As he had throughout the trial, Jim soon found himself daydreaming. His eyes strayed to the window and beyond and he found, to his disappointment, that the little kids who had been playing outside were gone…”
by j.b. hogan
Inside, the prosecutor’s voice droned on; outside, a group of children played on the courthouse lawn. From his seat at the defense table, Jim Finerty heard and saw but made little sense of either. His attention was instead drawn inward, pulled there by an unsettling notion that he was a third party to his own trial – an observer, an impotent bystander.
“We’ve already heard considerable testimony,” the prosecuting attorney aggressively reminded the overflow crowd in the little courtroom, “that the defendant has a predisposition towards anti-social behavior. His books are, as we are clearly showing, obscene.”
“Your Honor,” Jim’s lawyer objected, “please. The prosecution’s summing up again.”
“Mr. Bratz?” the judge lifted one thick eyebrow.
“Very well,” Bratz, the prosecutor, replied curtly, wasting one of his best sneers on Jim, who watched a bundled up little boy kick a can across the street outside. There was a quiet pause.
“If it please the court, Your Honor,” Bratz continued gruffly, “we would like to call our next witness.”
“The State calls Reverend Theo Tolliver to the stand,” a young clerk said, trying to hide the excitement in her voice.
Jim noticed her for the first time: dark and very pretty, with round, substantial hips and long, fine legs. He watched her until Reverend Tolliver’s grating voice brought him back to the less pleasant reality of the trial.
“My church’s Clean Book Committee,” Tolliver was explaining, “exists solely to exalt and clarify God’s word and to suppress pornography and other hateful literature.”
“In what way, sir?” Bratz smiled.
“In what way, sir?” Tolliver repeated.
“Are they obscene, for example?” Bratz asked, not smiling.
“Obscene?” Tolliver said.
“Is there an echo in here,” Jim whispered to Tom Alton, his attorney. Alton frowned. Jim shrugged his shoulders.
“Absolutely,” the Reverend explained, “Mr. Finerty’s books are nothing but filth. They blaspheme our nation, our free enterprise system, our democratic way of life. His books are riddled with despair, with hopelessness. In a word, they’re depressing.”
“Your Honor,” Alton rose from the defense table with a pained smile, “is depression to become a crime now, too?”
The audience stirred with low laughter. The judge lightly rapped his gavel.
“You’ll get your turn, Mr. Alton,” the judge said, “be patient.”
“Well, then, Reverend Tolliver, sir,” Bratz resumed, “is there anything else you’d like to add?”
“I would like to reiterate,” Tolliver said soberly, “that Mr. Finerty has written books so vile our parish felt justified in demanding their removal from our schools and public library.”
“Because of the obscenity in them?” Bratz asked.
“Yes,” Tolliver said, “and because of their decidedly un-American perspective. Those are our criteria. These works flagrantly violate them both.”
“Thank you very much, sir,” Bratz nodded his head, “that’s all we needed to hear. I have no other questions for you.” Reverend Tolliver started from his chair.
“Just a moment,” the judge said. “Mr. Alton, any questions?” Alton glanced at Jim, who smiled idiotically.
“No, sir,” Alton told the judge, “not just now, but we would like to reserve the right to recall the witness.”
“Then you may step down for now,” the judge told Reverend Tolliver. Tolliver nodded gravely and left the witness stand.
As he had throughout the trial, Jim soon found himself daydreaming. His eyes strayed to the window and beyond and he found, to his disappointment, that the little kids who had been playing outside were gone.
While Jim’s mind roamed, Alton called the last defense witness. It was Anna Fruehling and when Jim realized it was she, he looked up in surprise. On the stand, Anna looked quite a bit thinner than he remembered but her face still had character. Dark and intriguing, her strong mid-western features made for a surprising down to earth handsomeness.
Beneath her simple, attractive exterior, Jim could still see why she had ultimately come between him and his ex-wife Linda. Putting on hold the myriad emotions Anna’s presence and Linda’s memory aroused in him, he made himself listen to Anna’s version of their shared past.
“Given the nature of your prior relationship,” Alton asked, “do you believe you can be unbiased about Mr. Finerty and his work?”
