Reconstructing Atticus Finch

Michigan Law Review

Volumn 97, Issue 6, 1997, Pages 1339-1361

  Lubet, Steven ^a  

^a NONE

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EID: 0346443591     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290205     Document Type: Article

References (90)

1. HARPER LEE, TO KILL A MOCKINGBIRD (1960). A word about footnotes: This review discusses one of the most widely read novels in all of American literature, having sold more than 10,000,000 copies worldwide. See Best Sellers: List of World's Best Selling Books, DAILY MIRROR, June 12, 1995, at 7. I assume that the outline of the story is well known. Consequently, I typically cite to the book only when quoting directly from the text and not when paraphrasing or engaging in general exposition. All references are to the First Edition (J.B. Lippincott, 1960).
2. HARPER LEE, TO KILL A MOCKINGBIRD (1960). A word about footnotes: This review discusses one of the most widely read novels in all of American literature, having sold more than 10,000,000 copies worldwide. See Best Sellers: List of World's Best Selling Books, DAILY MIRROR, June 12, 1995, at 7. I assume that the outline of the story is well known. Consequently, I typically cite to the book only when quoting directly from the text and not when paraphrasing or engaging in general exposition. All references are to the First Edition (J.B. Lippincott, 1960).
3. To Professor Thomas Shaffer, for example, Atticus Finch was "a truthful person. He was truthful within his community and, more importantly, he was truthful to himself." Thomas L. Shaffer, On Lying For Clients, 71 NOTRE DAME L. REV. 195, 211 (1996); see also Thomas L. Shaffer, The Moral Theology of Atticus Finch, 42 U. PITT. L. REV. 181, 188 (1981) (to the same effect). But see Monroe H. Freedman, Atticus Finch - Right and Wrong, 45 ALA. L. REV. 473, 475-77 (1994) (arguing that Atticus was not so truthful after all). As to whether Atticus's defense of Tom Robinson was actually "true," see infra section III.
4. To Professor Thomas Shaffer, for example, Atticus Finch was "a truthful person. He was truthful within his community and, more importantly, he was truthful to himself." Thomas L. Shaffer, On Lying For Clients, 71 NOTRE DAME L. REV. 195, 211 (1996); see also Thomas L. Shaffer, The Moral Theology of Atticus Finch, 42 U. PITT. L. REV. 181, 188 (1981) (to the same effect). But see Monroe H. Freedman, Atticus Finch - Right and Wrong, 45 ALA. L. REV. 473, 475-77 (1994) (arguing that Atticus was not so truthful after all). As to whether Atticus's defense of Tom Robinson was actually "true," see infra section III.
5. To Professor Thomas Shaffer, for example, Atticus Finch was "a truthful person. He was truthful within his community and, more importantly, he was truthful to himself." Thomas L. Shaffer, On Lying For Clients, 71 NOTRE DAME L. REV. 195, 211 (1996); see also Thomas L. Shaffer, The Moral Theology of Atticus Finch, 42 U. PITT. L. REV. 181, 188 (1981) (to the same effect). But see Monroe H. Freedman, Atticus Finch - Right and Wrong, 45 ALA. L. REV. 473, 475-77 (1994) (arguing that Atticus was not so truthful after all). As to whether Atticus's defense of Tom Robinson was actually "true," see infra section III.
6. Monroe Freedman argues convincingly that Atticus did not risk his true social standing by taking up the defense of Tom Robinson. Indeed, the "better folks" in Maycomb silently supported his efforts. See Freedman, supra note 2, at 480-81. Freedman also points out that Atticus seemed to be blithely disinterested in the terrorism of the Ku Klux Klan. See id. at 473-75. But that's another story.
