(1969) The Seven Minutes (62 page)

And the jury was enchanted.

For a half hour, with the devotion of a mathematical Luther, the articulate Harvey Underwood described the methods of selective sampling - how the public was divided into subpublics, how stratified random interviews were conducted, how answers to questions were fed into IBM equipment and the results assessed. And for his appearance in court Underwood had readied himself to supply his findings from a massive poll that had been devoted to questions dealing with the personal habits, statistics, and possessions of the persons interviewed.

‘It is very intricate,’ Harvey Underwood was telling the jurors. ‘Along with our own poll, we have integrated the polls taken by the American Booksellers Association and United Press International, as well as the statistical information provided by the United States Census Bureau through the year 1966. All of this data we have fed into our computers, and what has come out with mathematical certainty is a profile of the average person in the United States. Thus, for the first time, we have obtained a complete portrait of the average person in the average American community - and for the first time, Mr Duncan, you may have witnesses, or a witness, to reflect that section of the California Penal Code which states, “Obscene means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest.” ’

‘Mr Underwood, can you offer us this scientific profile of the average person ?’

At this point, Mike Barrett, having pulled himself together, and acting before the jury succumbed completely, rose to voice his objection.

‘If it please the court, I am objecting on the grounds that the question calls for speculation on the part of the witness.’ Judge Upshaw lifted both hands to beckon Barrett and Duncan, and then he summoned the stenotypist. “Will you please approach the bench, gentlemen.’

The Judge requested Barrett to elaborate on the grounds for his objection.

Barrett explained that there could be no profile of an average person, scientific or otherwise. ‘The word “average” usually refers to the arithmetical mean. It can be applied accurately to figures only. At best, an average man could only be an ordinary or common or conforming man, not a living “mean” derived from adding up disparate sums. As Richard Scammon, former director of the United States Bureau of the Census, and Ben Wattenberg stated it in This U.S.A., “Mississippi sharecroppers and Marin County, California, commuters do not ‘average’ out to Toledo factory workers. A Ph.D. in physics and a high-school dropout don’t average out to a college education for two. Similarly, one man making a hundred thousand dollars a year and five men making four thousand a year does not mean that six men are earning twenty thousand a year… the concept of the average man, while convenient, is usually nonsensical.” ’

The Judge waited for the District Attorney’s response.

‘Your Honor, allow me to quote further from the very same source that counsel for the defense has used,’ said Duncan. ‘Scammon and Wattenberg say, “We can legitimately talk of the ‘average’ man… because all of the facts given about him are true for the majority of American households… . For example, over ninety per cent of American households have at least one radio set. It is accurate then, to attribute a radio set to a ‘typical’ or ‘average’ household.” Moreover, Your Honor, gathering such statistics has become a scientific endeavor. Statistics do exist, and they do reveal to us an average person, and my witness is an expert in such factfinding.’

Judge Upshaw had been ruminating upon the matter, and at last he turned to Barrett. ‘Mr Barrett, the term “average man” is a part of the criminal code in this instance. The problem is simply one of definition. I have earlier done some homework on this matter, and I have one definition that gave some sense to the term.’ He had brought a file folder before him, opened it, and was poring over his notes. He found what he wanted. ‘Presiding Judge Vincent A. Carroll, of Philadelphia County’s Court of Common Pleas, gave the following definition in a similar case: “Material is now to be judged by its effect on the average person in the community. To relate this term to the specific, we consider that the average person might well be a composite of the jurors whom we have observed during our forty-five years at the bar and on the bench. Such a person is neither saint nor volitional sinner. He is not a literary critic nor a book burner. He is in fact an average person with average enthusiasms, average prejudices, and with normal propensity for sexual activity (which happily, for the most part, is exercised in procreating the race), but who, if given sufficient erotic stimulus, may be distorted to engaging in sexually abnormal or illegal behavior. This, then, is the average person to whom we apply the contemporary community standard.” Now, much of this, I feel, is applicable here. And if counsel for the State can further define “average man’ through scientific evidence, I believe that he should be permitted to do so. Your objection, Mr Barrett, is overruled. Mr Duncan may continue his examination, and as for you, Mr Barrett, if you wish to probe further the validity of there being an “average man,” I would suggest you do so in your crossexamination of the witness…. You may proceed, Mr Duncan.’

