(1969) The Seven Minutes (51 page)

‘Okay,’ said Barrett.

His eyes followed the jury, and they silently asked Shakespeare’s old question, Are you good men and true?

The jurors had assumed their places, and from his desk the bailiff was addressing the spectators assembled in the courtroom.

‘Please rise,’ the bailiff commanded, ‘and face the flag of our country, recognizing the premises for which it stands - liberty and justice for all.’

Barrett had risen with everyone else, and now he remained standing as the drapes behind the elevated bench parted and Judge Nathaniel Upshaw entered the court. Gathering part of his black judicial robes in one hand, the judge came around to his presiding chair. He was an imposing figure, Barrett could see, stiff white hair, vigilant eyes cushioned by bags, long gaunt face that was wrinkled, strong, composed. Somehow like the representation of an English lord chief justice on a Toby mug. Slouching, knuckles pressed to the bench, he stood, waiting for the bailiff to finish.

‘Division 101 of the Superior Court of the State of California, County of Los Angeles, is now in session,’ the bailiff intoned. ‘The Honorable Nathaniel Upshaw, judge, presiding. Please be seated.’

There was a shuffling throughout the courtroom, and the audience, the press, the counsels were in their places, and Barrett locked his fingers together as he felt a nervous clutch in his chest and throat.

Judge Upshaw had settled into his chair, taken up the gavel, rapped it once.

He peered down at the court reporter, whose fingers hung poised over the stenotyper. Through the desk microphone he addressed the reporter.

‘Case of the People of the State of California versus Ben Fremont is ready for trial,’ Judge Upshaw’s voice was resonant, deep, and it boomed into every corner of the room. ‘May the record reflect that the People are represented by Mr Elmo Duncan, and defendant is present with his counsel, Mr Michael Barrett, and the jury is in the box.’

Judge Upshaw spun toward the prosecution table and studied it At last he spoke again.

‘Do you wish to make an opening statement, Mr Duncan?’

The District Attorney came promptly to his feet.

‘Yes, Your Honor, I would like to make such a statement at this time.’

‘You may proceed.’

Elmo Duncan strode briskly across the room. Passing the defense table, he continued to look straight ahead. Reaching the jury box, he gripped the low wall, offered the collective jurors one nod of welcome and a tight smile. Then, releasing the barrier, he stepped back and crossed his arms in front of him, and as he began to speak his voice was forced and strained.

‘Ladies and gentlemen of the jury,’ said Elmo Duncan, ‘as you may know, in setting the stage for the trial of a criminal case, both the attorney for the People and the attorney for the defendant are permitted to make an opening statement. The purpose of these statements is merely to outline for you what each of us intends to prove in our presentation of our cases. What we can say is limited by one rule. Our opening statements must be confined to the facts we intend to elicit in evidence. At no time are we permitted to plead the case. In short, as one magistrate put it, an opening statement might be compared to the “table of contents in a book, so that you can follow the chapter and know what the chapter is about.”

‘So, in this brief opening, I will not present evidence. Later today, and for the duration of the trial, the evidence will come from there -‘

Duncan pointed to the witness stand,

‘ - from the box where witnesses, under solemn oath to observe complete fidelity to truth, in full knowledge that they may suffer the criminal charge of perjury if they deviate from the truth, will testify to facts and facts only. Generally, the testimony of witnesses in a criminal trial must be limited to what they saw with their own eyes, heard with their own ears, or smelled, touched, felt through use of their physical senses. Only rarely are they permitted to present hearsay evidence - that is, rumors or secondhand accounts relating to the parties to the action. Normally, in a criminal case, witnesses are not encouraged to give their opinions or to draw conclusions. However, in an obscenity case such as this one, I am sure the court will agree that we can make an exception to the rule. In judging whether or not a literary work is obscene, expert opinions from persons qualified to so give such opinions are, because of precedent, usually admissible in evidence as actual facts.

