by Greg Merritt
“And that night Belshazzar, the king, was slain and the Medes and the Persians took possession of the kingdom and divided it. Roscoe Arbuckle’s kingdom is ended! He has been weighed in the balances and found wanting! God has finished his kingdom!” This was not the sermon of some barnstorming preacher. It was the climactic erudition of Assistant DA Milton U’Ren in his closing statement, which was otherwise much more professorial than evangelical. U’Ren mostly focused on inconsistencies in Arbuckle’s story, arguing for the unlikeliness of events behind the locked door of 1219 happening as Arbuckle said, and pointing out that the movie star’s story was kept secret until the first trial and then seemingly tailored to counter the state’s witnesses. U’Ren highlighted how Rappe appeared hearty before spending time in room 1219 with Arbuckle, and he returned again to the “ice episode.” “Oh, if the mothers of the children of America could have seen Roscoe Arbuckle making such sport of the poor, sick, senseless body of Virginia Rappe! The moral leper make the world laugh? Thank God, he will never make it laugh again!”
Again avoiding the errors of the second trial, the defense opted to deliver its own closing statement. First, Nat Schmulowitz reiterated at length Rappe’s history of bladder illness, and he highlighted the medical testimony about bladder ruptures. Then came the emotional speech of Gavin McNab. When not quoting scripture, he reinflated the previously punctured reputations of defense witnesses and denigrated the expertise and impartiality of prosecution witnesses. Receiving the worst of it was Wakefield secretary Virginia Breig. He pointed out the absurdity of Rappe sharing her deathbed accusation with “the sordid bill collector” only to have such an accusation remain unrepeated until a third trial. Further, he accused Breig, “this creature,” of trying unsuccessfully to extort the defense and then selling out to the prosecution for the cost of a hospital bill.
Blake and Prevost were “the private prison witnesses,” with the former “seized and placed in a corral like a beast.” In conclusion, McNab widened his argument beyond the freedom of his client: “If, through the extraordinary attention to his case, the vile, hideous, and barbarous practices that have prevailed in criminal processes in San Francisco, unknown to the public, are no longer possible, and unfortunates, that are being railroaded to the penitentiary without offense against the law, will have fair trials hereafter, then this persecution will have served a good purpose and Arbuckle will be repaid.”
Countering for the state, Friedman said near the start of his statement, “Mr. McNab, who is so quick to invoke the scriptures, who so gladly calls down the Ten Commandments to his aid, forgets that there is one which reads, ‘Thou shalt not kill.’ He also beautifully eulogizes womanhood, then blasts and damns every woman appearing in this case, including his own witnesses.” Friedman deflected the contention that the state had coached Blake and Prevost, and he belittled much of the medical testimony, saying it made no difference why Rappe’s bladder was distended. He argued that Rappe was too young for multiple pregnancies in and before 1908.* And he spelled out again the state’s version of what happened in room 1219 and why it was the only logical explanation. Arbuckle, he said, forced Rappe onto the bed, “threw his weight upon her, her bladder ruptured, and she passed into a state of unconsciousness…. We do not claim—with all the talk of disarranging clothes—we do not claim that he consummated his purpose. We claim that he attempted to accomplish a purpose, to fulfill a desire, and that his attempt resulted in the death of this girl.”
This time there were no predictions of guilt or acquittal, no assurances that the good citizens of San Francisco would make the correct decision—or any decision. After one ten-to-two deadlock one way and another ten-to-two deadlock the other way, no one could be confident of either outcome or any outcome from another group of twelve.
Forty-four hours. That’s approximately how long each of the first two juries was out, and neither reached a consensus. The third jury left the courtroom at 5:10 on Wednesday, April 12. They selected Edward Brown as foreman and reached their verdict by acclamation. At 5:15 came a rap from inside the jury-room door. To the astonishment of all in the courtroom, the jury had reached a decision.† Spectators who had left for a break rushed back in, refilling the seats and standing where they could. Judge Louderback warned everyone against any vocal expression of sentiment.
