‘And then there are trials that attract international attention because they concern the human right to freedom of speech and freedom of the press. Such a one was the trial of John Peter Zenger, publisher of the New-York Weekly Journal, who was accused of libeling the tyrannical royal governor in his writings and who stood trial in New York’s city hall in 1735. Zenger had written, “The loss of liberty in general would soon follow the suppression of the liberty of the press… no nation, ancient or modern, ever lost the liberty of freely speaking, writing, or publishing their sentiments, but forthwith lost their liberty in general and became slaves.” Yet only the heroic advocacy of his aged attorney, Andrew Hamilton, won Zenger an acquittal - and won for American free speech a momentous but temporary victory.
‘Not since that milestone trial of John Peter Zenger has any trial involving freedom of speech or press been considered as important as this criminal trial involving the state of California against an unknown bookseller named Ben Fremont, who is charged with purveying obscenity in the form of a slender underground novel, The Seven Minutes, which was written by an American expatriate author dead over three decades.
‘Why has this particular trial, which might have been relegated o the obscurity of a provincial debate over just one more pornographic book, with the authorities threatening the defendant with no more than a felony charge - why has this trial caught the fancy of people everywhere, not only in the United States, but in Great Britain, Scandinavia, France, Germany, Italy, Spain, Mexico, South America, Japan, and elsewhere?
‘This reporter can give no single answer. No one I have spoken to of this phenomenon can explain it. At best, we can only conjecture many answers. The trial opens at a decisive moment in the history of civilized man, a moment when the future of human morality hangs in balance. Through books periodicals, television, stage, motion pictures, freedom of speech has pushed beyond all the old frontiers of acceptable decency, in an attempt to find the farthest reaches of art or in an attempt to assault and destroy the fiber of home and family and society as people in every civilized land have chosen to know it. At the very same time, the authority of religion in nations throughout the world has been challenged and weakened by those testing the outer limits ,of freedom and black-and-white definitions of right and wrong, of moral and immoral.
‘Perhaps it is that at this moment state and church foresee their possible doom unless they rally to stop the destroyers of established moralities, and unless they punish those who have gone too far, and unless they set up new limits to contain the misuses and excesses of anarchistic freedom.
‘And for the final battlefield they have selected this court of law in this sprawling southern city of the state of California. The object provoking this showdown is one with unique international appeal and incitement alike. Although written by a male, the novel about which the storm rages is entirely a woman’s novel, concerned with a single fictional female’s attitudes and feelings toward her psyche and her sex life. Since women of all countries are women first and citizens second, their interest in the fate of Cathleen in this book overcomes national boundaries. Moreover, its explicit sexuality, which the book insists is dominant in the minds of all women, appears to concern and trouble women everywhere, and to concern and worry men everywhere. Above all, because of certain passages that leaders of Western religions consider threatening - not only Catholic leaders in France, Italy, Spain, but Protestant leaders in the United States, Great Britain, Germany - passages that show sacred figures from every religion in the sexual act - the world’s
churches have quietly joined with temporal authorities in an attempt to suppress The Seven Minutes and by this example set new limitations on freedom of speech and working morality.
‘Beyond these reasons, there may be other less practical, more romantic reasons for the glamour that has surrounded…’
But Mike Barrett, although fascinated, had heard no more. Zelkin had beckoned him, and he had hurried after the others into the courtroom to help unpack the briefcases and the carton and ready himself for the looming battle.
Now, scanning the audience in the courtroom behind him once again, he finally caught Maggie Russell’s eye. He nodded to her. She nodded back in grave acknowledgment of his greeting.
Next Barrett quickly reviewed the members of the press. They were seated in folding chairs - no room for tables - the breadth of the courtroom, behind the rail at his back that separated the gallery from the actual court itself. The faces and attire of the journalists confirmed what the television commentator had been saying outside the entrance, that this had become a trial not merely of local interest or national interest, but one with international attraction. There were the obviously American newsmen, chatting, doodling on their pads, reviewing background material, and then there were journalists whose newspapers or syndicates were located in London, Paris, Milan, Munich, Geneva, Mexico City, Barcelona, Tokyo.
From the press row Barrett’s attention wandered to the rectangular mahogany double council table that belonged to the prosecution, and that in this cramped space seemed almost an extension of his own table. Peering over Zelkin’s head, he could observe District Attorney Duncan, now running his fingers through his smooth blond hair, now scratching his thin nose, now rubbing his cleft chin, as he listened to something said by his assistants, swarthy Victor Rodriguez and suntanned Pete Lucas.
His own mahogany table, Barrett noted, also held three participants, but only two of these were advocates for the defense. There was Barrett himself, in the end chair nearest the jury box, wearing a button-down white shirt and a blue tie and a navy-blue Dacron suit. Beside him, still emptying a briefcase, was pudgy Abe Zelkin. At the far end was the defendant, Ben Fremont, in his best Sunday suit, squinting up through his metal-rimmed spectacles at the six grilled fluorescent lights suspended from the ornate ceiling.
One last time, Barrett inspected the battlefield that lay immediately before him. Off to his extreme right, somewhat beyond the prosecution table, was the graying, broad-shouldered bailiff, a one-man riot squad who maintained decorum in the courtroom and served as a male baby sitter for the twelve jurors. He had been standing, listening to several members of the press, but now he took his station behind his small desk.
