So as I understand it, Atticus Finch is now the bad guy in "To Kill A Mockingbird," because he doubted a story about rape.
— Instapundit.com (@instapundit) December 2, 2014But read this 1999 law review article by Steven Lubet:
'Reconstructing Atticus Finch' is a reexamination of Harper Lee's To Kill a Mockingbird. The essay takes another look at Atticus's tactics in the defense of Tom Robinson, particularly from the perspective of the alleged victim, Mayella Ewell. The essay considers a previously unasked question: What if Mayella was telling the truth?... Once we contemplate the possibility that Mayella might have been raped, we can no longer unquestioningly accept Atticus Finch as a paragon of lawyerly virtue... Viewing Mayella as a possible crime victim rather than as a conniving liar requires us to ask a series of uncomfortable questions. Do ethics depend on the guilt or innocence of one's client? Are some tactics simply impermissible? May stereotypes ever be exploited by trial counsel, even in defense of the innocent?I had a pretty elaborate response at the time:
Does Atticus depart from his gentlemanly ways when he cross-examines Mayella? Mayella may be a pitiable creature – “the loneliest person in the world” – but if she has accused an innocent man of a capital crime, she is the equivalent of the rabid dog. Now, perhaps, as Professor Lubet has described, she is not lying. Surely Atticus would have refrained from shooting the dog if he had not believed it was in fact rabid, despite the sheriff’s bidding. One might say a lawyer must defend any client, but I do think Atticus forms the belief that Mayella is lying and that he must deploy his full powers in her case for this reason....Read the whole thing!
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Truman's novel?
Viewing Mayella as a possible crime victim rather than as a conniving liar requires us to ask a series of uncomfortable questions.
My uncomfortable question is how this passes for scholarly work.
It's as if Lubet is unfamiliar with the idea of a trial, which is basically a process of asking a series of uncomfortable questions to distinguish between possible crime victims and conniving liars.
Well done, Professor. I recently gave a hard bound copy of To Kill a Mockingbird to my god-daughter for her 14th birthday (and balanced it with a copy of Vampire Academy).
The possible parallel between Ewella and Jackie of UVA cannot be easily dismissed. The two cases, dissimilar but each somewhat doubtful from the outside, rely on the word of the victim. In the UVA case, aside from a defendant, what we are lacking most is an Atticus Finch, willing to get to the heart of the matter.
Mayella. Gosh, sometimes I hate my fingers.
This is all just an attempt to rehabilitate Hillary!
"get to the heart of the matter"- just so. Would not Finch's questions have led to the truth whatever it was? Says more about the writer, as most writing does.
An Official Victimology Flow Chart would be extremely helpful in understanding how should feel at any given point during the day.
I wish I could design one, maybe someone would pay me for it and to write on Vox or something.
But sadly, I know not enough of this culture to do such a thing.
Prof. Lubet's resume displays many impressive credentials.
As one who's been doing jury trial work for 34 years now, however, I'd never want to be represented by a lawyer who was squeamish about attacking a witness' credibility on cross-examination.
Lubet's abstract asserts: "[S]ince the crime was rape, Atticus used the time-worn strategy of attacking the victim's character. That tactic has been roundly condemned in other contexts; on the other hand, it may be the only available defense in a prosecution corrupted by racism."
Poppycock. Atticus Finch was impeaching the key witness' credibility because the prosecution's ability to prove their case beyond a reasonable doubt depended entirely on that witness' credibility.
I shudder to think that Prof. Lubet may be teaching an aspiring generation of trial lawyers from Northwestern that they should roundly condemn, in any courtroom context, the cross-examination of such a witness to show that her testimony is unbelievable. An advocate who fails to do that must necessary fail to discharge his own ethical duty of zealously representing his client within the bounds of the law.
There are indeed specific ethical prohibitions on certain types of witness questioning that are specified in the Model Rules of Professional Conduct that Prof. Lubet presumably teaches to his trial ad students. Atticus Finch broke none of them.
Of course, old Atticus would not be permitted to demonstrate his markmanship at any UVA disciplinary hearing.
As always, how hard it must be to be a social justice warrior--trying to know whether defending and fetishizing all black people accused of anything whatsoever, or accepting uncritically all rape accusations. Throw in other victim statuses, or a war on poverty, and you really have a confusing mush.
It's much easier to simply shed those prejudices and look at every situation with a critical eye. Sure, you may land on the side of a rich white male from time to time, but those are the breaks.
