Arbuckle’s lawyers as witnesses . . . for the prosecution?

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On Saturday, April 8, which was a short session for the third and final Arbuckle trial now entering its third week, Assistant District Attorney Leo Friedman called Gavin McNab, Arbuckle’s lead attorney, to take the stand. According to the Associated Press reporter, McNab “absentmindedly” did so without being sworn in.[1] More accustomed to examining witnesses rather than being questioned as one himself, McNab was asked how he obtained the deposition of Mrs. Helen Madeline Whitehurst taken by Albert Sabath, the Chicago attorney.

Earlier in the week, she had taken the stand and claimed to have seen Virginia Rappe drinking in her Chicago cafés and her own home in 1914 and 1915, becoming ill and tearing off her clothes—the behaviors that she exhibited in Arbuckle’s hotel bedroom on Labor Day 1921.

During her examination, McNab confronted her about a discrepancy found in her deposition regarding how many times she saw Rappe fall ill in her home: a “number” of times versus only two.

Whitehurst claimed her deposition had been altered and McNab then offered the deposition as an altered document. This seemingly minor detail, however, prompted the prosecution to expose the true nature of Sabath’s relationship to the defense—as a purveyor of tainted evidence and witnesses all designed to damage the reputation of Virginia Rappe.

McNab said that Sabath wasn’t a defense attorney and that his office didn’t correspond with him. If Sabath had acted as a defense attorney, McNab said, those arrangements had been made “in the east,” adding that he didn’t know who sent him the deposition, stating that it merely came to him “from the east.”

The prosecution’s strategy here was simple: to reveal that Sabath had really been in the employ of the defense during the time that he had been commissioned by the court to take depositions in Chicago. In that capacity, Sabath should have been answerable to the court and expected to be impartial. Logically, such a strategy put jury members in the strange position that if any of them voted to acquit Arbuckle, it would be with the knowledge that there might have been false testimony presented. By placing the burden of guilt on the jury, Brady and his assistants hoped to bolster their case against Arbuckle made entirely on circumstantial evidence and also parry the defense’s attacks on Rappe’s character—to restore the victim to her victim status.

McNab expressed a certain plausible deniability by stating that his colleague on Arbuckle’s so-called “million dollar” defense team, Charles H. Brennan handled the “eastern agents” of the defense. But that was as far as Friedman got before McNab’s chief assistant, Nat Schmulowitz objected—and Judge Louderback sustained. McNab left the chair and Friedman called Brennan to the stand. He testified—this time under oath—that he knew Sabath, having met him in October 1921. He also admitted that Sabath handed him the deposition in Chicago in late February but denied that Sabath worked for the defense. In contrast to the AP Night Wire, Oscar Fernbach of the San Francisco Examiner reported that Brennan said that Sabath, “in the time of procuring a statement for the defense from Mrs. Helen M. Whitehurst, was not a commissioner of the court.”[2]

A cursory look at the reportage from October 1921 and February 1922 reveals that Sabath, indeed, had been working closely with the defense. This, of course, put Judge Louderback in a more uncomfortable position than the jury. The judge could now be seen as having favored the defense. He had commissioned a lawyer who obviously worked for Arbuckle’s defense since October if not earlier—and Sabath himself wasn’t the least bit covert about it. He had offered to defend Arbuckle at the third trial in the wake of the second trial. He had personally dispatched one of his Chicago witnesses for the defense, Nurse Virginia Warren, to San Francisco so that she was well prepared to take the stand and say that Rappe gave birth to a premature infant in 1908.

This small but bold move by the prosecution ended the rebuttal phase of the third Arbuckle trial. It was followed by a brief surrebuttal, in which Harry Barker, although sick from a cold or flu, repeated his testimony from November 1921, in which he, as Rappe’s former Chicago sweetheart, suffered her hysterics vis-à-vis a drink or two. Ironically, Brady and his associates were aware that Sabath was Barker’s friend, business partner, and fellow litigant in a long-standing lawsuit that already made its way to the California Supreme Court. But they had thus far made nothing of this curious connection. Time was running out. The public was impatient. Hundreds of thousands of dollars, if one adjusts for inflation, had been spent by the state to prosecute Arbuckle.

Gavin McNab (l to r) making a point at the defense counsel table to Milton Cohen, Roscoe Arbuckle, Charles Brennan, and Joseph McInerney (Newspapers.com)

[1] Associated Press Night Wire, in various newspapers, 9 April 1922.

[2] Oscar H. Fernbach, “M’Nab Poor Witness for Prosecution,” San Francisco Examiner, 9 April 1922, 2.

100 years ago today: How to make Virginia Rappe’s favorite cocktail on the stand

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Mrs. Winifred M. Burkholder appeared as a prosecution witness on April 6, 1922, during the final Arbuckle trial. After the defense announced that it had closed its case, she took the stand to rebut the parade of witnesses who testified in support of the defense contention that Rappe had suffered from a chronic ailment that compromised the structural integrity of her bladder such that it could burst spontaneously. The primary target of her rebuttal was, Virginia Warren, a Chicago nurse who claimed that Rappe gave birth to a child in 1908—the year that followed Rappe’s appearance in the Chicago Tribune as a rising young art model much in demand.

Like Rappe, Burkholder was a model but older and from an entirely different background. She had abandoned her husband and young son in rural Minnesota a in 1908 or ’09 to study fashion design and illustration in Chicago. During this time she reinvented herself and likely met Rappe either taking the same classes or working the same fashion shows.

Burkholder also managed models and led a troupe of young women on a tour of various department stores in the Midwest and South in 1913. Rappe was one of her stars in the traveling “Promenade des Toilettes” and garnered much attention for the “tango skirt” with its risqué slit up the front.

Burkholder kept in touch with Rappe as late as 1914, another year in which the defense found a doctor who claimed to have delivered another of Rappe’s purported progeny. Since his deposition was tossed out, Gavin McNab, Arbuckle’s chief counsel, concentrated on trying to shake other aspects of Burkholder’s rebuttal, especially in regard to her dates.