‘Keeping this in mind, ladies and gentlemen of the jury, bear with me while I outline the so-called table of contents of the People’s case.’

District Attorney Duncan’s voice had begun to free itself from the initial strangulating effects of tension. It was as if he had employed these preliminary moments not so much to instruct the jurors in the basic procedures as to convince himself that the jurors would be receptive to the prosecution and that all was going to be well from now on.

When he resumed, he was at ease, assured, confident.

‘We are gathered here because we, the advocates for the People, have charged the defendant, Ben Fremont, bookseller, with violation of Section 311.2 of the Penal Code of the State of California. This section provides the following, which you will hear repeated many times during the course of this trial - it provides that -“Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this State for sale or distribution, or into this State prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.”

‘And may I add, if a person is found guilty of purveying obscene matter - and “matter” is defined in our Penal Code as being a “book, magazine, newspaper, or other printed or written material” - if such a person is found guilty of purveying obscene mattera second time, he is guilty not of a misdemeanor but of the graver crime of felony.’

As Duncan drove home the last, Barrett saw Ben Fremont wriggling uncomfortably, and this underlined his own instinctive reaction to Duncan’s unwarranted mention of second offenses.

Barrett came to his feet. ‘Objection, Your Honor. Object on the ground that prosecution counsel is not confining himself to stating what he intends to prove, but is arguing his case against the defendant.’

Judge Upshaw moved his head in assent. ‘Objection sustained.’ He addressed the District Attorney. ‘Mr Duncan, I do believe you are exceeding the scope of an opening statement.’

Duncan smiled up at the judge apologetically. “Thank you, Your Honor. I am sorry.’ He turned his smile upon the jurors. ‘I’m afraid I was carried away.’

Seated once more, Barrett heard Zelkin whisper. ‘But charm boy really zinged it in there - two-time loser, felony. I hope you give him some of the same.’

‘Don’t worry,’ said Barrett quietly, eyes still holding on the District Attorney.

Duncan had resumed his opening statement. “The crux of the section of the Penal Code which we have charged the defendant with violating comes down to a single word in that section - the word “obscene.” And about this word the Penal Code is very specific. Under Section 311 we find this definition: “Obscene means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.”

‘Now, the words “obscene” and “prurient” will be heard frequently during the course of this trial. You have just heard their legal definitions. It is useful to be aware, also, of their dictionary definitions. In The Oxford English Dictionary, and in others, “obscene” is found to mean something that is disgusting, filthy, indecent. And matter of “prurient” interest is matter containing lewd or lascivious or evil ideas, matter that gives readers an impure itch for what is vile.

“The State has charged that a work of fiction known as The Seven Minutes, written by one J J Jadway, is a work appealing to a predominantly prurient interest and therefore is criminally obscene, and that because the defendant, Ben Fremont, knowingly distributed such an obscene work, he is guilty of a crime under the law.

‘In this case, we shall prove beyond a reasonable doubt three essential aspects of the defendant’s violation of the law.

‘First, we shall prove that Ben Fremont, as a bookseller in this county, did exhibit and distribute the book called The Seven Minutes.

‘Second, we shall prove scienter. That is, that the defendant, Ben Fremont, distributed this obscene book although he had full knowledge of the book’s contents. To establish this, we will introduce the testimony of the sheriff’s deputies attached to the Vice Bureau of the county of Los Angeles who, as undercover men, purchased The Seven Minutes from the defendant. We shall further support this testimony by introducing tape recordings of the voices of the investigating and arresting police officers’ conversation with the defendant, Ben Fremont, and this will further demonstrate that the defendant had full knowledge of what was inside the book and that he agreed its contents were obscene.