7. One juror, it seems, actually voted for acquittal on the first ballot. See p. 235.
8. See, e.g., Timothy Hoff, Influences on Harper Lee: An Introduction to the Symposium, 45 ALA. L. REV. 389, 398-99 (1994) (stating that Atticus is too good to be true); Teresa Godwin Phelps, The Margins of Maycomb: A Rereading of To Kill a Mockingbird, 45 ALA. L. REV. 511, 511 (1994) (stating that Atticus is revered as the model lawyer); Pierre Schlag, Normative and Nowhere to Go, 43 STAN. L. REV. 167, 189 (1990) (stating that Atticus Finch is a fantasy role model for the legal academy); David B. Wilkins, Race, Ethics, and the First Amendment: Should a Black Lawyer Represent the Ku Klux Klan?, 63 GEO. WASH. L. REV. 1030, 1037 (1995) (stating that Atticus Finch is celebrated in the professional lore).
9. See, e.g., Timothy Hoff, Influences on Harper Lee: An Introduction to the Symposium, 45 ALA. L. REV. 389, 398-99 (1994) (stating that Atticus is too good to be true); Teresa Godwin Phelps, The Margins of Maycomb: A Rereading of To Kill a Mockingbird, 45 ALA. L. REV. 511, 511 (1994) (stating that Atticus is revered as the model lawyer); Pierre Schlag, Normative and Nowhere to Go, 43 STAN. L. REV. 167, 189 (1990) (stating that Atticus Finch is a fantasy role model for the legal academy); David B. Wilkins, Race, Ethics, and the First Amendment: Should a Black Lawyer Represent the Ku Klux Klan?, 63 GEO. WASH. L. REV. 1030, 1037 (1995) (stating that Atticus Finch is celebrated in the professional lore).
10. See, e.g., Timothy Hoff, Influences on Harper Lee: An Introduction to the Symposium, 45 ALA. L. REV. 389, 398-99 (1994) (stating that Atticus is too good to be true); Teresa Godwin Phelps, The Margins of Maycomb: A Rereading of To Kill a Mockingbird, 45 ALA. L. REV. 511, 511 (1994) (stating that Atticus is revered as the model lawyer); Pierre Schlag, Normative and Nowhere to Go, 43 STAN. L. REV. 167, 189 (1990) (stating that Atticus Finch is a fantasy role model for the legal academy); David B. Wilkins, Race, Ethics, and the First Amendment: Should a Black Lawyer Represent the Ku Klux Klan?, 63 GEO. WASH. L. REV. 1030, 1037 (1995) (stating that Atticus Finch is celebrated in the professional lore).
11. See, e.g., Timothy Hoff, Influences on Harper Lee: An Introduction to the Symposium, 45 ALA. L. REV. 389, 398-99 (1994) (stating that Atticus is too good to be true); Teresa Godwin Phelps, The Margins of Maycomb: A Rereading of To Kill a Mockingbird, 45 ALA. L. REV. 511, 511 (1994) (stating that Atticus is revered as the model lawyer); Pierre Schlag, Normative and Nowhere to Go, 43 STAN. L. REV. 167, 189 (1990) (stating that Atticus Finch is a fantasy role model for the legal academy); David B. Wilkins, Race, Ethics, and the First Amendment: Should a Black Lawyer Represent the Ku Klux Klan?, 63 GEO. WASH. L. REV. 1030, 1037 (1995) (stating that Atticus Finch is celebrated in the professional lore).
12. Both Whitewater independent counsel Kenneth Starr and President Clinton's personal attorney, David Kendall, have invoked Atticus Finch to justify their tactics in the contentious investigation. See David E. Kendall, To Distort a Mockingbird, N.Y. TIMES, June 3, 1998, at A25.
13. Not to mention the Pulitzer Prize in 1961 and several Academy Awards in 1962. For details, see Hoff, supra note 5, at 389-90. Most recently, the cinema version of To Kill a Mockingbird was voted number 34 on the American Film Institute's survey of the 100 best American movies of all time. See Voters Pick the 100 Best American Movies, N.Y. TIMES, June 17, 1998, at E3.
14. See Hoff, supra note 5, at 392; see also Sharon Bond, To Kill a Mockingbird Author Holds to Her Long Literary Silence, DALLAS MORNING NEWS, Sept. 24, 1995, at F6.
15. P. 204. "[W]hite people wouldn't have anything to do with her because she lived among pigs; Negroes wouldn't have anything to do with her because she was white." Id.
