by Greg Merritt
At 10:00 AM on the morning William Desmond Taylor’s body was found, the jury in Roscoe Arbuckle’s manslaughter case began its second day of deliberation. Shortly before noon, the jury asked for and received the trial transcript. Throughout the day, Arbuckle was seen pacing the halls outside the courtroom, smoking hand-rolled cigarettes, occasionally exchanging brief comments with reporters or speaking with his wife. In its front-page story, “Arbuckle Abandons Hope,” the Los Angeles Times said he had given up on a verdict.
Deliberation was cut short that evening because a juror was ill. Also that evening, the avenger Maude Delmont, under probation for bigamy and presumably having legally untangled herself from her previous marriages, engaged to marry a vaudeville actor. They were in Lincoln, Nebraska, where she was said to be “attending to business matters.” The engagement made front pages throughout the country.
At 11:30 AM on Friday, February 3, the jurors returned to their box and spectators scrambled to fill the seats of Judge Louderback’s courtroom. Forty-four hours after getting the case, the jury was hopelessly deadlocked. The first ten ballots had been nine to three; the last four were ten to two. But reports had been wrong—the majority had not been for acquittal. Ultimately, ten of the twelve jurors voted Arbuckle guilty of manslaughter. The defendant was stunned, as were the attorneys for the defense and prosecution. A buzz of shocked mutterings filled the room. Durfee broke into tears.
The two men who voted for acquittal on all fourteen ballots, Helen Hubbards in reverse, declined to speak with reporters. Other jurors said plenty, revealing that the defense’s crucial mistake was to not make a final argument. One said, “The jurors believed that the defense’s failure to argue was due to fear of Prosecutor Friedman, whose argument was cut off by the defense action.” Another juror: “The defense presented a very weak case. Its failure to argue the case counted greatly against it. The fact that Arbuckle did not take the stand had no effect on us.” The latter may have been true in a narrow sense, but a third juror said, “From the reading of Arbuckle’s testimony at the last trial, the majority of the jury believed that his story was contradictory.” Of course, Arbuckle never took the stand in the second trial to answer contradictions and present himself as a believable witness. Furthermore, the defense offered no counterargument after the state highlighted Arbuckle’s incongruities in its truncated closing argument.
McNab enlisted some creative accounting, focusing on the nine-to-three votes and adding the two alternate jurors, both of whom professed they would have voted for acquittal. He called it a more palatable nine-to-five loss, and he recalled the ten who voted for acquittal in the first trial. Brady wasn’t buying it: “Had the majority of the jury been in favor of an acquittal, I would have asked for a dismissal. As the jury stood ten for conviction to two for acquittal, it is manifestly my duty to try this case again.”
“In this life you’ve got to take a punch now and then,” Arbuckle said, sounding like one of his put-upon characters. “I am ready to go to trial again. I feel sure that I shall be able to prove my innocence of this charge at another trial.” But the punches, too hard and too many, had taken a steep toll.
* The press reported that the first trial cost Arbuckle $35,000 while his total loss during that period was “more than $100,000.” Going by later estimates, both figures were low.
* Those “detectives” included Mack Sennett (himself an unlikely suspect), who devoted three chapters of his autobiography to the case, and legendary director King Vidor, who researched the mystery for a screenplay and whose notes were used for the 1986 book A Cast of Killers.
{17}
THIRD TRIAL
The jury that will determine his future is not the jury that will determine whether or not he will go to jail. The jury trying him will be the public, and regardless of what the court jury hedged about by the technicalities of court procedure may do, the public will do its own judging.
—“THERE’LL BE Two JURIES,” HOLLYWOOD DAILY CLTIZEN
Four days after the second trial, a newspaper story quoted Chicago attorney Albert Sabath, who, acting on behalf of the defense, had acquired a deposition from a “surprise witness” testifying to Virginia Rappe’s past. “The vote of ten to two for conviction by the last jury,” Sabath said, “ended the defense policy of shielding [Rappe]. It appears almost impossible to free Arbuckle and at the same time steer the testimony clear of the facts about Miss Rappe’s condition. We must show the kind of life which she led.”
