Richard H. McAdams, "The Cross-Examination of Mayella Ewell"

Recording courtesy of the University of Alabama.

Presented as part of the University of Alabama School of Law's symposium "The Legacy of To Kill a Mockingbird: Advocacy in an Unjust Society" on March 3, 2017.

Richard H. McAdams is the Bernard D. Meltzer Professor of Law at the University of Chicago Law School.

Transcript

University of Alabama (00:00:00):
The following program is brought to you by the University of Alabama.

Leslie Bacon (00:00:06):
Hello, my name is Leslie Bacon and I'm from the Alabama Law Review. We're going to get started with our next session now. Professor McAdams will be presenting on his paper, "The Cross Examination of Mayella Ewell." Professor McAdams is the Bernard D. Meltzer Professor of Law at the University of Chicago law school, where he teaches and writes primarily in the fields of criminal law and procedure, social norms, the expressive function of law, inequality, and law and literature. Professor McAdams has previously written on empathy and masculinity in "To Kill a Mockingbird" and has recently reviewed "Go Set a Watchman," which can be found in the new Rambler. Please join me in welcoming Professor McAdams.

Richard H. McAdams (00:00:57):
Thank you. And I'd like to thank the the law review for giving me the privilege of coming and speaking as part of this great conference today, I really enjoyed hearing Wayne Flynt's remarks. And and now I have to follow him. I am going to talk today about the story of Mayella Ewell. The perspective I will offer is one of a lawyer, with a particular focus on Atticus Finch's confrontation with Mayella when she is testifying. And I will try to see or imagine some of her life, partly by what we learn in the trial including her cross examination. But to begin with some context from my remarks, I have a few words to say about empathy. "To kill a Mockingbird" has always been noted and notable for the way that it calls on the reader to exercise empathy. Atticus Fitch exhibits a strong empathic understanding of other characters and endorses the point as you know, as Wayne Flynt indicated, in a quotation that Barack Obama repeated recently before leaving office.

Richard H. McAdams (00:02:30):
"You never really understand a person until you consider things from his point of view, until you climb into his skin and walk around in it." Now, whenever people quote this part of "[To Kill a] Mockingbird," they have in mind an empathetic understanding of another person, especially someone different than ourselves-- that it will bring about some kind of compassionate behavior, an act of altruism towards the person how we now better understand. And "[To Kill a] Mockingbird" is full of that sort of empathy-inspired compassion. We see Atticus Finch, in particular, is empathetic and compassionate towards people. He shows Walter Cunningham empathy when Scout brings him home from school for a visit and Mrs. Dubois, as she struggles to end her morphine addiction. And Tom Robinson and later Helen Robinson and Boo Radley. And Atticus Finch is not the only one who Radley, for example, figures out that Scout and Jem, when they're out watching the men try to put out the fire across the street, that they must be cold. And so he gives them a blanket without them noticing. Calpurnia is understanding and compassionate towards Scout and Jem and also towards Walter Cunningham during that same visit, she tells Scout not to call attention to his use of syrup. Jem is even compassionate towards a Rolly Polly at some point in the novel when he asks a Scout not to squash it just for fun.

Richard H. McAdams (00:04:19):
But my point is that the novel is not only praising empathy and illustrating how it inspires compassion. It also draws the reader into an exercise of imaginative empathy. Now, to some extent, this is true of any story, any novel, you'll get more out of it if you kind of try to imagine all of the things in the characters' lives that you haven't been explicitly told. You climb into the skin of these characters and walk around in it. But one is really forced to do this in "[To Kill a] Mockingbird" in a particular way, because one of the main- I think, fundamental structures of this novel is that we have an unreliable narrator.

Richard H. McAdams (00:05:06):
And that is a choice Harper Lee made that kind of drives all sorts of things about the novel. It is the eight year old Scout who doesn't really understand the adult world that she's observing. Now, actually, I think there are times in the novels when we get the sense that maybe the narrator is the adult Scout who's looking back on these events, but then remembering them as she, as she understood them when she was eight years old. So she is then unreliable. Of course she idolizes her father, and how could she not, this is from the perspective of an eight year old. So because of that, the novel forces us to think more about the events and then we would with most novels, because we, in a sense we have less of a description because the narrator is eight years old and doesn't fully understand.

Richard H. McAdams (00:06:09):
So I would like to to do that, to, to think through what's really going on about the story of Mayella Ewell, to figure out the inferences about her life that the eight year old Scout misses. I believe there's just enough here in the novel for us to figure some things out if we make an effort to walk around and Mayella's shoes. Now part of that story is the cross examination of Mayella Ewell. And here we see what we might call the dark side of imaginative empathy. I talked about all these examples where the novel shows empathy, inspiring compassion, but the lawyer's job is sometimes to prove the witness is lying and Atticus Finch needs to prove that Mayella is lying. And part of his cross examination, I want to show, use his imaginative empathy to help figure out how best to unmask her and reveal her as a liar.

