First Arbuckle trial: Milton U’Ren’s closing argument, December 2, 1921

Milton U’Ren grinned, his teeth crooked and sharp in the long, lean face.

—Ace Adkins, Devil’s Garden

The hiatus in our blog entries is, of course, due to the holidays. But we are drafting one of the key chapters in the book, with the working title “Spontaneous Rupture of the Bladder.” What follows is the final argument of the first trial given by one of Roscoe Arbuckle’s most dogged prosecutors, Assistant District Attorney Milton U’Ren. Arbuckle case narratives—with the exception of Greg Merritt’s—don’t give U’Ren his due as an important figure in the three Arbuckle trials. Typically, if there is a mention of him, he is demonized, albeit as a minor demon. While many writers attribute some personal animus for Arbuckle on the part of District Attorney Matthew Brady, it is evident in the transcripts that it was U’Ren who was most determined to see Arbuckle brought to heel.

This hostility was noted during the first week of the Arbuckle trial, when U’Ren routinely referred to Arbuckle as a has-been.

Having no real political aspirations or agenda, U’Ren likely saw Arbuckle as an avatar of the sins of the motion picture industry. U’Ren was a Progressive Republican who shared Theodore Roosevelt’s belief that an unhealthy body betrayed unhealthy behavior. (Roosevelt, as a boy, took to heart being diagnosed as “suffering from a handicap of riches.) Then there is also the possibility that U’Ren wanted to avenge Virginia Rappe—a task that could hardly be left to Maude Delmont, a woman he saw as just another debauchee. But, lastly, and more likely, U’Ren was the father of two young daughters, aged five and seven. That motivation also applied to two others who regarded Arbuckle as an uninhibited predator. Matthew Brady’s only child was a daughter and Captain of Detectives Duncan Matheson also had two daughters.

On December 1, 1921, Milton U’Ren’s fellow prosecutor, Assistant District Attorney Leo Friedman, presented the first half of the prosecution’s closing argument. He was followed by Arbuckle’s lead defense attorney Gavin McNab, whose closing argument continued into the next day.

Otis M. Wiles of the Los Angeles Times thought “the dynamic and youthful prosecution attorney” had an effect on the jury. “For one hour and forty-six minutes,” Wiles wrote, “Friedman literally dragged Roscoe up and down before the jury of five women and seven men, nailed him to the cross of justice and pelted him with the defilements of his mental makeup.” Indeed, without using a rather new word for 1921, Friedman presented Arbuckle as a sociopath. But any “wounds” he delivered on the comedian, according to Wiles, “soon were alleviated by the healing power of McNab’s soothing syrup voice”, his “mellow Scotch accent,” and his “genial smile.”

A natural orator like fellow Democrat William Jennings Bryant, McNab could sway a jury with the force of his voice, figures of speech, and frequent allusions to American decency and the Bible. Most journalists at the trial sided with him and devoted more column space to his exposition.

Milton U’Ren’s was treated as footnote in most newspapers. We wanted to present as much of it as possible because the prosecution of Roscoe Arbuckle was very much U’Ren’s project and his contribution deserves to be restored. The following is taken from our work-in-progress. Without a transcript of the first Arbuckle trial—which exceeded 2,200 pages or 525,000 estimated words—we extracted quotations from the extant reportage, compared them, and harmonized them to render a narrative that comes close to the original language and order of each speaker’s address to the jury. This method is provisional and comes with caveats that all the quotations used are based on contemporary reporters’ notes. Their objective was to get the feel and intent of the original. So have we. But our objective is to pull as much together of the Arbuckle trial experience as possible.

From left to right, Milton T. U’Ren sitting next to Roscoe Arbuckle and his criminal defense lawyer, Frank Dominguez, September 1921 (San Francisco Public Library)

Gouverneur Morris was a regular attendee at the Arbuckle trial and published his occasional vignettes.[1] Like other journalists behind the rail of Judge Louderback’s courtroom, he had taken sides. Morris believed that Arbuckle had “spoken the truth” on the stand. Morris questioned nothing and took to task the person responsible for the comedian’s long ordeal. “[Frank] Dominguez,” he wrote, “lost his head, forgot that it was his client who was the million-dollar actor, assumed the role himself, ranted, mistook friends for enemies, antagonized everybody in sight and imposed absolute silence upon Arbuckle.”

