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Friday, December 9, 2011

Friday Frivolity—The "To Kill a Finch" Edition!

Before I started guest blogging at Patterico’s Pontifications, Patrick started a tradition of running a “Sockpuppet” post every Friday.  In that thread everyone was given permission to use multiple false nicknames impersonating other people in the thread in order to make jokes.  Like with what is in the news, you can expect someone to pretend to be Alec Baldwin, and what do you know?  Here it is.  So when I started there I continued the tradition and added something to it: a Friday Frivolity.  I found some light item and posted about it in the same sockpuppet thread.fou

Well, now that I have came back here, a couple people asked me whether I would run a sockpuppet thread and my answer was that there wasn’t enough of a commenter community here, yet.  That might change.  I have only just begun to allow comments, after all.  And really, if you want to goof around and do an obvious sockpuppet in a thread, including this one, I ain’t going to object, as long as it is obvious in some way.

But I can certainly do frivolity and for this week we have one of Cracked’s excellent lists, this time of movie lawyers who were bad at their jobs (language warning at the link, as is the case with all links to their site).  I am embarrassed to say that I have not seen enough of these movies to really appreciate much of the commentary.  In fact, I am particularly embarrassed to say that I have never seen To Kill a Mockingbird, because it is universally considered a classic.  But I have listened to a book on tape version one time when travelling back and forth from law school and my parents’ home in Texas, and presuming the author of this list is accurately describing the movie, I think this criticism is unfair:

If Peck was such a brilliant lawyer, why didn't he petition for a change of venue? Even Matthew McConaughey's character thought to request a change of venue, and he's Matthew McConaughey.

A change of venue is a legal concept that was basically developed for this very purpose. If it is believed that a fair trial cannot be obtained in the proper jurisdiction, the proceedings can be moved elsewhere "in the interest of justice." There's no way in hell Tom would get a fair trial in Whiteyville, so Peck could just petition to move things elsewhere. One could argue that since the judge has the final say on whether to grant a change of venue, he would just deny the motion for no reason other than being a racist prick, making the gesture pointless. However, Judge Taylor is shown to sympathize with Tom Robinson and holds Peck in high regard (he's actually the one who appoints him as Tom's legal counsel), so there's no reason to believe he wouldn't grant the motion.

Well, of course, the purpose of a change in venue would be to move the trial to a place where your were more likely to have an unbiased jury.  This is takes place just before World War II (at least the book does), and we are talking about Alabama, okay?  They were not talking about changing venue to Massachusetts, they were talking about finding a place in Alabama prior to the entire Civil Rights Movement, where a black man could get a fair trial when he was accused of raping a white woman.

And even that term “Whiteyville” in the blockquote demonstrates a certain naivété.  Even if you got the trial transferred to a place where black people were a significant part of the population in Alabama, you still have a real problem getting any of them on a jury.  While racial discrimination in the right to sit on a jury was prohibited by the Constitution, that written promise had remained largely unfulfilled in pre-Civil-Rights-Movement Alabama.  And I won’t say it is impossible to find an unprejudiced white person in the state back then, just that such persons were exceedingly rare.  It would have been almost impossible to find twelve white jurors back then who were not pretty racist.  (Which is not to imply that a black juror couldn’t be prejudiced, too, but I suspect they would significantly less likely to unfairly convict a black man.)

Oh, and in fact, they did consider it.  If you go to this page on Amazon, and use the “look inside” feature and search for the word “venue” you will see a discussion of the issue, sort of.  Someone asks Atticus about it, and he clearly decides it’s not a good idea, but you don’t actually see his response.  That is because the book is narrated from the perspective of Atticus’ daughter and she didn’t hear his full answer.  But he clearly considered it and decided against it, and for one reason or another I suppose that discussion didn’t make it into the movie.  It shouldn’t surprise you about that; Hollywood never likes to focus on the nitty grits of legal practice.

And while we don’t know Atticus’ reasoning, I can see some strong arguments on his side. One is actually found in the text of the criticism:

Judge Taylor is shown to sympathize with Tom Robinson and holds Peck in high regard (he's actually the one who appoints him as Tom's legal counsel), so there's no reason to believe he wouldn't grant the motion.

So Atticus has two things in his favor, in this judge.  He has a judge who sympathizes with his client, and respects him as an advocate.  And if he got a successful change in venue, he would get a new judge, trading the “devil he knows” for someone who might have no sympathy for his client and no respect for him.  And chances are the jury would be just as biased.

(Come to think of it, why didn’t he demand a bench trial—that is a trial with no jury, with the determination of guilt carried out by the judge?  But I honestly don’t recall if that option was ever discussed.)

The other thing that was important here was that, in the book at least, Atticus was playing on another kind of prejudice.  The woman who was allegedly raped was a member of the Ewell family, which were locally known as “white trash.”  Early in the book a teacher is told one of her students could be excused from receiving an education, because he was an Ewell.  Which is kind of appalling, when you think about it.  So Atticus was hoping that prejudice towards them would play in his favor.

Indeed, it is more than a little creepy to read (or in my case, listen to) that book today.  You know of course that Robinson is innocent and thus his “victim” must be lying.  That is the morality play and is being played out.  But between the obvious stereotyping of the white trash in the novel and the cross examination tactics that come straight from the “traumatize the alleged victim” method of defense, part of me almost wondered if in fact Robinson was guilty.  But no, this was the product of how the author thought things would look if Robinson was innocent, I suppose.  Maybe.

And, by the way, that brings me to another unfair criticism of Finch’s representation:

With an obviously monumental task in front of him, Peck vigorously points out all the inaccuracies in the girl's story (nothing will endear a jury more than badgering a rape victim) and fairly conclusively proves that there's no way Tom could have done it.

Well, I admit I don’t remember if it was impossible for him to have done this.  I believe in fact the truth was more like that this woman did try to seduce Robinson, and then when discovered cried rape; perhaps that is a difference between the book and the movie.  Or maybe I just don’t remember it well enough.  It was around ten years ago, after all.

But as far as the “badgering a rape victim” claim, well, the thing is...  back then, that was very effective lawyering.  I mean it was straight out of Rape Defense 101 back in the day, and my understanding is that it worked.  It is appalling that this kind of conduct worked, and hopefully it doesn’t work so well anymore, but badgering her was exactly the right thing to do if you want to win the case and don’t care particularly about how you win.

Still, that criticism aside, it is both fun and appalling to read this article as a whole.  And if you are inclined to comment maybe you could talk about the worse on-screen malpractice you have witnessed.

But I will note that Double Jeopardy is already covered.


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  1. In the text you quoted, Cracked suggests that "pointing out all the inaccuracies in the girl's story" is the equivalent of "badgering". It's not. Badgering is badgering, while the other thing is, you know, lawyering. HUGE difference.

    As I recall, in the movie, the girl said that Robinson struck her on her left side, using his right hand. And then Gregory Peck (as Finch) pointed out that Robinson, due to a combine accident (or something like that), didn't have the use of his right hand... thus decimating the witness's account of the rape.

    Whether or not it was proper to use badgering is beside the point; the point is, that wasn't badgering.

    Worse on-screen malpractice I've witnessed? Too many to name.

  2. Read that article prior to your post and had many of the same alarm bells go off. I also haven't seen the movie, but I did read the book; if memory serves, they were actually aiming to win the case on appeal, using the blatant racial animosity of the area as one of the reasons for getting the trial overturned. Also, my recollection is that Finch's cross-examination of the accuser was actually pretty devastating in terms of getting some of the facts straight. Unfortunately, my main source of criminal case-law and legal precedent is TV, so I don't know if the appeal strategy was good lawyering.