Richard H. McAdams (00:07:16):
It's not an exercise of compassion, but of necessary cruelty. Now, if we take up the books call for stepping into the shoes of others, the first thing we might notice is Scout is not really the center of this story. She is of course, the center of her own childlike world and she is the narrator, and that makes her center in some ways, but she's not the center of Macomb. She thinks her father is the center and he is arguably the protagonist. He is of course actively involved in doing many of the important things in the novel, but for all that he does, he's not the prime mover, the ultimate cause of of the story that unfolds. That honor belongs to Tom Robinson and Mayella Ewell. On one day they have some kind of encounter. And from that encounter, the story unfolds; Mayella accuses Tom of rape, there is a criminal prosecution, Atticus accepts the assignment to provide a defense, Scout and Jem are taunted about their father's role and learn some comfortable truths about their community, Tom Robinson is convicted and shot dead by prison guards, Bob Ewell injures Jem while trying to kill him and winds up dying himself. All of these events because of an encounter between Mayella and Tom. Two apparently minor characters, marginal, both, to Maycomb but because of their class and race. And as we shall see, it's really Mayella who is the prime mover within this encounter, the one who planned it. Now with an omniscient narrator instead of an unreliable one, this might be how the story begins. Aaron Sorkin is apparently working on a play version, a new play version of to kill a Mockingbird. And one could imagine a story beginning with that scene.

Richard H. McAdams (00:09:26):
Mayella stands on the porch, looking out from her ramshackle house and Tom walks by. That's the part that Tom and Mayella agree on, by the way, they both testify that she is standing on the porch when he walks by. And after that, the obviously differ. There've been a few, I would say contrarian readings of "To Kill a Mockingbird" in which Tom is possibly guilty of the rape. In which case we should reject his testimony as fault. I think this is an exceedingly strange way to read the novel and like most readers, I reject it. And I won't pause to really explain why except to note that if Tom is telling the truth, it turns out we actually learn more about Mayella that if Mayella is telling the truth. Her story, her tragedy, depends in part on Tom's account of certain facts.

Richard H. McAdams (00:10:24):
If we accept me Mayella's account, then it seems like the event tells us not very much about her life. It's a generic account of an attack and rape. So I will accept Tom's story and then try to imagine what this encounter was like. Now, accepting that Tom is telling the truth, the issue for Atticus is how to use his direct examination of Tom and his cross examination of Mayella to convince the jury. Now, of course, in 1935, this was really actually impossible. It was never likely to matter how good a job Atticus Finch did as he sometimes admits to himself. He was licked before he began the code of Jim Crow required the white jury to accept the cross racial accusation of a white woman as being true. And yet Atticus has felt he had to make the attempt.

Richard H. McAdams (00:11:24):
So he tried the case as if it were possible to win. And I'm going to now, you know, think of it that way. What is the strategy that he uses to win? And a major part is obviously the cross examination of Mayella. And here the strategy begins with the fact that even if the jury were persuadable, it would be inclined to believe Mayella and not Tom. Tom's story seems outlandish. The jury will find this, this the white male jury, will find it very plausible that a black man committed rape but not so plausible that a white woman in 1935, tried to break the taboo against interracial sex. The white man would expect Mayella to be repulsed by Tom. And so the problem for Atticus is that Tom's story requires believing that Mayella was not only attracted to Tom, but was so attracted that she was willing to cross the race line.

Richard H. McAdams (00:12:32):
And by the way, to encourage adultery as Tom was married. And this will seem improbable to the jury. To convince them, Atticus needs an explanation. He needs a motivation for Mayella's behavior and her coverup. And this is part of what he accomplishes in the cross examination. It begins simply and quietly enough with some biographical questions, as he describes getting to know each other. And part of it develops the theme that Bob Ewell was the one who inflicted the facial injuries she was found with that the prosecution attributes to Tom Robinson. Atticus here emphasizes that it was Mayella's right eye that was blackened and that Bob is left-handed and that would fit. Whereas Tom's left arm is useless, having been destroyed in a childhood accident. He presses the point also that Tom could not easily have held down Mayella and beaten her and raped her with only one functioning arm.

Richard H. McAdams (00:13:43):
But I want to focus on the part of the cross examination that elicits facts relevant to her motivation. Here, Atticus asks a series of questions that reveal nothing more complicated than the fact that Mayella has lived a miserable life. Mayella's mother died when she was young, Atticus implies that she's left with a vile and violent father, Bob Ewell, who spends much of the family money on alcohol. The Ewells live next to the town dump and scour it every day for things of value. Mayella is the oldest child and must care for seven siblings. Earlier in the novel, we meet one of those siblings. I think it's the only time we meet one specific Ewell sibling. And it's Burris, at the first day that Scout goes to school, where he gets kicked out and his parting words to the teacher are "ain't no snot nose slut of a school teacher ever born can make me do nothing."

Richard H. McAdams (00:14:51):
So we can perhaps understand from that why it is that Mayella thinks Atticus is mocking her when he begins his cross examination by using polite terms to refer to her like "ma'am" and "miss." It's not something she's used to. Atticus suggests by questions that Bob Ewell physically abuses Mayella. And there's some reason to think that the abuse includes incest. Now here's where the direct examination of Tom matters a great way. When he described their encounter, he quotes Mayella as having said that she had quote, "never kissed a grown man before." She says what her Papa do to her don't count. The words to her, obviously, loom large here. Bob also seems an unlikely source of affectionate fatherly kisses. When the prosecution asks him on the witness stand, the simple question "are you the father of Mayella Ewell?" His answer is unsentimental and insinuating.

