(1969) The Seven Minutes (52 page)

Barrett’s arm shot upward, and he followed it. ‘Objection, Your Honor. People’s counsel is being argumentative. He is introducing evidence in his opening statement.’

‘Objection sustained,’ Judge Upshaw said immediately. He glowered at the District Attorney. ‘Mr Duncan, you are perfectly aware of the limitations of an opening statement. I again admonish you to contain yourself within the bounds of those limitations.’

‘Thank you, Your Honor,’ said Duncan. ‘I am sorry.’

But to Barrett, eying his rival from the defense table, Elmo Duncan seemed anything but sorry. Instead, his manner was satisfied and relaxed. It was as if he knew that, despite the scolding from the bench, he had scored with the jurors and was now ready for his closing remarks.

‘Ladies and gentlemen of the jury,’ Duncan said, ‘in the presentation of our testimony and our evidence, we will prove that it is the average man and his community who are offended and damaged by the ingredients in this book. We will contend that it is the average man, not the special man, the scholar, the liberal, the intellectual, who should interpret our censorship laws. For, as a judge in New York’s highest court, in finding The Tropic of Cancer, by Henry Miller, an obscene work, explained it - it simply does not follow “that because an alleged work of literature does not appeal to the prurient interest of a small group of intellectuals that it is not obscene under the prurient interest, or for that matter any other legal test of obscenity. This would permit the substitution of the opinions of authors and critics for those of the average person in the contemporary community.” No, it is the average -‘

Barrett had suffered enough of this. It was harmful to the defense. He half rose, hoisting an arm toward Judge Upshaw. ‘I must object, Your Honor. Not only has Mr Duncan argued his point,

rather than outlined it, but he is now arguing with the defense witnesses before they’ve had an opportunity to appear. Objection on the grounds that People’s counsel is giving his closing argument rather than his opening statement.’

‘Objection sustained!’ said Judge Upshaw emphatically. He directed himself to the District Attorney. ‘Mr Duncan, you have gone beyond the scope of the opening statement not once but several times. You have entered evidence, you have argued issues, you have been out of order. I caution you most strongly to refrain from using facts at the outset that properly belong in your summation.’

Duncan appeared genuinely contrite. ‘I apologize, Your Honor. I hope you will pardon my overenthusiasm. I was eager to expand, as much as possible, on the points of law we shall attempt to prove.’

Judge Upshaw was not appeased. ‘Mr Duncan, in regard to the objection I have just sustained, you were not trying to prove a point of law - you were trying to plead your own case. This I will not permit. Please proceed.’

Momentarily unnerved, Duncan made a visible effort to recover his poise as he turned back to the jury.

‘Ladies and gentlemen of the jury, I will simply say that we shall try to substantiate, through the presentation of testimony and evidence, the fact that the contents of The Seven Minutes would be considered to cater to prurient interest by the average person in the community.

‘It shall be our contention that the bookseller and defendant on trial, Ben Fremont, distributed this unwholesome novel perfectly aware that many readers would buy it, not because it is a literary work, but principally because it is a word of hard-core pornography - a work manufactured, as we shall also also give evidence, by an author with the leer of the professional pornographer and commercialist, an author who possessed no thought of investing his work with any social importance whatsoever.

‘If I may conclude on a note of levity, I am reminded of the occasion when Lady Chatter ley’s Lover was defended as a work of pure art and without any appeal to prurient interest, which provoked a judge on the appellate bench, Judge Leonard P. Moore, to remark rather drily, “As to prurient interest, one can scarcely be so naive as to believe the avalanche of sales came about as the result of a sudden desire on the part of the American public to become acquainted with the problems of a professional gamekeeper in the management of an English estate.”’

The jurors showed their amusement, and Duncan surveyed them, beaming his appreciation, and then he smoothed his hair and massaged the back of his neck, preparing to resume.

From the defense table, Barrett had intended to protest this irrelevancy, but, law or no law, the jurors were pleased, and an objection to what had given them pleasure might antagonize them

and close their ears to the defense. Any legal gain here, Barrett decided, might be an actual loss. With difficulty, he maintained his silence.