Rappe’s guardian, Katherine Fox, testified that Virginia was in San Francisco in the late summer of 1914. But Burkholder insisted that Rappe was in New York City visiting relatives, a family with the surname of Gallagher.[1]

During the course of asserting that Rappe had never been seriously ill or pregnant to her knowledge,  Burkholder disclosed Rappe’s favorite drink.

Mrs. Burkholder said that she frequently went to cafes with Miss Rappe and that the girl, though not in the habit of drinking extensively, would order a Bronx cocktail before dinner and a French liqueur afterward. This brought the question from Gavin McNab, chief defense counsel:

“How is a Bronx made?”

“Of gin and orange juice, I believe,” the witness responded, “and Virginia had hers made mostly of orange juice, as she did not like the taste of gin.”[2]

She got the basic ingredients right but for a really good Bronx cocktail the bartender should add a little dry vermouth and a dash of orange bitters.

The great irony here is that a Bronx was Arbuckle’s favorite cocktail for his traditional late breakfasts according to Merritt in Room 1219. But it must be said that Arbuckle liked the sweet vermouth variant, also call an “orange blossom.”

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[1] “Gallagher” is the maiden name found on the death certificate of Rappe’s grandmother. But that surname doesn’t agree with the correlative information on the death certificate of Rappe’s mother, Mabel Rapp. This is why, in the closing arguments, McNab was incredulous about the woman buried as being Rappe’s true grandmother. For us, it’s still an intriguing clue that might shed light on Rappe’s paternity, which, for her, was a man in New York.

[2] A.P. Night Wire, “Defense Is Contradicted,” Los Angeles Times, 7 April 1922, 1.

Another lost opportunity: Arbuckle in the January 2022 issue of Retro magazine

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Readers of Retro magazine’s feature article on the Arbuckle case were cheated of learning anything new about the case. Presumably the freelance writer didn’t reference this site. You can tell by the first few paragraphs that the information we have gathered from primary sources has had no impact on his research, along with everything else in print and on the web from those who have seriously revisited the case since 2009.

Perhaps the learning curve is too steep. We can vouch for that given the research that needed to be done for our work-in-progress. (May it not be in vain!)

There is something to learn here, however, about the nature of this story, which includes deliberate obscurantisms that go back a century.

Arbuckle feature in Retro, January 2022 – Notice the above photograph used to illustrate the first page of Mr. Robb’s article. The original photograph included the other side of the counsel table. But the three district attorneys, Milton U’Ren, Leo Friedman, and Matthew Brady, were cropped out. Prints like this one still include a black ink blob on the lower right corner, like an enormous cigarette burn, where once was the image of Assistant District Attorney Milton U’Ren. He looked no less distinguished as, from left to right, Gavin McNab, Joseph McInerney, Charles Brennan, Arbuckle, Milton Cohen, and Nat Schmulowitz.

You say Delmont, I say Del Monte: Arbuckle takes the stand for the last time, April 5, 1922

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Arbuckle on the stand

There are no photographs of Roscoe Arbuckle on the stand during his third trial.
This one was taken during his first trial testimony, November 1921 (Newspapers.com)

Unlike the first Roscoe Arbuckle trial,  no transcript of Arbuckle’s testimony from his third trial is known to exist. Reporters, working with much less space—and interest in the case—typically described Arbuckle’s second appearance on the stand as much the same as his first—save for a few particulars. Milton U’Ren conducted the cross-examination. It received almost no coverage. In the earlier trials, reporters had noted the crowd size and what Minta Durfee was wearing. But they were silent this time. Nor did they mention any celebrities among the attendees as there had been when Arbuckle first testified in November 1921. (Buster Keaton and his wife Natalie Talmadge were in San Francisco “to visit friends” according to the San Francisco Call and, presumably, they could have been there to give their friend moral support and see him acquitted.)

What follows is an aggregation of newspaper accounts of Arbuckle’s day in court on April 5, 1922, at 10:45 a.m.[1] Although certainly not like a transcript or the detailed reportage of Arbuckle’s first appearance on the stand, there is enough extant documentation to see that the prosecution wasn’t simply going through the motions on a case that many seemed to believe couldn’t be won.

The morning session began with the cross-examination of Dr. Franklin Shiels, whose fame as an alienist (i.e., a psychiatrist) began with his expert testimony in the Harry Thaw murder trials in 1907.

Dr. Shiels had taken the stand as a defense medical expert witness three times during the course of the Arbuckle trials. He was tasked with demonstrating to the jury that a spontaneous rupture of the bladder wasn’t uncommon and was likely a contributing  cause of Virginia Rappe’s death. If the walls of her bladder were weakened by disease, then any strain could have caused her bladder to rupture. Sneezing, coughing, vomiting, and the like, could cause such an injury. If he mentioned the injury could result from her straining to urinate or defecate, those details might have been struck by newspaper editors.

Dr. Shiels fields of expertise and his contributions to the Arbuckle trial get more attention in our book. But he is a link between one crime of the century and another. He is also credited with inventing a few terms used by Thaw’s San Francisco lawyer Delphin Delmas: brainstorm for what was essentially dementia praecox and a new and native disease, dementia Americana, for those crimes of passion in defense of a woman’s virtue, such as a wronged mother, wife, sister, or daughter. (By extension, one could imagine that impetus as the “pleasure principle” of the prosecution in pursuing Arbuckle.)

After Dr. Shiels testified, Gavin McNab, Arbuckle’s chief counsel announced that “Mr. Arbuckle will take the stand” and began the preliminary questioning in his Scottish brogue with the usual inquiries—who Arbuckle was, his business, and the like.

Reporters noticed that fewer spectators were present in the courtroom than had been for Arbuckle’s testimony at this first trial. They noticed, too, that the comedian had exchanged the robin’s egg blue spring suit that he had been wearing in recent days for dark blue serge—as though to indicate the seriousness of the moment which was also evident in his “clear, steady voice, speaking each word carefully and slowly.”

Arbuckle was nervous as he began to answer questions about the Labor Day party. Lacking the transcripts, we only have his answers as they were paraphrased by reporters. But the general outline of his testimony was the same as it was at the first trial—not a straight narrative but one interpolated by McNab’s questions, which led Arbuckle into room 1219 and back out.