16. See STEVEN LUBET, MODERN TRIAL ADVOCACY 1 (2d ed. 1997).
17. See id. at 4-8.
18. Texts are always open to interpretation, but even more so in the case of a book such as To Kill a Mockingbird, which lacks an omniscient narrator and is recounted entirely from the perspective of a seven-year-old child.
19. There is yet another explanation for Mayella's injuries, one that shows the Ewells to be hiding something but that does not absolve Tom Robinson. Isn't it possible that Tom indeed raped Mayella, and that Bob Ewell beat up his daughter after discovering the rape? Rape victims are regularly blamed for what happened to them. It is easily imaginable that Bob Ewell, living in Maycomb, Alabama in the 1930s, might have taken out his anger on the victim of the crime. So the fact that Mayella protected her father does not mean that she lied about being raped.
20. Even if Mayella had seen Tom going to work at Mr. Deas's place that morning, she had no way of knowing when he would leave work for the afternoon at a time of the year when work was irregular. And though she managed to send her siblings off for ice cream, she obviously had no way of knowing, and could not control, when her father would return.
21. Tom denied having sex with Mayella, but recall that Tom testified to Bob Ewell's words upon entering the cabin: "[Y]ou goddamn whore, I'll kill ya." P. 206. What would cause Bob to react that way if all he had seen was Tom trying to push his way past Mayella? Wouldn't the scene, as Tom depicted it, be more likely to cause Bob Ewell to be enraged at the intruder? On the other hand, if Bob really did see Tom "ruttin' on my Mayella," he could easily have reacted with anger and fury at his daughter. And we must also ask why Mayella would go so far as to claim having been raped. Given the events as Tom gave them, a charge of attempted rape would obviously have served her purposes just as well, and without imposing upon her the stigma of a rape victim. Why would Mayella increase the import of her lie when the only result would be to make herself even more of a pariah in Maycomb? See JAMES GOODMAN, STORIES OF SCOTTSBORO 19 (1994) (quoting the statement of alleged rape victim, a white woman: "Those Negroes have ruined me and Ruby forever"); MARTHA HODES, WHITE WOMEN, BLACK MEN 66 (1997) (noting that white woman's claim of rape by black man led to her "maligning and ostracizing" by other whites).
22. Tom denied having sex with Mayella, but recall that Tom testified to Bob Ewell's words upon entering the cabin: "[Y]ou goddamn whore, I'll kill ya." P. 206. What would cause Bob to react that way if all he had seen was Tom trying to push his way past Mayella? Wouldn't the scene, as Tom depicted it, be more likely to cause Bob Ewell to be enraged at the intruder? On the other hand, if Bob really did see Tom "ruttin' on my Mayella," he could easily have reacted with anger and fury at his daughter. And we must also ask why Mayella would go so far as to claim having been raped. Given the events as Tom gave them, a charge of attempted rape would obviously have served her purposes just as well, and without imposing upon her the stigma of a rape victim. Why would Mayella increase the import of her lie when the only result would be to make herself even more of a pariah in Maycomb? See JAMES GOODMAN, STORIES OF SCOTTSBORO 19 (1994) (quoting the statement of alleged rape victim, a white woman: "Those Negroes have ruined me and Ruby forever"); MARTHA HODES, WHITE WOMEN, BLACK MEN 66 (1997) (noting that white woman's claim of rape by black man led to her "maligning and ostracizing" by other whites).
23. "She says she never kissed a grown man before an' she might as well kiss a nigger. She says what her papa do to her don't count." P. 206. In Mayella's case, the explosive charge of incest seemed to evoke no outrage. Contrast the case of Richard Allen Davis, convicted in 1996 for the kidnapping, rape, and murder of a 12-year-old girl. See Elaine Lafferty, Final Outrage, TIME, Oct. 7, 1996, at 64. At his sentencing, in an effort to save himself from execution, Davis testified that he had refrained from raping the child because she begged him, "Just don't do me like my Dad." Id. His slander of the victim and her family did not succeed. Judge Thomas C. Hastings said that Davis's defiant statement made it "very easy" to sentence him to death. See id. Moreover, incest victims tend to be characterized by fear and mistrust, not by aggressive promiscuity. Carol Lynn Mithers, Incest and the Law, N.Y. TIMES, Oct. 21, 1990, (Magazine), at 44; Jane Cornman, Female Adolescent Response to Childhood Sexual Abuse, JOURNAL OF CHILD & ADOLESCENT PSYCHIATRIC NURSING, Apr. 1997, at 17.