Duncan had resumed. ‘As the People’s advocate’ he was saying, ‘I intend to dedicate myself, in this trial, to the proposition that The Seven Minutes, by J J Jadway, was not written, was not pulbished, was not sold, and was not bought because the American reading public wanted to know how a young woman could lie in bed for seven minutes without her nightgown and not catch her death of a cold - or wondered to what her mind was given for seven long minutes, if she didn’t count sheep, that enabled her to overcome insomnia. No, I don’t think that was it.’

Several jurors chuckled audibly, but Duncan did not acknowledge them. The smile had fallen from his face. He was intensely serious.

The People contend that this book was written, was published, was sold, and was intended to be bought solely as an obscene work appealing to a shameful or morbid interest in nudity, sex, excretion. This is what 1, what we, contend, and this, ladies and gentlemen of the jury, is what we shall prove in this court of justice. Thank you very much.’

Elmo Duncan wheeled away from the jury box, and for an instant his eyes met Barrett’s, and his lips turned upward slightly -in pity, Barrett thought - and then he walked to his table at the far side of the room.

‘Mr Barrett -‘ Barrett’s head came up, and he realized Judge Upshaw was addressing him - ‘are you ready to make your opening statement now or do you wish to reserve it?’

Barrett scrambled to his feet. ‘I would like to proceed at this time, Your Honor.’

‘You may proceed.’

With a quick glance at Zelkin and Ben Fremont, Barrett pushed aside his chair, left the security of the defense table, and crossed in front of the jury box. He could observe several of the jurors inspecting him or appraising him with curiosity, and he guessed what might be in their minds. Still under the influence of Duncan’s opening statement - argument, really - they were telling themselves that everything that could be said had been said, and were wondering what was left for this stranger to say to them.

Barrett consoled himself that it is always thus in a debate when your opponent has spoken first and you have to follow, and it becomes doubly difficult when the first and preceding speaker has been an effective one. Your listeners, then, have been brainwashed, sated, won over, and they are resistant or skeptical or inattentive to anything new or anything more. As number two, you have to climb uphill to reach them. You have to fight and sweat for their interest, and, once gaining it, you have to unwash their brains and then paint their minds full of fresh pictures, and hope that they

have the capacity to accept these new images.

Casually brushing his lapel with one hand, Barrett reminded himself that there was one way to capture their instant attention. Startle them. Surprise them, without outraging or antagonizing them. Not easy. Because he was not yet locked into debate, the give and take that goes on between prosecution and defense during examination and crossexamination over specific testimony. As yet he could not jar the minds of the jurors by opposing or refuting something Duncan or his witnesses had drilled into their heads. He could not argue against the prosecution’s claims in order to demolish them to make way for his own. He could only state that there was a second side to this censorship matter, a vital and compelling side. This would not be as effective as debate, and therefore it would not be easy to unsettle the jury’s already implanted prejudices or uproot these feelings.

There they were, the twelve of them, awaiting the first words. Their fat, thin, open, closed, fleshy, bony countenances offered no friendship, beyond routine courtesy, offered nothing except mild curiosity and dares to his ability. But he would try.

All right. Opening statement. No argument.

‘Ladies and gentlemen of the jury,’ Mike Barrett began, ‘my colleague seated beside me at the nearest table, Mr Abraham Zelkin, and I represent the defense in this complex censorship case. Since Mr Duncan, counsel for the State, has so ably presented the California Penal Code law on criminal obscenity, as well as the law’s definitions of the words “obscene” and “prurient,” I see no reason to burden you by repeating what he has said.

‘However, in defining this law, in understanding it, in measuring it to learn whether it fits the defendant, Mr Ben Fremont, or Mr Jadway, the author of the book on trial, or the book itself, we come up against a problem. Mr Duncan has made it clear that he seeks only the truth in this case. I believe him. I am sure you believe him. I can promise you that my colleague and I, too, seek only the truth in this case. I am certain Mr Duncan believes me, and I trust that you will believe me. In short, both sides seek the truth, and both sides believe that they had found the truth. But, oddly enough, these truths are different truths. They are two truths, and yet you and I have been raised to believe there is only one truth. To evaluate the two truths, not decide which is real and which the impostor, for both truths are real, that is the problem, your problem - to find out which is the truth that is more applicable to this case involving Mr Fremont’s sale of copies of J J Jadway’s The Seven Minutes.

‘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.