What Would Atticus Have Done?

Hearing that the mob was going to storm the jail and lynch Tom Robinson, the fictional Atticus Finch stood at the doorway to block their entrance. Among criminal defense lawyers, Atticus Finch is revered as a paragon of honor. Not all lawyers saw it that way.

In 1992, Monroe Freedman, a legal ethics expert, published two articles in the national legal newspaper Legal Times calling for the legal profession to set aside Atticus Finch as a role model. Freedman argued that Atticus still worked within a system of institutionalized racism and sexism and should not be revered. Freedman’s article sparked a flurry of responses from attorneys who entered the profession holding Atticus Finch as a hero, and the reason they became lawyers. Critics of Atticus such as Freedman maintain that Atticus Finch is morally ambiguous and does not use his legal skills to challenge the racist status quo in Maycomb.

Monroe H. Freedman, “”Atticus Finch, Esq., R.I.P.,”” 14 LEGAL TIMES 20 (1992); Monroe H. Freedman, “”Finch: The Lawyer Mythologized,”” 14 LEGAL TIMES 25 (1992) and Monroe Freedman, Atticus Finch – Right and Wrong, 45 Ala. L. Rev. 473 (1994).

While Atticus might have fulfilled the highest calling of a lawyer, Freedman saw the character as failing his calling as a human being in a racist society, and considered that to be a fatal flaw.

Yesterday was Race Day at the New York Times, where two op-eds argued the failure of a certain verdict in Florida was due to the one word unspoken throughout the trial, race.  In a “surprising” choice that suggests the power of an excellent public relations team, one op-ed was by Gloria Allred’s daughter, Lisa Bloom, who, after  explaining the basis for her assumption about what was inside George Zimmerman’s head, illuminated the race issue with the insightful :


In contrast, Cardozo lawprof Ekow Yankah invokes the spirit of his fellow lawprof, Freedman, in writing:

The anger felt by so many African-Americans speaks to the simplest of truths: that race and law cannot be cleanly separated. We are tired of hearing that race is a conversation for another day. We are tired of pretending that “reasonable doubt” is not, in every sense of the word, colored.

Every step Mr. Martin took toward the end of his too-short life was defined by his race. I do not have to believe that Mr. Zimmerman is a hate-filled racist to recognize that he would probably not even have noticed Mr. Martin if he had been a casually dressed white teenager.

This conforms with my assumption as well. I find it impossible to believe that Zimmerman’s perception of Martin as being “a punk” wasn’t colored by race. Sure, there was also youth and attire, but it was part of the whole package. And to the extent that his skin color played a role in his perception that this was a kid who needed to be followed, who posed a threat of doing something wrong, it is racist.  Maybe not white hooded, cross-burning racism, but racist nonetheless.

This isn’t a legal argument, however. Bloom and Yankah are both writing from the legal perspective, but what they are writing about isn’t legal. It’s sociological, a condemnation of a society that is still racist despite having a black president.  Anyone who thinks it’s “problem solved” is delusional.

But Yankah contends that it is “the simplest of truths: that race and law cannot be cleanly separated.”  Cleanly? No, it probably can’t be cleanly separated, though it’s similarly unclear that this constitutes “the simplest of truths.” There is nothing simple about it.

It gives rise to a troubling question, that Yankah fails to adequately address and is way over Bloom’s head.


What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators. Black men, the narrative dictates, are dangerous, to be watched and put down at the first false move. This pain is one all black men know; putting away the tie you wear to the office means peeling off the assumption that you are owed equal respect. Mr. Martin’s hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you.
We know this, yet every time a case like this offers a chance for the country to tackle the evil of racial discrimination in our criminal law, courts have deliberately silenced our ability to expose it. The Supreme Court has held that even if your race is what makes your actions suspicious to the police, their suspicions are reasonable so long as an officer can later construct a race-neutral narrative.

Being fully willing to accept that race factored into Zimmerman’s perception, based on my own personal bias, the question that remains unanswered is what should the law have done about it?

Does the introduction of race by the prosecution into Zimmerman’s perceptions alter the rule of self-defense? Does it render his subsequent conduct unlawful, even if it would have been lawful otherwise? Should there be two rules of law, one for interactions between people of different races where perceptions of the significance of conduct is assumed to be racially related, if not motivated?

To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious. To suggest that the criminal law should accommodate it is to present an intractable problem. Atticus Finch didn’t hesitate to put his life on the line for his client, a black man accused of raping a white woman. But he didn’t do enough because he didn’t confront the racist society in defending Tom Robinson?