“Yes,” she replied, “I think I can.”
From the prosecutor’s table Bratz snorted and made a production out of shuffling his notes. Alton looked over at him, then turned back to the witness.
“Miss Fruehling,” he resumed, “as a member of the literary community could you give us, in your own words, what you think of Mr. Finerty’s books?”
“That’s a pretty tough question,” she answered, “to do right off the top of my head.”
“Do the best you can,” Alton smiled.
“Quite honestly, I would say his work is probably average or maybe a bit above. Its real strength is in the organization, the subject matter, and the, uh, intent.”
“Intent?” Alton asked.
“What do you mean?”
“Well, as I understand his aims, he’s trying for a type of realism in his work. He once told me he thought writers should only try to record real things and real people in the specific time in which they existed.”
“Miss Fruehling,” Alton then asked, “given your general opinion of Mr. Finerty’s work, what is it, would you say, that makes it obscene enough to put him in this courtroom today?”
“Mr. Alton,” she replied, “I don’t believe this trial has anything to do with obscenity. It’s purely political. His work directly challenges the system, the status quo. That’s why we’re here.”
“Your Honor,” Bratz objected, rising. “This witness is off on a tangent This is an obscenity trial. It has nothing to do with politics.”
“Mr. Alton,” the judge said, “please redirect.”
“Yes, sir,” Alton said, then spoke again to Anna: “Is the defendant’s work obscene?”
“If,” Anna said, “the only purpose of art is to reaffirm the current values of a society regardless of the legitimacy of those values and if to challenge them in literature is viewed as obscene, then I’m afraid Mr. Finerty and a lot of other writers’ work is obscene.”
“Thank you, Miss Fruehling,” a pleased Alton said. “That’s all I have. Counselor.”
Bratz rose from the prosecutor’s table.
“Very nice job, Mr. Alton,” he sneered, “and thank you. I have only a couple of questions for your ‘star’ witness here.”
He waved toward the stand and stood directly in front of Anna. She lowered her eyes. Bratz smiled.
“Miss Fruehling,” he began, “we’ve heard you describe the defendant in a, uh, most, positive way, but we haven’t heard much about you. Let me ask you one small question, all right?” The witness nodded without looking up. “Just tell everyone here your real relationship with the defendant,” Bratz leered, “aren’t you his lover?”
“Of course not,” Anna said, “don’t be stupid.”
“Stupid am I?” Bratz shot back fiercely, “well, how about this? Would you say you love the defendant?”
“No – I don’t know. We once had a relationship, that’s all. I don’t see….”
“Admit it. You’re nothing more than an extension of him. You don’t exist without him. You are his own creation. Isn’t that right?”
“No,” she cried, “that’s not true. He did get me started, but that was a long time ago.”
“Your Honor,” Alton broke in, “Mr. Bratz is badgering the witness.”
“That’s all, Your Honor,” Bratz quickly broke off his attack. “No further questions.” He sat down with a satisfied smile.
The courtroom buzzed. The judge rapped his gavel. When he had order again, he dismissed Anna and sat shaking his head, glowering at the attorneys.
“This court is in recess and you two,” he said to Alton and Bratz, “in my chambers, now.”
“Let me ask you this,” Bratz said to Jim, now on the stand, defending himself, “is there a lot of cursing and pornography in your books?”
“Well,” Jim replied, “the answer is yes or no, depending.”
“Your Honor,” Bratz looked impatiently to the judge.
“Be more precise, Mr. Finerty,” the judge said. “This is a little hard to follow.”
“Yes, Your Honor. My answer to is there a lot of cursing in my work is: probably. People curse in real life and they do in my stories, too. Pornography, no. I don’t believe anything in my work can be described as pornographic.”
“Come now, Mr. Finerty,” Bratz countered, “don’t pretend to be so saintly. We know what you are, we know what you want from your writing, don’t we?”
Alton edged forward in his chair at the defense table. Jim looked at Bratz with widening eyes.
“Tell the court, won’t you please, Mr. Finerty,” Bratz went on dramatically, “what your real intent is. Or shall I? Whether in the guise of foul language, filth, or leftist ideology, your real purpose, Mr. Finerty, is to undermine the ideals of your readers. To overthrow their values with your own twisted set of beliefs.”