A few days earlier, the jury had heard Arbuckle’s first trial testimony and cross-examination read in court by Assistant District Attorney Leo Friedman. This had been prefaced by the testimony of two newspapermen who had spoken to Arbuckle on September 9, hours after Rappe died. A trap had been set for Arbuckle to impeach himself.

The United Press wire service provided the most detailed account which appeared first in the afternoon and evening newspapers published on April 5.

“There was gin,” Arbuckle said, “Scotch whiskey and orange juice in the room when the people came. Some ate their breakfast there and some had their lunch, whatever it happened to be for them. For me it was breakfast. Most everyone drank. I did not, as I was just out of bed. While we were eating. Mrs. Marie [sic] Taube came in to see me. I was then dressed in my bathrobe.”

McNab stopped the testimony and asked that the “wicked bathrobe” be placed in evidence. To which one of the prosecutors—most likely Milton U’Ren—shouted, “We object to the word ‘wicked.”

“It goes out,” ruled Judge Harold Louderback. With that, the bathrobe, described as “a big, flaming purple affair, was then waved before the eyes of the jurors who were startled by its gay color.”

Arbuckle continued. “Mrs. Taube left and every one enjoyed themselves until about 3 p.m., when I went into my room to dress because I had an engagement with Mrs. Taube. I locked the door as I went in. I did not know anyone was in there. If I had I would not have locked it. I walked across the room and opened the bathroom door. It struck something and I looked and saw Miss Rappe lying on the floor.

“She was sick. I picked her up and carried her out and laid her on the bed.” At this point, Arbuckle rose from the witness chair and showed the jury how he accomplished this. In his first trial testimony, he helped Rappe walk from the bathroom to the smaller of the two beds, closest to the corridor. He sat her down. Then she laid down without assistance.

“Then I went back to the bathroom,” Arbuckle resumed, “and when I came out she was on the floor of the bedroom. I picked her up again and put her back on the bed and then called Mrs. Delmont.”

“When I came back into the room,” said Arbuckle, “Mrs. Delmont and Zey Pyvron were working over Miss Rappe. Miss Rappe began tearing at her clothes. She tore the sleeve off her waist and then she pulled up her skirt and tore the lace off one of her garters, like this.” He showed the jury, demonstrating on himself.

“They had a towel under her head and were rubbing her with cubes of ice like they have in hotels. I said, ‘What are you doing with this ice?’ and I picked up a piece of it.

“Mrs. Delmont said, ‘Get out of here, I know how to take care of Virginia.’ Here Arbuckle stood up again and became “emphatic.”

“I put the ice down and said, ‘You get out of here and shut up or I’ll throw you out of the window.’ I said that to Mrs. Delmont. That’s just what I said to her.” Then Arbuckle added something new, a simple detail to what was already known: That Maude Delmont showed off her calves.

“She had on Lowell Sherman’s pajamas,” Arbuckle continued. “They were rolled up to her knees.

“Mrs. Rappe never said a word while I was in the room. She moaned and groaned. I heard her. But she never said anything. Mrs. Taube came and I told her Miss Rappe was sick and asked her to call Mr. Boyle, manager of the hotel, and get a doctor.

“Mr. Boyle came up to the room and said he had another room for Virginia. I took Virginia in my arms and carried her down the hall. Half way I let Mr. Boyle take her as she was slipping in my arms. Then I went back to my room and spent the rest of the afternoon there and had dinner at the hotel that night.”

McNab then asked a series of questions in which Arbuckle described his arrest in San Francisco on the night of September 10, 1921.

“I came to San Francisco to tell my story when I heard Miss Rappe was dead,” Arbuckle said.

“When I got there, I was arrested on Market Street and taken to the Hall of Justice and held for two hours and a half and then I was taken into a room where Mr. U’Ren, the Assistant District Attorney, was waiting and I was asked some questions and then they put me in jail and charged me with murder.”

“Naturally, when I found myself in jail, a man begins to try to figure out why and it was then that I thought for the first time of having found Miss Rappe lying on the floor of my bathroom and then I knew how I came to be arrested.” With that, McNab dismissed his witness from the stand at 11:45 a.m. and the court adjourned for lunch.

The Oakland Tribune printed Mae Taube’s name as May Taube, which is illustrative of how far out of mind she had become, for she was never called to testify, whether for the prosecution or the defense. She had, of course, given a statement to the District Attorney’s office. But had not mentioned that Arbuckle intended to take her for a drive in Pierce-Arrow on the afternoon of September 5. That she was never asked to substantiate Arbuckle’s testimony is not only curious but an obvious mistake by the prosecution. Either she was beyond the District Attorney’s subpoena power or it was assumed she would substantiate Arbuckle’s account. Nevertheless, a “grilling” examination, like the kind employed on other reluctant prosecution witnesses such as Al Semnacher, Alice Blake, and Zey Prevost, might have revealed inconsistencies in Arbuckle’s story.

But there was no probing of whether the planned joy ride around San Francisco might be an invented alibi. All of the reportage suggests that Arbuckle had reduced it to simply an “engagement,” without any description of its nature. Also missing in the reportage is any earlier admission by Arbuckle that the party was organized by third parties and he had just gone along with it, didn’t invite the guests, and only knew Virginia Rappe among them. These details should have been reported again since they were salient, instead, only minor ones surfaced in the Oakland Tribune.

“I went into the bedroom and locked the door,” Arbuckle said. “I went to the bathroom and the door struck something. I looked in and saw Miss Rappe on the floor. She was holding her stomach and moaning.

“I gave her some water and asked if there was anything I could do for her. She said, ‘I want to lay down.’ I carried her to a bed and returned to the bath. When I came out into the room, Virginia was on the floor. I again placed her on one of the beds and went out for Mrs. Bambina Maud Delmont, her friend, and one of the guests.

“A number of the guests came into the room, including Miss Alice Blake, Mrs. Delmont, Miss Zey Prevost, and others. Miss Rappe sat up on the bed tearing her clothes. Her sleeve was hanging by a thread and I pulled it off.