The one witness I wish Atticus had called was the soda jerk at the drug store to testify that the younger Ewells had indeed been to get ice cream as Tom Robinson said Mayella had told him.
Tom Robinson physically could not have beaten Mayella nor in fact held her down. His arm had been crippled in an accident.
There was no evidence at all that a rape had been committed. If there had been, the unpalatable conclusion would be that her own father did it; Tom could not have.
I was just talking about my Reverse Mockingbird theory....
What made the book and film popular was the notion that in racially charged trials, prejudices should be set aside and cases determined by the facts.
Then came the George Zimmerman trial, where the New York Times ended up prodding the prosecution to do the opposite - make the case about the history of race in the U.S., not about who did what.
The media reacted the same with Ferguson. Reverse Mockingbirds. The heroes are the ones trying to inject racial stereotypes into the case. Why, right on down to the angry mobs demanding a conviction. A Mockingbird reboot.
Translating Lubet's bad grammar into Standard American English that respects the subjunctive mood and sequence of tenses yields,
'Reconstructing Atticus Finch' is a reexamination of Harper Lee's To Kill a Mockingbird. The essay takes another look at Atticus's tactics in the defense of Tom Robinson, particularly from the perspective of the alleged victim, Mayella Ewell. The essay considers a previously unasked question: What if Mayella were telling the truth?... Once we contemplate the possibility that Mayella had been raped. ....
Lubet has apparently passed up all opportunities to learn 7th grade Engllish grammar or a European foreign language.
" shudder to think that Prof. Lubet may be teaching an aspiring generation of trial lawyers from Northwestern"
Well, at least Bernardine Dohrn has moved on the greener pastures.
A lawyer has a job. Which is to advocate on behalf of his client and advance his client's interests. He must do so within certain ethical constraints, but I have no idea on what theory questioning a complainant's story or ... gasp ... cross-examining the complainant would be crossing a line. Even if the client is guilty, he is entitled to a vigorous defense.
This isn't difficult.
If a lawyer is going to soft-pedal a cross-examination, it has to be because he reckons it's in his client's best interest to do so.
Unexamined in the UVA case and this "deconstruction" bullshit is the utterly sexist notion of feminists that females accusing men of rape always tell the truth, because they are females and men are brutes.
SGT Ted said...
Unexamined in the UVA case and this "deconstruction" bullshit is the utterly sexist notion of feminists that females accusing men of rape always tell the truth, because they are females and men are brutes.
Also offensive is the notion, implicit in so much of this feminist rape culture nonsense, that women cannot be questioned or confronted ... because they are delicate flowers. They must be closely supervised, treated with compassion and "support." Monitored. Protected.
While I feel a ,certain amount of indulgence and protectiveness is warranted in a forcible rape case (like what allegedly happened at UVA), the issue becomes a bit thorny when a woman complains of rape after ambiguous drunken sex, where the stories conflict and sometimes evolve, the physical evidence is often inconclusive or even nonexistent, and the college's definitions of sexual assault and consent are vague and capacious. There are real due process concerns there.
Lubet seems to have a poor understanding of the role of the trial lawyer--he seems to want defence attorneys to commit malpractice and undermine our justice system as a matter of course.
One of the things about fiction is that it is a unified whole that springs from the head of an individual. Even if the author inserts contradictions, they are there to serve a larger vision, which is still unified.
We can know stuff in a fictional world we can never know in the real world. Lack of an omniscient narrator, or at least omniscient author, if the narrator has some blind areas.
Sure, discussing a fictional case serves to sharpen our ideas and perceptions, and maybe approaches to the real world, but it can teach us nothing about anything that is objectively true in this world. It really only serves to sharpen our rhetoric.
"[Fiction] can teach us nothing about anything that is objectively true in this world.
I don't know about that. At the risk of sounding "truthy," it seems to me that almost nothing sprouts, sui generis, from an author's head. To the extent that study, knowledge, and experience informs the writer, we can learn plenty from fiction. Well, me at least.
All this only shows as a southern way of life that was as Patriarchal as it gets. The aristocrat men who had power did not hate Negroes who kept in their place nor the poor whites who kept in their place.
