by Greg Merritt
Friedman laid out the state’s version of what caused Rappe’s bladder to rupture. He contended that Arbuckle followed Rappe into 1219, closed and locked the door. Rappe was standing near the bathroom. She tried to get away from him, rushing to the door that led to the hallway. He pulled her away from that door and threw her on the double bed. He then threw himself on top of her, intending to sexually assault her, but when his body met hers, her distended bladder ruptured and she passed out (the result of a sudden loss of blood pressure initiated by her bladder rupture). He then successfully revived her.
Friedman also ridiculed various theories put forward by the defense: “The theory that the rupture may have been caused by dipping the girl in a tub of cold water, a defense theory until Dr. [Franklin] Shields pulled the plug and let that theory go into the sewer. The theory that the rupture may have been caused by vomiting. Where in this entire case, other than the defendant’s testimony, has been shown evidence that Miss Rappe was vomiting? The theory that falling off a bed may have caused it, contained only in the defendant’s story. A theory here and a theory there with the evident purpose of confusing the minds of the jurors. Fact by fact has been brought here to refute all these theories.”
Growing animated, Friedman lambasted Arbuckle, who was gazing downward, sometimes fidgeting with his tie. Seated behind her husband, Durfee held a small bouquet of violets in one hand and smelling salts in the other, and as the Los Angeles Times noted, “She alternated their journeys between her lap and her nostrils.” Asked Friedman, “The big, kind-hearted comedian who has made the whole world laugh—did he say, ‘Get a doctor for the suffering girl’? No. He said, ‘Shut up, or I’ll throw you out the window.’ He was not content to stop at throwing her out the window. He attempted to make sport with her body by placing ice on her. This man then and there proved himself guilty of this offense. That act shows to you the mental makeup of Roscoe Arbuckle…. I say there was a struggle in 1219. Roscoe Arbuckle tried and succeeded in keeping her there. I leave it to you what was the purpose of his attack upon her. The rupture that caused her death was caused by no other manner than by the assault Roscoe Arbuckle made upon her!”
Gavin McNab began the defense’s closing by bolstering their allegedly poisoned witness Irene Morgan—then supposedly clinging to life—against the state’s attacks upon her character (“Since Mary cradled Jesus in the manger, the name of woman has been a sacred thing”), thus placing the defense on the side of an injured woman. He noted the absence of the complaining witness: “It is not mercy that keeps Mrs. Delmont out of the case, because you witnessed the venom with which our case has been attacked.” One by one, he dismissed the testimony of various prosecution witnesses. Of Semnacher’s damning allegation that Arbuckle placed ice in Rappe’s vagina, McNab labeled it “a collateral incident”—though in doing so he endorsed the prosecution’s version of the icing.
Using clocks as props, he plotted out the timeline established by witnesses and asked when an attack could have occurred. He compared Heinrich’s fingerprint evidence to a belief in witchcraft. He asked why the healthy, athletic woman presented by the prosecution could not even manage a shout if assaulted. By reading their conflicting statements and testimony, he questioned the veracity of the “imprisoned girls,” Prevost and Blake, and he further argued that just as Brady had taken away their liberty he might do the same to an innocent man. He asked, really laying it on, “We sent two million men overseas to end this sort of thing forever. Why should we allow it to continue in San Francisco?”
McNab postulated that there were many ways Rappe’s bladder could have ruptured before or after Arbuckle entered 1219. His strongest theories were that the trauma was caused by the strain of vomiting (though there was no evidence of her vomiting) or via a fall in the bathroom or off the bed. He summarized: “The prosecution has painted Arbuckle as a monster, yet we see him carrying Miss Rappe in his own arms to a place of comfort [room 1227]. He was in the room [1219] alone with Miss Rappe but ten minutes, and during that time there was no outcry or sound of a struggle. I gather these facts from prosecution evidence. The scientific men we produced said there were many ways in which Miss Rappe could have suffered her fatal injury. Surely the jury must admit there were many ways also rather than the one way pointed out by the prosecution.”