“I went out of the room and returned later. Miss Rappe was lying nude on the bed. I tried to cover her up and Mrs. Delmont tried to stop me. I said to Mrs. Delmont: Shut up, or I will throw you out the window.”

In addition to the summoning of Harry Boyle and moving Rappe to another room, Arbuckle denied all knowledge of Jesse Norgaard, who testified that while he was a watchman of a motion picture studio in Culver City, Arbuckle attempted to bribe him to obtain the key to Miss Rappe’s dressing room.

Arbuckle confirmed certain statements regarding first aid given to Miss Rappe, made in Los Angeles to Warden Woolard, reporter for the Los Angeles Times. He admitted telling Woolard that “Miss Rappe had thrown a fit.” He denied having been ordered out of the hotel.

A statement to Woolard that he ordered Mrs. Delmont out of his room “because she became too boisterous,” as admitted by Arbuckle [was read to him]. “She was in pajamas and I told her to go and dress herself,” he explained.

The San Francisco Call also reported on Arbuckle’s testimony and cross-examination, which began during the afternoon session. The Call’s reporter remarked that “Arbuckle’s appearance on the stand was marked by frequent objections from Assistant District Attorney Milton U’Ren and a clash between Superior Court Judge Harold Louderback and Gavin McNab, chief counsel for the defense.”

Arbuckle stated that he had come “to San Francisco for the purpose of telling all I know about the case when I was arrested and taken before U’Ren.” Here U’Ren jumped to his feet and objected. Judge Louderback then had this part of Arbuckle’s testimony stricken out of the record.

McNab then began to complain about that the court had allowed the prosecution too much, especially the reading of Arbuckle’s first trial testimony and cross-examination so as to impeach his witness.

McNab said he had never heard of such license on the part of a criminal court. To this, Louderback reminded McNab and the courtroom of his, McNab’s, inexperience in criminal cases. While seemingly one of countless objections heard during the Arbuckle case, Louderback touches on something we will deal with in the book: that McNab, one of the best civil case lawyers in California at the time, wasn’t such a vaunted criminal defense lawyer as he is described in earlier Arbuckle case narratives.

Indeed, McNab had replaced one of the best criminal case lawyers in the state, Frank Dominguez, a strategy that may not have been for the best given that three trials were needed to reach a conclusion and the financial cost to Arbuckle for even one trial was considerable.

The Call provided a brief survey of Arbuckle’s morning testimony, noting that “the jury did not give him the rapt attention that the jury in the first trial accorded him when he testified.” This casual detail isn’t without merit given how little time the jury needed to coming to its decision compared to the two previous juries.

Arbuckle told of his arrival in San Francisco from Los Angeles with Fred Fishback and Lowell Sherman. He said that he had known Rappe for five years. He said that he “had an idea” how she had come there, but was not asked to expand on that. He named the guests: Al Semnacher, Rappe, Delmont, Alice Blake, Zey Prevost, and Ira Fortlouis.

Arbuckle described the breakfast–lunch and said that he didn’t drink during the meal and was never intoxicated.

He saw Alice Blake leave and return about 3:20. Virginia Rappe he had seen go into room 1221. Later he went into room 1219, remember he had an engagement at 3 o’clock with May Taube, a friend.

The Call then describes the “wicked robe” objection and moves on to how Arbuckle found the door leading into his bathroom stuck.

He shoved it open and saw Virginia Rappe lying on the floor and groaning. He picked her up, put her in a chair, wiped her face, and gave her a drink of water. She became ill again.

The defendant then picked her up and carried her into room 1219 and put her on a bed, he testified. When he returned from the bathroom with more water, he said, the girl had fallen on the floor between the two beds

The witness demonstrated how he had stooped and lifted the girl back to the bed. She was “moaning and groaning.”

He went into room 1220 and told Miss Zey Prevost that Virginia was sick. He also notified Mrs. Delmont, whom he found in room 1221.

The defendant at this point, in response to questions from his counsel, denied that during the time he was in room 1219, he had heard kicking or knocking at the door.

What varied here from the first trial testimony was the introduction of a chair in the bathroom. (This could have been assumed by the reporter.) And like the United Press reportage, Arbuckle seems to have streamlined his earlier testimony by the way he carried Rappe rather than helped her on her own power and how she was placed on both beds in room 1219.

When he returned to the room to the room, Virginia was tearing her clothes and groaning. She was tearing at some lace on her sleeve. He said he pulled the piece of lace off and handed it to her and told the other girl to make her stop yelling.

He left the room and came back and found Mrs. Delmont fixing an ice pack. There was ice on the girl’s nude body. He picked up a piece.

Mrs. Delmont, he said, screamed at him to “leave her alone. I know what to do for Virginia. You get out!”

“I told her,” testified Arbuckle, “to shut up or I’d throw her out of the window. I then telephoned to Mr. Boyle, the manager, telling Mrs. Delmont to get dressed. She was wearing Sherman’s pajamas.”[Here the Call doesn’t mention that it was Mrs. Taube who called the hotel manager.]

The witness told how he and Boyle had carried the girl across the corridor to room 1218. He denies that at any time he had heard the girl say, “I’m dying,” “He hurt me or “No, no, my God, no.” [The context for each statement was different and omitted here.]

“Did you say ‘shut up’ to her?” asked McNab.

“No, not to her. I told Mrs. Delmont that.”

“Did you at any time place your hand on the door while in the room with Virginia Rappe [the context being the fingerprint evidence]?”

“No.”

The witness also denied that he had discussed the “ice incident” when he met Sherman, Fishback, and Semnacher the next day.” [This was an allusion to Semnacher’s testimony that Arbuckle said he inserted ice into Rappe’s “snatch.”]

He declared that until the present trial he had never known Jesse Norgaard, who testified for the state that Arbuckle once offered him money for a key to Virginia Rappe’s room at the Culver City studio.

It was during his testimony regarding the interview he gave to Warden Woolard, Los Angeles newspaper reporter, on the night of Miss Rappe’s death, that Arbuckle began to become obviously incensed by the insinuation he had been lying.