Morris had good reason to take sides. He had just enjoyed a year of success as a scriptwriter and hoped to enjoy another, as well as the perquisites and status of the film colony in Los Angeles. No doubt, too, Morris represented the feelings of not only the press but many in the motion picture industry, that what happened to Virginia Rappe should be put behind them. Nothing would bring her back and there was barely enough of her on screen to remember, to fill a couple of matinees.

As to the closing arguments, in the last piece Morris posted from the Arbuckle trial, he hardly looked forward to them. “[W]e shall listen to Friedman and U’Ren saying absolutely nothing for four mortal hours.”

* * *

Gavin McNab would be a hard act to follow. Even fair-minded observers had to admit that Arbuckle’s lead attorney had the ladies and gentlemen of the jury, as well as the press, in the palm of his hand. That Matthew Brady had chosen not to speak was noticed. To his harsher critics, Brady’s not taking “the splendid opportunity to deliver an address to the jury,” wasn’t a result of exhaustion or burnout but that he was distancing himself from an impending acquittal.

All that remained was for the prosecution to go through the motions of a challenger falling behind on points and trying to avoid a knockout. Nevertheless, the “challenger” had the irrefutable fact that two people entered room 1219 and one came out. 

Around 2:15 p.m., Assistant District Attorney Milton T. U’Ren rose to speak, picking up where the defense had left off—the image of Arbuckle’s adoring young fans—and with a voice that rivaled McNab’s at least in volume. Taking umbrage at McNab’s comparing Arbuckle to Christ and praise for simply not dropping Virginia Rappe on the way to room 1227, U’Ren responded:

What would the millions of little children say if they could have seen “Fatty,” the modern Belshazzar, dressed in pajamas, surrounded by his lords and ladies, drinking, dancing, and “kidding around?” What would these children say if they could have seen him putting the ice on the nude body of Miss Rappe as she writhed in pain? And what would their mothers say? The great Belshazzar saw the handwriting on the wall and quaked as it was interpreted. “You have been weighed in the balance and found wanting. Your kingdom shall be divided among the Medes and Persians. That night Belshazzar was killed and the city overrun with enemies.

“The modern King Belshazzar has also seen handwriting on the wall,” U’Ren continued, alluding to the fingerprints on the hotel door in the same breath as he alluded to the ill-fated King of Babylon in the Book of Daniel. “The king is dead, and his kingdom is divided. He will never make the world laugh again. The king is dead. Thank God!”

Described like a cartoon character, Edward Doherty of the Chicago Tribune simply wrote a “little man, U’Ren, red faced, spectacles, bald—but he can shout.” But those familiar with Milton U’Ren from other trials knew that he, while not the orator, could sway juries “by talking quietly and reasoning logically.” And in a calmer voice, U’Ren explained that the defense had based its case upon “perjury and hypocrisy rather than upon facts. [. . .] Arbuckle’s story cannot withstand your scrutiny,” he said, “nor can it weaken the chain of circumstances against him.”

Arbuckle’s testimony was what the prosecution had been waiting for, having been limited to nothing but circumstantial evidence. In Arbuckle they surely believed they had the ultimate perjurer—one who had foolishly testified on his own behalf when he wasn’t required to do so. McNab wanted to credit Arbuckle for that. But he knew the day before he agreed to letting Arbuckle take the stand that it could work against him. U’Ren only needed to present it as a fabrication. Then, at best, only one juror was needed to keep the case alive and so move past this jury, which U’Ren, like Brady, like his other deputies, saw as tampered, an impression reinforced by the jurors nodding, smirking, winking, and their rapt attention to McNab this morning.

U’Ren declared that the defense had been opportunists, having no basis for their case and having proposed no theory for Rappe’s death until they heard the prosecution’s evidence. Here, of course, U’Ren exaggerated, given that Frank Dominguez had already introduced the argument that Rappe had a preexisting condition that made her bladder prone to spontaneous rupture. 

“It was then” he said, “that they manufactured the story that Arbuckle told—manufactured it to meet the evidence presented by the prosecution.” McNab’s argument yesterday and today “was not a summary of the case but merely an attack upon the District Attorney.” Then U’Ren cannily reminded that Matthew Brady had been a reform candidate who had beaten Charles Fickert, a man the defense presumably would have preferred. “The present District Attorney is not Mr. McNab’s District Attorney,” U’Ren continued. “Attacking this public officer is merely throwing dust in the jury’s eyes.”

