The following extract from the work-in-progress is a narrative of the prosecution witness Jesse J. Norgaard third trial testimony. And for the third time, Norgaard told how Roscoe Arbuckle allegedly tried to bribe him for the keys to Virginia Rappe’s dressing room in August 1919. Norgaard was then the night janitor at Henry Lehrman’s studio in Culver City—and a resident of the Old Soldiers’ Home in nearby Sawtelle, between Los Angeles and Santa Monica.

Norgaard served an important purpose as a People’s witness. The prosecutors believed him and believed that Arbuckle’s desire for the keys—to play a joke on Rappe—was simply a ruse for his desire to get her alone. The bribe revealed that the comedian had been obsessed with her and that obsession led to the sexual assault in room 1219 of the St. Francis Hotel during the course of a Labor Day party.

At the first trial, Arbuckle’s lead counsel, Gavin McNab, elected not to cross-examine Norgaard. This imparted to the jury that Norgaard was not to be taken seriously—and also that not enough was known about him. He was taken half-seriously at the second trial, however. Arbuckle’s personal lawyer, Milton Cohen—who also represented Lehrman and Rappe prior to her death—enlisted Albert Barnes, Lehrman’s former secretary at Culver City, as a rebuttal witness.

Barnes testified that he was in charge of a studio’s key rack, which was in his office. Hence, Norgaard would not have possessed a key to Miss Rappe’s dressing room. From that, the jury could infer that Norgaard was simply a prosecution plant and his story invented to convict Arbuckle. But that jury had almost convicted the comedian 10–2.

Norgaard was taken very seriously for the third trial. Cohen had a good detective working for him, John A. Rose. He was likely responsible for the good “opposition research” to offset Norgaard with some adroit character assassination—not unlike employed on Virginia Rappe herself at the same trial.

I have done some research of my own on Norgaard, a ne’re-do-well Danish immigrant whose military career was spent as a laborer rather than a pony soldier or infantryman, whose military career began with the construction and expansion of Ft. Meade in South Dakota. He was always a soldier in good standing—and that was good enough for Arbuckle’s prosecutors. That said, we have to realize that Arbuckle was a studio prankster. Indeed, in Joan Myers interview with Frank Thompson of The Commentary Track, she speculates that what happened to Rappe in room 1219 was an Arbuckle prank gone wrong. I can see that. But there is a darker way to see a misadventure of another kind. Ms. Myers almost “goes there.”

For more about Norgaard, see this earlier post.

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Pvt. Norgaard, ret.

On March 17, when the third trial jury had been sworn in, Gavin McNab told reporters how pleased he was. As an aside, he told them that a certain “Jesse Norgaard,” believed to be the same Jesse Norgaard who accused Arbuckle of trying to bribe him for the key to Virginia Rappe’s dressing room in August 1919, had just been taken into custody at the Old Soldiers Home at Sawtelle. According to McNab, a year earlier, Norgaard escaped from a chain gang in San Diego after being convicted of selling liquor to a soldier. Anyone paying attention to McNab’s line of questions to prospective jurors knew that the defense had something on the “war hero” of the second trial. Matthew Brady, however, seemed surprised by this development and, after wiring the Chief of Police of San Diego, Norgaard was “paroled.” That said, Milton U’Ren and Leo Friedman came prepared to meet this bald attempt to assassinate the character of their witness, a lowly janitor and war veteran. They intended to let him explain himself.

U’Ren’s direct examination was succinct. Once more he had Norgaard describe how he wandered into Arbuckle’s office on his side of Lehrman’s Culver City plant, ostensibly to fetch a hat he had left on the hatrack. Then Arbuckle proffered a roll of “20’s and a 10” at Norgaard and asked for the key to Miss Rappe’s dressing room to play a joke on her.