24. "She says she never kissed a grown man before an' she might as well kiss a nigger. She says what her papa do to her don't count." P. 206. In Mayella's case, the explosive charge of incest seemed to evoke no outrage. Contrast the case of Richard Allen Davis, convicted in 1996 for the kidnapping, rape, and murder of a 12-year-old girl. See Elaine Lafferty, Final Outrage, TIME, Oct. 7, 1996, at 64. At his sentencing, in an effort to save himself from execution, Davis testified that he had refrained from raping the child because she begged him, "Just don't do me like my Dad." Id. His slander of the victim and her family did not succeed. Judge Thomas C. Hastings said that Davis's defiant statement made it "very easy" to sentence him to death. See id. Moreover, incest victims tend to be characterized by fear and mistrust, not by aggressive promiscuity. Carol Lynn Mithers, Incest and the Law, N.Y. TIMES, Oct. 21, 1990, (Magazine), at 44; Jane Cornman, Female Adolescent Response to Childhood Sexual Abuse, JOURNAL OF CHILD & ADOLESCENT PSYCHIATRIC NURSING, Apr. 1997, at 17.
25. "She says she never kissed a grown man before an' she might as well kiss a nigger. She says what her papa do to her don't count." P. 206. In Mayella's case, the explosive charge of incest seemed to evoke no outrage. Contrast the case of Richard Allen Davis, convicted in 1996 for the kidnapping, rape, and murder of a 12-year-old girl. See Elaine Lafferty, Final Outrage, TIME, Oct. 7, 1996, at 64. At his sentencing, in an effort to save himself from execution, Davis testified that he had refrained from raping the child because she begged him, "Just don't do me like my Dad." Id. His slander of the victim and her family did not succeed. Judge Thomas C. Hastings said that Davis's defiant statement made it "very easy" to sentence him to death. See id. Moreover, incest victims tend to be characterized by fear and mistrust, not by aggressive promiscuity. Carol Lynn Mithers, Incest and the Law, N.Y. TIMES, Oct. 21, 1990, (Magazine), at 44; Jane Cornman, Female Adolescent Response to Childhood Sexual Abuse, JOURNAL OF CHILD & ADOLESCENT PSYCHIATRIC NURSING, Apr. 1997, at 17.
26. SUSAN ESTRICH, REAL RAPE 56 (1987).
27. Id. at 53.
28. See p. 97. For a further discussion of Atticus's pro bono practice, see Freedman, supra note 2, at 480.
29. Atticus's plans were discussed on the eve of trial by a group of court-house hangers-on: "Lemme tell you somethin' now, Billy," [one] 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 about it." P. 174.
30. Many lawyers and advocacy teachers, myself included, take the view that a lawyer should insist that clients tell counsel all about the events of the charged crime. Full disclosure is necessary to an adequate defense. See MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 61-69 (1975); MONROE H. FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 151-52 (1990) [hereinafter FREEDMAN, UNDERSTANDING]; LUBET, supra note 10, at 6.
31. Many lawyers and advocacy teachers, myself included, take the view that a lawyer should insist that clients tell counsel all about the events of the charged crime. Full disclosure is necessary to an adequate defense. See MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 61-69 (1975); MONROE H. FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 151-52 (1990) [hereinafter FREEDMAN, UNDERSTANDING]; LUBET, supra note 10, at 6.
32. Many lawyers and advocacy teachers, myself included, take the view that a lawyer should insist that clients tell counsel all about the events of the charged crime. Full disclosure is necessary to an adequate defense. See MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 61-69 (1975); MONROE H. FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 151-52 (1990) [hereinafter FREEDMAN, UNDERSTANDING]; LUBET, supra note 10, at 6.
33. Atticus no doubt was aware that his southern, Christian, Bible-reading jurors would be familiar with the basis for his defense. It parallels the biblical tale of Potiphar's wife. As the jurors surely knew, she attempted to seduce Joseph, who refused her advances. She spitefully accused him of rape, which led to his imprisonment by Pharaoh. See Genesis 39:7-20.
