8, 2009 9:12:51 AM

Actually, none of us know what happened that day. The fictional tale is told by an adult woman recalling her experience as a father-worshipping nine year old. She wasn't there and the real author doesn't give us the "god's eye view." Maybe it was rape. Maybe it was consensual and Mayella's father walked in. Maybe she approached Robinson, who wanted to reject her advances. Not one of us knows what happened.

We do know, however, that Atticus went with the defense of "she wanted it."

Posted by: dazed | Aug 7, 2009 4:34:04 PM

You're forgetting that Harper Lee didn't create Atticus Finch to be a model lawyer. It seems silly to argue that he is somehow flawed as a character because he valued truth above strategy in defending Robinson and acted unethically in agreeing to conceal Boo's "murder" of Ewell. Of course Atticus has flaws. But because his flaws are so noble, we see him as a hero. At first, Atticus is too idealistic. Does he really think the jury will acquit Robinson once they hear the truth? Or does he think the truth is more important than putting on the best defense for his client? Either way, he's flawed in his idealism, but we love him for it. After the trial, he realizes that justice cannot always be done in an imperfect world. Therefore, he agrees to conceal Boo's justified "murder" of Ewell (Boo was protecting Jem and Scout from Ewell's attack). Unethical? Yes, I suppose. Noble? Definitely. He's not the most successful or ethical lawyer, but he is a hero in an imperfect, unfair world. Personally, I'd rather be like Atticus Finch than be a perfect lawyer. We are human beings first, lawyers second.

Posted by: SLC | Aug 7, 2009 12:27:17 PM

Is it more ethical to risk conviction than to knowingly suborn perjury? Yes.

(And make no mistake, your alternative proposal would be suborning perjury, as it only could conceivably work if Robinson were willing to deny on cross-examination the he ever touched Mayella, was kissed by her, etc. And even then, he would be in a swearing contest with Mayella and her father, which probably wouldn't go well.)

Posted by: AF | Aug 7, 2009 11:37:01 AM

The comments to this entry are closed.