From the bailiff Barrett directed his attention across the heads of
the opposition to the larger rolltop desk, which partially hid the skinny, giraffish court clerk, who was hunched over his minutes. Late Friday, in the presence of judge and spectators, he had sworn in the jurors with the reminder that they must ‘well and truly try the cause,’ and soon, as the judge’s secretary in matters of the court, he would develop his minutes of the proceedings as well as accept and tag all exhibits.
In the center of the room, most imposing and formidable, rose the judge’s bench, austere despite its desk microphone, pencils, notepad, water carafe, gavel, and an eight-volume set of the California Criminal Code. Behind the bench, the high-backed leather seat of justice, and behind the seat a drape-covered door flanked by the American flat and the California state flag.
Below the judge’s bench, between Barrett and the witness box affixed to the bench, was the swivel chair, the stenotyper set on a tripod, and the desk belonging to Alvin Cohen, the court reporter assigned to record the proceedings and testimony of the impending trial. At the moment, Cohen was on one knee adjusting the tripod for the stenotyper, and he looked like a youthful associate professor trying to find a cuff link.
Above the court reporter was the witness box, its open side forming a Step-up entrance leading to a padded chair and a raised microphone. Barrett stared gloomily at the witness box, for which he and Zelkin were so ill-prepared, and then he swung himself on his own swivel chair to consider the low wall of the elongated jury box only a few feet from his elbow.
The jurors’ chairs were still empty.
Barrett’s mind traveled back to yesterday morning when Abe Zelkin had tried to fill those chairs for him by reciting the biograp
hies and sketching the personalities of the twelve jurors who had been selected.
Zelkin had been shrewd in his selection of jurors from among those who had survived the peremptory challenges and dismissals for cause by the District Attorney. It was not merely each juror’s occupation and way of life, nor even his opinions and prejudices that had influenced Zelkin’s selections; it was the juror’s mannerisms, his use of language and inflections of speech when replying to questions, even the newspaper or magazine he carried under his arm. For this was a censorship case, and knowledge of a juror’s sophistication, education, literary interests was all-important.
Zelkin had felt that out of the twelve jurors there were at least five who showed definite promise of being in empathy with their cause, and he had only hoped that the other seven were honestly impartial about the issue at stake. Zelkin had felt that they had a good jury. But then, thought Barrett, he was sure Duncan felt equally confident of his own approval of these jurors.
Thinking of yesterday’a last-minute preparations, Barrett’s attention strayed back to the witness stand, and he recalled that all
of Sunday afternoon they had brought their witnesses into the office and privately discussed their testimony with them and made suggestions and taken notes. He thought of the one added disaster that had occurred. Kimura had delivered to them Saturday, directly from International Airport, a witness in whom they had invested considerable hope. This was da Vecchi, the Florentine artist who had met Jadway in Paris in 1935 and who claimed to have painted him once in Montparnasse. Da Vecchi had proved to be a stunted, elderly Italian with the shifty eyes of a Roman pickpocket. For appearance on the witness stand, Barrett had prayed for a Titian or a Carpaccio, but instead he had someone reminiscent of a garrulous Old World shoemaker who always forgot to make the right change.
Da Vecchi, it turned out, had met Jadway only three times - but, although the artist’s memory had clouded, he did remember several of Jadway’s remarks made while the author had been writing his novel, and these attested to Jadway’s integrity - and in one of the three meet ngs, da Vecchi had done a painting of Jadway. In Zelkin’s office, da Vecchi had prepared to unveil the portrait. For Barrett it had been a suspenseful moment, the moment before seeing the real defendant in the case for the first time. Da Vecchi had thrown aside the burlap to reveal his oil, and Barrett’s heart had sunk. For the painting was a cubist abstract, a ridiculous crossword puzzle of cones, squares, and perpendicular and horizontal lines dabbed in blue and yellow and crimson and brown. If the canvas depicted a countenance at all it was that of a dominating centaur’s head constructed of nursery-school blocks. The painting was valueless, and da Vecchi not much better, and Barrett sighed once again - beggars cannot be choosers. Da Vecchi would take the stand for the defense in due time.
Brooding, Barrett cast one more sidelong glance at his opponent. The District Attorney was surveying the audience and waving to someone. Barrett wondered how Duncan had spent his Sunday. With Christian Leroux, defamer of Jadway, no doubt, and possibly with Jerry Griffith. And then he wondered whether Jerry Griffith had seen Duncan. Of course, Maggie would know, but he would not ask her. He stared at his rival, envying him his witness wealth, and then he turned around again to see the time.
The wall clock read half past nine.
Two buzzes sounded through the room, and Barrett saw the hefty bailiff jump to his feet and hasten to the doorway leading upstairs to the jury room. Immediately Barrett sensed that both the press and the spectators understood, for their chatter had begun to subside and everyone was alert.
Suddenly the twelve jurors, eight men, four women, were filing into the courtroom, and they were finding their places in the jury box. As they did so, Abe Zelkin tugged Barrett’s sleeve and cupped a hand to his ear. ‘Take a look at the five I told you about, the ones
I have hopes for,’ he whispered. Zelkin had once taken a memory course, in an attempt to match Barrett’s natural gift, and now he played one of its games in order to fix the five in Barrett’s mind. ‘Juror number two, the woman who looks like Mao Tse-tung, very good. Number three, the banker who looks like Uncle Sam, pretty good bet. Number seven, the girl who looks like Greta Garbo, real cool. Number ten. The Joe Louis type. He’s a teacher. Twelve. The foreman. Twin for Albert Schweitzer. Name’s Richardson. Big architect. Got them?’
‘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.”
(1969) The Seven Minutes Page 40