34. 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN *635, quoted in Ronet Bachman & Raymond Paternoster, A Contemporary Look at the Effects of Rape Law Reform: How Far Have We Really Come?, 84 J. CRIM. L. & CRIMINOLOGY 554, 558 (1993).
35. 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN *635, quoted in Ronet Bachman & Raymond Paternoster, A Contemporary Look at the Effects of Rape Law Reform: How Far Have We Really Come?, 84 J. CRIM. L. & CRIMINOLOGY 554, 558 (1993).
36. 3A JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 924a (James H. Chadbourn rev. ed., 1970), quoted in ESTRICH, supra note 17, at 48.
37. P. 234. Questions indeed!
38. See generally Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. DAVIS L. REV. 1013 (1991).
39. Note, Corroborating Charges of Rape, 67 COLUM. L. REV. 1137, 1138 (1967), quoted in ESTRICH, supra note 17, at 43.
40. State v. Anderson, 137 N.W.2d 781, 783 (Minn. 1965); see also State v. Wulff, 260 N.W. 515, 516 (Minn. 1935). The Wulff case, it may be noted, was decided in 1935, the very year in which To Kill a Mockingbird was set.
41. Anderson, 137 N.W.2d at 783 n.2 (quoting Glanville Williams, Corroboration - Sexual Cases, 1962 CRIM. L. REV. 662, 662).
42. People v. Scholl, 37 Cal. Rptr. 475, 478 (Ct. App. 1964), quoted in Ann Althouse, The Lying Woman, The Devious Prostitute, and Other Stories from the Evidence Casebook, 88 Nw. U. L. REV. 914, 955 (1994).
43. MODEL PENAL CODE AND COMMENTARIES § 213.6 cmt. 5 (1980), quoted in ESTRICH, supra note 17, at 54.
44. Note, The Resistance Standard in Rape Legislation, 18 STAN. L. REV. 680, 685 (1966), quoted in ESTRICH, supra note 17, at 38.
45. Anderson, 137 N.W.2d at 783 n.2 (quoting Glanville Williams, Corroboration - Sexual Cases, 1962 CRIM. L. REV. 662, 662).
46. State v. Connelley, 59 N.W. 479, 481 (1894).
47. Comment, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 YALE L.J. 55, 67 (1952).
48. Note, The Resistance Standard in Rape Legislation, 18 STAN. L. REV. 680, 682 (1966) (quoting Ralph Slovenko, A Panoramic Overview: Sexual Behavior and the Law, in SEXUAL BEHAVIOR AND THE LAW 5, 51, 54 (Ralph Slovenko ed., 1965)).
49. Note, The Resistance Standard in Rape Legislation, 18 STAN. L. REV. 680, 682 (1966) (quoting Ralph Slovenko, A Panoramic Overview: Sexual Behavior and the Law, in SEXUAL BEHAVIOR AND THE LAW 5, 51, 54 (Ralph Slovenko ed., 1965)).
50. See Commonwealth v. Bohannon, 378 N.E.2d 987, 989 (Mass. 1978), cited in Althouse, supra note 30, at 917, 963-65.
51. Althouse, supra note 30, at 967 n.267 (citing Barry W. Lynn, 'Civil Rights' Ordinances and the Attorney General's Commission: New Developments in Pornography Regulation, 21 HARV. C.R.-C.L. L. REV. 27, 89 n.205 (1986) (quoting from an unnamed publication)).
52. Robert Hanley, 3 Men are Jailed in Glen Ridge Sexual Assault Case, N.Y. TIMES, July 1, 1997, at B4.
53. See Neil A. Lewis, Sergeant's Lawyers Start Case by Accusing 2 of His Accusers, N.Y. TIMES, Apr. 22. 1997, at A12.
54. See Elaine Sciolino, Accuser of Army's Senior Soldier Says He Should Face More Serious Charges, N.Y. TIMES, June 27, 1997, at A15.
