‘I sympathize with your problem. After all, that most American of American essayists and philosophers, Ralph Waldo Emerson, warned us early in the last century that truth is such a fly-away, such a sly-boots, truth is so untransportable and so unbarrelable a commodity that it is as difficult to catch as light itself. Yet, in laying before you the plan and certain particulars of our case for
the defense, let me try to catch light and shed some of it on our own image of what is the final truth in this affair.
‘You have heard the law of the state as it concerns obscenity. You have heard Mr Duncan claim that it supports his truth and the prosecution’s case. Now permit me to define our truth on behalf of the defense.
‘The paramount point that the defense will make, throughout this trial, is that the word “obscene” and the word “sex” are not synonymous, are not one and the same.’
Barrett heard the scraping of a chair on the other side of the courtroom, and he turned as Elmo Duncan came to his feet.
‘I must object, Your Honor,’ said Duncan. ‘Counsel for the defense is certainly being argumentative.’
Barrett looked toward the bench. Judge Upshaw had knitted his brow. ‘I don’t believe he is arguing, Mr Duncan. He is defining. A definition can make its way from a negative premise. I am going to overrule the objection, and allow defense counsel to develop his definition…. Mr Barrett, you may continue along this line, but with prudence. Take care not to exceed the limitations of an opening statement.’
For a moment, Barrett’s hopes had been suspended, threatened, had begun to slip out of reach. Now he almost sagged with relief, grasped hope once again, and turned optimistically to the jury.
‘Ladies and gentlemen,’ he said with quiet insistence, ‘during the course of this trial the defense will try to prove that because the book The Seven Minutes unfolds its human drama within the framework of the sex act, that does not automatically make it a work of obscenity. A student of censorship, Robert W. Haney, has written: “Law, as conceived in the Declaration of Independence, is not a social device to advance the cause of virtue. It is a protective device to insure the freedom and the opportunities that men need for their happiness and their development. Freedom is not the right to be virtuous; it is the right to do as one pleases… limited only when one person’s exercise of it endangers the freedom of others, or when it results in overt actions that society deems destructive of its own purposes.”
‘Ladies and gentlemen of the jury, I cannot emphasize this interpretation of our law too strongly. Neither federal nor California state law was established to promote virtue, but, rather, to protect freedom. The obscenity law that instigated this trial was not placed in the Penal Code in order to inhibit writing and reading about sex or to advance puritanism. It is in the Penal Code only to protect the citizenry against unscrupulous distortion and misrepresentation of pure and healthy sexual acts.
“The procedure of the defense in this case will be guided by the wisdom of some of the most eminent legal minds in our time. It was Judge Jerome Frank who once included the following in a decision: “I think that no sane man thinks socially dangerous the arousing of
normal sex desires. Consequently, if reading obscene books has merely that consequence, Congress, it would seem, can constitutionally no more suppress books than it can prevent the mailing of many other objects, such as perfumes, for example, which notoriously produce that result.”
‘Yes, indeed, if a book is to be censored for arousing desire, when shall we bring Arpege to trial?’
Even as many of the jurors smiled, and a few of them laughed, Barrett could, hear the District Attorney’s stentorian objection behind him.
Barrett turned around in time to hear Judge Upshaw concur with Duncan. ‘Objection sustained … Mr Barrett, you have gone too far. I must warn you - you are exceeding the limits of the opening statement.’
Barrett bowed his head slightly. ‘Forgive me, Your Honor.’ He remembered Duncan’s earlier words and repeated them. ‘I hope you will pardon my overenthusiasm.’
He could see Duncan’s scowl, then Zelkin’s broad grin, and he confronted the jury once more. His opponent had opened the door to argument. He had taken advantage of this opening to enter into the minds of the jury. At last, he could see, they had accepted him on equal terms with the prosecutor. Fair enough.
‘Ladies and gentlemen of the jury,’ said Barrett. The counsel for the People has told us that in a censorship case, centering upon the social merit or lack of that merit in a work of literature, the testimony cannot consist entirely of facts, but must of necessity also include the opinion of experts. With this we concur. Whenever we can, we shall present to you facts in defense of The Seven Minutes and of Mr Fremont’s right to sell it. More often, since the social importance of the book - since the story of the book and the sex in the book - since the value of the book - depend upon human judgment of it, we shall present as evidence of its worth representative experts who will offer testimony about the motivations of the author and the meaning of his creative work, and we shall also present the so-called average person in whose contemporary society the book is being sold.
