Directed Verdict Ethics In The The Movies: “Tom Horn” And “To Kill A Mockingbird”

Once again, as I watched the film version of “To Kill A Mockingbird” for the 50th time, I was bothered by the fact that Atticus never asked for a directed verdict, and the kindly, seemingly fair-minded judge never declared one.

A directed verdict is also known as a judgment as a matter of law or JMOL. It means that one side or the other has failed to meet a minimum burden of proof, and is usually declared by a judge  after is a motion made by a party, during trial, claiming the opposing party has presented insufficient evidence to reasonably support its case.  A directed verdict  is similar to judgment on the pleadings and summary judgment. Judgment on the pleadings is  made after pleadings and before discovery; summary judgment occurs after discovery but before trial.

A directed verdict occurs during the trial, and a judge can also render one spontaneously, without a motion. The motion can even  be made after a verdict is returned by a jury, where such a motion is technically for a “renewed” directed verdict, but commonly referred to as judgment notwithstanding the verdict.  In a civil trial, a party must have moved for a directed verdict before the jury reports out its decision. In a criminal trial, as in the fictional Tom Robinson case, there is no such requirement. The court may set aside a guilty verdict and enter an acquittal in the interests of justice.  A criminal defendant is not required to move for a judgment of acquittal before the court submits the case to the jury for the verdict to be overturned. A verdict of not guilty can never be overturned.

In “To Kill A Mockingbird,” black defendant Tom Robinson is convicted of rape despite the primary prosecution witness, the alleged victim, contradicting her own testimony at several points, and despite strong evidence that the beating she claimed was part of the sexual assault was shown to be delivered by a right-handed man—like her spectacularly vicious and creepy father—when the defendant couldn’t use his right hand at all. Atticus Finch never moves for a directed verdict, and the judge never declares one, though he presides over the fiasco of a trial with a disgusted look throughout.

If it is clear to the movie audience that the case against Tom is contrived and weak, it must be obvious to the judge. A verdict of guilty beyond a reasonable doubt seems legally impossible based on the evidence presented. Of course, if the judge had directed a verdict of not guilty in the overwhelmingly racist town, he, Tom, and probably Atticus and his children would have had to flee for their lives. That little detail aside, it was what should have happened.

Then I watched the 1980 film “Tom Horn,” about the real life, legendary Western figure who was either a bounty hunter or a hit man, depending on your point of view. Horn (1860-1903), played by Steve McQueen who died of complications from lung cancer the year the film was released, was certainly a prolific killer even by Wild West standards. shooting dead more men than Billy the Kidd and and Jesse James combined. But in a “The Postman Always Rings Twice” bit of irony,  he might have been convicted of murder and hanged for one killing he didn’t commit.

Tom Horn was tried and convicted in 1902 of the murder of 14-year-old Willie Nickell near Iron Mountain, Wyoming. Nickell had been felled by a bullet fired by the same kind of rifle Horn was known to use, and from a distance that only a marksman of Horn’s skill (or a lucky one), could have managed. There were no witnesses to the shooting, and Horn hardly acted guilty, staying in the general area and appearing oblivious to the fact that many suspected him of the deed. To this day, a historical controversy continues over whether Horn was guilty. In 1993, there was a mock trial in Cheyenne, Wyoming that acquitted Horn.

That result was a forgone conclusion, since the original trial was as much a travesty of justice as Tom Robinson’s. Horn was forced to testify against himself as a prosecution witness, though he refused to volunteer any information, incriminating or exculpatory. He never clearly denied his guilt, either, out of shear cussedness, according to the film. Horn’s legal team, which was large and expensive but hired by local cattlemen suspected of wanting to see Horn hanged, did little to protect their clients’ rights or to mount a credible defense. Johan P. Bakker, who wrote Tracking Tom Horn, wrote that the large cattle interests in Wyoming regarded Horn as a potential liability because of what he could reveal about their nefarious activities (many of which he had been hired to assist). Bakker found that a hundred members of the Wyoming Stock Growers Association paid $1000 each toward the defense, but asked the lawyers  to make  a minimal effort. Sound like a frame job, doesn’t it?

The main evidence against Horn, other than the circumstantial evidence that he was in the vicinity, used the same kind of ordinance, was a good shot with a rifle and frequently killed people, was Horn’s supposed confession, recorded by a hidden stenographer.  Lawman Joe LeFors interviewed Horn when the latter was drunk—yes, this is the same Joe LeFors frequently referenced in “Butch Cassidy and the Sundance Kid,” the leader of the super-posse hired by railroad tycoon E.H. Harriman to catch Butch and Sundance (“Who are those guys?”) and had a stenographer hidden to take down Horn’s words as LeFors asked Horn about the shooting.

The stenographer testified that Horn had boasted to LeFors of the teen’s death, “It was the best shot that I ever made and the dirtiest trick that I ever done.” In the film, we hear Horn say “If I did it, it was the best shot that I ever made and the dirtiest trick that I ever done.”

Would this trial, as portrayed in the movie, have also been an appropriate one for the use of a directed verdict of not guilty? Putting aside the irregularities in the trial, I think it’s a close call.

If Horn had simply stated, clearly and unequivocally, that he had not shot the boy (which he never says in the film), then that would carry the day: there was not enough evidence to find Horn guilty beyond a reasonable doubt if he emphatically denied the confession.

Since he did not (we are just talking about the movie, remember), then I think the jury verdict was wrong but defensible: the jurors believed the famous lawman LeFors and the stenographer regarding the confession.

But did Horn do it?

That, we will never know.



4 thoughts on “Directed Verdict Ethics In The The Movies: “Tom Horn” And “To Kill A Mockingbird”

  1. And here I am, embarrassed, that, native of Wyoming that I am, I’ve never heard of Tom Horn. I have some reading up to do, it seems. Tracking Tom Horn seems out of print and hard to find, but Amazon does have some other recommendations: The Trail of Tom Horn by John W. Davis, and Tom Horn: In Life and Legend by Larry D. Ball. Thank you, Jack, for noting an event that should have been in my grade school lessons, but never was.

    Come to think of it, I have to work hard to think of historical Wyoming figures we did discuss. We talked about Caspar Collins, who founded Ft. Caspar, which eventually gave rise to Casper, where I was born. We talked some about Jim Bridger, Jacques La Ramee, and a few other pioneers. I’m trying to remember if we actually studied Custer in school, or if I learned about him from my own studies. Most of what I recall are the Lewis and Clark expedition and the transcontinental railroad. But boy howdy, did we spend a lot of time on the 60’s civil rights movements!

  2. Grrr. WordPress ate my first post.

    I know you’re commenting on the film, but I speculate that Harper Lee would be aware of Judge James Horton. His actions cost him his position, but secured his legacy as an honorable man.

    Judge Horton’s father was an Alabama probate judge, planter, and former slaveholder; his mother was the daughter of a confederate general. On the surface the perfect choice in 1933 for Haywood Patterson’s second trial. During this “Scottsboro Boys” trial Horton exhibited was clearly playing fair. When there was threats of lynching Patterson, Horton ordered police to shoot to kill to defend the prisoner.

    Horton granted the defense’s motion to set aside the guilty verdict. He stated that it was not supported by substantial evidence. He lost his next election and retired from public office.

    It’s a powerful thing to serve on a jury in Judge Horton’s courtroom. I’ve done it for a capital murder trial. I will say that his courage inspired me to really look at the evidence and not just be pulled by the emotional arguments of other jurors that the defendant must be guilty of something.

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