If the prosecution had been allowed, and inclined, to argue that George Zimmerman’s conduct was racially motivated, and that his ultimate decision to shoot and kill Trayvon Martin was, at least in the tiniest of ways, based upon his race, would that have rendered his belief that he was about to suffer death or serious injury unreasonable?  If his head was being beaten against concrete by a white youth, as opposed to a black youth, would the harm have been different?

The argument that this scenario would never have commenced had Trayvon Martin been a white youth in a sports jacket and khakis is likely true. It’s pure speculation no matter how much your head screams “yes, yes, yes,” of course, but still. Yet how would the law have been any different at the point where a shot was fired?

If we are to have a nation of laws to guide ourselves, how do we draw these vague, fuzzy lines where the law ceases to apply, where it’s a free for all, where there is no longer a fixed right and wrong and everything becomes a matter of feelings, assumptions and personal perspective?  Yankah may be right that race and law cannot be cleanly separated in our collective consciousness, but then we cease to be a nation of laws when we ignore one for the other.

You might prefer that to happen here, but will you feel the same when you sit in the defendant’s chair?  So what would Atticus Finch have done? He would have defended George Zimmerman based on the law, even if he failed to meet Monroe Freedman’s expectation that he not be morally ambiguous. Atticus Finch would have still been the paragon of honor, even in the face of societal condemnation. That’s what criminal defense lawyers do. That’s what we are sworn to do.






19 comments on “What Would Atticus Have Done?

  1. Alex Bunin

    “To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious.”

    I am not sure it is obvious to the majority of white America. The juror who was interviewed stated that race was not discussed, as if that were the same as race was not “considered.”

  2. SHG

    Had race been introduced at trial, argued, and discussed during deliberations, how would that have altered the applicable law?

    I would think that the majority of white people do not have an appreciation of their inherent prejudice. They walk around thinking they’re not because they want to not be, but don’t think deeply enough about it to understand that the desire to be free of prejudice doesn’t make them free. But that’s a sociological phenomenon, not a legal one.

    Aside from enacting laws that provide for express racial distinctions, which I doubt anyone would really want, I fail to see where the criminal law can be shoehorned into accommodating inherent racial prejudice.

  3. BL1Y

    For all the talk about race in the Zimmerman trial, why has the issue of gender been completely absent?

    Do you think Zimmerman would have been as likely to follow Trisha Martin?

    If it had been Georgina following Trayvon, is there any chance the case would have gone to trial?

    There’s a lot out there about how wrong it is to perceive someone as being a criminal or dangerous because of race, but virtually no complaints about the same perceptions based on gender.

  4. SHG

    A valid point. Indeed, replace race with any other protected classification and ask the same question.

  5. Jack

    While Zimmerman may not have gotten out of the car and followed a white kid in a hoodie, it is something that will never go away as long as our brains are capable of seeing race – it is hardwired into every human brain. This is a phenomenon experienced across all races that has been studied thoroughly using brain scans: anyone outside of your ethnic group is always perceived as more threatening when compared to someone in your ethnic group with all other things being equal.

    I am not excusing racism, while your brain may increase the perceived threat level of someone of a different color, you are still in full control of how you act on that.

  6. SHG

    That we’re always “distrustful” of others?  Well, yeah, but racial prejudice does way beyond that. The stereotype hidden in the back of our heads (if not right up front) is pretty clear.

  7. SHG

    The point does cut both ways, though I suspect the answer would be that if Zimmerman was a black youth and Martin was a white adult, the situation would never have happened in the first place, so the confrontation that ultimately resulted in Martin’s death would not have happened.

  8. Thomas R. Griffith

    Sir, in the early days of this event, the so called ‘shooter’ was considered to be a cracker, honky and or whiteman simply based on the media revealing his last name. Everyone that went there was / is guilty of assuming aka: ‘profiling’(I did it) that – Florida, Jewish (sounding, assumed sir name) equaled whity. Strangely, even the victim referred to him as a, “creepy ass cracker”.

    Regarding all forms of media (since they all jumped in & stayed well passed their welcome). It’s also going to be impossible to forget about how the nations’ largest outlets’ knowingly and willingly engaged in wiring up their readers or visitors via obvious race baiting questions or titles of posts’ in Comment Sections’, Panels & Interviews’ relating to Black & White issues. Despite obvious saturation that consumed regularly scheduled shows and the net, for some reason the comedy shows thought we needed more, 24/7. To this day, I haven’t heard or seen the Hispanic, Cuban, Latino, or Mexican side of the coin (like its taboo or I’m the only person that can tell he’s ‘not’ White, Caucasian, a honky or a creepy ass cracker.

