Bart Haley covered the first Arbuckle trial for Philadelphia’s Evening Public Ledger, one of the few newspapers in the east to assign its own reporter. His pieces delved into the personalities of the men and women who figured in the trial.
The following piece captures the atmosphere of the San Francisco courtroom as the trial was about to go into jury deliberation.
The enmity between the defense lawyers and prosecutors is palpable. So, too, are the indirect ways that the prosecution undermined the performance of Arbuckle’s lead attorney, Gavin McNab, who used his Scottish accent and sarcasm to great effect during all three trials.
District Attorney Matthew Brady’s animosity, however, isn’t only directed at Roscoe Arbuckle. Another reason he pursued justice for Virginia Rappe was to punish the monied interest behind Arbuckle. Hence, the Arbuckle trial can be seen as an exercise in social justice, in step with the progressivism of the era. That is why we find Will Hays and the Production Code as the end result.
The Howard Street Gang rapes, referenced in the article, occurred in 1920 and the trial that followed in early 1921 became a cause célèbre for feminists and Matthew Brady, the newly elected D.A. The trial was noteworthy for the reluctance of the victims to speak out against the men who assaulted them. Their reluctance is what influenced Brady to put two of Arbuckle’s female guests, Zey Prevost and Alice Blake, in protective custody—albeit against their will. As entertainers always looking toward their next gigs, it’s presumed that if they could they would have avoided testifying against “Fatty” and, by proxy. the movie industry.
Regarding Haley, he began as an illustrator for such publications as The Saturday Evening Post. In 1919, together with another writer for the Evening Public Ledger, the humorist Christopher Morley, Haley coauthored the Prohibition Era satire In the Sweet and the Dry (1919). Haley died in 1932 at the age of fifty-one.
Arbuckle’s Fate Hinges on Report on Girl’s Health; Both Sides Anxious as to What Commission of Physicians Will Disclose; Free Gangsters If Fatty Is Cleared, Cries Brady; Comedian’s Case Expected to Be Placed in Jury’s Hands by Tomorrow
By Bart Haley
San Francisco, Dec. 1. – The case of the people of California and the pursuing fates and the Women’s Vigilant Committee of San Francisco against Fatty Arbuckle will be given into the hands of a weary jury of five women and seven men tomorrow.
Before Saturday morning Mr. Arbuckle should know whether he is to be out of the trenches by Christmas or tragically and irretrievably out of what, in the language of the superstitious, is called luck.
It is considered probably that the lawyers will struggle to the bitter end without hurling their leather-bound books at each other. But the air about the counsel tables is heavily weighted with thunders and lightnings that seem to be held in check with increasing difficulty.
Yesterday, for example, Matthew Brady, the District Attorney, uttered the bitterest comment ever heard west of the Rockies from a prosecutor in the midst of a criminal case.
“If this jury acquits Arbuckle,” he said, “I shall at once formally ask the Parole Board to release the Howard street gang. I can see no reason why the Howard streeters should stay in jail if Arbuckle is to go free.”
In San Francisco, where for a whole week the Howard street gang made headlines a foot thick and caused groans in all editorial columns, the afternoon newspapers fled gasping to press hours ahead of schedule time to give this news to the eager people. The gang to which Brady referred is generally supposed to be the toughest in the known world.
About ten of its leaders got fearfully drunk not long ago, dragged two young girls into a shack, assaulted them and turned them half dead into the street. The gang is now in San Quentin Prison, and it was Brady who put it there.
The reaction of Fatty’s lawyers to this pronouncement from the prosecution was suggestive of a cataclysm of nature. They fled into a special conference. When they emerged it was only Gavin McNab who would trust himself to speak at first. He was just in time to read the corrected version of Brady’s statement.
“The first report,” said Brady in print, “does not properly reflect what I said—”
“Aha,” murmured McNab. “He’s taking it back.”
“What I said,” proceeded the District Attorney’s revised communique, “was not that I’d free the Howard street gang if Arbuckle is turned loose. I haven’t power to free anybody. But I can ask for the release of the Howard street gang and I shall do so if there is a failure to convict in this case.
“There are many points of similarity in the crime charged against Arbuckle and that charged against the Howard street gang. Heavy drinking was the primary cause of the trouble in both cases. The Howard streeters came into court without a cent. Arbuckle arrived here with a million-dollar array of counsel.
“I’ve been around this Hall of Justice for seven or eight years and I have been forced by experience and observation to believe that it is a serious crime in this country to be poor. I want to feel that this view is not justified and that is one of the reasons why I want to see Arbuckle convicted. Convicted he will be if I can help it. Moreover, I intend to put a stop to the use of manufactured and perjured evidence in cases of this sort.”
“I shall be glad indeed,” said Mr. McNab in a low and terrible voice, “if Mr. Brady, ‘putting a stop to manufactured and perjured evidence,” begins his admirable work in his own office. He impounded Zey Prevost and Alice Blake, did he not? Yet I was unable to see that that work helped him in the least to manufacture a case against Roscoe Arbuckle.”