Meanwhile, McNab voiced the same objection to Norgaard’s story as in previous trials, that it was too “remote in time,” which would sound rather hollow given where he was ultimately going. And even though this objection had always been overruled—and it was now—it still influenced jurors who saw the comedian simply being “Fatty,” indulging some harmless fun with a fellow actor that had nothing to do with the Labor Day party.

For McNab’s part, he had no intention of playing with Norgaard. This would not be the same perfunctory cross-examination of previous trials. McNab intended to draw blood—not from just form Norgaard per se, but to further discredit the prosecution for having put a plant on the stand in a weak attempt to prove that Arbuckle had prior intent. And so McNab had Norgaard admit that Virginia Rappe’s dressing room adjoined others and that there were always actors and actresses present—and no one worked under the glass ceiling at night. This way, the jurors could infer that even if Arbuckle had really wanted that key, this so-called joke was hardly personal and hardly an attempt to “get” her alone.

McNab, however, did not score the desired point when he tried to revive the rebuttal testimony of Albert Barnes and the key rack he claimed to have in his office. Norgaard remained adamant that he possessed one key to Miss Rappe’s dressing room, she the other, and never saw such a key rack in Barnes’ office.

Suspecting that Norgaard had been too well coached, McNab probed for the name that he already knew was U’Ren. “When you came here to give your testimony,” he asked, “with which of the district attorneys did you discuss your testimony?” But Norgaard did not take the bait. “I didn’t have no conversations with nobody,” he answered. “He put me on the stand, just to tell what I know.”

McNab moved on. Norgaard admitted that he was not always a resident of the Old Soldiers’ Home, he had “been out on a furlough a good deal.” Then came the question seemingly intended to expose the reason why Norgaard would be cooperating with the prosecution. “Were you on furlough on the 5^th day of December, 1918?” McNab inquired—and was met with objections from both U’Ren and Leo Friedman that such a question was improper for cross-examination.

“I have a right to test his memory under the law,” McNab protested—and reframed the question. “What was your occupation on the 5^th day of December, 1918?”

“I couldn’t tell you,” Norgaard replied. But the court allowed for McNab to continue his test after he “fixed the town” for the witness: San Diego.

Norgaard would only say that he had been working at Camp Kearney in 1918. “I don’t know,” he replied to December 5. So McNab cut to the quick. “To refresh your memory,” he continued, “weren’t you on that day sentenced to six months in jail?”

The question triggered U’Ren, for McNab was obviously setting the stage for impeaching the witness well outside of what he had said about Arbuckle. “I never saw such a thing in all my experience down here,” U’Ren scoffed, meaning the Hall of Justice, “and if this thing had been pulled by a man who practiced before the police court, it would be termed ‘shyster tactics,’ for counsel to ask a question of a helpless witness like this.”

Judge Louderback winced at the word “shyster” and some jurors gave U’Ren looks of disapproval. But he did not let up. “Here is a man,” U’Ren continued, “who has fought for his country, who is an inmate of a Soldiers’ Home, and who has the right to be protected by this court, as well as by all the rules of evidence, and I again invoke the power of this court for the protection of this witness.” Then he responded. He did not see McNab’s questions involving an impeachable offense—only that he wanted to bring out “something regarding the witness’s past.

“I cannot quite see how that fact is not produceable,” Judge Louderback said, “any more than the fact as to whether a person had been confined in an insane asylum is not produceable.” He alluded, of course, Kate Brennan’s testimony at the second trial. But U’Ren had the authorities and now it was Friedman’s turn. He accused McNab of “gross misconduct,” for “showing the bad faith of the mental gymnastics supplied by these people for the purpose of getting this matter before the jury by indirection.” Then, he, too, alluded to the second trial, when the court ruled against for the defense, preventing him from reading “in the presence of the jury certain written statements that witness had made”—meaning Alice Blake’s signed statement of September 3. Then Friedman also accused McNab of “pure shyster.”

