A judge held yesterday that the Cincinnati Contemporary Arts Center must go to trial on obscenity charges for showing works by Robert Mapplethorpe. The court struck a blow to the defense by holding that the jury does not have to consider the exhibit as a whole in determining whether certain photographs are obscene.

Making new law in the first obscenity case against an art gallery in American history, the Hamilton County court ruled that a jury could convict the arts center and Director Dennis Barrie if it finds that even one of the photos in the show is obscene. Trial is set for Sept. 24.

The Supreme Court has formulated a three-part test of obscenity, holding in part that any allegedly obscene material must be considered "as a whole." The court has ruled, for example, that a book may not be deemed obscene on the basis of excerpts and that a movie must not be judged on the basis of a particular scene.

But Judge David J. Albanese held that five sadomasochistic images cited in the indictment could be considered individually. "This Court finds that each photograph has a separate identity; each photograph has a visual and unique image permanently recorded," he held.

Albanese found that five pictures in question were not integrated into the exhibit overall; rather, he concluded that the exhibition was "a vehicle" for displaying those pictures. He observed that the exhibit's curator had testified that the show "probably would have been arranged" without those five pictures and that the photos in question were not included in a catalogue accompanying the show.

The court ruled yesterday that at trial, "the focus will be each picture 'taken as a whole.' "

H. Louis Sirkin, the attorney representing the gallery and Barrie, said the ruling was not a surprise. "It's so intellectually wrong, it's incredible," he said. "... It's just so unbelievable that this is the way it is here." Cincinnati is known for its aggressive prosecution of obscenity cases.

Barrie said he was disappointed with the outcome. "Our testimony was so good and our case was so good, that it kind of defies reason," he said. However, he added, "I think this ruling makes it more difficult for us to win, but I also think it is very easy to establish that Mapplethorpe was an artist of tremendous merit and that his work is protected" by the First Amendment. Barrie was in Washington yesterday for a fund-raiser to defray legal expenses for his and the gallery's defense. The event was also attended by a handful of demonstrators who stood outside holding a banner that read "Pornographers Against Helms."

Sirkin said he hopes the judge will reconsider the decision or finalize his order so that it can be appealed before the trial begins. Otherwise, he said he expects constant disputes during the proceedings over the type of evidence that may be introduced. Sirkin said he still will try to introduce other pictures from the retrospective to establish that the five photographs were part of an art exhibition. But he added: "We don't deal in logic here. I don't know what we'll be permitted to do."

"If we can't talk about the exhibit, what are we going to talk about in that courtroom?" Barrie said.

Sirkin said he is pessimistic about his clients' chances in the upcoming trial. "All I can tell you is, if we get an acquittal, we're absolutely brilliant," he said. But Sirkin said he believes a conviction would be reversed by the state appeals court.

Several First Amendment experts said they were surprised by the decision. Attorney Jim Fitzpatrick, president emeritus of the Washington Project for the Arts here, said applicable legal principles "should have led the court to just the opposite conclusion." The Mapplethorpe exhibit "was designed as an integrated whole," he said.

Fred Schauer, a professor at the Kennedy School of Government at Harvard University, said, "I cannot find a justification for that {ruling} in existing law. ... I am confident that this ruling could not stand in the Supreme Court."

Schauer said the holding does not necessarily mean that Barrie and the gallery face conviction. He said the defense can "marshal some number of expert witnesses to be able to demonstrate to the jury ... the artistic value of these images, even taken individually."

The defense also can emphasize the context in which the pictures were shown, he argued. "A range of questions relating to the exhibitor's intent are immensely relevant, including where it was shown, who it was shown to and for what purpose," he said.

Vincent Blasi, a professor at Columbia University law school, said judges who have found materials to be obscene "have comforted themselves with the thought that the motives of the exhibitors were utterly cynical, completely manipulative and profit oriented." In this case, he said, the fact that the photographs were shown in a recognized gallery "shows that the dominant purpose was aesthetic."

But the court's ruling yesterday seemed to dismiss those arguments. "It matters not whether there is a commercial market nor an artistic audience at the art gallery," the judge said. "It is necessary ... that independent evaluation of the 'five S&M' photographs be required."

Several experts agreed that a conviction would never withstand a trip to the Supreme Court. Fitzpatrick said "there is not a prayer" that the prosecutor could win on appeal. Noted attorney Floyd Abrams said, "It's very hard for me to see how a conviction could be affirmed."

Barrie was indicted on two misdemeanor charges of pandering obscenity and illegal use of a minor in nudity-oriented material. He faces a maximum penalty of six months in jail and a $1,000 fine if convicted. The gallery was indicted on the same charges and faces a maximum $5,000 fine on each count. The charges were filed April 7, the day the six-week exhibition opened to the public. The exhibition closed May 26, after 81,000 people had visited the gallery, and is currently on display in Boston.