Acquittal.
Arbuckle let out a giant sigh. His wife sobbed quietly. After the judge gaveled the case finished and retired to his chambers, spectators erupted in a cheer. People stood on their chairs and on the railing to better see Arbuckle as he rushed to the jury box. He shook hands with the jurors, who crowded around him, patting his back, affirming their belief in his innocence, some dabbing away tears. Then Arbuckle, his attorneys, and the jurors fought through the grasping, congratulating crowd and made their way into the jury room. There a statement was read for the benefit of the press and, as camera flashes exploded, signed by each of the twelve jurors and two alternates. It read:
Acquittal is not enough for Roscoe Arbuckle. We feel that a great injustice has been done him. We feel also that it was only our plain duty to give him this exoneration, under the evidence, for there was not the slightest proof adduced to connect him in any way with the commission of this crime. He was manly throughout the case, and told a straightforward story on the witness stand, which we all believed. The happening at the hotel was an unfortunate affair for which Arbuckle, so the evidence shows, was in no way responsible. We wish him success, and hope that the American people will take the judgement of fourteen men and women who have sat listening for thirty-one days to the evidence,* that Roscoe Arbuckle is entirely innocent and free from all blame.
Acquittal merely means the state did not prove Arbuckle guilty beyond a reasonable doubt. The unusual posttrial statement went much further in declaring Arbuckle “entirely innocent and free from all blame” and asking the American people to believe it. The jury did not have time to draft such a document during their few minutes in the jury room, nor, presumably, would they have had any inclination then to care so deeply about the beliefs of their fellow Americans. It was written before the verdict, likely by Arbuckle’s lawyers at the behest of Arbuckle and/or the movie producers whose bottom lines were dependent on resuscitating his image and career. It was, however, referred to only as the jury’s statement, so not even Edward Heinrich could trace a fingerprint to its origin.
Brady later issued his own statement: “I am an American citizen, and I take off my hat to the verdict of an American jury. The District Attorney’s office has done what it deemed to be its duty in this case, nothing more nor less. And I intend always to do my duty as I see it.”*
If Brady’s comments were intended for the voting public, Arbuckle’s were tailored foremost toward moviegoers, for their verdict awaited him next. His statement declared:
This is the most solemn moment of my life. My innocence of the hideous charges preferred against me has been proven by a jury of the best men and women of San Francisco—fourteen in all—rendering a verdict immediately after the trial. For this vindication I am truly grateful to God and my fellow men and women. My life has been devoted to the production of clean pictures for the happiness of children. I shall try to enlarge my field of usefulness so that my art shall have a wider service. It is the duty of all men to use the lessons that have been given them by experience and misfortune for the benefit of all—to make themselves more useful to humanity. This I shall do. I can only repay the trust, confidence and loyalty bestowed upon me during my trouble by millions of men and women throughout the world by rendering service in justification of their faith.
He also spoke to the press about his weight gain during the trials and his future in movies: “I am going to take a good rest and get rid of some of this surplus flesh. I must get back into physical shape before I even think of pictures. Then I will be able to go on with my work, if the public wants me. If the public doesn’t want me, I’ll take my medicine. But, after the quick vindication I
received I am sure the American people will be fair and just. I believe I am due for a comeback.”
The night of the verdict, Paramount’s Jesse Lasky said, “Our contract with Arbuckle expired at the time of his trouble. Whether or not this contract will be renewed will depend on the public. The public makes or breaks all stars. If the public receives favorably the Arbuckle pictures which we have on hand, one of which will be released at once, then we will be ready to consider the matter of a future contract.”
Arbuckle did not escape all legal consequences. He pleaded guilty to a federal charge of unlawful possession of alcohol and was fined the maximum: $500. That amount would have been of no consequence to him eight months earlier, but the trial expenses (attorney fees, private investigation fees, hotel bills, travel bills …) coupled with his loss of income had devastated his finances. It was reported that his defense at the three trials cost more than $110,000 not including attorney fees. The inclusion of the substantial latter category may have ballooned his bill to over $750,000. Dream team, indeed.