“Third, we shall prove beyond a shadow of doubt that, to the average man or woman, applying contemporary community standards, The Seven Minutes is obscene within the legal definition of the word and that it is a work without any redeeming social importance whatsoever. To establish these facts, we will produce witnesses in a number of categories. One category of witness, consisting of literary experts or persons who were acquainted with the author of the book, will testify that the work in question is obscenity written for its own sake and devoid of either literary merit or social value. These experts will also reveal that the author created the work for no other purpose than to exploit prurient interest in susceptible readers for the sake of his personal profit. Another category of witness, consisting of respected members of the municipalities of the county of Los Angeles, will testify that the average person in our community would agree that the book shamefully exploits the reader’s morbid interest in nudity, sex, or excretion. A final category of witness will testify, on the basis of personal knowledge, that the book is obscene and that its encouragement of prurient interests among the immature has caused emotional disturbance that has led to violence.

‘Let me add, I cannot be too emphatic about the importance of the cause-and-effect relationship of pornography to violence. Our highest judicial authorites in the land have told us, time and again, that if proof can be offered that a sex-filled book has incited antisocial conduct, that book no more deserves to circulate freely in a civilized society than a madman or a murderer. The State plans to offer such proof. We will introduce psychiatric experts -‘

Barrett was instantly on his feet. ‘Objection, Your Honor. Counsel for the People is exceeding the cope of his opening statement.’

‘Objection sustained,’ said Judge Upshaw. He addressed himself to the District Attorney. ‘Mr Duncan, you will confine yourself to facts intended to be elicited in evidence, and refrain from comments that properly belong in your closing argument.’

Duncan appeared agreeably chastened. ‘Thank you, Your Honor.’ He gave his attention to the jurors once more. ‘Let mesay that our expert witnesses will include psychiatrists who are familiar with the effects of pornographic materials on young minds. Our witnesses will also include, perhaps for the first time in an American courtroom, an actual victim of this gutter literature.

‘By proving this point - in fact, all three points that I have presented to you - we shall not only prove that the defendant violated the law and deserves to be found guilty as charged, but in so doing we will also prove, as we must, that the obscene work of fiction that the defendant distributed was equally guilty and should therefore be censored from public view.

‘Yes, ladies and gentlemen, censored! To win our case, we are committed to prove, and shall prove, that invoking censorship upon works of obscenity no more abridges human rights and freedoms than invoking arrest and confinement upon individuals who have done harm to our communities by acts of violence. We shall show why, in condemning a work of obscenity, we are not contravening or abridging individual rights as set forth in the First Amendment to the Constitution, which promises that Congress shall make no law “abridging the freedom of speech or of the Press.”

‘Ladies and gentlemen of the jury, in the days to come we shall attempt to show that this book, The Seven Minutes, is totally obscene, utterly without redeeming social importance, and therefore is outside the protection guaranteed by the First Amendment of our Constitution. We shall prove that this book deserves to be censored. We shall attempt to prove the premise stated with such clarity by Norman Thomas, a Socialist candidate for President of the United States - yes, Norman Thomas, a radical in the continuing fight to preserve our freedoms - who told a United States Senate subcommittee in 1955, “I am not at all impressed by the degree to which defenders of… pornography, pure and simple, want to press the First Amendment. I do not think the First

Amendment gives any guaranty to men to seduce the innocent and to exploit the kind of unformed mind and unformed emotions of children and adolescents. … I do not believe that in order to protect the fundamental liberties of the press we have to turn our children, who are, in a sense, the ward of all our society, over to the kind of visual exploitation of base emotion, and the arousal of base emotion to which, of course, this literature, this pornographic literature… and all the rest are directed.”’

Listening, Mike Barrett felt Zelkin nudging him.

‘For Chrissakes, Mike,’ Zelkin whispered fiercely, ‘he’s anticipating and debating you. Aren’t you… ?’

During Elmo Duncan’s last remarks, Barrett had instinctively prepared to interrupt with an objection. The District Attorney was indeed introducing evidence mat was out of place in an opening statement. What had deterred Barrett from intervention had been a desire to limit his objections to absolutely prejudicial material. Excessive objections, he knew, often antagonized jurors. Yet Zelkin was right. Duncan had gone too far.