From the New York Times of February 14, 1922:
WAITED FOR ZEH PREVOST
But Supposed Arbuckle Witness Outwitted New Orleans Police NEW ORLEANS, La, Feb. 13—A young woman thought by police to be Zeh [sic] Prevost, the missing Arbuckle case witness, escaped from a hotel here today while detectives were waiting in the lobby for authority from San Francisco to arrest her. She is believed to have lowered herself by rope from a third-story room to a courtyard below.
The woman who called herself Zey Prevost had registered at the New Orleans hotel under a predictably peculiar name, Mrs. Zabelle Elruy, with no given address. The day before her getaway, while denying to newspaper reporters that she was Prevost, she claimed she was leaving soon for Cuba. Prevost had been held for seven weeks in a stranger’s house before the first Arbuckle trial, impeached in the second trial, repeatedly lambasted and ridiculed in the press, and faced a possible perjury charge from the San Francisco district attorney. Escaping out a third-story window seemed the most rational course for “Zabelle Elruy” if it meant dodging those staked out below—the reporters but especially the policemen who would expedite her return to San Francisco for yet another Arbuckle trial. So the search for the prosecution’s (faded) star witness continued, expanding to include the Caribbean.
The state doubtless believed that an earlier perjury charge, the one against Minnie Neighbors, had worked to effectively eliminate one defense witness and potentially frighten away others. So even though the charge had eventually been dismissed, they brought another. Before jury selection began in the third trial, a grand jury indicted both Neighbors and Florence Bates for perjury. Ultimately, neither woman was tried, but neither woman testified again either.
On March 16, after the questioning of fifty-one citizens, a jury of eight men and four women was seated for the third trial of Roscoe Arbuckle. Once again, Judge Louderback ordered them sequestered in a hotel. Then, soon after opening arguments began, the state tried to remove juror Edward Brown, because the grocer had twice been prosecuted for violating pure food laws and thus could be prejudiced against the district attorney. Because he had already been sworn in, Brown stayed; he eventually served as jury foreman.
The prosecution called five doctors, including Ophüls, Wakefield, and Beardslee, to discuss Rappe’s condition before and after her death. But the defense was determined not to merely rerun the previous two trials for a different audience. Under cross-examination, they delved into the health of Rappe’s bladder and urethra to get doctors to admit that an inflammation in the former may have caused a constricting of the latter, and that a resulting inability to urinate may have predisposed her distended bladder to rupture.
Perennial but reluctant witness Alice Blake recounted her version of events for the sixth time—including her affidavit, the grand jury, the preliminary hearing, and the two previous criminal trials. Her memory was again foggy, and under cross-examination she broke into tears. The defense scored points when Blake couldn’t recall seeing Rappe and Arbuckle enter room 1219 nor Rappe subsequently saying “He hurt me.” She also said Rappe and Arbuckle were in the room alone for no more than fifteen minutes.
Blake’s fellow star witness Zey Prevost was located again in New Orleans and detained. Her telegram to Brady read, “If you want me to appear as witness in the Arbuckle case wire me ticket and I will come immediately.” Brady wired the appropriate train fare, but Prevost claimed she was “taken sick” just before the train’s departure and did not know when she would be w
ell enough to travel. She never was—until the trial ended.
Nurse Grace Halston testified again and, after strenuous defense objections, described in detail the bruises she saw on Rappe’s body. A police photographer then presented photos of the bruises. When a shot of Rappe’s lifeless face was passed about the counsel’s table, Arbuckle hung his head to avoid seeing it.
Friday, March 24, was Roscoe Arbuckle’s thirty-fifth birthday. He spent it in Judge Louderback’s courtroom listening to Prevost’s previous testimony read into the record and prosecution witnesses retelling tales from earlier trials: Drs. Rumwell and Strange on Rappe’s autopsies, Dr. Castle on Rappe’s medical treatment at Wakefield sanitarium, and the always crowd-pleasing hotel maid Josephine Keza, who under defense cross-examination abruptly declared, “I don’t think I’ll answer any more questions”—a large laugh line. Arbuckle received birthday telegrams and presents from fans and, during recesses, well-wishes from many in the courtroom. The presents included a fancy checkbook from an unknown giver. “I don’t see why I should be sent a checkbook,” he said. “I haven’t money enough anymore even to make out one check, much less a whole book.” Though it was said in jest, on Sunday ARBUCKLE IS BROKE was front-page news throughout the land.