Richard H. McAdams (00:16:00):
"Well, if I ain't, I can't do nothing about it. Now, her Ma's dead." It's also seems odd that Mayella would even contemplate her father's kisses during the encounter with Tom and feel the need to distinguish them from the passionate kisses she is asking Tom for unless there was something sexual about her father's kisses. Earlier in the story we hear from Atticus that the Maycomb authorities do not always apply the law to the Ewells. And although the examples mentioned are only truancy and poaching, Miss Maudie reminds us at one point that the things that happen to people, we never really know-- what happens in houses behind closed doors, what secrets. Now, some commentators think the incest in the novel is perfectly obvious. I regard the issue is not definitively settled-- one of the horrors that we never really know. But returning to the cross examination, Scout begins to narrate specific questions after this biographical material is out about how her life is, is fairly dire. And one of them, the first one, is remarkable for being simple, brilliant, and deceptively cruel. Atticus asks "Miss Mayella, a 19 year old girl like you must have friends. Who are your friends?" Now, ordinarily questions on cross examination are leading. The point is to avoid giving the witness any latitude to to tell their side of the story, to talk about things that you don't want them to talk about. To force some narrow concession like a yes, no answer to a question. But here we have an open question that suggests no particular answer. And another candidate of cross examination, obviously a famous one is not to ask a question you don't already know the answer to because the point is just to ask the questions that will help your case. So you have to already know what the answers are.

Richard H. McAdams (00:18:14):
Yet Atticus did know the answer, and he doesn't want to ask a leading question because to do so would reveal the cruelty of the question he's asking. Rather, he wants to present it as if it's not being cruel, because Mayella, Atticus knows, has no friends. That is why Mayella responds only with "friends?" Atticus plays innocent and tries a second time. "Yes, don't you know, anyone near your age or older or younger? Boys and girls, just ordinary friends." This time, her hostility flares again, and she replies "You making fun of me again, Mr. Finch." Now the purpose of the question is to demonstrate that the most important part of Mayella's misery, which is her loneliness. She's possibly the loneliest person in Maycomb, even lonelier, possibly, than Boo Radley. A crucial factor explaining why she would risk so much on the fantasy that Tom was sexually or romantically interested in her, why she would break her community's taboo.

Richard H. McAdams (00:19:35):
Showing the jury her desperation is necessary to make Tom's story credible. Now, surely, Atticus knew how cruel the question was. He is, after all, the master of imaginative empathy in the novel-- of walking around in the skin of others. And talking to Tom before the trial, he had to ask himself what could have motivated Mayella and how will I prove it to the jury? You had to imagine her life and the significance of this question and the answer. And knowing that, he proceeded anyway, as his advocate in front of the packed courthouse, a big part of the town, he asks a friendless person the devastating question "who are your friends?" To expose that this uneducated, impoverished, overworked, beaten, possibly sexually abused, young woman lacks any romantic partner or ordinary friend. But let's not stop with that somewhat obvious observation. What else can we say about Mayella? Right before the cross examination begins Scout says of Mayella, what on earth was her life like? And what else can we say to answer this question besides the fact that she is pitiable? My contention is that Mayella is also, at least before her final encounter with Tom, surprisingly resilient. We might expect her to be overwhelmed and without hope, but she is not. Consider the tiny piece of evidence regarding her geraniums. We're told earlier in the book that the area around the Ewell cabin is littered with junk gleaned from the dump, such a large assortment of broken and rusted items that it made the yard "look like the Playhouse of an insane child." But there was an exception that bewildered Maycomb. In one corner against the fence "in a line were six chipped enamel slop jars holding brilliant red geraniums, cared for as tenderly as if they belonged to Miss Maudie Atkinson. People said they were Mayella Ewell's." On direct examination, Tom testifies, "she watered them red flowers every day." So a person who had given up hope would presumably not bother to create a small thing of beauty in such an ugly setting when she was barely eking out a life, but somehow she has not- Mayella has not- let her poverty and ignorance and abuse completely defeat her. And the most astonishing fact about Mayella, if we take Tom Robinson's account as true, is the self reliant, optimistic way, perhaps delusional, but certainly optimistic that she acts on her attraction to Tom. But again, she should deterred by the monumental barriers of the Jim Crow racial taboo and Tom's married status, but she focuses on the more immediate obstacle, which is her siblings.

Richard H. McAdams (00:23:02):
She cannot successfully seduce Tom under the watchful eye of her siblings, so she needs a plan for getting them out of the way. She saves money so that on the day that she will ask Tom inside, she can send them all into town for ice cream. From the testimony of Tom, it takes her an entire year. He testifies, "she says, took me a slap year to save seven nickels, but I'd done it." Surely it required extraordinary patience and sacrifice for a poor person during the depression in charge of basically raising seven siblings to save money. And of course in her case, this was money she had to save without her father finding out about it because he wouldn't let her save money in that way, if he knew about it. And there must have been many temptations along the way to spend the money for a year. But she resisted them. A stereotype of the poor is that they're lazy and impulsive. Mayella is obviously neither-- she perseveres. For a time, she perseveres. So let us take the last step in our imaginative enterprise and arrive at the day when Mayella put her daring plan into motion.

Richard H. McAdams (00:24:40):
I feel like I'm running for president now. [Audience laughs] Shall we walk around then in Mayella's skin? When I do, it strikes me that there absolutely had to be a moment on this day, which was the happiest moment of Mayella's life. It might've been when her seven siblings first departed for ice cream, leaving her alone in what must have been a strangely quiet house, but then it meant might've been the moment when she first sees Tom walking by, proving that she had not wasted that year and those 35 cents that she just gave to her siblings. There was always a chance that Tom would be delayed that day. And by the time he walked by, the siblings would be, would be back or just about ready to be back and then she would have wasted everything. So it must have been a moment of enormous relief when she sees that he is actually there.

