Here's the controversial article about the defense of Tom by Atticus.
And here's the crux of his complaint:
One of Atticus Finch’s strongest critics has been the legal scholar Steven Lubet, and Lubet’s arguments are a good example of how badly the brand of Southern populism Finch represents has aged over the past fifty years. Lubet’s focus is the main event of “To Kill a Mockingbird”—Finch’s defense of Tom Robinson. In “Reconstructing Atticus Finch,” in the Michigan Law Review, Lubet points out that Finch does not have a strong case. The putative rape victim, Mayella Ewell, has bruises on her face, and the supporting testimony of her father, Robert E. Lee Ewell. Robinson concedes that he was inside the Ewell house, and that some kind of sexual activity took place. The only potentially exculpatory evidence Finch can come up with is that Mayella’s bruises are on the right side of her face while Robinson’s left arm, owing to a childhood injury, is useless. Finch presents this fact with great fanfare. But, as Lubet argues, it’s not exactly clear why a strong right-handed man can’t hit a much smaller woman on the right side of her face. Couldn’t she have turned her head? Couldn’t he have hit her with a backhanded motion? Given the situation, Finch designs his defense, Lubet says, “to exploit a virtual catalog of misconceptions and fallacies about rape, each one calculated to heighten mistrust of the female complainant.”
Here is the crucial moment of Robinson’s testimony. Under Finch’s patient prodding, he has described how he was walking by the Ewell property when Mayella asked him to come inside, to help her dismantle a piece of furniture. The house, usually crowded with Mayella’s numerous sisters and brothers, was empty. “I say where the chillun?” Robinson testifies, “an’ she says—she was laughin’, sort of—she says they all gone to town to get ice creams. She says, ‘Took me a slap year to save seb’m nickels, but I done it. They all gone to town.’ ” She then asked him to stand on a chair and get a box down from the chifforobe. She “hugged him” around the waist. Robinson goes on:
“She reached up an’ kissed me ’side of th’ face. She says she never kissed a grown man before an’ she might as well kiss a nigger. She says what her papa do to her don’t count. She says, ‘Kiss me back nigger.’ I say Miss Mayella lemme outa here an’ tried to run but she got her back to the door an’ I’da had to push her. I didn’t wanta harm her, Mr. Finch, an’ I say lemme pass, but just when I say it Mr. Ewell yonder hollered through th’ window.”
“What did he say?”
. . . Tom Robinson shut his eyes tight. “He says you goddam whore, I’ll kill ya.”
Mayella plotted for a year, saving her pennies so she could clear the house of her siblings. Then she lay in wait for Robinson, in the fervent hope that he would come by that morning. “She knew full well the enormity of her offense,” Finch tells the jury, in his summation, “but because her desires were stronger than the code she was breaking, she persisted in breaking it.” For a woman to be portrayed as a sexual aggressor in the Jim Crow South was a devastating charge. Lubet writes:
The “she wanted it” defense in this case was particularly harsh. Here is what it said about Mayella: She was so starved for sex that she spent an entire year scheming for a way to make it happen. She was desperate for a man, any man. She repeatedly grabbed at Tom and wouldn’t let him go, barring the door when he respectfully tried to disentangle himself. And in case Mayella had any dignity left after all that, it had to be insinuated that she had sex with her father.
It is useful, once again, to consider Finch’s conduct in the light of the historical South of his time. The scholar Lisa Lindquist Dorr has examined two hundred and eighty-eight cases of black-on-white rape that occurred in Virginia between 1900 and 1960. Seventeen of the accused were killed through “extra legal violence”—that is to say, lynched. Fifty were executed. Forty-eight were given the maximum sentence. Fifty-two were sentenced to prison terms of five years or less, on charges ranging from rape and murder to robbery, assault and battery, or “annoying a white woman.” Thirty-five either were acquitted or had their charges dismissed. A not inconsiderable number had their sentences commuted by the governor.
Justice was administered unequally in the South: Dorr points out that of the dozens of rapists in Virginia who were sentenced to death between 1908 and 1963 (Virginia being one of the few states where both rape and attempted rape were capital crimes) none were white. Nonetheless, those statistics suggest that race was not always the overriding consideration in rape trials. “White men did not always automatically leap to the defense of white women,” Dorr writes. “Some white men reluctantly sided with black men against white women whose class or sexual history they found suspect. Sometimes whites trusted the word of black men whose families they had known for generations over the sworn testimony of white women whose backgrounds were unknown or (even worse) known and despised. White women retained their status as innocent victim only as long as they followed the dictates of middle-class morality.”
One of Dorr’s examples is John Mays, Jr., a black juvenile sentenced in 1923 to an eighteen-year prison term for the attempted rape of a white girl. His employer, A. A. Sizer, petitioned the Virginia governor for clemency, arguing that Mays, who was religious and educated, “comes of our best negro stock.” His victim, meanwhile, “comes from our lowest breed of poor whites. . . . Her mother is utterly immoral and without principle; and this child has been accustomed from her very babyhood to behold scenes of the grossest immorality. None of our welfare work affects her, she is brazenly immoral.”
The reference to the mother was important. “Though Sizer did not directly impugn the victim herself, direct evidence was unnecessary during the heyday of eugenic family studies,” Dorr writes. “The victim, coming from the same inferior ‘stock,’ would likely share her mother’s moral character.” The argument worked: Mays was released from prison in 1930.
This is essentially the defense that Atticus Finch fashions for his client. Robinson is the churchgoer, the “good Negro.” Mayella, by contrast, comes from the town’s lowest breed of poor whites. “Every town the size of Maycomb had families like the Ewells,” Scout tells us. “No truant officers could keep their numerous offspring in school; no public health officer could free them from congenital defects, various worms, and the diseases indigenous to filthy surroundings.” They live in a shack behind the town dump, with windows that “were merely open spaces in the walls, which in the summertime were covered with greasy strips of cheesecloth to keep out the varmints that feasted on Maycomb’s refuse.” Bob Ewell is described as a “little bantam cock of a man” with a face as red as his neck, so unaccustomed to polite society that cleaning up for the trial leaves him with a “scalded look; as if an overnight soaking had deprived him of protective layers of dirt.” His daughter, the complainant, is a “thick-bodied girl accustomed to strenuous labor.” The Ewells are trash. When the defense insinuates that Mayella is the victim of incest at the hands of her father, it is not to make her a sympathetic figure. It is, in the eugenicist spirit of the times, to impugn her credibility—to do what A. A. Sizer did in the John Mays case: The victim, coming from the same inferior stock, would likely share her father’s moral character. “I won’t try to scare you for a while,” Finch says, when he begins his cross-examination of Mayella. Then he adds, with polite menace, “Not yet.”
We are back in the embrace of Folsomism. 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. He encourages them to swap one of their prejudices for another.