Arbuckle, who returned to his Los Angeles mansion on April 15, refused an opportunity to speak to paying spectators on theater stages, saying, “I do not wish to capitalize on my good fortune so soon after achieving it…. I will return to my profession when I consider it proper to do so.”
Crazy to Marry and Gasoline Gus began playing again in Los Angeles, and to strong business. Both had barely been released the previous August. Skirt Shy and Freight Prepaid had never been seen by American audiences, and Paramount was raring to get them on-screen. But the public began weighing in even before Fatty’s image reached their local theaters. In the days immediately following Arbuckle’s acquittal, a battle ensued between censors and their foes, between those who believed Arbuckle innocent and those who remained certain of his guilt—if not of manslaughter then of the sort of licentiousness that callously fostered a woman’s death.
On the evening of April 18, six days after Arbuckle’s acquittal, all Paramount movies featuring Roscoe Arbuckle were effectively banned from American theaters. It was the first proclamation by the new president of a new organization. So began the reign of the “czar of the movies,” Will H. Hays.
* It came to thirty-four dollars.
* In the wake of the scandal, Fishback began directing under the name Fred Hibbard. He died of lung cancer in 1925 at age thirty.
* Between his marriage and his divorce, Lehrman filed for bankruptcy. His directing career subsequently sputtered, resuscitated, and ended with the sound era. He died of a heart attack at sixty-five in 1946 and was buried beside Virginia Rappe in what is today Hollywood Forever Cemetery.
* Actually, she turned seventeen that year.
† The difference between the length of the jury’s deliberation and the length of time the jury was out of the box caused news reports to estimate the minutes needed to reach a verdict from less than one to as many as six.
* Including voir dire, the trial lasted thirty-one calender days, but there were only eighteen days of testimony.
* Matthew Brady never ran for higher office as many expected. He remained San Francisco DA until defeated in 1943 by future California governor Pat Brown.
{18}
HAYS
HAYS TO PUT FATTY THROUGH FOURTH TRIAL
—Los ANGELES EVENLNG HERALD, APRIL 19, 1922, FRONT PAGE
For almost as long as there have been movies, there have been movie censors. In 1896 one of the first publicly screened films, Edison’s forty-seven-second The Kiss (spoiler alert: a man and woman kiss) sparked editorial writers’ demands for police department suppression, surely boosting its popularity. Investigations into the purportedly negative social influence of nickelodeons on the working class commenced in 1906, and some of the same forces that were aligning to pass Prohibition—fundamentalist morality, Progressive reform, rank nativism—conspired to regulate motion pictures. In their condemnations, temperance crusaders highlighted the intoxicating and addictive properties of movies.
In November 1907 the Chicago City Council passed the nation’s first motion picture censorship law, prohibiting “immoral or obscene” movies and requiring the city’s police department to issue a permit for every film shown. The law was enforced soon thereafter when two ordinary westerns were banned because the portrayal of bandits was said to promote crime. Other municipalities, including San Francisco and Los Angeles, followed Chicago’s lead and drafted censorship committees, and between 1911 and 1916, state boards were established in Pennsylvania, Ohio, Kansas, and Maryland.*
After New York City closed all nickelodeons for two days in December 1908 and then barred children under sixteen from movie theaters unless accompanied by an adult, exhibitors countered by enlisting “surrogate” parents to escort kids inside and then by forming the National Board of Censorship of Motion Pictures to ferret out inappropriate movies before they were banned. The unfortunate name was changed to the National Board of Review of Motion Pictures in 1915, and by then the organization had spread to over 250 local groups throughout the country. They reviewed virtually every film America produced, classifying them “passed,” “passed with changes as specified,” or “condemned.” Via the NBRMP’s ratings, the movie industry hoped to avoid censors, but nonpassing grades flagged films for censors and forced producers to cut the objectionable material.
