A better jury box

Atticus Finch is beloved by lawyers, but he always been given more credit than he’s due on matters of race

In 2005, Jennifer Reynolds answered her home phone to find Harper Lee on the line. “Thank heavens I was leaning on the kitchen counter at the time,” Reynolds later wrote. Tasked with finding a novel way to promote the Philadelphia law firm Spector Gadon & Rosen, Reynolds, a publicist, had persuaded her clients to sponsor an award for positive portrayals of attorneys in the arts. The famously reclusive Lee was calling to accept an invitation to receive the award in Philadelphia for her depiction of defence attorney Atticus Finch. Reynolds’ firm took Lee to lunch: “I had never seen so many high-billing attorneys happy to linger over a two-hour meal, stars in their eyes,” Reynolds remembered. “Not one checked his watch, and BlackBerries stayed in pockets. It was a miracle.”

Lawyers love To Kill a Mockingbird, in which they are presented in a flattering light — at the expense of juries. Atticus Finch is charged with defending Tom Robinson, a black man falsely accused of raping a white woman, against the fatal racism of the jury. The case, we’re told from the outset, is lost before it can begin; we’re in 1930s Alabama, after all. Tom’s fate is in the hands of The People — specifically, white people. In contrast to Atticus’ noble, educated exceptionalism, ordinary white people are ignorant, racist and common. At a high point in the story, Atticus physically puts himself between his client and a murderous mob outside the jailhouse. The jury box is simply a place where the same white mob can kill a black man, albeit while sitting with their hands respectfully folded in their laps.

To Kill a Mockingbird is a drama of white nobility in a white context, in which educated white people struggle decorously for black rights against the dangerous unreasonableness of uneducated white people. In one of the many passages in which Lee uses Atticus’ conversations with his children, Jem and Scout (the narrator of the novel), as Socratic expositions of the problems with the 1930s justice system, Jem asks this question: “Why don’t people like us and Miss Maudie ever sit on juries? You never see anybody from Maycomb on a jury — they all come from out in the woods.” Jem is philosophically ready to abolish juries altogether. Atticus doesn’t put up much of a defence for why juries are necessary, saying only, “You’re rather hard on us, son” — meaning, presumably, that democracy has its good points too. Instead, Atticus offers a different solution: “I think there might be a better way. Change the law. Change it so that only judges have the power of fixing the penalty in capital cases.”

There is, of course, another, more egalitarian solution — though it may seem anachronistic to ask why there are no black jurors in To Kill A Mockingbird. In fact, black men have had the right and duty to serve on juries since 1880, due to the Supreme Court decision Strauder v. West Virginia. (Black women, like white women, would be largely automatically dismissed from jury duty in America until the 1970s). Harper Lee is widely accepted to have based much of the book on the Scottsboro Boys, a case tried in 1931 in which an all-white jury convicted nine black defendants of raping two white women on a train. In 1934, a new lawyer, Samuel Leibowitz, argued before the U.S. Supreme Court that the jury selection process had been unfair: qualified black jurors had been intentionally kept off the jury rolls. Upon examining the district’s list of potential jurors with a magnifying glass, the Supreme Court justices found that the names of black citizens had been writ- ten in after the fact.

Minus the magnifying glasses, this situation essentially adheres today. The court made it mandatory to call black people as candidates for jury duty, but it did not make it mandatory to select them as jurors. Today, black people have the theoretical right and duty to serve on juries, and yet they are disproportionately blocked from entering the jury box. In 2010, the Equal Justice Initiative found that in the southern U.S., “[h]undreds of people of colour called for jury service have been illegally excluded from juries after prosecutors asserted pretextual reasons to justify their removal.” In some districts, the removal of black people from jury pools is extreme; researchers found that in death penalty cases in Houston County, Alabama, prosecutors have eliminated 80 per cent of qualified black candidates.

A few reasons why black candidates have been deemed unfit to serve: for chewing gum; for having hair dyed a bright colour; for being married; for being single; for being separated; for living in a predominantly black neighbourhood; for wearing eyeglasses; for having a relative who attended a historically black college; for misspelling “Wal-Mart.”

Interestingly, since 1960, when Harper Lee used Atticus to propose that only judges be able to determine capital penalties, the state of Alabama has essentially adopted this solution. Judicial override, as it is now called, allows judges to decide single-handedly the outcomes of capital cases. Juries still deliver verdicts and return death sentences, but since 1972, Alabama judges have had the power to reconsider. But it turns out that the Mockingbird idea — educated judges will deliver more humane sentences than less educated juries — is demonstrably false. Since it became possible for judges to overturn juries’ recommendations on sentencing in Alabama, where most judges are white and most defendants are black, a greater number of people have been sentenced to death.

Historically, the role of the jury has been to protect defendants from the excessive harshness of the state. The website of the American Bar Association traces the history of trial by jury in the U.S. from medieval England, and finds that “Early English juries came to be seen as a protector of the accused against the very harsh criminal laws of the day.” Justice is an interaction between the law and the people, and the jury is seen as representing the conscience of a society.

In Mockingbird, “conscience” is the operative word. But in the 21st century, we are still struggling to shift our focus to another concept in the previous sentence: “representative.”

Now, Lee’s newly discovered novel, Go Set a Watchman, has readers returning, alongside an adult Scout, to Maycomb. I’m nervous. As much as I would love to see a more mature Scout ask the question that 12-year-old Jem didn’t — why are there no black people on Tom Robinson’s jury? — I’m braced instead for Scout, Jem and Atticus to be disillusioned as to the possibility for change.

Lawyers are inspired by Atticus Finch because he is working to find justice within a flawed legal system — if Watchman’s characters have failed to hit on what we now recognize as the moral solution, Lee’s legacy could be undone. In Mockingbird, Scout already established herself as an inveterate reader. Heretical as it may sound, I’ll be disappointed if Watchman’s Scout has placed her faith in literature rather than the law.