Richard H. McAdams (00:25:47):
But the happiest moment might've been when he agreed to go inside or possibly the moment when she hugged him and kissed him-- the first time she'd ever kissed a man, she wanted to kiss. Her patience apparently rewarded, it seems inevitable to me that Mayella experienced an unfamiliar and exhilarating sense that life could be good. Harper Lee leaves it to us to imagine the moment as Atticus imagined it at the time and as the adult Scout looks back and imagined it. And also what happens next. For after this emotional peak, Mayella experiences the two worst possible things that might have happened then. First, Tom rejects her-- the only man ever to show her any respect. A good looking, slightly older man whose kindness she mistook for romantic interest spurns her advance completely. Ironically, the same racial norms that encouraged him or coerced him to show respect and kindness for Mayella, thus prompting her attraction, also compelled him to avoid her advance.

Richard H. McAdams (00:27:06):
Not that we know he had any conflict over that, like Mayella. We actually have no reason, no good reason to think he was attracted to her. Second, right? As Tom rejects her, Bob Ewell appears in the window. And Tom testifies that Bob calls her a goddamn whore and threatens her life. And Tom runs away and Bob begins to deliver a beating. So male has no sexual or romantic interlude, but her father beats her as if she had. And one assumes the punishment will never stop. If her nine year old brother is willing to call his teacher a slut at school, one can imagine the kind of taunting Mayella will have to endure from her father and brother for the rest of, well, at least for the foreseeable future.

Richard H. McAdams (00:28:05):
For Mayella, these events are annihilating. "[To Kill a] Mockingbird" is a story of how racism kills Tom Robinson, but there is this parallel tragedy of Mayella and the death of hope. Consider how that cross examination ends. Famously, Mayella stops answering Atticus's questions at some point, and he keeps asking the questions anyway, in order to just tell his side of the story. I mean, it works that way perfectly well. And then also, famously, Mayella has a final something to say. And she then delivers a challenge to the white manhood of the jury, suggesting that they are fine, fancy gentlemen like Atticus and also cowards if they don't do what the code requires and convict. And then she breaks down into angry sobs,, possibly Atticus should have seen this coming and not given her the opening- tried to to prevent it, but consider how the episode begins.

Richard H. McAdams (00:29:14):
What is the first question that Mayella refuses to answer that that stuns her into silence in this moment? And it is another devastating question, another cruel question if you have figured out what was really going on that day, as in a way I think Atticus would have. Mayella says that she has been screaming the whole time of the rape, and Atticus asks, then why didn't the other children hear you? Where were they? At the dump? Now shrewdly Atticus has snuck up on this point. He does not just say "weren't your siblings in town, getting ice cream with the money you gave them?" Instead, he gets her to say that she had been screaming the whole time of the rape and then asked, well, why did the children not come running? And thus, she is hit again with the enormity of her failure, that she saved the money for a year only to be humiliated and beaten.

Richard H. McAdams (00:30:17):
Her sacrifice brings no reward, only punishment. And that's when she stops answering questions. And then ultimately has her moment and breaks down. So it's no wonder that Scout reports "when Atticus turned away from Mayella, he looked like his stomach hurt." And a little later, "somehow Atticus had hit her hard in a way that was not clear to me, but it gave him no pleasure to do so. He sat with his head down and I never saw anybody glare at anyone with the hatred Mayella showed when she left the stand and walk by Atticus' table." A few critics have inferred from his actions that Atticus is indifferent to Mayella's suffering, perhaps out of class blindness. I'm inclined to say he is not that lucky. If one's role as a lawyer requires that one harms an adverse witness by exposing the person's failings, it would be professionally fortunate not to feel the pain one is inflicting.

Richard H. McAdams (00:31:26):
If one must ask a pitiless question, it would be easier to be without pity. But that does not describe Atticus. Given his empathy, he is the person in the courtroom who most likely understands and understands the best, the tragedy of Mayella Ewell-- why she could be so desperate as to misinterpret Tom's kindness as sexual or romantic interest. And to imagine how she was utterly destroyed by his rejection, but he's determined to give Tom a real defense. And so he uses his empathetic understanding of Mayella to unmask her. This is a conundrum of a trial lawyer with empathy. Having cognitive empathy will make one a better lawyer because it will allow you to get inside the head of adversaries- opposing counsel's witnesses. But for the decent and compassionate lawyer, the job will then often require suppression of the empathetic impulse to do on their behalf. In legal combat, the lawyer's imagination is a tool for attack, damaging a person who one might believe deserves compassion. And this is the conundrum for Atticus. There is no way to defend Tom Robinson except to be merciless on the woman whose testimony threatens to send him to the electric chair.

Speaker 5 (00:33:03):
As Atticus says to his sister, "he is in favor of Southern womanhood as much as anybody, but not for preserving polite fiction at the expense of human life." So he exposes Mayella, a liar, a violator, the racist and sexual taboos of her community, and a failure rejected by the black man she seeks to seduce. And yet, while I defend Atticus from this charge of classism, because it was his duty to expose Mayella's motive for falsely accusing Tom, I have to join with others who raise a different concern. Might Atticus have been motivated, not just by an effort to free Tom, but by his disapproval of Mayella, consider his closing argument, which in part drives home his motivational story: "I have nothing but pity in my heart for the chief witness of the state but my pity does not extend so far as to her putting a man's life at stake, which she has done in an effort to get rid of her own guilt. I say guilt, gentlemen, because it was guilt that motivated her. She has committed no crime. She has merely broken a rigid and time-honored code of our society, a code so severe that whoever breaks it is hounded from our midst as unfit to live with. She knew full well, the enormity of her offense, but the because desires were stronger than the code she was breaking, she persisted in breaking it. She was white and she tempted a Negro. She did something that in our society is unspeakable-- she kissed a black man. No code mattered to her before she broke it, but it came crashing down on her afterwards." Now this was the argument to make, to have a chance of winning, but did Atticus Finch also believe it? Was he merely appealing to the jury's belief in the code or to their shared belief in the code?