“Your Honor,” Alton said, “I object.”
“Mr. Bratz,” the judge said, “control yourself. What is your point?”
“My point, Your Honor? The point? The point is that this man is charged with obscenity, and the reason his work is obscene is because it is perverse and immoral, and because he, Your Honor, is a communist.”
“Objection,” Alton yelled again.
“You idiot,” Jim laughed at Bratz.
“Order,” the judge called out, banging down his gavel repeatedly to still the roaring crowd.
“That’s right,” Bratz seethed, “everybody knows what you are. That’s why you’re a nobody. That’s why they all turned against you. You’re not an artist. You’re a lousy perverted commie; you’re un-American.”
“Your Honor,” Alton repeated.
“I think we’d better talk, counselors,” the judge said. “Chambers again. Right now.”
The bailiff rushed to call the court to order for the recess, but the judge and lawyers were out of the room before he could finish his declaration.
Jim scanned the crowd quickly and recognized an anxious pair of eyes seeking contact. He smiled and winked; Anna Fruehling gave him her best concerned look. She was okay, he thought, maybe we could ….
He failed to finish the thought, however, as Bratz and Alton suddenly and noisily reentered the room. A moment later they were followed by the judge.
“All rise,” the bailiff cried again, rushing to the front of the room.
When Jim had retaken the stand and the room settled down, the judge addressed the defense.
“Mr. Alton,” he said, “do you wish to examine the witness?”
“Yes, sir, I do,” Alton replied. “We would like to make just one point.”
“Go ahead,” the judge said.
“Thank you, sir,” Alton said. He thumbed through some papers, then approached Jim. “Mr. Finerty,” he asked his client, “do you believe you have written pornography, or undermined the state as it were?”
“Objection,” Bratz demanded.
“Overruled,” the judge said.
“Go ahead, Jim,” Alton tilted his head at Bratz. “Tell us your side of the issue.”
Jim looked over at the judge and then at Bratz. Finally he again surveyed the crowd. They were quiet, waiting.
“My only defense,” he began, “the only thing that I can say on my own behalf is that I never intended to write anything that would be considered obscene. I’m not sure I know what obscene means. I just write. It’s one of the things I do. If it’s obscene or un-American because somebody doesn’t like it or if it tells about things certain people don’t want to hear, then I guess I’m guilty. But I don’t believe I am. The way I see it, criticism isn’t against the law. In fact, in most times and places, criticism is a duty. It’s been going on in literature almost since the beginning, if not even from day one. I see my work as part of that critical tradition, that’s all. It’s designed to point out reality, good or bad, but not just to tear things down. It’s meant to….”
His words trailed off. His point of view, even to himself, sounded shallow, didactic. He couldn’t go on. After a long silence, he sighed, then looked out at the crowd.
“I just don’t believe I’ve written anything obscene or un-American,” he said quietly, “whatever that really means.”
* * *
Eyes shut, Jim listened to Alton wrapping up the defense. He was vaguely aware that Alton was using a very low key approach in presenting the final arguments.
Despite his own resolutions to the contrary, he felt, as he had all week, like an alien, like an outsider to his own life. He continued to view the trial as something unrelated to himself. Somewhere in his mental distance he heard Alton finish and saw him walk back to their table. The bailiff called “all rise” and the judge left for his chambers. Alton scooted his chair close to Jim’s.
“Hey,” he said, “how was it? How did I do?” Jim didn’t stir. “For crying out loud,” Alton insisted, “wake up. Jesus Christ.”
“What?” Jim looked over glassy-eyed.
“Crap,” Alton said.
For the next three quarters of an hour, while the judge remained in his quarters, the courtroom buzzed with nervous anticipation. Jim doodled on a legal pad, occasionally wiping his moist palms on his dress pants. He was relieved, if not glad, when the judge at last returned with what Jim expected was the final decision on his life.
The judge briefly restated the charges and the case, and generously complimented Bratz and Alton on their preparation and presentations. Then he cleared his throat and looked at Jim, who felt most of the strength of his body dissipate.