He denied that he had told the newspaper reporter that the door of room 1219 had remained unlocked. That is, he said, “I don’t remember telling him that I locked the door.” It was here that he made the remark about his being arrested while on his way to confer with the police about the case.

U’Ren objected to the testimony as not being proper and McNab came back with the assertion that he was not trying to impeach the testimony of Woolard. He then criticized the action of the prosecution in trying to impeach Arbuckle by the reading of his previous testimony before the defendant had then been placed on the stand.

The Call is the only newspaper that covered Arbuckle’s cross-examination. Most reporters, apparently in a hurry to file their copy, only reported that Milton U’Ren’s lackluster performance didn’t match that of his colleague Leo Friedman back in November. This was surprising given how passionate U’Ren was to prove Arbuckle’s guilt or win some pyrrhic victory in seeing Arbuckle banned from appearing in motion pictures. Arbuckle remained unshaken and his story varied little from that told at the first trial

only in being somewhat more detailed. Arbuckle was calm and possessed and withstood the battery of questions in straightforward style.

U’Ren sought to emphasize the fact that Arbuckle had never told his story until he faced the first jury. Arbuckle, in reply, reiterated that he had kept silence upon advice of his former counsel, Frank Dominguez.

“And that’s why he is not my counsel now,” he added.

U’Ren stressed the fact that Arbuckle in discussing his case with Los Angeles newspapermen don the night of Miss Rappe’s death, declared there were “no locked doors during the party.” Arbuckle subsequently told the jury that his having locked the bedroom door, when alleged, he entered the room t dress, had escaped his memory, until finding himself in the city prison, he had carefully reviewed all the circumstances of the party.

The Associated Press reporter heard Arbuckle say something early in his testimony that wasn’t said at the first trial—and not reported elsewhere. It has also been ignored in Arbuckle case narratives. In response to one of Gavin McNab’s questions about why he had come to San Francisco in the first place, the comedian told what could have been two white lies, simply filler to humanize his story for the jury.

Arbuckle’s complete testimony lasted three hours, the cross-examination consuming two-thirds of that time. The witness was dressed in a somber blue in contrast to the light spring sartorial effects he had worn for the past several days. He smiled upon taking the stand, as though in enjoyment of the experience, but appeared bored at some points in the cross-examination.

The courtroom was crowded throughout his session on the stand, but the throngs were thinner and less enthusiastic to hear than those which greeted his premiere as a witness on the occasion of the first hearing of the case.

He explained that he came to San Francisco two days before the fatal party purely for pleasure. “I had a new car to try out,” he said. “Later I was going to the golf tournament at Del Monte.”

Apparently, Milton U’Ren made nothing of the new car and destination, preferring to focus on Arbuckle’s veracity on minor points, such as whether doors were locked or unlocked. But it was accepted by U’Ren and his colleagues—as well as reporters and everyone writing about the case afterward—that Arbuckle already had booked his return passage on the Harvard in advance. Indeed, the San Francisco Chronicle poked fun at his person, calling him “considerable cargo.”[2]

“Elaborate arrangements were made by Al Levy to provide a mirthful voyage, with ‘Fatty’ as jester”—which suggests Arbuckle was expected along with his entourage. Furthermore, Levy was the proprietor of a famous Hollywood restaurant, Levy’s Café, where Arbuckle was a regular.

Given that some minor Paramount executives were also on board suggests that Arbuckle was in San Francisco to promote the studio and its movies. This would make his stay at the St. Francis Hotel a layover until it was time to sail back to Los Angeles and participate in the capstone of Paramount Week, a showing of Arbuckle’s latest film, Gasoline Gus (1921) at Grauman’s Million Dollar Theater.

Arbuckle was introduced to his future second wife, Doris Deane, on board thanks to the efforts of his wingman Fred Fishback, who, with his friend Ira Fortlouis, had also steered Virginia Rappe to the Labor Day party. This story is one of the few reliable episodes in David Yallop’s The Day the Laughter Stopped, for he simply copied Deane’s own affectionate memory of meeting Arbuckle for the first time.

But was Arbuckle expected aboard the Harvard or did he take advantage of the opportunity to leave the St. Francis Hotel because he was seeking to distance himself from situation? Did he need to further test out a “new” car that he had already driven up from Los Angeles? He had mentioned trying  out a new car on a drive to a golf tournament in Del Monte. It was never made clear what car he was referring to, given that the famous Pierce-Arrow, the “palace” on wheels, wasn’t exactly new. He had ordered another car from the same San Francisco coachmaker who had outfitted the Pierce-Arrow but it was either not ready or he had decided not to take delivery.

Then there is the destination for this automobile. Arbuckle undoubtedly meant that he was intending to drive south on the Pacific Coast Highway to see the California state golf championship at Pebble Beach, that is, Del Monte.

For anyone present when and if Arbuckle casually mentioned what he intended to do on the day after his ill-fated party, “Del Monte” fit a puzzle piece apparently overlooked. Rappe’s manager in his statement to the District Attorney and later during a preliminary hearing—and possibly at his subsequent appearance as a prosecution witness, said that had Rappe not gotten sick at the party, he and Maude Delmont would have gone on from San Francisco on the late afternoon of September 5 and stopped at Del Monte for the night—or was it to take in the golf tournament as well?

And there it is, Delmont, Del Monte. To bring that up would just throw more chaff at the jury in all the names and other details they needed to keep straight.

[1] Adapted from United Press, “Arbuckle on Stand in Own Behalf,” Pomona Progress, 5 April 1922, 1; “Arbuckle Tells of His Fatal Party on Labor Day,” Modesto Evening News, 5 April 1922, 1; “Arbuckle Tells Story on Stand,” Oakland Tribune, 5 April 1922, 1; “Judge Flays Lawyer in Arbuckle Defense,” San Francisco Call, 5 April 1922, 1,2; “Defense Rests in Arbuckle Case; Is Surprise,” San Francisco Call, 6 April 1922, 2; Associated Press Night Wire, “Arbuckle Takes Stand,” Los Angeles Times, 6 April 1922, I:2; and other corroborative sources.

[2] “Arbuckle on Harvard,” San Francisco Chronicle, 7 September 1921, 18.