Richard H. McAdams (00:35:12):
Was he just pretending? And of course the answer is no, Atticus was not just pretending. He is part of the community that enforces the code. Now, at this point, some readers might want to point to the Atticus of "Go Set a Watchman," but I think one does not need to look outside of "To kill a Mockingbird" to answer this question. I mean, later in his closing, he refers to Jefferson's words "all men are created equal" as a phrase that the Yankees and the dish staff side of the executive branch in Washington, meaning Eleanor Roosevelt, are fond of hurling at us. But even that you could say might be for show. A better revelation, I think, comes near the end of the novel when Scout asks Atticus, if he is, as her classmate Cecil claims, a radical. Atticus is extremely amused by this question and he laughs so much that it annoys Scout. And he replies "you can tell Cecil that I'm about as radical as Cotton Tom Heflin, which refers to the U.S. Senator from Alabama from 1920 to 1931, a staunch and flamboyant segregationist." You know, so before the publication of "[Go Set a] Watchman," there was never any reason to doubt that the sincerity of this statement in which Atticus endorses James Thomas Cotton Tom Heflin, because nothing suggests that Atticus was a radical. He was born in the 1880s. He lived entirely in Alabama. He read local newspapers. He was tightly knit into this community and they continue to reelect him after this trial. So they trusted that he was not a radical or they wouldn't have done that. And yet it was only the radicals of the time that would have opposed social segregation of the races. The liberals or the progressives could embrace the lawyerly virtues of due process for all citizens and fiercely oppose lynching and particularly favor due process and opposed lynching when the person was innocent and yet fully embrace segregation. And among the types of segregation, the most fiercely defended by all but the true radicals of the time and the last to be abandoned was the code of social segregation that Mayella transgressed. Atticus would be literally too good to be believed if he had transcended his culture completely, despite being so much a part of it.

Richard H. McAdams (00:38:01):
Now, as an aside, I think the reaction, at least some reactions I saw to "Go set a Watchman" and some that I wrote about show that many readers had missed this simple historical and demographic point when they had red "[To Kill a] Mockingbird." I don't think it was absolutely inevitable that the Atticus Finch of "To kill a Mockingbird" would oppose Brown v. Board of education 20 years later, but there was nothing particularly surprising about it. It probably it was the more statistically likely thing. I mean, it certainly was. It was only if you took Atticus Finch to be an anachronism, someone who was actually like the late 20th century liberal actor Gregory Peck, would you be taken entirely off guard by the Atticus Finch of "Go Set a Watchman." Like the best fictional heroes, the believable ones, Atticus flinch was flawed.

Richard H. McAdams (00:39:08):
And his flaw was that we have every reason to think he believed in the code that Mayella violated. And the worry I have after thinking this through recently is that maybe he was only willing to ask those two very cruel questions of Mayella because he really did disapprove of her for her transgression. He was clearly motivated for due process and avoiding the conviction of an innocent man. But his cross examination probably ruined the rest of Mayella's sad life while failing to actually ultimately help Tom. As he says, in closing, "she would have been hounded from our midst as unfit to live with that was her fate." And he may have been willing to do his part to bring that fate about because he actually believed that she should be branded in that way.

Richard H. McAdams (00:40:11):
So let me conclude by returning to the encounter between Mayella and Tom, and one final point about empathy. "To kill a Mockingbird" is about empathy. Not only because of the list of people who succeed in understanding others and then doing something compassionate, not only because it helps Atticus Finch be a more effective lawyer, but also because this central moment-- the encounter between Mayella and Tom-- is the perfect antithesis of empathy. Fundamentally, everything happens because Mayella and Tom do not understand one another. Tom does not divine Mayella's intentions. If he had, he would have never agreed to go into the house with her and then he would have saved his life. In return, Mayella does not understand Tom well enough to anticipate his rejection of her or she would have never invited him into her house and that would have saved her life in a different way. So if I may, I'll say without empathy, we're doomed. Thank you.

Audience Member 1 (00:42:11):
It's generally saying to me that Atticus' stance is motivated most commonly in this book as that kind of old South code- as I've understood- that his kind of service is to honor and honesty [inaudible]. And that works for me in both bullets. He seems a much harsher character in "[Go Set a] Watchman," but he's still somebody trying to make things work in the community. Does that at all fit with your reading?

Richard H. McAdams (00:43:10):
Yes, I think so. I mean you know, there have been people who have- starting with Monroe Freedman, I think- who have criticized Atticus. And when they do, they criticize him for not either moving away from Maycomb or for not being kind of a radical agitator to try to bring down the whole system. And I think those are sort of unrealistic expectations. I mean, you know, there are a few saints in history, but when you say no, leave everything you've ever known because you can see from some perspective that we have much later or you know, what, everything that's really deeply wrong with it at its roots. But yeah, I agree. He's not- I mean, he is about getting along, you know? I think Mrs. Dubose, you know, she's one of many people who seem pretty racist in a more kind of overt unapologetic sense, but, you know, he wants to help her. You know, he thinks of her as more than that and he wants to help her get off her morphine addiction before she dies. And, you know, he sends Jem to read to her that helps her do that. He is about community and so he fully embraces this community, including, you know, this, this racial code that it has. And, and then you're right, in "Go Set a Watchman," I mean, he does things he didn't want to do. Like I guess he attends a speech where someone gives a very overtly white supremacy kind of speech.