“Thank you, Your Honor.’

Exulting in his breakthrough, Elmo Duncan returned to the witness box. Disappointed, Barrett went back to the defense table, and as he sat down he heard the District Attorney resume.

‘Mr Underwood, to repeat my question, can you offer us, based on your scientific researches, an accurate profile of the average person?’

‘I can.’

Without consulting a note, with his teeth clicking like an adding machine. Harvey Underwood revealed the results of his findings.

‘Since we are concerned in this trial with a book we have tested and found that the average reader of books among the average citizens in our communities is a female. So I shall discuss the average female in this country at this time. She is Caucasian, she is Protestant, she has had at least twelveyears of formal education - a decade ago the average woman had had only ten years of education. She is twenty-four years old. She is five feet four inches tall and weighs one hundred thirty pounds. She was married at the age of twenty to a man two years older than herself. She has two children. She and her husband share one car and the same religious faith. She attends church twice a month. Her husband has a manual or a service job, and he earns 17,114 a year. Our average woman resides in an urban area, a city under one hundred thousand in population, which qualifies Oakwood to supply this woman. She has a five-room home worth $11,900. Half of the house is mortgaged. The house has a bathtub or shower, a flush toilet, electricity, one telephone, one television set, a washing machine, no air conditioning, no clothes dryer, no food freezer. The average woman spends seven hours a day performing her household chores, three of these hours in the kitchen. There you have her, sir. That is an accurate profile.’

‘Mr Underwood, do you know any actual persons who fit this average even approximately?’

‘I know many such persons, and I have chosen one Oakwood woman who matches these statistics exactly. She has volunteered to give testimony in this case.’

“Thank you, Mr Underwood. Now, to return to your statistics a moment…’

Barrett had ceased being attentive. He was writing several reminders to himself.

Ten minutes later, Mike Barrett came to his feet to cross-examine Harvey Underwood.

‘Mr Underwood, let’s go back to the legal phrasing of the censorship section in the California Penal Code. That refers to “the average person” does it not?’

‘It does.’

‘And you feel that the average person can be approximated statistically?’

‘I do.’

‘Well, now, Mr Underwood, you are going to have to enlighten me a little more about the average person. When I use your statistics, I come up with a strange result. As I understand it, fifty-one per cent of the population of the United States is female, while forty-nine per cent is male. According to what you’ve said, that means the average American is only female. Now, is that true?’

Underwood’s scowl deepened. ‘Of course not. One can’t average two absolutes.’

‘Oh, you can’t?’

‘I was referring to concepts that can be converted into statistics, such as age or income - a concept where a total can be divided by the number of persons tested to obtain an average or mean.’

‘Well, I appreciate your wanting to talk about numbers, Mr Underwood, but I want to talk about persons - specifically, the average person mentioned in the criminal code. Let me ask you this. Supposing fifty per cent of all Americans were male and fifty per cent were female. Wouldn’t the average American be a queer?’

‘Objection, Your Honor!’

The question is withdrawn, Your Honor,’ said Barrett with mock gravity. ‘All right, Mr Underwood, let’s go on___’

At three forty-five in the afternoon, District Attorney Duncan produced the average woman as his next witness.

She was Anne Lou White, and she lived in a five-room house-with a husband two years her senior and with their two children in the community of Oakwood, California, Los Angeles County.

She had the dead prettiness of a vapid face in an eye-drop advertisement, and her voice was a sweet soprano whine. She was wide-eyed, smiling, and determined to be very real.

Nimbly, winningly, Elmo Duncan elicited her rehearsed answers. The performance was all straight, and short, and perfect.

After twenty minutes of tete-a-tete, having established and dramatized Mrs White’s averageness, Duncan posed his climactic questions.

‘Mrs White, have you read a novel called The Seven Minutes, by J J Jadway?’