After excoriating Arbuckle for his silence and testimony, U’Ren refuted the defense’s clever dismissals of the fingerprints as the ghostly hands of “spooks” and turned the incessant ridicule of Professor Heinrich against them. U’Ren, too, should have been credited with the cleverest allusion of the day, besting his comparison of Arbuckle to Belshazzar.

Another writer fascinated by the science of criminology and fingerprinting in the late nineteenth century was Mark Twain. U’Ren returned to the prosecution table and picked up a copy of Twain’s 1894 satire of penny-dreadfuls, Puddin’head Wilson, to illustrate that such an admired American author, familiar to everyone, understood the reliability of fingerprints in criminal cases.

Sitting at the defense table, Nat Schmulowitz, a bibliophile of satirical works who prized the issues of Century Magazine in which Twain’s novel had been serialized, knew where U’Ren was headed. Twain’s hero, an eccentric small town Missouri lawyer, David Wilson, could be seen in the person of Professor Heinrich during the presentation of the fingerprints on the hotel door. Deemed soft in the head by fellow townsfolk for his then-obscure use of fingerprints in crime detection, Wilson solves a murder with by distinguishing between the fingerprints of twins. Comparing him to Heinrich, who had been made out to be an egghead, a fool, and an innocent fraud by the defense’s fingerprint experts and many in the press, was a master stroke by U’Ren and not too obscure for the jury. Twain’s novel was still popular twenty years later and had been adapted into a stage play and motion picture. The maxims of Puddin’head Wilson’s Calendar were and still are pearls of Twainian wisdom (e.g., “It was wonderful to find America, but it would have been more wonderful to miss it.”).

Schmulowitz objected to U’Ren’s attempt to read from the book but was overruled by Judge Louderback (a personal decision, perhaps, since the novel centers around the murder of a judge). The “offending” passage is unknown, but it was likely from the penultimate Chapter XXI, Doom, in which Wilson, much like Heinrich, describes the criminal act in a courtroom with white sheets of cardboard with pantographic enlargements of “bewildering maze of whorls or curves or loops,” a person’s “natal autograph.”

Just after three o’clock, U’Ren closed in a long speech, excoriating Arbuckle before the jury much as he had in the beginning of his argument.

He sat there surrounded by his lords and his ladies, this man who Mr. McNab says has made the children of America laugh. He appeared in his pajamas before this mixed audience, this world’s comedian, this Good Samaritan who Mr. McNab says was merely helping a sick girl. A Good Samaritan! I proclaim him a moral leper!

This man who made the world laugh—my God!—who made the world laugh. I wonder what the children and their mothers would have though could they have seen him as he placed the ice on this poor girl’s body. He may have made them laugh before, but thank God! He never will make the world laugh again!

Do your duty so that when you go home and you can look your fellow citizens in the face. Do your duty so that you may take your children to your breast with the full knowledge that they will be protected from this man and others like him. Do your duty so that this man and all the other Arbuckles in the world will know that the womanhood of American is not their plaything.

U’Ren ended his argument at 3:20 in the afternoon. Not long afterward, the trial entered its third phase as Judge Louderback instructed the jury on coming to a verdict.

[1] This passage is based on Gouverneur Morris, “‘Fatty’s’ Story Late but True, Thinks Morris,” Des Moines Tribune, 29 November 1921, 3; Gouverneur Morris, “Rebuttal Adds Little to Case against Fatty,” Des Moines Tribune, 1 December 1921, 17; ; James Gordon, “Minister Tells Highlights in ‘Fatty’ Case,” Los Angeles Evening Herald, 1 December 1921, 1; Oscar H. Fernbach, “Woman Votes Actor Guilty, Says Report,” San Francisco Examiner, 3 December 1921; Marjorie C. Driscoll, “Arbuckle Jury Retires at 4:10 to Deliberate,” San Francisco Chronicle, 3 December 1921, 7; ; Otis M. Wiles, “No Verdict Returned,” Los Angeles Times, 3 December 1921, I:1, I:2; and other corroborative sources.

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