April Fool’s Day 1922: Fred Fishback testifies for the defense

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The comedy director Fred Fishback[1] was one of Roscoe Arbuckle’s two traveling companions who arrived at the St. Francis Hotel on the evening of September 3, 1921. The other was one of the first Hollywood actors who specialized in “heavy” male roles, Lowell Sherman. But unlike Sherman, Fishback had testified at the previous two trials and had made himself available for Arbuckle’s defense. The resulting notoriety temporarily interrupted his work as a director and forced him to work under the name of Fred Hibbard.

A tall and athletic man—Fishback was a swimmer—who neither smoked nor drank made an unusual participant in Arbuckle’s revels as well as Arbuckle’s roommate in room 1219. He made for an even stranger roommate for Virginia Rappe’s manager, Al Semnacher, when he moved from the Palace Hotel to the St. Francis during the late afternoon–evening of September 5. Fishback and Semnacher slept on another floor.

Fishback, naturally, didn’t want to return to 1219 given what had happened there in the mid-afternoon, when Rappe was found going in and out of shock given the true nature of her injury. He was, like the women at the party, a first responder. He had handled Rappe’s body twice. The first time was corroborated by prosecution witnesses: Fishback had lifted Rappe up on one side, while Maude Delmont and Zey Prevost had taken the other arm and leg, and carried Rappe into the bathroom and placed her in a bathtub filled with cold water. The object of this treatment was to bring Rappe back to her senses so that she could explain what was wrong with her.

The second time as Fishback testified was when he took Rappe by the ankles and held her upside down vertically. To do this, he claimed to have stood on the bed so as to allow blood to flow back into her brain and thus bring her back to consciousness.

That he could hold a woman up like this wasn’t questioned. Fishback appeared to be physically capable of doing so. The more curious feat was the act of standing and balancing on a mattress that was supported only by bedsprings rather than a modern box spring mattress. Thus, we can imagine Fishback’s act of first aid akin to a trampoline gag worthy of a comedy director. Fishback, too, stated that his big hands had likely caused the bruises on Rappe’s arms, which the prosecution had to Arbuckle.

What seemed like an act of mercy, however, worked well for the defense. The jury would have to consider that Fishback might have accidentally caused her ultimately fatal bladder rupture. That and Fishback’s dogged loyalty to his friend, Arbuckle, made him an effective prosecution witness. He was unshakable on the stand. His loyalty to Arbuckle began early, when he refused to sign a statement that, ironically, quoted him accusing Lowell Sherman of trying to “upstage” when Sherman and Arbuckle conspired to to rid themselves of his company after Rappe’s crisis.

Still, the whole exercise with Rappe’s limp body seemed too opportune. And no one else witnessed such a robust display despite the other accounts of what was done to help Rappe.

Fishback also served to deflect the direction of the accusations that Rappe was said to have uttered—“I am dying” and “He hurt me”—which the prosecution contended were aimed at Arbuckle. Gavin McNab, Arbuckle’s chief counsel, said if Rappe had said anything like this, it was directed at Fishback.

Fishback previously stated and restated that he never heard Rappe say anything. But on April 1, 1922, he recalled that he only heard her say one word, “Don’t”—but who was the recipient of this simple, human request goes unmentioned in the reportage.[2]

There was also a light moment as the Saturday session came to an end, which suggests that the two prosecutors didn’t believe that Fishback had stood on the bed and held Rappe up. McNab, undoubtedly reflecting the upbeat mood at the defense table, asked Assistant District Attorney Milton U’Ren if he would like to subject himself to a demonstration. But U’Ren declined being held upside down by his ankles, saying that he did not care to be “manhandled.“

A rare photograph of the man behind the camera: Fred Fishback (l) serving Edith Roberts (c) sparkling grape juice on the set of A Baby Doll Bandit (Exhibitor’s Herald, August 2, 1919)

[1] Fishback is the conventional Americanized spelling but newspapers in 1921 and ’22 also spelled his name in keeping with his Romanian Jewish ethnicity (e.g., Fischbach or Fischback).

[2] Associated Press, “Fischbach on Stand in Arbuckle Trial,” Los Angeles Times, 2 April 1922, I:4.

100 years ago today: Virginia Breig collects the bill, March 28, 1922

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In the wake of the third trial and despite his acquittal, lawyers for Roscoe Arbuckle had their say about the female prosecution witnesses. “In looking upon some of the women in this case,” said Gavin McNab, Arbuckle’s chief counsel, “I have been reminded of the beautiful line of Ruskin’s: ‘Wherever a true woman is, home is always around her.’ What a contrast to some of the women we have seen here.”[1] Unable to contain himself, his assistant, Nat Schmulowitz, made light of the victim, “Miss Rappe was the personification of the pitcher who went to the well once too often.”[2]

One of these witnesses took the stand on March 28, 1922, during the third trial. Reporters took notice of her and were more fulsome in their coverage unlike previous witnesses (see our blog entry for yesterday). Virginia Breig was the secretary for the Wakefield Sanitarium. Her job title included what we now refer to as a business office manager. She handled the hospital’s accounts, which included collecting bills for services rendered—and the bill for Virginia Rappe’s three days at Wakefield between September 7 and 9, 1921, was apparently still due months later. The responsible party was presumed to be Roscoe Arbuckle. He allegedly informed the management of the St. Francis Hotel that he would pay for Rappe’s room and the hotel physician’s visits. But he had already settled with the hotel on the day after his Labor Day party on September 5 and returned to Los Angeles aboard the SS Harvard. So who would pay for Rappe’s hospital care fell through the cracks. That it shouldn’t be her was one of her chief worries in her finals days, for when she was conscious, she was made it known how little money she had and who should pay.

Maude Delmont and Rappe’s nurses testified that Rappe wanted Arbuckle to do the right thing and settle her hospital bill. This didn’t happen and as the Arbuckle case began to consume the nation’s interest, the matter of Rappe’s bill was left on the desk of Virginia Breig.