Atticus stood that traditional ground and defended a Negroe when he saw Mayella had not kept in her place but Tom had kept in his. End of story
"southern way of life"
More like "slice of life," methinks. Any small narrative can give the impression of an unchanging and unchangeable world. That people can seem comfortable or out of step in a given time and place is nothing more than the human condition. 'Course, any workmanlike writer will throw crap in the game, to make things interesting.
Comrades, as the attorney for the defence I am shocked by the defendant's crimes against social justice and I will not conspire in them by attempting to defame the defendant's victim by questioning her story.
There is, though, some kind of ethical line that can be crossed-I think that the Menendez brothers' attorney crossed it in accusing the murder victims of heinous crimes which they were unable to answer.
If the defense in a rape case does attempt to try the victim, the victim is at least alive to answer.
So would you use the rabid dog metaphor today? Or might you find a less vivid way to make the point, given the current climate?
What is the goal of the defense lawyer?: to find the truth or to get his client free?
If Atticus believed that Tom was guilty and Mayella telling the truth, should he have changed how he represented Jim? Should he have represented Tom at all?
I recall attending a speech by Alan Dershowitz where this topic came up. He said that had he written the book (remember: this is Dershowitz) he would have made Tom guilty and then force Atticus to represent him.
Of course, then you'd have no book.
tim maguire:Lubet seems to have a poor understanding of the role of the trial lawyer--he seems to want defence attorneys to commit malpractice and undermine our justice system as a matter of course.
He has an excellent understanding of the role of the trial lawyer in upholding social justice; which is concerned with relative position of accused and accuser in society, and is far superior to your bourgeois justice concerned with "facts" and "law".
"Facts" are that women have less power and privilege than men. "Law" is whatever redresses this balance.
Althouse, I enjoyed your article very much, thanks for sharing that.
(I also like "read the whole thing," that amused me).
I was trying to find the original article online, no luck. Found another sharp retort though.
And here is Malcolm Gladwell criticizing Atticus. I love reading Gladwell, he's always interesting. I bought one of his books, read it for an hour or two, put it down, drove back to the bookstore, and bought another one and another one and another one. Fascinating stuff.
Viewing Mayella as a possible crime victim rather than as a conniving liar requires us to ask a series of uncomfortable questions.
What tripe.
yeah like how did she get bruises on the right side of her face when the accused had a crippled left arm?
Black people should take note that white gentry liberals are basically saying that, in the hierarchy of victimhood, a white woman who obviously lies about being raped by a black man should be believed on her accusation alone.
That's right, just making the accusation is enough!
What made the book and film popular was the notion that in racially charged trials, prejudices should be set aside and cases determined by the facts.
That's not a notion unique to this book or movie.
Here is a quote for you:
We are a nation of laws, not of men
I can't believe people have forgotten. Don't they teach this stuff in High School anymore?
Sure, discussing a fictional case serves to sharpen our ideas and perceptions, and maybe approaches to the real world, but it can teach us nothing about anything that is objectively true in this world.
Bullshit. I've used this book to teach my children the proper way to conduct themselves. Atticus Finch is a literary example of "doing the right thing" in the face of his friends and neighbors forming a mob, of standing up for what is right even at the cost of putting his own life in danger as well as his children. It can be objectively true about some people if they heed the lesson contained within it.
"If the defense in a rape case does attempt to try the victim, the victim is at least alive to answer."
In "Anatomy of a Murder," written by a Michigan Supreme Court Justice, the defense lawyer successfully convicts a shooting victim of rape when he is dead.
Interestingly, the writer whose pen name was Robert Traver ( John D. Voelker), became close friends with Joseph N Welch. a famous lawyer who played the judge in the movie.
"And here is Malcolm Gladwell criticizing Atticus."
I read this well-marshalled argument. Gladwell omits one tiny detail about the "deal" between Atticus and the Sheriff concerning Boo Radley. That is, Radley was factually innocent of any crime in killing Ewell, because of his defense of a third party. Justice conformed to the spirit of the law by ignoring the form. In that regard, Atticus escapes the narrow confines of personality and professional indoctrination. He acts on the premise that society, like the Constitution, is not a mutual suicide pact, in which we must enslave ourselves to convention no matter what the damage. He is a more well-rounded character for it. In this manner, art imitates life - no one is wholly consistent.
But Atticus Finch (and the rest of the book) certainly did treat Mayella as a victim of a crime, just not by Robinson. It was strongly suggested that her father beat her, and she was clearly painted as a victim of crushing poverty and of society's harsh judgment of those white women who would be sexually interested in black men. The lesson is that the whole pile of wrongs she's suffered don't make a right.
