Michigan Law Review
Volume 97, Number 6 (1999)
reprinted by permission of the Law Review
REPLY TO COMMENTS ON RECONSTRUCTING ATTICUS FINCH
Steven Lubet*
Reconstructing Atticus Finch1
was intended to be provocative, so I am not surprised at the strength of
the responses. Neither should I be surprised by the continuing reverence
engendered by the fictional Atticus Finch; as I pointed out in my original
essay, he is our moral archetype. Indeed, it was the accepted nobility
of the character that made my question worth asking in the first place.
What if Mayella had been attacked by Tom Robinson? Would Atticus
still be a hero? To ask that question about a lesser figure would
inevitably invite stock responses. Champions of the adversary system would
support the defense; detractors would rail against it. I hoped to place
the inquiry in a setting that would inspire a more textured debate, especially
since it would be impossible to dismiss the efforts of Atticus Finch in
the racially charged atmosphere of Depression- era Alabama.
Dean Burnele Powell and Professor William
Simon each take the question head on, concluding more or less (more in
Powell's case, somewhat less in Simon's) that the posited guilt of Tom
Robinson would not diminish the stature of Atticus Finch. As Dean Powell
put it, Atticus succeeds not because he defends the innocent, "but because
he insists, as must every lawyer, on the freedom to make the arguments
within the bounds of law that are nec essary for the full ventilation of
issues in a criminal case."2
Fair enough.
Disappointingly, Professor Rob Atkinson chooses
not to ad dress the question at all, arguing instead that my premise is
implau sible.3 Since my
point of departure was, after all, a "what if"
[1382]
question, it seems to me rather beside the point that "Lee gives us
no hint of Scout's being anything other than right about Tom Robinson's
innocence and Atticus's wisdom."4
Professor Ann Althouse provides a significant
insight into an important additional question, accepting the validity of
using the "she wanted it" defense in "Lee's simplified moral world."5
One wishes she had gone further, however, since real lawyers must struggle
with unending moral complexity. May one use that de fense - and the attendant
techniques of cross-examination - only for the innocent?6
And if so, how can the lawyer know who is guilty (and should counsel purposely
avoid learning too much)? As I asked originally, "Can any rule of legal
ethics ... depend upon the lawyer's faith in the particular client who,
after all, must by law be presumed innocent in every case?"7
Finally, I must admit that I am taken aback
by the vehemence of Professor Randolph Stone's response, which criticizes
me for "essentially ignoring" the "historical context of white supremacy."8
Fair minded readers can decide for themselves whether I commit ted that
omission in my essay which, inter alia, pointed out that To Kill
A Mockingbird was "a story about race and racial oppression"9
and which contained an extended discussion of the Scottsboro case, describing
it as a "racially motivated frame-up."10
Professor Stone's ultimate position is that
"[i]n an era of racial profiling, prosecutorial overcharging, discriminatory
jury selection practices, disproportionate sentencing and confinement policies,
and wrongful convictions, vigilant and aggressive defense lawyers
[1383]
must be encouraged."11
"[M]isguided"12 as I
might be, I do not dis agree with Stone's conclusions. I am fairly certain,
however, that public support for the adversary system is strengthened by
uninhibited discussion and, if anything, weakened by unconditional insis
tence that all advocacy is for the better.
[1384]
ENDNOTES
* Professor of Law, Northwestern University. J.D. 1973,
Boalt Hall. - Ed.
1. Steven Lubet, Reconstructing Atticus Finch,
97 MICH. L. REV. 1339 (1999)
(book review).
2. Burnele V. Powell, A Reaction: 'Stand Up, Your
Father [a Lawyer] Is Passing,' 97 MICH. L. REV.
1373 (1999).
3. To Kill a Mockingbird is not Rashomon,
he says. See Rob Atkinson, Comment on Steven Lubet, Reconstructing
Atticus Finch, 97 MICH. L. REV.
1370 (1999). On the other hand, maybe it is closer to Rashomon than
we think. Professor Simon's response attributes an ending to the book that
is at odds with the common understanding. Simon says that Sheriff Tate
and Atticus conspired to make the death of Bob Ewell look like an accident
in order to spare Jem the risk of claiming self defense. See William H.
Simon, Moral Icons, A Comment on Steven Lubet's Reconstructing Atticus
Finch, 97 MICH. L. REV. 1376
(1999). Just about everyone else thinks the Sheriff persuaded Atticus to
go along in order to spare the reclusive Boo Radley.
4. Atkinson, supra note 3, at 1370.
5. See Ann Althouse, Reconstructing Atticus Finch?
A Response to Professor Lubet, 97 MICH. L. REV.
1363 (1999).
6. I am persuaded by Professor Althouse and Professor
Stone that it was probably too strong to say that Atticus "tortured" Mayella
on cross-examination. See id. at 1369; Randolph N. Stone, Atticus
Finch, In Context, 97 MICH. L. REV.
1378, 1378-79 (1999). I am hard pressed, however, to come up with an alternative
that will clearly convey the intended meaning - inflicting pain without
taking pleasure in it. Perhaps "tormented," or simply "harmed," would do
- at least from Mayella's perspective.
7. Lubet, supra note 1, at 1358.
8. Stone, supra note 6, at 1378.
9. Lubet, supra note 1, at 1355.
10. Id. at 1357.
11. Stone, supra note 6, at 1380-81.
12. Id. at 1380. Professor Stone additionally faults
me for "descent into fantasy" and claims that I erred in my characterization
of Tom Robinson's defense as "consent." Id. at 1378. As to the former,
Professor Stone has simply chosen not to engage the premise of my essay,
that the possible guilt of Tom Robinson can lead to a fuller understanding
of criminal defense ethics. As to the latter, it is difficult to understand
why Professor Stone insists that "the consent defense admits sexual intercourse
but denies the use of force." Id. at 1378. That is probably the
most common form of the defense, but certainly not the only one. As every
reader surely knows, and as I clearly pointed out, Atticus's claim was
that Mayella had been the sexual aggressor, obviously a variant of the
consent defense. See Lubet, supra note 1, at 1345. |