Virginia Breig née Martin was born in Arkansas and was twenty-seven years old when she testified. In the 1920 census she lived at 380 Geary Street, just behind the St. Francis Hotel. Her husband, William Breig, was an optometrist and optician for Kahn’s Department Store in Oakland. Her profession is listed as “None.” But prior to 1920, as Miss Virginia Martin, she had worked as a bookkeeper in Sacramento, having relocated there from Windsor, Colorado, in 1912. There her name appeared in the society pages of the Bee from time to time—including an announcement of her wedding in San Francisco in July 1915, near the headquarters of her husband’s employer, the Chinn-Beretta Optical Company, makers of fine gold wire-rim frames and lenses.

Virginia Breig probably didn’t need to work. She and her husband had no children. Voter registration records list her variously as a housewife or secretary. But at some point in the first years after the couple moved to the Bay Area, she took a job as bookkeeper for the Wakefield Sanitarium. This was probably after 1918, when she was an overseas canteen worker for the YMCA, serving coffee to doughboys, perhaps as far away as the battlefields of France.

As an employee at Wakefield, Breig was in a position to mix with the nursing staff and knew about individual doctors and patients. She often saw the latter before they were discharged. One of her duties was to deliver the hospital bill to the patient’s room. This came out during when she took the stand.

It was Mrs. Breig’s testimony that Virginia Rappe had accused Roscoe “Fatty” Arbuckle of being responsible for her injury so should be accountable for her medical costs.

The word in the courtroom was that Mrs. Breig had attempted to compel the defense to pay the unpaid hospital bill of Virginia Rappe, and had threatened to furnish the District Attorney with evidence which she said “would not sound good.” Gavin McNab and his associates characterized her story as a “frame up,” and sought to shatter it while the jurors and the spectators listened in amazement.[3]

Bill collectors, as we know, often intimidate and strongarm over the phone—but this moment, in the midst of a manslaughter case watched by the nation, reads as patently bizarre. So, why would Mrs. Breig do this? Why would her employer? Over a bill that amounted to less than $1,100 adjusted for inflation—a steal by modern standards — for a three-day stay terminal stay including an autopsy at no extra charge!  Why would a private secretary be so tactless, even heartless as to visit a dying woman to deliver the bill?

Breig was hardly so cold-blooded but more likely was following a process that was part of her job. Dr. Wakefield’s institution wasn’t a charity hospital and the bill presumably would have been charged to the estate of Ms. Rappe had she not survived to pay it herself.  Dr. Wakefield probably reminded Breig of the outstanding bill as the Arbuckle case wound its way through the courts and eventually she found an opportunity to discuss payment.

Mrs. Breig took the stand as the afternoon session was drawing to a close. She declared that she had entered Virginia Rappe’s room at the sanatorium on the morning of the day she died, for the purpose of presenting a bill of $64 which was payable in advance.

Breig reassured Rappe that if Arbuckle or anyone else paid, she would be reimbursed. But Rappe said that she wasn’t going to leave Wakefield alive. She would never get the money back.

“Miss Rappe told me,” said the witness, “that although she had a little money she saw no reason why she should pay the bill, as Arbuckle had been the cause of her being there and should settle it. I asked her what Arbuckle had done to her, and her reply was:

“‘Well, I don’t know, but he took me by both arms and forced me back on the bed.’”

And Mrs. Breig declared that the actress had said she knew she was not going to live.

“When did you first tell the District Attorney about this?” thundered Gavin McNab as he took the witness in hand.

The reply was “Last Saturday.”

“And was it not after I had informed you that you must tell the District Attorney what you claimed to know?” demanded Arbuckle’s chief counsel.

The jurors sat up straight in their chairs. The spectators leaned forward in amazement. Here, indeed, was a sensation.

And from the questioning it transpired that Mrs. Breig last Saturday had called up Gavin McNab and demanded that he pay that bill or make Arbuckle pay it; that she had declared that, were it not settled, a way would be found to produce testimony highly detrimental to the defendant; that McNab had refused to be responsible for the bill, and that he had told Mrs. Breig plainly that it was her duty to go to the district attorney if she knew anything about the case.

All of this the witnesses [sic] admitted but she denied that in conversation with McNab over the telephone she had said anything about “testimony.”

“I had a witness present while I was talking,” she snapped.

“And believe me, I had a witness listening on the wire while you were talking,” was McNab’s rejoinder.

McNab meant that he had his secretary, Miss Lillian Dunne, pick up an extension. McNab had had much experience dealing with surprise witnesses and other people who wanted to be paid to talk or keep their silence. This woman seemingly just wanted her books balanced out of the largesse being paid for Arbuckle’s defense.

Given the scenario, Mrs. Breig was either naïve or mad. But she didn’t act on her own per se. Rappe’s nurses and the nurses who talked among themselves about this case had decided that this unpaid bill might be the leverage necessary to prevent an acquittal and achieve a guilty verdict. That is, the nurses wanted justice. The state, obviously running out of options, took a gamble on Breig.

The chief counsel for the defense made it plain that he likewise had informed the district attorney’s office of the conversation. It was admitted by Assistant District Attorney U’Ren that McNab had told Leo Friedman of the circumstances.

“But I received my information independent of this,” U’Ren explained, “Mrs. Breig got one of the hospital nurses to call me up and then I subpoenaed her.”

Under McNab’s cross-examination Mrs. Breig declared that no one was present when Virginia Rappe made her alleged accusation, and at the same time she admitted that a nurse employed by Dr. M. E. Rumwell was in almost constant attendance upon the patient [my italics].

When asked why it was that she never had spoken of this circumstance before or never had offered her testimony at the previous trials, the witness parried by declaring that the alleged facts she had just presented had been a matter of discussion among the hospital nurses for months.

This is to say that Rappe’s story was common knowledge at Wakefield. But it still doesn’t answer the question unless she means that no one wanted to be the first to break it or suffer the consequences of being in the newspaper. Surely, Mrs. Breig had to think of her husband’s reputation, whose name regularly appeared in Kahn’s advertisements touting its optometry department and eyewear. But why did she call McNab just to settle the bill? Why do so, going around the district attorneys? I have to think that the inefficacy of the prosecution witnesses made it pointless. They had all been cross-examined and humiliated in court by McNab and the other defense counsels. Maybe Mrs. Breig saw it as a moral victory if she got Arbuckle’s lawyers to pay.