“Will the defendant please rise?” the judge said clearly and firmly.
Jim and Alton rose together at the defense table.
“We have no desire,” the judge began, “to act as an adversary of art, nor to place ourselves as judges of literary merit. Yet the gravity of the charges requires that, to some extent, we do both. Obscenity is a serious matter, whatever its guise. We cannot, therefore, ignore the charges against you, Mr. Finerty, and merely ascribe them to an ongoing artistic conflict, which, of course, in a sense is precisely the case. If we weren’t in a court of law, some less potentially disastrous conclusion might be reached, one that wouldn’t involve matters of punishment; punishment perhaps by incarceration. But deciding the extremes of dismissal or imprisonment is precisely the task we are expected to accomplish.” The judge looked at his papers then spoke again.
“We have heard testimony and considered the evidence. We’ve had light moments and grave ones, never losing sight of the seriousness of this case. It is in fact the very seriousness of this case that prompts my decision, if it can be viewed as one at all. Frankly, Mr. Bratz, Mr. Alton, I’m going to do us all, I hope, a big favor.”
He considered his words before going on. Some in the crowd leaned forward in their seats.
“It’s my opinion,” he continued, “that in this circumstance, the final decision should not come from me, from this court. Indeed, such a decision, with its far reaching implications, may have to be made at the highest legal level, if not by our society itself. Whatever the ultimate outcome, it’s my decision to defer it at this time and to direct the case to a higher court.”
There were surprised rumblings from the crowd, caught off guard in anticipation of a more concrete verdict. The judge raised his hand for silence. Then, with a benevolent smile, he simply folded the papers before him and stood up. The bailiff rushed to the front of the room.
“All rise,” he called out for the last time.
“Court is adjourned,” the judge said. He turned and without looking back left for his chambers.
Several people, perhaps reporters, hurried from the room. Alton was smiling. Jim wasn’t sure why.
“What happened? Did we win? Did we lose? Is this it?”
“Remember,” Alton said, “even if we should have to go to a higher court, which in a case like this I doubt, the high court will toss it right out. You’ll see. Alright?”
“Yeah,” Jim said without inflection. “Alright.”
“Think of it as a win. They’re not going to pursue this again. No court wants to make a decision in a case like this.”
“You mean it just lays here, hanging in the wind?”
“I tell you what,” Alton said, “why don’t you just forget about it for a while. Take some time off. When, or if, I hear something, I’ll call you. If there’s going to be another trial, we’ll plan the next battle then. Okay? Be happy, you’re free!” Jim frowned.
They reached the main doors and went outside. The air was getting much cooler. Jim wasn’t happy with Alton’s ready acceptance of the decision – or non-decision, whatever it was.
“Nothing happened at all. We’re right where we were to begin with.”
“Listen,” Alton said, “I’ve got to go. Come see me in a couple of weeks even if we haven’t heard anything.
“Hang in there,” Alton called back.
Jim pulled his collar up and huddled into his jacket. As usual, he felt that his fate remained in somebody else’s hands; that the verdict, literally and figuratively, was still out. In the meantime, he could only go on as he had before – on into the murky fog of living. That was pretty much as good as it got, it was all you could do. At least that was all he knew how to do.
Taking a deep breath, he sighed loudly, then crossed the street and turned left for the long, chilly walk home. It occurred to him again as he walked that the struggle, the fight, the continuing trial of life probably never was over. It never could or would be. Not as long as you lived. Not until the very end when your time was finally up. Not for at least that long.
J. B. Hogan is an award-winning author who has published over 250 stories and poems and six books: Fallen (short fiction), The Rubicon (poetry and short fiction), Living Behind Time and Losing Cotton (both literary fiction) with the Liffey and Tweed Press Imprints of Oghma Creative Media and The Apostate (literary crime fiction) and Angels in the Ozarks (non-fiction, local baseball history) with Pen-L Press: http://pen-l.com/. His next book, Tin Hollow (noir mystery), is due out from Oghma Creative Media in August 2016. When not writing fiction and poetry, he is a local historian and bass player in his hometown of Fayetteville, Arkansas. More from J.B. Hogan can be found in the Vault of Smoke.