Richard H. McAdams (00:45:20):
And that's when Jean Louise is shaken to her core because he's there. And you know, as he explains later, he is sickened by it. He is sickened by it, but he thinks that now the thing he needs to do for his community is to sit down with people who sicken him and figure out how they're going to proceed. So I agree that, you know, he had this vision of Maycomb and the people in the community- and the way the races get along- that he wants to preserve. And he wants to contribute to that and, you know, personally sacrifice. His sacrifice in "[To Kill a] Mockingbird" is more palatable- commendable to us than the more revolting one and in "[Go Set a] Watchman."

Audience Member 2 (00:46:40):
I remember when I read the novel, thinking: oh, wouldn't it be great if Atticus had gone with the sheriff and talked to him and said, look, we know really what happened here. Can we just the situation and that wouldn't be very dramatic. But they didn't. You had to have the trial. I'm wondering, I wonder how often that might've happened, because that would be the only way to save lives. If you could get him to agree to work behind the scenes, because if it goes to trial, we know what's going to happen. I mean, I'm always like, oh God, no, don't take this to trial. It's not going to work.

Richard H. McAdams (00:47:25):
Yeah. I mean, I guess I don't think that would have worked. I suppose would work if there was a very, very small number of of white people in the community who knew about this and you could get them all to agree. But I think that once it became, you know, widely known, and this was a very loud event, then I think it would be, you know, the sheriff couldn't remain sheriff if-- and the judge couldn't remain the judge-- if they had tried to just, you know, decline to prosecute. Use prosecutorial discretion to, to decline prosecute because the Jim Crow code was mostly this intense and pathological fear of social integration and of the threat that black men posed in raping white women. So this was part of so much other violence that occurred that was not directly linked to in lynchings. So we're not directly linked to any sexual assault. We're often still rationalized on the grounds that you know, this kind of violence is useful for just keeping black men in check anyway. And so, so I think that was probably beyond something they could do, which is interestingly now that you say it paralleled with what happens at the end with Boo Radley, because that is, they do decide to informally resolve it and to resolve it. In that case, where, I mean, again, people sometimes criticize this. I don't really quite get the criticism, but it is true that the sheriffs, instead of just saying, we think it was a justified by defense of others, which I always thought was like pretty obvious. They decided to tell the story that Bob Ewell fell on his knife. And so that was actually, you know, that actually was a lie. And they made that work, but I think it was probably because there was a very, very small number of people. And in addition to the fact that there was no racial dimension to it.

Audience Member 3 (00:50:00):
Perhaps, yes, in the novel-- to your comment that had Tom not gone into the house, it would have saved his life. But I just, as a comment, submit that, in the radical racist South of 1930s, a lie perpetrated against Tom might have also taken his life. And I say that on the basis of having had a family member whose life was taken on a lie, a lie that he had raped a person in Mississippi and was, hanged. So in the novel, yes. But in the radical racist South of the 1930s, a lie without there being any action in this case-- Tom going into the house-- might've also taken Tom's life.

Richard H. McAdams (00:50:52):
Certainly. I mean, certainly. And it was a lie that took his life. It's just, I mean, Mayella was lying. Tom explains that they didn't actually have sex, so it was a lie that, that killed him. And, you know, you're right. They could have made up a lie, even if you hadn't gone inside that house. Just within the story, I say that because, you know, I think that it's because Bob Ewell comes to the window and sees his daughter embracing this black man that he has to- that's what motivates him to feel this sense of rage. It is interesting. And maybe, maybe he didn't like Tom anyway, it would be very easy for me to believe that because Tom was apparently helping Mayella almost every day, she was asking him to do something. He was doing it. And you can easily imagine Bob- I mean you know, he was helping her because Bob was not helping her. Bob was doing nothing for the family. So I could easily imagine that he didn't like Tom to begin with. So maybe maybe something would have happened anyway. But he, at least, at least I'm sure if he had understood Mayella, he wouldn't have gone in the house and he might've stopped stopping by if he knew that that was on her mind. And he would have had a margin of safety then.

Audience Member 4 (00:52:27):
I want to go back to your observation at the beginning about the ambiguity of young Scout is a narrator. It seems to me with respect to the other cross examination of the prosecutor of Tom Robinson, there's a weird and critical point there in which I hope we can think she's an unreliable narrator. And there's some evidence in the text that she is, but it's not clear to me. And what I'm thinking about is when the prosecutor brilliantly lures Tom Robinson-- he says, "so you mighty nice going into that house and helping her out so much. Why do you do that?" And Tom knows, he's got to rebut the suggestion that he's there for some amorous reasons. So facing the prospect, that he's being led toward that, he says, "I felt right sorry for her." And it's over because a black man has placed himself above a white woman in this sort of- the way that you suggest, I think quite rightly, that Bob Ewell would have found completely intolerable. He's condescending to help a white woman. But then at that point, the deal character finds himself physically sickened and goes outside and Scout follows him. It says, "no big problem. He's just doing his job as a lawyer." But of course, as a prosecutor, that is not- and as you tell- Atticus makes a really tragic situation to get a person out from under an egregious and obviously false accusation of capital offense. He had to really harm another human being, but the prosecutor knew damn well that he was basically- the prosecutor's job is obviously asymmetric to that of a defense counsel. But as we hear Scout speak in the novel, it's not clear if she gets that until Dolphus Raymond says, you know, that the fallen aristocrat who's actually living with an African American woman, he sort of explains more. What do you think? Is Scout- are we supposed to believe that Scout thinks that the prosecutor isn't one hell of a bad person?