“I’ll tell you,” said Mr. Schmulowitz, of Fatty’s counsel, knowingly, “he’s merely trying to get black headlines in the newspapers, which the jury will be able to read at a distance when it goes to the hotel or to lunch.”
Brady, hearing of this, laughed sarcastically.
“They know what I’m trying to do,” said he. “I’m trying to put their little Mr. Arbuckle in a jail and they aren’t so sure that I’m not going to succeed.”
It is hardly fair to say that Brady is trying merely to make headlines. The lights in his office and in the offices of his assistants have been burning until 1 o’clock in the morning since the trial of Arbuckle began and his detectives have been sleeping in their clothes.
[. . .]
No one here is disposed to take “Fatty’s own story without a lot of salt. It is doubtful whether the jury’s mind is not yet wide open. Neither the District Attorney nor the defense has established what is ordinarily known as a “strong case.” The evidence against Fatty is merely circumstantial. Virginia Rappe entered one of the rooms of his suite apparently in normal health. Half an hour or an hour later Arbuckle unlocked the door of the room from the inside and admitted others of his guests, who found the girl in an agony of partial delirium and, as it proved later, fatally injured.
[. . .]
So the cause of the girl’s death is still a matter of doubt which neither the prosecution nor the defense has been able to explain or demonstrate away. In the light of all this the final report of the medical commission which is to appear today may be the deciding factor of the whole case.
Eight hours of oratory will follow the commission’s report, and then the jury will retire. It was agreed before the end of yesterday’s sessions that the defense and the prosecution shall each have four hours for the closing addresses to the jury. Mr. McNab suggested that the case be permitted to go to the jury without argument. He informed the Court that the defense was willing to enter into such an arrangement if the prosecution would agree.
“Doubtless,” said Brady, coldly, with a lift of his eloquent eyebrows toward the jury, “but the prosecution will enter into no such plan.”
“He’ll dislocate that eyebrow of his one of these days,” hissed Mr. Schmulowitz to one of his colleagues, “and then he’ll have to have it set.”
A moment later the emotional stress that prevails among all lawyers engaged in the case of Fatty was oddly revealed. There was a long interval of silence and whispered conferences. Fatty was peaceably rolling his little paper balls and appearing more lightsome than he has appeared since his travail began. Mr. Schmulowitz leaped suddenly to his feet and in a voice of great emotion asked that if it pleased the Court the District Attorney and his assistants be ordered to cease heckling the counsel for the defense.
“Heckling?” murmured Judge Louderback, staring hard at Brady’s table for signs of misbehavior.
“I desire formally to object, if it pleases the Court,” cried Schmulowitz in a voice that was like tragic music, “to the various asides indulged in by the State. I mean that there are words and gestures indulged in by the prosecution which are obviously meant to annoy counsel for the defense, and, what is more, to have an effect upon the mind of the jury.”
Mr. U’Ren, one of Brady’s assistants, rose nobly to his feet to observe in a sleety drawl that surely it was no intention of the defense to deny the right of conference to the people.
The fact is that there was something to be said on the side of Mr. Schmulowitz, but he didn’t say it. Perhaps no one could say it. The causes of his outburst are almost too subtle for analysis. Brady uses his shrugs to enormous effect. And Mr. Friedman, his youngest assistant, has a way of looking up and staring with an expression of awe and wonderment and seeming to be transfixed and diverted immeasurably at whatever lawyer of Fatty’s tried by devious methods to turn a tide of evidence of circumstance to the advantage of the accused.
So he looks at McNab and so he looks at Schmulowitz for half an hour at a time, only to turn now and then to smile at the jury as one who would let it participate in the enjoyment of a spectacle, spectacular and humorous.
Somehow or other the weight of the trouble seems to have passed mysteriously from Fatty to his lawyers. Fatty is cheerful at last. He is almost himself again. The change may be due to the succession of mysterious visitors who have been appearing in court to whisper in his ear—spatted and opulent individuals who sit and listen eagerly for a while and vanish as they appear, almost without a sound.
They come from that country from which for the time being the big comedian is exiled. Things, they think, are looking up. Yes, they represent some of the important movie people, one of them remarked. He added that for all one knew this unfortunate business might prove to be the best thing that ever happened to Arbuckle.
You see, Fatty has been getting a lot of publicity. Now, if that publicity can be turned to good account, if it can be shown that the children’s favorite comedian was a victim of most unhappy circumstances, why, this Fatty will be bigger than he ever was before. So it runs, this word from the world of Fatty’s former triumphs.
“Well,” you remark, to change the subject, “he seems to be standing it pretty well. He is far from being a wisp of himself.”
“No,” says the scout of the promoters whose money is tied up in Arbuckle pictures and Arbuckle contracts and Arbuckle plans. “He is not standing it so well as you might think. He’s nervous and wrought up. You see, he’s crazy to get back to work again. When he gets to work, he’ll be all right.”