“The first precedent for allowing expert opinion in a trial occurred as far back as 1917, during a censorhsip trial in New York which concerned the French classic Mademoiselle de Maupin, by Gautier. In that trial the judges accepted, in support of the classic, literary testimony quoted from Henry James and other knowledgeable literary figures. Then, in 1938, when Life magazine was brought into court for publishing a picture story entitled “The Birth of a Baby,” which a religious organization condemned and which the New York servants of the law charged with being obscene, lewd, filthy, disgusting - the birth of a baby filthy and disgusting - then and only then was the opinion of expert witnesses who appeared on the stand in person a decisive factor in deciding a
criminal obscenity trial. Said the court when rendering its verdict of acquittal, the defense had “produced as witnesses responsible public health authorities, welfare workers and educators who testified to the sincerity, honesty and educational value of the picture story complained of.” While the prosecution objected to the testimony of such witnesses, and while the court agreed that the prosecution was correct in its protest, the court added, ‘Such evidence is, however, rationally helpful and in recent years Courts have considered the opinions of qualified persons.”
‘And so the defense shall lean heavily on the opinions of qualified persons. Through these persons we shall prove that The Seven Minutes was created with artistic integrity, was accepted in many quarters as a literary masterpiece, and has survived to become a milestone of enlightenment in our understanding of the relationship between the sexes and of sex itself. Through these qualified persons we shall prove that contemporary community standards are not static, are not today what they were a decade or a half century or a century ago, and that J J Jadway was a prophet when he produced a work more than three decades ago that is in keeping with the shift and progress of contemporary standards as they have come to be today. And we shall prove that even if some of the book is still in advance of our times, it nevertheless deserves to be heard.’
He was sorely tempted to elaborate.
Seeking time to determine whether he dared risk going beyond the restrictions of his opening statement, Barrett stepped back from the jury box and took a long sip of water, from the glass on the defense table.
He considered trying to enter a quotation from Justice Douglas: ‘Government should be concerned with antisocial conduct, not with utterances. Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor.’
This was improper evidence, of course, but he might slip it through before an objection stopped him, even as Duncan had succeeded in doin
g in his own exhortation.
He weighed what might possibly follow this. He might then say, ‘It’ will be our argument also, supported by the testimony of witnesses, that The Seven Minutes must be judged by the author’s utterances alone. Any evidence alleging that antisocial conduct has been provoked by a reading of this book, we shall contend, is legally inadmissible, and if it should be found admissible we shall prove that it has no basis in fact. According to a definition in the California Penal Code, based on Roth versus the United States, 1957, “Punishment for obscenity is not dependent upon showing
that obscene material creates clear and present danger of antisocial conduct or probability that it will induce its recipients to such conduct.” We shall contend, until directed to do otherwise, that conduct resulting from reading a book has no legal bearing on this censorship trial. If we are advised from the bench that it does have bearing, then we shall prove, through the introduction of expert authority, that - in the words of a Supreme Court Justice -written matter is not a significant factor, as balanced against other factors, in influencing an individual’s deviation from community standards.’
Should this statement stand up, Barrett felt that he might try to clarify it further: ‘If called upon to do so, we shall prove that the reading of erotica does not beget violence. Dr Wardell B. Pomeroy, when associated with the Kinsey Institute for Sex Research, participated in team interviews involving more than eighteen thousand subjects. He found that pornographic writings were insignificant sexual stimuli. In this trial, we are prepared to substantiate this finding with the testimony of our own witnesses. And where pornographic writings do produce, in the reader, sexual fantasies, we are prepared to prove not only that this is harmless but that often it has a salutary effect. According to Dr Sol Gordon, of New York, “In thirteen years of practice as a clinical psychologist, I have not encountered-a single adolescent who was harmed in any way by reading pornography. My own conviction, based on experience, is that the people who organize crusades against pornography are, by and large, the same persons who oppose sex education and who spread the neurosis-breeding notion that it is possible for a thought to be evil. If such people could only realize that thoughts, daydreams, fantasies and desires are not in themselves reprehensible, a large victory would be scored for mental health.” Indeed, years ago, it was Havelock.Ellis who suggested that just as youngsters find relief in an escape into fairy tales, adults find similar relief in perusing sex fiction. More recently, two eminent psychoanalysts, Drs Phyllis and Eberhard Kronhausen, have concluded that the reading of both erotic realism and obscenity is a desirable practice because it provides a safety valve for antisocial feelings by divering them into acts of mere fantasy.’
To elaborate or not to elaborate, this at the moment was Barrett’s inner dilemma. What might be attempted has passed through his mind in a matter of seconds. Now his mind tried to resolve the dilemma. Judge Upshaw had suffered Duncan’s endeavor, and his own, to encompass closing arguments into opening statements, and at this point the jurist would probably endure no more. A severe or caustic reprimand from the bench would negate all Barrett had achieved for the defense. It was no use. He must abide by the rules.
Barrett’s gaze dropped to Zelkin, and it seemed his partner had read his mind, for Zelkin gave him an almost imperceptible nod.
Reassured, Barrett set down his glass and turned back to the jury box.