55. Neil A. Lewis, Accuser Is Criticized in Army Sex Case, N.Y. TIMES, July 2, 1997, at A18.
56. Monte Williams, Victim of Rape Goes Public After 11 Years of Nightmares, N.Y. TIMES, June 20, 1997, at A1.
57. See Althouse, supra note 30, at 949, 966; see also GREGORY MATOESIAN, REPRODUCING RAPE: DOMINATION THROUGH TALK IN THE COURTROOM (1993) (discussing the role of language in transforming a woman's experience of rape into consensual sex at trial); Torrey, supra note 26, at 1056.
58. I am grateful to Ann Althouse for this insight.
59. Professor Monroe Freedman writes, "the imperatives of the adversary system properly require that every available argument be exploited by the criminal defense lawyer, even if he knows the client is guilty." Letter from Monroe Freedman (July 20, 1997) (on file with author).
60. Professor Dorothy Roberts writes, "[w]e shouldn't use sexist, racist, or classist myths to defend innocent clients, either." Letter from Dorothy Roberts (Sept. 10, 1997) (on file with author).
61. Professor Mary Becker writes, "[h]ow could torturing Mayella possibly be justified morally if she is telling the truth, regardless of legal ethics?" Letter from Mary Becker (July 24, 1997) (on file with author).
62. TRIAL OF QUEEN CAROLINE 8 (1821), quoted in FREEDMAN, UNDERSTANDING, supra note 21, at 65-66.
63. TRIAL OF QUEEN CAROLINE 8 (1821), quoted in FREEDMAN, UNDERSTANDING, supra note 21, at 65-66.
64. See Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 WM. & MARY L. REV. 5, 6-7 (1996).
65. See GOODMAN, supra note 15.
66. The procedural history of the case is complex, involving seven separate retrials and two important decisions by the United States Supreme Court. See Powell v. Alabama, 287 U.S. 45 (1932) (requiring meaningful access to counsel in capital cases); Norris v. Alabama, 294 U.S. 587 (1935) (prohibiting systematic exclusion of minorities from jury rolls).
67. The NAACP and the International Labor Defense (a Communist Party affiliate) vied for control of the defense of the case, in which they were supported by the great weight of public opinion, at least in the North.
68. One of the alleged victims, Ruby Bates, subsequently recanted the charges. She testified for the defense at several of the retrials and toured the country raising support and funds for the defendants. Though it took over 40 years, even the State of Alabama eventually acknowledged the innocence of the Scottsboro defendants when Clarence Norris, the last survivor among them, was pardoned in 1976 on the basis of "innocence." That decree, signed by then-Governor George Wallace, marked the first time in its history that Alabama conferred a pardon on the basis of innocence rather than forgiveness. See William K. Rashbaum, Funeral Held for Last 'Scottsboro Boy,' UPI, Jan. 31, 1989.
69. See Powell, 287 U.S. at 45.
70. The likelihood of a false rape charge was taken for granted at the time. Supporters of the Scottsboro defendants pointed out that this was "a common experience in the pathology of women," and that "nine out of ten charges of rape are false and are due to a peculiar psychological condition of the woman." These "rape fantasies" often misled even the most experienced judges, leading to the conviction of innocent men accused of rape by hysterical women. See GOODMAN, supra note 15, at 167-71, and sources cited therein.
71. Id. at 184.
72. Id.
73. Id. at 184-86, and sources cited therein.
74. Id. at 192.
75. Id. at 192-93, and sources cited therein.
76. Id. at 193 (quoting Mary H. Vorse, The Scottsboro Trial, NEW REPUBLIC, April 19, 1933, at 277).
77. By the time Leibowitz entered the case Ruby Bates had become a defense witness.
78. The tactic of character assault is venerable if not respectable, dating back at least a century prior to the events in To Kill a Mockingbird. In 1829, a white woman in Virginia named Amy Baker accused a slave of rape. A witness for the defendant, a white man, gave testimony that he himself had "been to the house of Mrs. Baker for the purpose of unlawful intercourse with females." Another witness had "seen four negro men" at Amy's house on one occasion "and three negro men there at another time," as though this were proof of low character. See HODES, supra note 15, at 58.