Richard H. McAdams (00:54:51):
Yeah. That's- I agree with, I agree with you. She's wrong about that. And and she just, she's an eight year old girl whose father is a lawyer and she knows something about it. This sounds like something he would have told her, like, you know, "if you see us going at it, and then, you know, that doesn't mean we're not friends outside of the courtroom because that's just a job we do." So, you know- but in general, you know, that that's the nature. I mean, I think Scout is reliable when she reports on a very concrete fact, like what words were spoken, but she's unreliable when she then says, "and I said, of those words, this statement," that doesn't mean that her adult self looking back on it thinks that she had it right. And or that we should think that, you know, she had it right.

Richard H. McAdams (00:55:36):
And of course she adores her father but that doesn't mean, you know, that she's right about everything about her father. I mean, she doesn't understand what it means at the, towards the end, when he said, when he laughs at her, she are you a radical? She doesn't really know what a radical is. She doesn't know why he's laughing. She probably doesn't know who Cotton Tom Heflin is, who I think has been out of office for a few years by the time this would have been said. And so, you know, she would have been like five, I guess, when he left office or something like that. So she doesn't understand this. I mean, the whole point is she's repeating it, I think for us to figure out what was what was meant, what to interpret these facts in way that she couldn't.

Audience Member 4 (00:56:37):
I'm really glad for your suggestion that we think about whether Atticus shares the belief in the code that he describes in his closing argument. And it never occurred to me to think about that, because it seems as though in discussing the code, he's trying to disabuse the jury of that code. To say that that code should not operate in assessing guilt. I wonder about his closing remarks as he turns away from the jury, because you mentioned the fact that the word of a black man could not be accepted over the word of a white woman and I guess by that time it was probably not a jury in the antebellum South who could not receive the testimony of a black [person] in court to contradict that of a white person. So I'm wondering what you make of his remarks as he turns away from the jury, "For God's sake, believe Tom Robinson." Isn't that right? Or "for God's sake, believe him?" Is he trying to shuck that code? Does, does he share that belief? What's the valence of that statement?

Richard H. McAdams (00:58:01):
Yes. I think that there is-- when we say the code-- the Jim Crow norms, the racial hierarchy, white supremacy that existed in this time period. There were different features of it. And I'm simply saying, you know, that one feature of it was various types of segregation. And another feature of it was things like you always believe the white person when their word is pitted against a black person. And also the part of it that the lynching idea that was, you know, there's just rule of law versus lynching. Do we apply the rules of, of criminal prosecutions to black people accused of crimes or not? And so they're different parts.

Richard H. McAdams (00:59:01):
So a liberal or progressive at the time would be someone like Atticus who thinks that, you know, we should recognize that, you know, white people- I mean, he says at one point he talks about white people who basically take advantage of, deceive, and steal from black people. He refers to them as white trash. I think that's the one time that he uses that term. So he definitely, he has a certain idea of equality and it is, you know, white people can lie. I mean, he says this at the end-- you know, there's this idea that, you know, that black people only lie and white people only tell the truth. And he just wants to make the step towards no, sometimes black people tell the truth, even when they're being contradicted by white people. The white people are lying. He also wants to not have lynching. He wants to have the rule of law. So he, as a lawyer, can believe in due process of law. But that doesn't mean he doesn't believe in segregation and there was just- you know, the people who count as liberals or progressives, over time, believe in different things over time. And if you go back to 1935, it's only people who are more radical who would have challenged the entire structure of Jim Crow-- all segregation. And within segregation, you know, when, when it came time to talk about Brown then you know, the way that Brown was, was, was discussed was the fear that it would lead to social integration, you know, to sex and marriage between the races. So in other words, there were outer layers of segregation that were almost designed to protect the core, which was this social separation.

Richard H. McAdams (01:00:52):
So therefore it's extremely unlikely that there was anybody in Maycomb who believed-- any white person in Maycomb-- who believed in this kind of a complete abolition of the code. Even though I think Atticus clearly is in favor of reforming the code to allow due process for African Americans and to get people to believe them and especially, you know, not to convict innocent people. I think he was passionate about those things and being passionate about those things simply shouldn't make anyone ever infer that he was passionate about getting rid of everything that Jim Crow was about. So yeah, so in a way he was attacking the code. I just mean that when he says that these lines that he refers to "that she did something that in our society is unspeakable. She kissed a black man." And, and, you know, "she has broken a rigid and time-honored code in our society. A code so severe that whoever breaks it is hounded from our from our midst as unfit to live with." I think he may be speaking for himself and not just appealing to the jury when he says that. So that might've made it easier for him to to harm a Mayella in the way that he had to try to win.