"So would you use the rabid dog metaphor today?Or might you find a less vivid way to make the point, given the current climate?"
It's not my metaphor. It in the book. The book is extremely heavy-handed and cartoonish. I'm using what Harper Lee gives me and also criticizing her for lack of subtlety.
Read the whole article, please.
"The book is extremely heavy-handed and cartoonish."
Tssk. Perhaps in the same way "Huck Finn" was heavy-handed and cartoonish in its time? Things appear different through the prism of time and dramatic change.
The book was written at the cusp of change. It takes hateful acts and reminds us of the need to uphold certain civic virtues, yes the rule of law, but also a shared humanity. It is rather uncompromising in this lesson. That might make it seem rather cartoonish in this time of no certain virtues and an unravelling social fabric.
I read this well-marshalled argument.
His books are better than that article. For the most part, Gladwell is non-ideological. It makes his books light and very fun to read. If I had to suggest a non-partisan to read? Malcolm Gladwell.
"His books are better than that article."
I'll dip into one. Thanks.
This is a bad hire, right?
EMD said...
An Official Victimology Flow Chart would be extremely helpful in understanding how should feel at any given point during the day.
The closest I've ever seen to a "Victimology Flow Chart" is the "Minority Victim Value Index" of Daniel Greenfield a/k/a Sultan Knish.
Enjoy: http://sultanknish.blogspot.com/2012/08/the-minority-victim-value-index.html
"I recall attending a speech by Alan Dershowitz where this topic came up. He said that had he written the book (remember: this is Dershowitz) he would have made Tom guilty and then force Atticus to represent him.
Of course, then you'd have no book."
On the contrary, in "A Time To Kill" John Grisham's lawyer successfully defends a man who in fact & deed did murder his victim. In front of witnesses, IIRC.
I don't say this to belittle To Kill A Mockingbird, which I liked both as a book and as a movie, but it used the conventional stereotypes of its era: The evil white southern power structure v. the powerless innocent Negro. Our conventional stereotypes have changed. Now it would be the evil male rapist v. the powerless innocent female. You read that story all the time today -- most recently about UVA -- although the genre is supposedly journalism, rather than fiction.
But what lasts, beyond the conventions of the era, is the presentation of a person who stands up for what's right, at whatever risk to his/her interests. I've practiced law for close to 50 years, and I've never been called on to be an Atticus Finch, but it does no good to young lawyers to tell them to be cynical about a hero of their profession.
"To Kill a Mockingbird" is about the limits and failures of liberal idealism, so of course Atticus Finch has defects. But I think you're all missing the obvious.
It was Scout who killed Bob Ewell. He was going to rape her, just like he had raped his daughter Mayella.
Atticus had his chance to get Bob Ewell when he had Mayella on the witness stand, but his liberal sympathies got the best of him and he let her off before she implicated her father in the rape. He wouldn't put the knife in.
Atticus and Sheriff Tate can't even see the possibility that it was Scout. They think it must have been brother Jem or Boo Radley.
They found the slit in her costume and assumed Ewell was trying to knife her. It never even occurred to them that Scout might have stuck him through her costume.
Remember, it's her narration. Scout's honor.
This is why Harper Lee never wrote again. She committed to paper the perfect literary crime, with no one the wiser. How could she top that?
I will admit the possibility that she subsequently wrote "In Cold Blood" with Truman Capote as her beard and somewhat faulty researcher.
SMGalbraith said (12/3/14, 5:13 PM12/3/14, 5:13 PM): "What is the goal of the defense lawyer?: to find the truth or to get his client free?"
The defense lawyer's goal is to play his role in the adversary system, in which his job is to zealously represent his client within the bounds of the law.
The system contemplates that the defense lawyer's advocacy will be in response and opposition to that of the prosecutor, whose parallel (but not quite identical goal, because prosecutors have special ethical responsibilities) is to secure a conviction if, but only if, that's where the evidence leads.
The defense lawyer's role is more clear-cut. A lawyer who understands and sticks to that role — as Atticus Finch did — doesn't have to second-guess himself about, for example, whether his own client is lying to him or guilty.
I know that Prof. Lubet must know, and indeed, teach, all this stuff. It's extremely fundamental and ancient, very clearly set out in the canons of ethics (and their current incarnation through various states' versions of the ABA Model Code of Professional Responsibility).