Concluding with Christian imagery as he began, McNab wrangled a tear from his eye, and from the eye of at least one juror: “Since Christ said ‘Suffer little children to come unto me,’ the instinct of little children has always gone out to good men, never to bad, and Arbuckle has been crucified here by speech but not by evidence…. This man who has sweetened human existence by the laughter of millions and millions of innocent children comes before you with the simple story of a frank, open-hearted, big American and submits the facts of this case to your hands.”
It returned to the state to get the final word, and Milton U’Ren drew a tortured biblical parallel of his own (echoing Arbuckle ally Billy Sunday): “He came up here and the word was sent out by his friend Fishback that Fatty was in town, and the people poured into his quarters, food was spread, drinks were served, and this modern Belshazzar sat upon his throne and was surrounded by his lords and their ladies, and they went on with the music, feasting, wine, liquor, song, and dancing. The great Belshazzar saw the handwriting on the wall and quaked as it was interpreted. The modern King Belshazzar has also seen the handwriting on the wall. The king is dead and his kingdom is divided. He will never make the world laugh again.”
For an hour, U’Ren summarized the state’s case, placing particular emphasis on the fingerprints. He repeatedly countered McNab’s evocation of innocent children, presenting Arbuckle as a deceiver of young people who hid his “rotten nature.” U’Ren sneered, “Oh, if the children of America could have seen Roscoe Arbuckle put ice in the private parts of Virginia Rappe, how they and their mothers would have laughed with glee!” In conclusion: “We ask you to do your duty so that when you return to your families, you can take them to your breasts; and we ask you to do your duties so that when you take your children upon your knees that you will know that you have done what you could to protect them from this defendant and from all the other Arbuckles in the world, not existing and yet to come. And ask you to do your duty so that this man and all the Arbuckles of the world will know that the motherhood of America is not their plaything.”
It is considered a forgone conclusion that Arbuckle will be acquitted.
—UP WIRE STORY, DECEMBER 2, 1921
With final instructions from Judge Louderback, the case went to the jury at 4:15 PM on Friday, December 2. While seven men and five women deliberated behind a closed door, Arbuckle was in the courtroom, pacing or chatting with his attorneys or the newsmen. His wife sat nervously between the comforting wives of Arthur Arbuckle and Milton Cohen. The jury broke for dinner and resumed deliberations thereafter. Several times a bailiff was called into the jury room, eliciting a flurry of whispers among observers but no verdict.
At 11:00 PM court was adjourned. Word leaked that the jurors were deadlocked eleven to one for acquittal. In fact, it was later learned that early ballots had gone nine to three for acquittal or eight to three with one abstention, but the image of a lone juror, a woman, standing firm for Arbuckle’s guilt took hold over the weekend with headlines like the San Francisco Examiner’s WOMAN VOTES ACTOR GUILTY SAYS REPORT.
On Saturday the jury continued deliberating. The women who packed the courtroom saw Arbuckle joking with reporters, attorneys, and bailiffs, chatting with the alternate juror, smoking, eating, reading newspapers, and performing magic tricks. Hours dragged on. The jury adjourned at 10:37 PM, and Judge Louderback ordered them back at 10:00 the following morning.
Though the sequestered jury was kept away from newspapers during the trial, their names, occupations, and addresses appeared in the same papers they couldn’t read, as did a group photo of them posed in the jury box. Curiously, one person hid when that photo was snapped, duckin
g to reveal only the top of her black hat. As the jury remained deadlocked on Saturday, that juror—Helen Hubbard, the forty-six-year-old wife of an attorney—grew internationally famous as the “lone holdout.”