The state continued to bring forth witnesses from the previous trials: reporter Warden Woolard, fingerprint expert Edward Heinrich, Rappe’s “aunt” Kate Hardebeck, and studio security guard Jesse Norgaard. When the defense brought up Norgaard’s recent arrest for escaping from a chain gang in 1918 (his original arrest was for selling alcohol to soldiers), the prosecution objected, applying the word “shyster” to opposing counsel, and when the defense replied in kind, Judge Louderback told both sides they were bordering on contempt.
As the prosecution’s case followed the pattern of the second trial—if more contentious as the defense challenged the vulnerabilities of witnesses it had come to know—it may have seemed that the state was willing to rely on its nearly winning strategy of weeks earlier. But District Attorney Brady had a surprise final witness, a name not previously heard: Virginia Breig. She was the secretary at Wakefield sanitarium, and she told a story potentially devastating to Arbuckle.
Breig claimed to have visited Rappe on the day of her death. “She asked me about the amount of the bill that would be due,”* Breig said of the feeble Rappe. “She said she did not see why she should pay the bill as Arbuckle was responsible for her being there. I told her that if Arbuckle or anyone else should pay the account after she left, the money paid by her would be returned. She replied that she was not going to leave, that she was going to die. Then I asked her why she thought she was going to die. It was then that she told me the details of the party.” The following detail mattered most. According to Breig, the dying Rappe said, “Arbuckle took me by the arm and threw me on the bed and put his weight on me, and after that I do not know what happened.” Here then was the missing piece to complete the prosecution’s puzzle: a witness heard Rappe say Arbuckle committed a specific act that could have burst her bladder.
McNab pounced. He asked if Breig had telephoned Arbuckle asking him to pay Rappe’s bill, with the threat that if he didn’t she would tell her tale to the district attorney. Breig denied this. He asked why she had kept her story to herself until that Monday, six and a half months after Rappe’s death. She said she wanted to avoid the notoriety and had been summoned to testify only two days prior. McNab moved to have Rappe’s deathbed accusation, as told by Breig, stricken from the record as hearsay. Motion denied.
Maude Delmont was in Chicago, where she said that the depositions taken there “trying to blacken Virginia Rappe’s character” were false. She was accompanied by an Illinois assistant state’s attorney representing Brady. She said of the trials, “A great opportunity was lost in making a wonderful example of Arbuckle’s case. It’s not the first time he had done a thing like this, either. It makes me boil to see these attempts to defame Virginia’s character and none whatever of Arbuckle’s past brought up.”
When the much-anticipated defamation of Rappe’s character arrived, it was less than advertised. The defense did, however, win early headlines when Chicago nurse Virginia Warren stated that Rappe prematurely birthed a baby during bladder trauma in 1910. However, Warren stumbled under cross-examination when her nursing credentials were challenged. Also, like so many in this case, Warren had adopted a different name, and when pressed by the prosecution, she wasn’t even certain of her real name. Most of one day was taken up with reading the depositions of Chicago medical personnel regarding the young Rappe’s bladder and abdominal pains. The state later succeeded in getting one of the depositions stricken from the record when the doctor was uncertain if the girl he remembered was Rappe.
But the most inflammatory deposition was that of Josephine Rafferty (a.k.a. Josephine Roth), who was most probably the “surprise witness” to whom Albert Sabath alluded when he spoke of showing “the kind of life which [Rappe] led.” Rafferty said in her deposition:
I first saw Virginia Rappe in February 1908 in my home. I had studied medicine for three years and was a midwife. At that time Virginia Rappe [then sixteen] was about to become a mother. Between that time and 1910, Virginia Rappe was about to become a mother on four other occasions. I attended her on each occasion. The first time she was very ill. On the next three occasions, I attended her six weeks each time. The first time she was ill a baby was born. Miss Rappe throughout my attendance of her was a sufferer from bladder trouble.