It would be impossible to function effectively as a defense lawyer if one felt obliged, or even permitted the luxury, of judging ones' clients' guilt or innocence, with the consequent responsibility of "find[ing] the truth." That's the system's goal, but in broad terms, it's no part of the defense lawyer's goal.
Having been one, a defense lawyers job has nothing to do with the guilt or innocence of his client. It is not his job to prove anything. NO, he is an Inspector General for the criminal justice system. The defense counsel's sole task is to MAKE the prosecutor do his job -- prove beyond a reasonable doubt by the use of admissible evidence that the Defendant is guilty of the crime charged. In doing so, he must follow ethical regulations (be aggressive and vigorous) and legal rules (such as not suborning perjury). Every Defendant is entitled to the same high quality of defense. The lawyer's pride is in the process not the verdict.
Never mind Harper Lee's overwrought drivel. The best object lessons in lawyerly ethics are to be found in the career of Horace Rumpole of No. 3 Equity Court, who won the famous Penge Bungalow Murders case alone and without a leader. A barrister's duty is to defend his client. Truth is a matter for juries, not lawyers.
Rumpole defended not only his clients, but his sterling ethics from his earliest days at the Old Bailey until his recent retirement, having studiously avoided many notable pitfalls such as being named a Queer Customer or an appointment as a circus judge. Given the shameful performance of squire Lubet old Rumpole also dodged another sinkhole of professional vice -- academia.
"The book was written at the cusp of change. It takes hateful acts and reminds us of the need to uphold certain civic virtues, yes the rule of law, but also a shared humanity. It is rather uncompromising in this lesson. That might make it seem rather cartoonish in this time of no certain virtues and an unravelling social fabric."
Did you read my article? It goes through the book methodically and makes a point that you are not confronting. And it seems cartoonish now. If you don't know why I'm saying that...
I'll copy a key part from the article.
"That Mayella’s injuries were on her right side, that her father is left handed, and that Tom’s left arm is so entirely useless it slips off the Bible as he is taking the oath, clearly establish Harper Lee’s overeagerness to assure us that Tom is innocent and to squelch any speculation to the contrary. (Professor Lubet breaks free of the author’s firm hold.) The author’s decision to forgo the usual subtleties of the novelist’s art undermines attempts at assessing Atticus’s legal skills. Indeed, Lee’s cartoonishly overdone evidence generates its own difficulties: Tom’s left arm is an entire foot shorter than his right arm and it hangs “dead at his side” and dangles a hand so shrivelled that Scout detects its inutility from the balcony, yet Atticus is able to trap both Bob Ewell and Mayella into testifying in a way that would require Tom to have an effective left arm, as if they had never laid eyes on him. Given this glaring lapse in the evidence, it is not surprising that Professor Lubet can pry a number of holes in the evidence and construct an interpretation that Tom is guilty, but I would still maintain that Atticus can be credited with an absolute belief that Tom is innocent and that readers entering Lee’s simplified moral world are compelled to adopt this belief as well."
Oddly enough, Atticus Finch, despite his big, mean questions, was the only person in the court room who actually was willing to give a damn to give her a chance to get out of the situation with her father. All she had to do was tell the truth.
On the contrary, in "A Time To Kill" John Grisham's lawyer successfully defends a man who in fact & deed did murder his victim. In front of witnesses, IIRC.
I should have written: "Then Harper Lee would have had no book."
Or not the one she wanted.
The thing I always dislike is that, everyone KNOWS that Mayella is being abused. It's not a shock to the court. Tom's statement that she says what her father does to her doesn't count; no one notices or raises an eye brow.
Her father's there after Tom leaves; no one questions any of it. Because everyone suspects what's going on.
That, I think, would be an interesting feminist take on the story. Why does no one step in to protect Mayella from her father, and the only two men who treat her with any respect [Tom in trying to get away/not take advantage of her, and Atticus, in actually trying to help her tell her story] treated the way they are?
"The essay considers a previously unasked question: What if Mayella was telling the truth?"
What if Atticus told the kids to go ahead and play with that dog?
What if the kids weren't human, but the spawn of alien invaders?
What if the accused at the trial was Mayella's father, but it turned out he was half black?
What if Vogons descended on the earth in Chapter 1 and destroyed the entire planet?
Anyone can play such games. It is not a new, nor a useful, form of lit crit, but rather more like mental masturbation.
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