On Sunday morning, while the jury deliberated for its final two hours, Arbuckle played hide-and-seek with a child in the corridors. It was as if he was reverting back to a time before he was rich and famous, back eleven years to when he played daily with his brother-in-law and neighborhood kids in a Los Angeles street. At noon, nearly forty-four hours after the trial went to the jury, the jury was declared hopelessly hung. The tally of the final ballot was ten to two for acquittal. Hubbard had been joined, as she frequently was on ballots, by fifty-four-year-old candy shop owner Thomas Kilkenny, the former alternate juror who had only been seated after one of the original twelve admitted a bias toward Arbuckle’s innocence.
“We had some wild times in the jury room,” one of the ten said of the heated attempts to convince the stubborn two to side with them. “We felt the case had not been sufficiently proved,” another said. “Some of the jurors believed that Arbuckle was innocent, others believed that not enough proof had been presented to warrant a conviction.” The jury foreman, August Fritze, a sales manager, released a statement that read in part:
The ten members of the jury who voted on the last ballot for acquittal felt that they voted on the evidence—fully considering it all. One of the two minority refused to consider the evidence from the beginning and said at the opening of the proceedings that she would cast her ballot and would not change it until hell froze over. The other was fluctuating, sometimes casting a blank ballot, sometimes voting for the defense and sometimes for the prosecution.
The fluctuating Kilkenny never spoke to the press and quickly faded into history. It was reported that he voted with Hubbard in an effort to win her confidence and thus convince her to change her vote to one for acquittal, but that seems illogical. More likely, he didn’t fit the press’s narrative; their arc light was aimed at the intractable Hubbard. A typical front-page headline read, WOMAN JUROR BLOCKS AGREEMENT IN TRIAL OF ROSCOE ARBUCKLE.
Hubbard granted one interview to two female reporters, one with the San Francisco Chronicle, the other with the San Francisco Examiner. Because she was married to an attorney, she expressed her surprise at being allowed to serve. She felt she did not need to read through the over thirteen hundred pages of trial transcripts nor review the evidence in the jury room, for she had heard the evidence presented firsthand. “It was the matter of fingerprints purely in the final analysis that decided me,” she said. “Arbuckle failed to convince me with his story absolutely. Once on a jury I would vote my own husband guilty if I really believed him to be that in my heart, and nothing could shake me once that belief was established in my mind.” She reserved her harshest criticism for Fritze and the other men on the jury, whom she accused of verbal abuse in attempting to cajole her to change her vote. “There is no place for the woman on the jury,” Hubbard lamented. “Any woman is a fool to even get on one if she can possibly get out of serving. I’d rather die than go through it again. The general attitude and language of the men is offensive to a woman.”*
Male editorial writers agreed with her general proposition that women should not serve on juries. The San Francisco Chronicle opined, “The jury was subjected to indignities which could not have failed to affront any woman. Certainly a woman’s mind and body are less well equipped to withstand strains to which they are put in cases of this character.” Rappe’s hometown Chicago Tribune concurred: “It is a fair presumption that the cause of exact justice was injured by the presence of women on the Arbuckle jury. A woman might have to overcome her aversion for a man charged with immorality before she could get anywhere near the issue of whether he was guilty of manslaughter.”
The Women’s Vigilant Committee praised Hubbard’s independence. They also chastised Arbuckle, though in a subdued tone: “Regardless of the guilt or innocence of this defendant, this committee wishes he had shown more humility at the end of his trial. He admitted that he had staged a drinking and dancing party.”
Upon hearing of the jury’s indecision, Arbuckle rolled another brown cigarette. His wife dabbed away tears. And when the date of January 9 was agreed upon for a retrial, Arbuckle lit the cigarette, inhaled, and exhaled smoke.
Assistant DA U’Ren offered his hand to McNab. “I just want to congratulate your client on his gameness.”
Standing nearby, Arbuckle retorted, “I’m game because my conscience is clear, much clearer than yours, U’Ren.”
Afterward, as Arbuckle and his attorneys drafted up a statement, Minta Durfee stood with her mother and friends outside the San Francisco Hall of Justice. “The poor boy,” she said. “Now he’ll have to go through it all again.”