McNab dismissed Friedman’s request that he be censured and made a stipulation. “I want to say to this court,” he declared, “that if the defense produces any jail-bird testimony before this jury at any time, we will not object to any evidence being shown that he was because—”

“We will accept that stipulation,” U’Ren interrupted, half-serious, half-facetious. And then he realized that McNab very likely had a “friend in court.”

“I think there is no doubt,” said Judge Louderback, “you can go into the occupation of a person at any time in their prior life.” Then he requested the prosecution to produce their authorities but would not hold up the cross-examination. “There is this decided difference,” the judge continued, “it is always interesting for the juror, in weighting the witness’s evidence, to regard his past, but whether he is guilty of an actual felony [. . .] that is an actual impeaching question.” And so the question in question was repeated to the witness. “To refresh your memory,” the court reporter read aloud, “weren’t you on that day sentenced to six months in jail?” Norgaard said he was and was offered the chance to explain and managed to blurt out that “the Arbuckle side” had him arrested on March 16 and looked at McNab and accused him of sending “two men after me from Los Angeles, and threw me in jail in Los Angeles, and from there down to San Diego; and they had nothing against me down there.”

Norgaard had been turned “loose,” as he put it, after he telegraphed “the district attorney,” meaning Matthew Brady, who thereupon “telegraphed back to them to hold me.” McNab did not let up. Loud enough for the jury to hear, he reminded Norgaard of the “fact” that five days after being sent to jail “you broke jail, and had been an escapee ever since, until the authorities in San Diego heard of it two weeks ago?”

A. No, sir; they know where I was all the time.
Q. They did know where you were?
A. The papers wasn’t made out in San Diego at all; they was made out
      in Los Angeles.

Norgaard was hardly being evasive. The authorities in San Diego had simply not charged him—or had never noticed—that the old soldier had walked away from what would now be called a “minimum security facility” on December 10, 1918.

Q. And you were paroled there, were you not, to come here and give
      your testimony?
A. I was turned loose; nothing against me.
Q. Don’t you know that you were paroled there at the request of
      the District Attorney of San Francisco so that you could come here
      and testify.
A. I don’t know anything about that.

And this is why U’Ren made the jailbird stipulation. He knew that Arbuckle’s lawyers, most of all, Milton Cohen, had Norgaard rearrested and incarcerated in San Diego. The gambit that worked both ways to their advantage. If some dated charge stuck to Norgaard, he would look bad to jurors. If Brady had any hand in his release, he, too, would look underhanded to the jury. And since McNab had accomplished his mission, he embarked on the next, dropping the proverbial “second shoe.”

Q. Did you ever live in Catalina Island?
A. Yes, sir.
Q. When?
A. Oh, I forget when that was; I worked over there
      a couple of months.

Norgaard eventually mentioned “that big hotel there.” Then McNab continued to elicit what sounded like evasive answers. He just needed just one in regard to the one grade school on Catalina—and other flat denials.

Q. Well, was that all you did in Catalina Island? Nothing else?
      You never acted as janitor of the Avalon School? You never
      did—sure of that.
A. Yes.

U’Ren did his best to object to going so “far afield” into the Norgaard’s past. For his part, Norgaard continued to answer as if he did not know what McNab was talking about. He did not recognize the names or events that followed. Had he ever met Justice-of-the-Peace J. H. Stanford “the day you left the Island”?

A. Don’t know him.
Q. You didn’t, then, meet him in his office the day you left the Island?
A. Don’t know him.
Q. Did you ever know the daughter of John Edmundson, at Avalon,
      the eight-year-old daughter?
A. I don’t know the man.
Q. Did you ever meet Mr. Burgess, the Chairman of the School
      Board at Avalon?
A. Don’t know him.

Finally, McNab asked if Norgaard recalled the name of the policeman who escorted him to the boat on which he departed Catalina. Norgaard did not. Thus McNab could now call these men, perhaps even the little girl, to the stand as rebuttal witnesses for Arbuckle’s defense and handed U’Ren back the old soldier whom the jury now suspected was just a dirty old man.

