‘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.”’
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br /> 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.
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.
(1969) The Seven Minutes Page 41