D. W. Griffith’s 1915 blockbuster The Birth of a Nation was frequently banned. The NAACP challenged its screenings because of its depiction of African Americans, and it was outlawed by some communities for fear it would spark race riots. When the producers contested its Ohio banning, the case raced to the United States Supreme Court, which issued a unanimous decision comparing movies to “the theater, circus, and all other shows and spectacles.” Films were “a business pure and simple, originated and conducted for profit” and thus not shielded from censorship by the First Amendment.†
This decision had its most profound effect on ambitious rookie filmmaker Robert Goldstein, who made The Spirit of ‘76, a Revolutionary War epic. It premiered shortly after America entered World War I and was confiscated by the Chicago censorship board for potentially creating hostility toward Great Britain, then America’s ally. Goldstein trimmed offending scenes, but after reinstating them for a Los Angeles run, he was tried and convicted under the Espionage Act. He served three years of a ten-year sentence before his time was commuted by President Woodrow Wilson. Ironically, his plight resulted from making a patriotic film about the American Revolution.
In 1916 the studios formed the National Association of the Motion Picture Industry, which lobbied for Constitutional and legal protections for movies. In March 1921 it issued “Thirteen Points” that the industry promised to avoid, including “suggestive bedroom and bathroom scenes” and scenes “that tend to weaken the authority of the law.” NAMPI’s efforts at averting film censorship were mostly unsuccessful. Meanwhile, the theater owners’ NBRMP lost influence as critics accused it of whitewashing objectionable content.
After a torrent of news coverage and a protracted but ultimately failed effort by the movie industry to prevent it, on May 14, 1921, a fifth state established a censorship board—the most populous one, New York. Governor Nathan Miller said he signed the bill because “it was the only way to remedy what everyone conceded had grown to be a very great evil.” Legislatures in other states introduced similar measures.
The fervor against unregulated motion pictures had been building—and then it exploded. In the days after Roscoe Arbuckle’s arrest on September 10, all his films were pulled from every theater nationwide. As the parent of the sometimes rebellious film industry, Los Angeles’ instinct was to protect its child, though, occasionally, when movies brought shame, it felt impelled to instill punishment. Numerous censorship ordinances were passed in Los Angeles but wielded lightly. On September 14, 1921, the city council held a “public welfare” meeting to discuss ratcheting up the regulation of films. In a discussion that grew contentious, Protestant minist
ers spoke in favor of censorship, and—four and a half months before his murder—the president of the Motion Picture Directors Association, William Desmond Taylor, testified for the status quo: “I have listened with amazement to the charges of these ministers that we are debauching the morals of the youth of this city. I know that the great majority of directors are building plays that are clean…. We have pledged ourselves not to put anything into pictures that will hurt the morals of any youth.”
Afterward, Taylor issued a one-thousand-word, widely distributed statement entitled “The Nonsense of Censorship,” which began:
Censorship of motion pictures is a menace to the very principles of the Constitution of these United States of America. How strong a grasp it has obtained over the constitutional rights of America may be seen in the fact that nearly one-third of the total population of this country may now see only such motion pictures as some commission has decided they may see.
Fought at city council meetings and on editorial pages, the battle progressed in fits and starts for over a month before Los Angeles’ latest censorship attempt was defeated on October 21. Numerous states also repudiated motion picture censoring measures in 1921, including California, Illinois, and Connecticut.
From the movie industry’s perspective, however, the problem was larger than the prospect that a council that might ban a single title from its community or demand a scene be excised. It was the overall effect on ticket sales caused by focusing on the alleged evils of motion pictures. That’s why the studios’ greatest concern after September 10, 1921, was not censors; it was the perception—fueled by preachers, pundits, and politicians—that the industry was uncensored, that it followed no rules but merely the pursuit of wealth and pleasure, that it failed to heed the constraints of common decency. With the relentless press coverage in the weeks following Arbuckle’s arrest, the opinion grew that Hollywood was the nexus of Jazz Age immorality and was capable, via both its easily transmitted products and the status of its worshipped stars, of infecting this virus throughout America. The studios had to act swiftly and decisively to show they shared the public’s concern.