By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
"I grew up in the free love era," Suzie Samano, the court reporter, blurts out to nobody in particular. "Now I raise flowers and look at birds. That's when you know you're getting real old."
Samano, who's been working for Taite since he took the bench in 1988, asks bailiff Keith Birdsong whether he gets the Victoria's Secret lingerie catalog. "The sexiest magazine in my house is Redbook," says the jovial, balding Birdsong. His answer is followed by a general discussion about the merits of various Victoria's Secret underwear models and the authenticity of their upper curves. "Tyra Banks' are as fake as a three-dollar bill," pipes in Carmen Pearson, the lead prosecutor. "You know she paid for those."
Even Judge Taite gets into the act, recalling from the bench how a Baptist minister was brought in by prosecutors as an expert witness at a long-ago obscenity trial. "When they turned off the lights and were about to show the film, he got up and left the room," Taite says, chuckling. "Everybody was telling him, 'Hey, you're supposed to watch.'"
After Taite takes the bench and rules in the prosecutors' favor on several motions, allowing the trial to begin, 18 prospective jurors file in, a panel that will be whittled down to a jury of six.
"You didn't imagine it was going to be this interesting in misdemeanor court," Chatham tells the group during his turn at the questioning, when his courtroom personality starts to emerge. He's upbeat, funny, sharp, but never smug. Among his questions, he asks if anyone would be too uncomfortable to sit and watch a hard-core movie, which is answered by a middle-aged woman in the second row. "I'm a little uncomfortable watching with strangers. It might be different with people I know," she says. After a few giggles in the galley, then a few laughs, Chatham's face erupts in a big, sunny smile.
All along, he's easing the panel into what it's about to see. "Just because it's explicit doesn't mean it's obscene," he says. "I can buy this tape. It is perfectly legal to own." Until a jury finds it to be obscene, he says, "the material is presumed to be legal to sell." Even if it is deemed obscene, the criminal code concerns promotion--selling--not simple possession of the tape.
After a while, Chatham has the group talking and listening, volunteering more than anyone wants to know. They're so open, in fact, that they begin to work against his efforts to pick a sympathetic jury. A biker type with long hair and a bushy blond beard says he has more than a passing knowledge of movies in which everyone is busily nude, and he likes them just fine. "It would have to be pretty weird, I mean way out there," says the man, whose hulking chest and belly are covered in a blue T-shirt printed with an image of the World Trade Center, a flag and the words "God Bless America."
The judge dismisses him "for cause," meaning there's no way he could be fair and impartial toward the state's ideas on porn. Another man is dismissed after he takes issue with the Texas obscenity code's inclusion of sodomy as a potentially bad thing.
"They're a chatty bunch," Chatham says at the break. "I had a guy one time who raised his hand and said, 'I love porn!'" Asked what type of jurors he is looking to weed out, Chatham mentions the obvious "ultra-right-wingers." But there's a combination of jurors he imagines might be even more likely to convict. "One attractive woman and five men," he says. "They'd be falling all over themselves to be chivalrous. That's my nightmare jury."
For their part, Pearson and co-prosecutor Michael Jarrett are at a disadvantage. They have little experience trying obscenity cases, which land in the assorted courts before various prosecution teams, and the two are corrected several times by Chatham as they try to explain the law.
The law of the land on obscenity for the past 29 years, set out by the U.S. Supreme Court in the landmark Miller v. California case, makes porn a local issue. Rather than set out a laundry list of dos and don'ts limiting the First Amendment right to free expression, the high court left the matter to local courts.
Jurors are asked to determine whether sexually charged material is acceptable under "contemporary community standards," a moving target that is set, movie-by-movie, after viewing the film. To find a movie obscene, jurors must also find that it depicts specific sex acts in a "patently offensive way" and lacks serious artistic, political or scientific value.
During the jury questioning, Jarrett makes some general points: that community standards means the whole state of Texas, not just Dallas County. "Normal sexual acts are still obscene under the law," Jarrett tells the panel. "The fact that it's on the shelf doesn't mean it's not obscene."
In time, a jury of four women and two men is seated and Jarrett and Pearson begin presenting their evidence, opening with the police officer who made the bust.