Arbuckle’s posttrial statement read:
While this is not a legal acquittal, through a technicality of the law, I feel it is a moral one. But for one woman on the jury of thirteen, who refused to allow her fellow jurors to discuss the evidence or to reason with her, and who would give no explanation for her attitude, my trial would have resulted in an immediate acquittal.* After the organized propaganda designed to make the securing of an impartial jury an impossibility and to prevent my obtaining a fair trial, I feel grateful for this message from the juror to the American people. This comes, too, after the jury had heard only part of the facts. The effect of the District Attorney succeeded in excluding from the evidence statements made by Miss Rappe to people of high character, statements completely exonerating me.
The undisputed and uncontradicted testimony established that my only connection with this sad affair was one of a merciful service, and the fact that ordinary human kindness should have brought upon me this tragedy seems a cruel wrong. I sought to bring joy and gladness and merriment into the world, and why this great misfortune should have fallen upon me is a mystery that only God can reveal. I have always rested my cause in a profound belief in divine justice and in the confidence of the great heart and fairness of the American people. I want to thank the multitudes from all over the world who have telegraphed and written me in my sorrow and expressed their utmost confidence in my innocence, and I assure them no act of mine ever has or ever shall cause them to regret their faith in me.
* California was the fourth state to do so. By the end of 1921, seventeen states allowed women jurors.
* Her estate consisted of her personal effects, $800 in a bank account, and some stocks and bonds.
* She recounted seeing Lowell Sherman sneaking out of a room with a woman, both dressed only in underwear, and another underdressed man chasing a lingerie-clad woman down the hall. Whatever her veracity, Keza at least fleshed out the “orgy” aspects of the story.
* It would seem likely that Arbuckle’s defense team uncovered this crime. If so, they left no fingerprints. The matter came to light when Hopper was granted an annulment of the marriage, at which time Delmont acknowledged consciously breaking the law when she married Woods.
* Gouverneur Morris was the great-grandson of the Founding Father of the same name, who is credited with writing much of the US Constitution. The younger Morris wrote the short stories “What Ho, the Cook,” “You Can’t Get Away with It,” and “The Bride’s Dead.”
* In the hours after the party, Arbuckle offered “girlie” (as he called Brennan) a generous tip of two dollars and fifty cents for cleaning the room. He also offered her whiskey. She refused the latter and accepted the former.
* Under cross-examination, Barker denied the contention that he had been engaged to Rappe and she had broken off the engagement. Three days later, Catherine Fox, a rebuttal witness for the state, would claim she witnessed Rappe breaking said engagement.
* McNab’s questions have been eliminated here, for they merely propelled Arbuckle’s story.
* Actual name: Dot Nelson.
* Mrs. Hubbard also told the DA’s office that two men known to her husband had phoned Mr. Hubbard
on the final night of deliberation and urged him to tell his sequestered wife to vote for Arbuckle’s acquittal.
* The alternate was counted in the tally of thirteen jurors, as that man stated he would have voted for acquittal. The tally also failed to count Kilkenny with Hubbard, helping to perpetuate the image of the lone, biased female juror. This statement was released before Hubbard granted an interview, thus the remark about her lack of “explanation for her attitude.”
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OVERTURE: 1921
But yet I know them. They have forced my barriers. Fatty Arbuckle, Elmo the Mighty, Mary Pickford, Norma Talmadge, Theda Bara … I know them by sight. They live with me. They eat their meals beside me.
—PHILIP CURTISS, “IS FAME BECOMING EXTINCT?”
It was the worst of times. The shock of peace sent America’s economy into a nosedive. Manufacturing had ramped up during World War I and the armed forces employed millions, but afterward factories closed and returning men flooded an overwhelmed job market. After a mild recession, a depression hit at the start of 1920 and lingered for eighteen months. The stock market gave up nearly half its value. Deflation was the most acute in American history. Unemployment peaked at nearly 12 percent.