Audience Member 5 (01:02:37):
Professor McAdams, thank you for your particularly engaging thoughts about ways to read the book and ways to think about the story. With all novels, we each read them, and I'm going to push back gently on your point about empathy in this way. There were two crimes in the book that are described. You just mentioned, of course, the trial, the charge with Tom Robinson, and then there's also the potential charge against Boo Radley. And what I found most striking about the book is the way in which the criminal justice system responds to the two crimes. There is clearly no empathy at all for Tom Robinson. Tom is immediately arrested, is secluded from family and friends. Boo Radley, on the other hand, as you just described is processed. There's discretion, the prosecutor says that it is in the best interest of the community that we not arrest Boo Radley even though it's fairly clear in the book what's happened. That Boo is acting to protect the children in just the way you described and this killed Bob Ewell. But there's more to the story because the prosecutor says with regard to Tom Robinson, that positive law requires that Tom be arrested, but that positive law doesn't require the congratulate. And so when I think of empathy, I think there's a racial story undergirding the empathy that plays in the book. And the empathy doesn't extend to the black criminal defendant in a way that it extends to the white criminal defendant almost automatically without much fraught. There's no- when the sheriff meets with Atticus and the others. But again, there's this consensus community spirit that requires them to protect Boo Radley, this sympathetic character from what would otherwise happen if you were put through the same process that Tom Robinson went through. And so I think some of the comments about, again, the lie, if Tom Robinson doesn't go in the house and rejects Mayella and she reports that she was raped, the lynching just as quickly and could occur. That was the story of the South. But they do have this other story about how white defendants are- or how prosecutors and law enforcement can so easily deploy discretion in a racialized way that often didn't apply with the black defendant. That's another, for me, central part of the book. Thank you.

Richard H. McAdams (01:05:54):
Yeah. I mean, I think I agree with everything you've said. So yes, there is no empathy- You know, the novel is about empathy and Atticus is trying to teach his children to extend empathy to people unlike themselves. Well, to all kinds of people, but including people unlike themselves. And that's because the community as a whole doesn't have empathy towards- across the white community- doesn't have much empathy or any empathy for the black community in Maycomb. And that's what makes it- yeah, I mean, that's part of what makes- You're right, the sheriff, I think doesn't even really think about the possibility of not arresting Tom and starting a prosecution. You know, between these two cases, I guess- I mean, I would say first of all, I'm not sure if the positive law required an arrest or not.

Richard H. McAdams (01:07:05):
Maybe it did. It seems to me that if you don't-- well, I mean, this is a debatable legal question, I guess, but-- if you have probable cause to believe [inaudible] kills me, but you also have overwhelming evidence that he did so in self defense or in defense of others, and it seems like, why would you need to make that arrest? So I think that the Boo Radley case is the right outcome. And, you know, the Tom Robinson is the wrong outcome. It's the wrong outcome, at least if they are as confident as they I think should be that that he's innocent. But you know, I mean, the thing about that the case is there's not even any medical evidence that they had sex.

Richard H. McAdams (01:07:56):
So it's not only the question of consent. It's a question of did they even have sex? And that's the kind of thing that I think, even if there was some sense of a prima facia claim of rape, which is some evidence of sex plus an accusation, maybe that should always trigger an arrest. But in a case where it's not clear that there was sex I'm not sure there should have been. The thing about Boo Radley is, I guess, I guess the reason I kind of think that's the right thing to do is I think they're looking forward and saying "what jury is going to convict Boo Radley?" When, you know, Jem's arm is permanently mangled. So there's, you know, there's not much question about that. The evidence really points to him having saved their lives. So in any event, you know, Atticus fights it too. That's the other thing, he is enough of a positivist lawyer that he says, no, we should do the right thing. We should do the legally correct thing. And it's the sheriff who, who gets his way.

Audience Member 6 (01:09:11):
There are two things that I want to point out. One is that you talked about the code with Tom Robinson in the trial, that that's the number one issue. But the other code that Tom might have been inspired by and was certainly influencing his conduct, he is a dedicated husband and father. A contributor to his community and a man of faith. And so that encounter with Mayella would be repulsive to him in that sense as well. And no one was bringing any character witnesses to talk about what a good person Tom Robinson is in the trial. And I think Bob Ewell knew that because even though Tom is dead, he continued to harass Robinson's family after the trial and so much so that Mrs. Robinson had to go walk to work the long way to avoid an encounter the Bob Ewell. The second thing is that there's a wrong code that you talked about. It comes back in 1917 or 2017. When we find out that in the Till case, that code was used as a defense to the kin of Emmet Till, and is, you know, the killer who killed his wife has now admitted that it was a lie that the whole defense was based on, and she was prepped to do that. So it's our one account that that code keeps resurfacing impacting how we see the world.

Richard H. McAdams (01:10:56):
Yeah. You know, to your first point, it's interesting, there is this moment, I don't know. Maybe someone can explain this to me. I, you know, in one of the breaks, because why doesn't Atticus call any character witnesses? And the reason that's puzzling is that a white man stands up at some point the middle of the trial, and just says, you know, he worked for me for all these years. I never had any trouble with him. And the judge tells him to shut up and sit down. Because, of course, he's out of order. You know, why Atticus doesn't call people like him or anyone else? I don't know. I'm not really sure. I mean, maybe Atticus just thinks everyone knows this. Like, this is a small town. So everyone knows, like all the positive things that are to say about Tom, you know, that he's a good family, man, that he goes to church, maybe everyone knows it. And so you know, maybe he thinks that will just you know, be unhelpful. You're certainly right about, you know, the lie. I don't want to overstate it. I just think that it was that Tom Robinson was safe, you know, as long as he didn't go into the house. He wasn't safe, but he was, you know- his degree of peril increased as he moved closer into the house. And he went in the house and, you know, he was then a dead man as, as a consequence of that. So he wouldn't have gone in the house and he might not have gone in the gate if he had just understood Mayella well enough to know she was attracted to him. And she was hoping that he was attracted to her.

Leslie Bacon (01:12:48):
I just wanted to thank you again for coming. And then additionally, remind everyone that after lunch we'll be meeting at 12:30 in rooms 187. I'm sure Professor McAdams would love to continue to answer your questions throughout the day. So please reach out to him. Thank you. [Applause].