The counsel for the People,’ said Barrett, ‘sees this case as involving itself with three issues. As counsel for the defense, I see this case as involving only one issue - not three, not two, but one single issue. The State’s first issue, whether Ben Fremont did or did not distribute a book called The Seven Minutes, will not be an issue for the defense. We concede that Mr Fremont displayed and sold the book. He is in the business of selling books. He is not an arbiter of literature. He is the proprietor of a bookstore in the community of Oakwood, and his activity and livelihood are the selling of books the year around. He is a member of that noble profession which Thomas Jefferson defended in 1814 when he wrote to a persecuted Philadelphia bookseller: “I am really mortified to be told that in the United States of America… a question about a book can be carried before the civil magistrate.”
‘As to the State’s second issue, that Mr Fremont knowingly sold an obscene book, we feel that this so-called issue is not an issue in itself but only a part of the larger issue that we recognize as central to this trial. Because, for the defense, the sole issue that remains is whether The Seven Minutes, by J J Jadway, is legally obscene. The entire case, as we see it, centers on what is obscene and what is not.’
Once again Barrett was tempted to tread on quicksand, in an effort to underline his point.
He ached to relate what might be an effective anecdote. He wanted to say, ‘Can anyone dictate tastes, when tastes and taboos differ so ? They differ from state to state of this Union, and in every country of this world. One is reminded of Sir Richard Burton’s story about a group of Englishmen! who went to visit a Moslem sultan in the desert. As the party of Englishmen watched, the Moslem’s wife tumbled off her camel. In doing so, her dress slipped up and her private parts were revealed to all. Was the Sultan embarrassed ? On the contrary, he was pleased - because his wife had kept her face covered during her accident.’
Barrett felt certain that the jurors would enjoy this, and his point would be made. Yet he knew that he would never get that wife off the camel. Duncan’s objection would stay her before her fall. There was no point in wasting the Sultan’s wife now. He would save her for his summation on some future day. .
With an inward sigh, Barrett decided on taking the straight and narrow forensic path.
‘Ladies and gentlemen of the jury, if we can prove, as we shall attempt to do, that this book was written honestly, that its contents do not go beyond the limits of candor when judged by contemporary community standards, that the tale it tells is artistic and of vast social important, then we shall have proved that this work has not violated Section 311.2 of the California Penal Code. And thus, if it
is not obscene, it falls naturally into place that Mr Fremont cannot be charged with knowingly having distributed an obscene work. To state this another way, if we can prove to your satisfaction, ladies and gentlement of the jury, that The Seven Minutes is not obscene, then it holds that we will have proved Ben Fremont innocent of any crime.’
Mike Barrett hesitated. Earlier he had planned to conclude on another note. With a flourish, really. In fact, he had rehearsed it before coming to court his morning:
‘Once, from the highest bench in the land. Justice Felix Frankfurter laid down the following dictum in voting against an appeal urging censorship. ‘The State,’ said Justice Frankfurter, ‘insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote general welfare. Surely, this is to burn the house to roast the pig.”
‘Ladies and gentlemen of the jury, in this homily the defense has found the legend to place on the banner it will carry aloft throughout this trial, and it is our banner that shall lead us where we must go.
‘We refuse to burn down our house - our house and yours -merely to roast a pig.’
Beautiful. Effective. And, now, in this growingly nonpermissive atmosphere, totally inadmissible.
Damn.
What had he just said to the jury ? Yes. If we can prove The Seven Minutes is not obscene, we will have proved Ben Fremont not guilty of any crime.
Better to leave on that pure note than on the discordance of an objection from Duncan.
Barrett fixed his gaze on the jurors.
‘You have heard our promise,’ he said. ‘Soon you will hear our evidence.’ He paused. ‘Ladies and gentlemen of the jury, thank you very much.’
Returning to his chair behind the defense table, Barrett felt that he had worn away every muscle and nerve fiber and tissue of his body. He felt t
hat he had reduced himself to the bare bones of a skeleton. But, observing the expression on Abe Zelkin’s face, on Ben Fremont’s, he realized that it had been worth the effort.
Ben Fremont, excitedly wiping his glasses, was leaning toward him. ‘You’ve made me feel much better, Mr Barrett.’
‘Good, good.’ Barrett looked at Zelkin. ‘How’d I really do, Abe?’
‘Excellently. You finally got them to listen. I think you caught up to Duncan. I’d say the first round was a standoff. Which is more than okay by me.’
‘By me too,’ Barrett agreed. He shook his head. ‘From now on, unless some manna drops from heaven, I’m afraid we’re in trouble and headed straight downhill.’
‘Let’s play them one at a time,’ said Zelkin.
Barrett became aware that a hush of silence had blanketed the room.
Judge Upshaw had finished jotting some notes, and from the bench he was addressing District Attorney Duncan.
‘Please call your first witness,’ the Judge ordered.
‘Thank you, Your Honor,’ said Duncan, already on his feet Briefly he searched the audience. ‘The People will call Officer Otto Kellog, please.’
In short seconds, Kellog, a heavyset plainclothesman in a dark suit, had hastened through the railing gate, traversed the court, and planted himself at attention before the witness chair. The giraffe of a court clerk had loped across the room to meet him.
(1969) The Seven Minutes Page 42
