The trial of Tom Robinson.

• Author: van Patten, Jonathan K.
• Position: In 'To Kill a Mockingbird'

1. INTRODUCTION

   Atticus Finch is a modern day saint. Ever since the publication of To Kill a Mockingbird (1) in 1960, followed by the release of the movie in 1962, (2) the fictional character of Atticus Finch has been lavishly praised and widely admired. (3) This is especially so for many lawyers, who regard Atticus as a role model and cite him as an antidote against those who would denigrate the legal profession. Mike Papantonio, a trial lawyer, wrote: "Atticus Finch represents what I believe to be the best of what being a lawyer is all about. If we understand Atticus, we will better understand ourselves." (4) Scott Turow, an author and lawyer, said "it's true that there aren't many human beings in the world like Atticus Finch, perhaps none. But that doesn't mean that it's not worth striving to be like him." (5) Morris Dees, the well-known civil rights lawyer wrote:

   Atticus helped change my life. I graduated from law school in 1960 and, within three years, I had over a hundred open files, had lost my sense of humor and was seeking another way to make a living. I had dreamed of being a lawyer ... helping people win justice and making my self a good living, but I was not pleased with what law practice was doing to me as a person. On a warm June night in 1966, I saw To Kill a Mockingbird at a local drive-in theater. The Civil Rights Movement was happening all around me and I was sitting it out. When Atticus Finch walked out of the empty courtroom after the jury ruled against his client and the upper gallery, still packed with black folks, rose in his honor, tears were streaming down my face. Why couldn't I be a lawyer like Mr. Finch? (6) The list of tributes goes on and on. (7) The list extends to luminaries, such as Tom Brokaw, who praises Atticus's wisdom shown in talking with his daughter about why he must defend Tom Robinson, (8) and Andrew Young, who sees Atticus as representative of the white lawyers who helped bring about the civil rights revolution in the courts, (9) and Oprah Winfrey, who is in awe of the powerful scene where Atticus walks out of the courtroom after the verdict has been rendered. (10)

   But there has been some resistance to the canonization of Atticus Finch. Professor Monroe Freedman, whose own advice for lawyers was to "make a difference," (11) argued that on many levels, Atticus failed to make a difference. Atticus served in the state legislature, yet did nothing for civil rights. (12) He was an important figure in the legal community, yet did not fight for desegregation of the courthouse, nor did he represent pro bono clients or voluntarily undertake a death penalty appeal. (13) In fact, he only took on the defense of Tom Robinson pursuant to a court order. As a citizen, he was tolerant of the oppression practiced against his African American neighbors, downplayed the role of the Ku Klux Klan, and was apologetic for those whose meanness and bigotry went much further than privately-held beliefs. (14) Professor Stephen Lubet has written critically of Atticus's performance as a lawyer in the case. (15) He considered the defense of Tom Robinson from several different angles, including the possibility that the defendant was indeed guilty, and found Atticus to be less than a moral and ethical paragon. Lubet was most critical of Atticus's closing argument that put the blame on the complaining witness, Mayella Ewing. (17) In 2009, author Malcolm Gladwell reached a wider, non-legal audience with his iconoclastic essay in The New Yorker, echoing many of the concerns articulated by Professor Price and Professor Lubet. (18) Gladwell took down the popular hero in this summary:

   Finch wants his white, male jurors to do the right thing. But as a good Jim Crow liberal he dare not challenge the foundations of their privilege. Instead, Finch does what lawyers for black men did in those days. Fie encourages them to swap one of their prejudices for another. (19) There are now several other critical accounts that have emerged in the academic writings, taking on Atticus and finding him wanting from the various perspectives of race, class, and gender. (20) One might even conclude that the matter is "trending" against Atticus, at least in academia.

   The trial of Tom Robinson is important because it raises serious questions, both then and now, about race and justice in America. How does one represent a client whose very identity seems to preclude an honest consideration of the facts by those who are deeply invested in a non-factual narrative? How is the duty of zealous representation to be weighed against other concerns that might restrain certain types of advocacy? What is the larger duty of a lawyer within the community, especially when that community has serious moral problems? What do we learn when justice does not prevail? These questions go to the core of what it means to be a lawyer and also how one is to live as a good citizen in a less than perfect society. This article addresses these questions in the context of this remarkable novel.

2. THE SETTING

   In the opening of To Kill a Mockingbird, the narrator, Atticus Finch's daughter, Scout, recalls an incident that occured near the end of the novel: "When he was nearly thirteen, my brother Jem got his arm badly broken at the elbow." (21) This leads to a discussion of how this injury came about. Scout said it started with the Ewells. Jem maintained, however, that it started three years earlier when their friend, Dill, proposed to make a recluse, Boo Radley, "come out." (22) Scout replied that, if you take the long view, then it started with Andrew Jackson, whose Indian fighting eventually led the Finch ancestor, Simon Finch, to homestead in Alabama. (25) Atticus settled this dispute by saying they were both right. (24)

   Any account of the trial of Tom Robinson must deal with the question of where to begin. In the narrow sense, it began with the accusation that Tom Robinson, a black man, raped a white woman, Mayella Ewell. But, one cannot make sense of the trial that followed without some understanding of the context in which this played out in rural Alabama in 1935. If you take the long view, the trial of Tom Robinson started much earlier. (25) One might say it started when the first slaves were transported to the "New World." Aptly described as America's "original sin," (26) this matter simply will not go away. Nor should it.

   America has been, and still is, deeply conflicted about race. (27) By the time it asserted itself for independence against the English Crown that had long treated it as a colony, America was no longer a blank slate. Although it may not have been as encumbered with the limits of custom and culture as Europe, it had well over a century of experience with slavery within the colonies. The "peculiar institution" (28) was well entrenched, although far less so in the northern regions." (29) The conflict between slavery and assertions of American ideals may be seen in the founding documents.

   The Declaration of Independence opens with the great statement of first principles:

   We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. (30) Wonderful statement, but what is to be made of the fact that the author of those lines was himself a slaveholder? (31) Thomas Jefferson's own circumstances show the moral trap in which he found himself. He could not maintain his estate, consisting of over 10,000 acres, without the "assistance" of as many as 100 slaves. (32) Yet he was deeply troubled by the practice of slavery. (33) The original draft of the Declaration also contained a denunciation of the Crown for having fostered the slave trade, but this was stricken through the insistence of others in the final version. (34)

   If the Declaration was primarily the product of a single mind, the Constitution was clearly the product of compromise among political players with widely divergent interests. (35) There was a shared interest in a stronger union, but there were many issues to be worked through, with give and take occurring all throughout the deliberations. (36) There were certain things that the South had to have regarding the issue of slavery. Foremost was the protection of the slave trade, but the North balked at protection of it in perpetuity. Ultimately, they settled on a period of twenty years in which Congress could not prohibit the slave trade. (37) They also sealed that deal with a limitation on constitutional amendments, which made the provision protecting the slave trade unamendable for that same twenty-year period. (38) The other provision that the South insisted upon was a specific application of what became known as the Full Faith and Credit Clause. The South wanted the North to assist in the return of runaway slaves, and thus it required a process by which slaves could be returned, notwithstanding laws in the "Free Soil" states or local attitudes to the contrary. (39)

   The most controversial part of the Constitution is the infamous "three- fifths" provision, which has served as "Exhibit A" for the argument that the Constitution is irredeemably racist. (40) The provision counted slaves (non-free persons who were not bound for a term of years) as three-fifths of a person for purposes of representation in the House. (41) The provision could be viewed as a statement about value or status of a slave in comparison to free citizens. However, this...