‘I have. It wasn’t easy. It was nauseating. But I forced myself to read it cover to cover.’

‘As an average person in your community, applying contemporary standards, what was your reaction to this book?’

‘I found it sickeningly obscene.’

‘Did you feel that it went beyond the customary limits of candor in its descriptions of nudity, sex, excretion?’

‘Far beyond any acceptable limits of candor. I’m used to frank

and realistic writings. But The Seven Minutes belongs in the garbage disposal.’

‘Ha, ha - but does the average woman have a garbage disposal ?’

‘No, and I don’t, but if I had one that is where the book would belong.’

‘Mrs White, did you find anything in the novel that could be considered as having “redeeming social importance”?’

‘It was sex and more sex and nothing else. After I put it down, I wanted to wash my hands. I’ve never laid eyes on any reading matter more obscene.’

“Thank you, Mrs White.’

At the defense table, Mike Barrett was seething. For some reason, this product of Underwood’s polls and computers angered him more than any witness he had heard this entire day. Perhaps it was because she reminded him of Faye Osborn. They were unlike in every way, this computer-created creature and Faye. Yet not in every way. Like Faye, this Anne Lou White preserved a holier-than-thou attitude, an antiseptic attitude, toward the book. Even more irritating was her righteous self-assurance.

Zelkin was shaking his arm. ‘Your turn, Mike.’

‘I’m going to muss her up,’ Barrett growled.

‘Not too much,’ Zelkin warned. “The jury is identifying with her. She’s one of them. Don’t antagonize them.’

Rising, hands thrust in his trouser pockets, Mike Barrett strode to the witness box where Mrs Anne Lou White sat exuding self-satisfaction.

‘Mrs White,’ said Barrett, ‘since you are the first average woman I’ve ever had the pleasure to meet, I am going to be eager to know more about your tastes. Not as to food or furniture, but as to books. I’m curious to know if your reading habits are average.’

‘They are,’ said Mrs White.

‘How do you know they are?’

‘Because - why, because I read a lot, all the popular things that come into the library and in paperback, just the run-of-the-mill things, none of the deep ones I’d never understand. I’m sure my reading tastes are average.’

‘Have you read Peyton Place, by Grace Metalious?’

‘Of course not!’

‘Have you read God’s Little Acre, by Erskine Caldwell?’

‘No, I haven’t.’

‘Have you read Lady Chatterley’s Lover, by D. H. Lawrence?’

T wouldn’t be seen with it. No, I have not.’

‘Have you read In His Steps, by Charles Sheldon ?’

‘No. I’ve never even heard of it.’

‘Very well, Mrs White. Then, by Mr Underwood’s standards, your reading habits are far from average. Those four novels I spoke of have sold, in hardbound and paperback editions, over thirty million copies in this country. Those are four of the five all-time

leading best sellers in American history.’

Anne Lou White’s smile had evaporated. ‘Well, I think that’s shocking. I’m sure the average American hasn’t read those four books.’

‘Mrs White, in your opinion, would the average American read The Seven Minutes ?’

‘Absolutely not.’

‘But you are average, and you read it, didn’t you?’

‘I was requested to read it for this trial.’

‘Otherwise you would not have read it?’

‘Most certainly not. I don’t waste my time with obscene reading.’

‘But, Mrs White, how would you know whether this is obscene reading if you didn’t read it ?’

‘I don’t have to drink poison to know it’s poison.’

Her taunt reminded him that Faye Osborn had used almost the same analogy with him before he had undertaken the case. If this woman proved as much a zealot of purity as Faye, he might be in for trouble. He decided to find out.

‘Well, I’d like to test your judgment of what is obscene and not obscene, if I may.’

‘Go right ahead.’

He went back to the table and took the four photostats that Zelkin handed him. Examining them, he returned slowly to stand before the witness.

‘Mrs White, allow me to read you some excerpts from recent translations or renderings of four popular books, all written by famous authors. Please tell me, as I finish reading each of my four excerpts, whether in your opinion it is or is not obscene. Ready?’