During his redirect examination, Norgaard told a story that U’Ren hoped might exonerate him in the eyes of the jury and even garner sympathy. Norgaard told them he had been at Camp Kearny during the summer of 1918, “running a soft drink stand for the lady running the skating rink.” After the camp was closed for the Spanish flu epidemic in November, Norgaard worked as a hotel “vestibule man” in downtown San Diego. While there, he fell ill and bought a quart of whiskey “to break my cold up.”

One evening before supper, while in mixed company, he announced, “Well, I will go up to my room and have a drink first.” But he never got a chance to pull the cork from his medicinal whiskey.

I went into the room and got a corkscrew, and just then a soldier came in’ and I says, “you coming in kind of smooth, ain’t you? He never knocked or anything. So he said, “Any girls in this hotel?”

“Not that I know of,” Norgaard replied—and any juror save for the most prudish would know that the “soldier” saw Norgaard as the hotel pimp. Then, seeing the whiskey, the uninvited soldier complemented Norgaard on the label. What happened next to those worldly jurors, and what U’Ren counted on, should have sounded as if he had been set up. “It out to be,” Norgaard said,

“I paid $3 for it.” He took the bottle and put it in his coat; and just then somebody knocked from outdoor, and I opened the door, and here was a plain clothes man standing with badge in hand; he says, “What you doing here?” and I says, “This is my room, that’s a funny question.” He says [. . .] you got any whiskey?” I says, “No, sir.” He says, “Throw up your hands, I want to see.”

In the end, after the plainclothesman frisked Norgaard, he took his billfold, which had $182 that he never saw again. As for the soldier who followed him upstairs, he pulled out the bottle of whiskey and claimed that Norgaard sold it to him for $3.00—that evidence being the money in the billfold. After being hit over the head with the bottle for asking if he could “fix the room up,” Norgaard was arrested and taken to the “M.P. station.” This, too, was a clue, for it was a common practice for the U.S. Army and Navy in San Diego to police the spread of venereal disease among the ranks as well as illicit sales of alcohol as well in dry cities and counties as Prohibition loomed. Even so, for U’Ren the strange story might not make Norgaard a hapless victim of two MPs in need of an arrest, especially the rest of it after he pleaded no contest before a San Diego Police Court judge. Well, this soldier got the whiskey,” Norgaard recalled, “and I says, ‘I suppose I’m guilty,’ so he sentenced me to six months on the City Farm [. . .] and I stayed there, I think it was five days, and walked off; that’s the last of it.” Subsequently, Norgaard wrote the Chief of Police of San Diego for his belongings, including a gold watch, a “Government bond,” his billfold, and money, only to learn by return mail that the evidence room had already given it back to someone named Norgaard and had a receipt.

McNab objected to this story as well as U’Ren trying to probe for the defense’s hand in having Norgaard arrested earlier in the month—and the court sustained those objections. The only thing left to do was have Norgaard finally tell a jury what he did while a private in the U.S. Army. “I was a soldier in 1882, in the Seventh Cavalry,” he said, “against the Indians in the Black Hills, and I was in the Philippines three years.”

After he left the stand, Judge Louderback admonished both U’Ren and Friedman “for certain things said that went into the record,” meaning “shyster” and “shystery,” which was often the only thing of note about Norgaard’s testimony reported in newspapers the next day. Nothing was printed of what Friedman said, surely in response to the obdurate judge’s show of bias. Rather than let the court adjourn, Friedman quoted from one case law after another, stressing that even if Norgaard had been a woman, a prostitute who had been raped in a hotel, he could not be asked the questions that McNab posed regarding his occupation. Such questions, even if for “enlightening the jury, constitute nothing else by an inquiry into the man’s past life or woman’s past life, for the purpose of impeaching that witness.”

Nevertheless, an eight-year-old girl, now ten, made a new problem for the prosecution’s “Indian fighter” pitted against the best lawyers money could buy.