Because Rafferty was not called to the stand, the state could not cross-examine her, but it would take its shots in its closing statements. Friedman treated her very name with disdain, calling her “Rafferty-Roth,” and he stated that “according to her own testimony and the testimony of Mrs. Warren, [Rafferty] was conducting nothing but a house of abortion.” Abortion was then illegal in Illinois. Rafferty’s statement regarding “attending” Rappe on four occasions when she was “about to become a mother” was likely a euphemism for abortions.
Jesse Norgaard’s character, still smarting from the defense’s focus on his recent arrest, took up much of a day when a justice of the peace testified that he could speak to Norgaard’s morals but not his integrity, and thus the trial veered off into a lengthy cul-de-sac as a dozen authorities and a dictionary were quoted so the prosecution and defense could attempt to define “integrity.” Alas, integrity eluded both sides.
A screenwriter and two actors told tales of Rappe’s inability to consume alcohol without convulsing in pain and/or tearing off her clothes. And a woman named Helen Whitehurst testified that when she and Rappe were friends in Chicago in 1913, Rappe had suffered two similar public attacks at cafés and one at a political campaign dinner. Fred Fishback could no longer recall much of anything; FISHBACH [sic] LOSES MEMORY ON STAND, read a headline.* And two doctors explained why Rappe’s distress indicated chronic bladder problems.
Having learned from its mistakes in the second trial, the defense called Roscoe Arbuckle to the stand at 10:45 on the morning of April 5. He was smiling as he wedged into the wooden seat. With the movie star speaking under oath for only the second time, the trial was again the toughest ticket in San Francisco, though the female audience was described as “less enthusiastic” than that at the first trial.
Arbuckle retold the tale of finding Rappe in 1219’s bathroom and helping her. Asked if Rappe said anything to him, he replied, “Miss Rappe never said a word while I was in the room. She moaned and groaned.” He admitted having known Rappe for years, but said he knew none of the other guests at the Labor Day party. As for Jesse Norgaard, he claimed to have never made his acquaintance. He denied having placed ice upon Rappe, and he denied having placed his hand over Rappe’s on 1219’s door. “I was not near that door for the whole time I was in the hotel except when Miss Rappe was carried from the room,” he said, referring to his later carrying her part of the way to room 1227. Arbuckle’s purple bathrobe, which the defense sarcastically referred to as “
wicked”—a word stricken after the state’s objection—was placed into evidence by the defense.
In its rebuttal, the state brought forth a doctor who testified that bladders could not spontaneously rupture, as well as people who claimed Rappe was healthy during various stages of her life: friends in Chicago, the Hollywood Hotel manager, a chauffeur she had employed. Kate Hardebeck said her “niece” was mostly in great health, though the state likely regretted calling her when she said Rappe had been treated for an unnamed ailment in 1921 and the doctor advised her to get an operation. To Hardebeck’s knowledge, Rappe was never pregnant. Again enacting a favorite strategy, Brady ordered Virginia Warren and Helen Whitehurst before a grand jury for perjuring themselves, under the presumption that others had effectively invalidated their testimony.
In surrebuttal, the defense called Rappe’s former boyfriend Harry Barker, who repeated his tale of seeing Rappe pained and tearing off clothes in Chicago. A doctor, Charles Barnes, told how he operated on Rappe in Chicago in 1909 for a bladder abscess. A woman claimed to overhear Hardebeck saying Rappe had been ill, and two chauffeurs said Rappe’s former driver told them Rappe had had an attack in his car.
Henry Lehrman was supposedly in San Francisco meeting with the prosecution and would perhaps take the stand to defend the honor of his “fiancée,” but he never appeared in the courtroom as a witness or as a spectator. Three days before the trial ended, thirty-five-year-old Lehrman, the grieving “fiancé,” announced his engagement to a nineteen-year-old Ziegfeld Follies dancer. Seventeen days later, they wed. After twenty volatile months, they divorced. It was his only marriage.*
