This morning the Contemporary Arts Center of Cincinnati becomes the first art gallery in U.S. history to be tried on obscenity charges.
At 10 a.m., prosecutors will start sifting through a pool of 50 prospective jurors, looking for eight who are likely to find that five of Robert Mapplethorpe's homoerotic and sadomasochistic photographs are obscene and that two portraits violate child pornography law. Lawyers for the arts center, which exhibited the works, will seek jurors who might find some artistic resonance in those images.
As the news media descended on Cincinnati for the occasion, Dennis Barrie, director of the arts center and the star defendant, set aside time for a little shopping over the weekend. "I actually will go out and get some new duds," he said on Friday. "I thought I'd go for the 2 Live Crew look."
If convicted, Barrie could face up to six months in prison and a maximum $2,000 fine. The gallery could be fined a maximum of $5,000 on each of two misdemeanor charges.
So far, the case hasn't gone well for Barrie's side. Municipal Judge David Albanese -- a former prosecutor in conservative Hamilton County, Ohio -- has already ruled that a jury can convict if it finds even one photograph obscene. The arts center had argued that the entire retrospective, which consists of 75 photographs by the late artist, should be considered, citing the Supreme Court ruling that any allegedly obscene material must be considered "as a whole."
Albanese's decision appears to make it unlikely that the gallery will be able to introduce Mapplethorpe's photographs of calla lilies and his celebrity portraits as evidence of his artistry. Also in doubt is the defense's list of more than 25 potential witnesses, including museum directors, psychiatrists and a representative from the Institute for Advanced Study of Human Sexuality.
The Mapplethorpe exhibit is the same one that was canceled by the Corcoran Gallery of Art during the summer of 1989, provoking an ongoing furor over funding of the arts and freedom of expression. The retrospective was displayed at the Washington Project for the Arts -- and subsequently in Philadelphia, Berkeley, Calif., Hartford and Boston -- without incident.
But not in Cincinnati, the city that allows no adult bookstores, no bars that permit nude dancing, no "Deep Throat" on the shelves of its video stores. Despite the city's reputation for aggressive prosecution of obscenity cases, Barrie is sure that "the majority of this community is outraged that this trial is going on." And he is optimistic that eventually his side will win -- but maybe not quite yet. "I think our case is a just one, but there are some things stacked against us," he says.
"Everybody's making it into the modern-day Scopes trial, which in effect it probably is," says attorney Louis Sirkin, who represents both Barrie and the arts center. (In 1925, a Tennessee jury convicted teacher John Thomas Scopes for teaching evolution in a public school.)
Still, Sirkin also insists that he expects a victory in this trial. "I do. I honest-to-God do," he says. "I'm not going to discuss our trial strategy, but I'm telling you we're going to win this case." Sirkin says he has tried more than 100 obscenity cases, "and I've won a hell of a lot of 'em."
His opponent, Frank Prouty, won't characterize his state of mind on the eve of becoming the first prosecutor in U.S. history to try an obscenity case against an art gallery. "I have no comment," he says. Has he ever tried an obscenity case before? "Yes." How many? "I have never counted them." Did he win any? "I don't keep track of how many cases I win or lose."
Sirkin is more forthcoming about his preparations, but not much. He's not usually big on the psychological profiles and demographic studies that lawyers sometimes use in selecting juries, but he acknowledges that he may have used such techniques in this case. Still, he adds, "I rely a little bit on my intuition."
He won't give specifics of the profile of the ideal juror. But generally, he says, he wants "somebody that's comfortable with himself, willing to listen to both sides, not afraid to admit that their initial impression may have been wrong."
Sirkin didn't hold a mock trial to prepare for the case. "That's never been my style," he says. "I don't ever think a mock situation like that can represent the environment of the courtroom."
No mock trial would reveal what a judge will do, he says -- and in obscenity cases, judicial conduct can be especially hard to predict. "I can go in on a murder case and I'm going to get better treatment than on a misdemeanor obscenity case," he says. "There's just some aroma of emotionalism that all of a sudden comes into it."
If the judge issues difficult or unexpected procedural rulings, Sirkin says, the defense will simply have to adjust. But he will try to build a record of the case that he would like to present. If Albanese doesn't allow the jury to consider Mapplethorpe's less controversial works or testimony from expert witnesses, Sirkin will ask the court to retain those materials so that, if necessary, they could be reviewed by an appeals court, which might apply different rules.
If Barrie and the arts center are convicted, Sirkin says, the court will be obligated by law to set a reasonable bond. Even if he loses, Barrie is unlikely to spend a night in jail. But the possibility exists.
So if he had it to do over, would Barrie book the Mapplethorpe show? He doesn't hesitate.
"It was a good show. It was an important show," he says. "... I'd do it again."