    Enter the era of ‘arranged’ Pissing Matches with strangers in the dark & 24/7 Murder Trials that lead to civil unrest and protest based on Kids & Colors. Going all out for ratings. (In the olden days they called it enticing a riot or aggin on a fight.)

    2013 – The year America witnessed Live Court-TV take over the: *airwaves, *blawgwaves / blogwaves, *radiowaves, newspapers & forced everyone to participate in a murder trial while waiting on the Traffic & Weather 24/7. The foolish attempted to disengage by disconnecting but failed miserably. If anything positive came from it, it might be the fact that America got to see, hear and see again what the 3% Club Members get in the form of (hired) criminal law representation (when everyone’s watching) as opposed to the regular ol day-to-day self defense / murder trials’. Maybe this’ll lead to broadcasting them all or prosecutors fighting for the removal of cameras & un-approved reporters due to close ups of way too many warts. Thanks. R.I.P. Mr. Martin

  9. Alex Bunin

    You are correct that there is no simple legal fix. However, the public discussion goes beyond the law and it is very frustrating for those who see the inherent racism reflected by this case, but are met with “that is just the way it is supposed to work.” I do not mean you, but I have seen many tone-deaf responses from lawyers on blogs and listservs that simply ignore the legitimate complaints about the fear of, and prejudice toward, young black men.

  10. SirFiddlepopDigglesIII

    Taking the question seriously though, IS there anything the law could have done about it? Off the top of my head I would think there might be space for an “inherent prejudice” jury instruction, perhaps citing the research showing that people are more likely to assume black men are threats [Ed. Note: Link deleted per rules.] that could serve to draw the jury’s attention to and counteract any non-neutral assumptions they might be making. That said, I don’t know that such an instruction would really apply to the facts of this case, since as you said at the actual moment of the killing considerations of race were no longer operative. I would think it would apply more often in suits against police for profiling or excessive force. It would be great in those though and the widespread national anger over this decision, even if it’s misdirected, could be used to make that as a positive change, no?

  11. SHG

    I’ve done my share of tone-deaf responses in the past few days. I appreciate the frustration, but calls for a legal system that convicts whoever the mob hates gets tiresome.  The efforts to rationalize feelings with law don’t really work, and we would probably have a more useful discussion if it were brought to a level of reasonable intelligence rather than angry emotion with a small touch of frustrated insanity.

    But that ain’t happening. And the punditry isn’t helping by fueling the mindless passion without dealing with a reasoned approach to the law. Worse still, if it did happen, you can bet that the outcome would be bad for both criminal defendants and blacks.

  12. SHG

    Suits against police are civil, not criminal.  But I can’t imagine how an instruction would have helped, and I can imagine other situations where an instruction could be used against black men, making the perception of the need for force more reasonable.

  13. SirFiddlepopDigglesIII

    As to the suits being civil, duh, of course, how silly of me. Wasn’t thinking. In criminal prosecutions for assault or A&B though, I agree it wouldn’t have helped here but I can still see an instruction like that being useful if your victim is a white guy or girl that overreacts with unreasonable fear to a black deft. Kind of like the cross racial eyewitness ID instruction. What other situations are you thinking of where the idea that people erroneously judge black men to be more threatening would be used against them?

  14. SHG

    I can envision a reasonableness instruction being interpreted to mean that it’s more reasonable for a white person to fear harm from a black person because that’s how the reasonable white person does it.

    “But the studies say that’s how reasonable white people feel, Chad…”

    “You know, Muffy, you’re right. I would have thought it had to be reasonable in light of what was actually happening, but the judge said that there are studies the show it’s perfectly normal for white people to be afraid of black men…”

  15. Canvasback

    This Zimmerman/Martin case has been in front of us too much. Hey, how many of us were killed in Afghanistan this week? That’s completely avoidable.
    I admit my own racism; heck, I get some of my news from the Irateirishman, but I’m an equal opportunity bigot. If you screw up in front of me, I don’t care what color your skin is, I can see right through it. Zimmerman, Martin: these are just two ordinary people who made a series of bad decisions.

  16. SHG

    The worst part is that as much as I would prefer to forget it happened, it has brought up so many post-trial issues that are worth discussion. Not for the case itself, but for the crap that’s grown out of the case.

  17. John Burgess

    I’ve got a real problem with “inherent racism” instructions. I’m a contrarian in my beliefs and behavior. My first girlfriend was black; there have been others since. I’ve spent most of my life living among people of other cultures. An instruction that says I’m just another of those “inherently racist” white guys is unfair to me.

    It’s one thing — and quite bad enough, thank you — that as a male I’m already suspected of “inherent pedophilia” if I’m near unrelated children. I don’t need a law encouraging people to believe that’s so regardless of evidence.

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