79. The argument is familiar, though that makes it no less meaningful. If vigorous advocacy is allowed only on behalf of clients who protest their innocence, the nearly certain result is that clients will refrain from making candid admissions to their lawyers. The consequence would not be fewer nasty cross examinations, but rather fewer pleas of guilty.
80. Samuel Leibowitz no doubt saw himself as doing no more than fighting fire with fire. He had to endure the anti-Semitic taunts of the prosecution and the constant reference to the defendants as "niggers." When Leibowitz objected, one prosecutor replied, "I ain't said nothin' wrong. Your Honor knows I always make the same speech in every nigger rape case." The defense objection was not sustained. See Eric J. Sundquist, Blues for Atticus Finch, in THE SOUTH AS AN AMERICAN PROBLEM 181 (Larry J. Griffin & Don H. Doyle eds., 1995).
81. See, e.g., FED. R. EVID. 412 (rape shield); Leigh Bienen, Rape Reform Legislation in the United States: A Look at Some Practical Effects, 8 VICTIMOLOGY 139 (1983) (reviewing protective measures enacted 1975-80) ; Dorothy Roberts, Rape, Violence, and Women's Autonomy, 69 CHI.-KENT L. REV. 359 (1993) (discussing efforts to reform rape law).
82. See, e.g., FED. R. EVID. 412 (rape shield); Leigh Bienen, Rape Reform Legislation in the United States: A Look at Some Practical Effects, 8 VICTIMOLOGY 139 (1983) (reviewing protective measures enacted 1975-80) ; Dorothy Roberts, Rape, Violence, and Women's Autonomy, 69 CHI.-KENT L. REV. 359 (1993) (discussing efforts to reform rape law).
83. See, e.g., FED. R. EVID. 412 (rape shield); Leigh Bienen, Rape Reform Legislation in the United States: A Look at Some Practical Effects, 8 VICTIMOLOGY 139 (1983) (reviewing protective measures enacted 1975-80) ; Dorothy Roberts, Rape, Violence, and Women's Autonomy, 69 CHI.-KENT L. REV. 359 (1993) (discussing efforts to reform rape law).
84. Of course, it is not the defense alone that must be regulated. The abuses of prosecutors, though not the subject of this essay, have been well chronicled. See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986) (using peremptory challenges to exclude jurors on the basis of race).
85. "Atticus Finch has been studied by attorneys for the quality of his moral character, and his cinematic portrayal by Gregory Peck as a man of great tenderness and justice is so ingrained in American consciousness as to make him nearly impossible to imagine otherwise." Sundquist, supra note 66, at 192.
86. Nor could Atticus resist indulging in some creative exaggeration when he argued to the jury. During the cross examinations of Bob Ewell, Sheriff Täte, and Mayella Ewell, Atticus had taken pains to imply that Mayella's blackened right eye was injured by a left-handed blow. There was no evidence about the angle of impact that might have caused her other bruises. By final argument, however, Atticus had it that "Mayella Ewell was beaten savagely by someone who led almost exclusively with his left." P. 216. Apparently, even the most honest lawyers can fall prey to the temptation of embellishment.
87. See p. 157; Freedman, supra note 2, at 475-76 (observing that Atticus referred to the Klan as a "political" organization, Professor Freedman asks, "David Duke, can you use a campaign manager who looks like Gregory Peck?").
88. Indeed, it may be that Tom's death, ostensibly as he attempted to escape from prison, could have been avoided if only he had remained passive and stoic. Perhaps Atticus's appeal would have succeeded. See Phelps, supra note 5, at 527.
89. See id. at 528 (describing how Maycomb's black citizens deferred to whites, even in their own church).
90. Atticus defined the social structure for his children: "There's nothing more sickening to me than a low-grade white man who'll take advantage of a Negro's ignorance." P. 233. Tom, ignorant but upright, merited Atticus's approval. Mayella, a low-grade white woman if ever there was one, brought down his contempt. Worthlessness seems to have been a genetic trait among the Ewells. Ten-year-old Burris Ewell, beginning first grade for at least the third time, succeeded in bringing tears to his teacher's eyes when he shouted "[a]in't no snot-nosed slut of a schoolteacher ever born c'n make me do nothin'!" P. 34.