Perhaps, too, the state had a hand in putting Mrs. Breig up to this Hail Mary not unlike some of the defense’s surprise and opportune witnesses who testified to Rappe drinking, going into hysterics, or tearing off her clothes, mimicking all the behaviors of Labor Day 1921. District Attorney Matthew Brady and his assistants could have exploited the Breig testimony had McNab been foolish enough to pay Rappe’s bill as victory loomed. But he was too canny to fall for it and managed to use it to his advantage.

Other bits and pieces of Mrs. Breig’s testimony appeared in other newspapers as she took the stand again on April 5.

Mrs. Breig testified that she went to Miss Rappe’s room at the sanitarium the morning of the day she died, to present the patient with a bill. She said that Miss Rappe looked at the bill and said that she really should not pay for it, as “he was responsible for my being here.”

“You can pay the bill after you leave the hospital. You won’t leave for a week or so,” she [Mrs. Breig] said she told Miss Rappe.

“I wish I knew I was going to live that long,” was Miss Rappe’s reply, according to Mrs. Breig, “but I’m going to die.” Then, Mrs. Breig testified, Miss Rappe accused Arbuckle of attacking her. She said that the girl told her: “He grasped me by the arms and threw me on the bed and threw his weight on me After that I knew nothing.”

Her testimony was the first which told of a direct attack on Miss Rappe.

Defense counsel, following Mrs. Breig’s appearance on the stand, moved that her evidence be stricken from the record on the grounds that no proper foundation had been laid for its introduction.[4]

While it seems rather early to present a bill when the patient hasn’t been officially discharged, this is because hospitals at the time still charged a weekly rate that was billed accordingly. But how much the dying Rappe said was used by McNab in his closing arguments to show that Breig’s story was to him an obvious fabrication.

“Miss Rappe could not tell Dr. Rumwell, her physician, what the matter was, as she told him she was intoxicated and did not remember,” McNab said. “Therefore how could she tell Mrs. Breig, this bill collector of the hospital, what had happened?

“Mrs. Breig was willing to sell her testimony to me for the price of Miss Rappe’s bill and I told her that the best market for such testimony is the district attorney’s office.”[5]

But McNab had not asked the court to have Mrs. Breig’s testimony tossed out. “The prosecution questions us as to why we did not attempt to rule out the testimony of Mrs. Breig,” he said, “The impeaching testimony offered by my secretary, Miss Dunne, was ruled out on motion of the prosecution.”[6]

Although Mrs. Breig kept her husband’s name out of the newspapers, their marriage, if not already, was troubled following her two days on the stand.  In 1924, the Oakland Tribune published a story that referenced events that occurred three months after she took the stand at the third trial, under the headline “Wife Sued on Drinking Accusation”:

Extravagance in the matter of clothes and other indulgence in liquor are charged against Mrs. Virginia Breig in a divorce complaint filed by William Breig, 1024 Grand avenue, an optometrist with offices in a local department store. Breig asks for a decree and to be awarded all the community property, which includes the business, an automobile and household furniture.

Breig recites that on their wedding anniversary in 1922 they had invited friends to their home for 6 o’clock dinner but that his wife did not return home until 8 o’clock and then in a semi-intoxicated condition. On other occasions wife became sick and bedridden from over indulgence in liquor, he says.

The husband further complains that his wife has engaged in such extravagances as a fur coat, nagged him for more money and was discontented, although he turned over practically all of his earnings. On many occasions she has failed to return home in time to cook the evening meal, he says, and once she expressed a wish that he was dead. They were married in 1915 and separated March 15.[7]

Processed By eBay with ImageMagick, z1.1.0. ||B2

A man with deep pockets? (private collection)

[1] “M’Nab Attacks State Attorney, Also Assails Testimony of Mrs. Virginia Breig,” Charlotte Observer, 12 April 1922, 4.

[2] “State’s Star Witness Flayed by Arbuckle Defense: Characters of Women in Case Also Attacked,” San Bernardino County Sun, 12 April 1922, 2.

[3] Oscar H. Fernbach, “It Was Fatty,” Says New Witness: Hospital Secretary Declares Miss Rappe Told Her Arbuckle Caused Her Last Illness,” San Francisco Examiner, 29 March, 1922, 3. All subsequent extracts are from this reportage unless noted otherwise.

[4] “Fatty Arbuckle in Self Defense,” Butte Miner, 6 April 1922, 3.

[5] M’Nab Attacks State Attorney, Also Assails Testimony of Mrs. Virginia Breig,” Charlotte Observer, 12 April 1922, 4.

[6] “Arbuckle Case Will Be Given to Jury Today,” Albuquerque Journal, 12 April 1922, 1.

[7] “Wife Sued on Drinking Accusation”: Oakland Optometrist Charges Extravagance, Intoxication in Divorce Action Plea; His Patience Vain, He Says,” Oakland Tribune, 25 March 1924, 20.

Two reporters testify and test-bed inferences based on scant reportage

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Which faded first, public interest in the Arbuckle trials or the press coverage? Since metrics for the former didn’t exist in 1922, it would seem the latter. As the days stretched into weeks, the number of reporters in Judge Harold Louderback’s courtroom dwindled. The headlines gave way to the death of Pope Benedict XV, the murder of William Desmond Taylor, Lenin’s declining health, the Arthur Burch trial in Los Angeles, and the other intractable problems of the world. By the end of the first Arbuckle trial much of the coverage had already been relegated to below the fold and inside newspapers. This became the norm for the second trial. Fewer stories were bylined. But Marjorie Driscoll for the San Francisco Chronicle and Oscar Fernbach for the Examiner soldiered on. Nevertheless, their copy read as though they were bored by the Arbuckle case or believed their readers were. There was little that was new to report. That Arbuckle wore the same blue Norfolk suit to court each day was like a mantra.

For the authors of books and articles about the Arbuckle case, however, the lack of reportage is either a boon if one wants to get in and get out so as to meet a deadline and page count. For us, however, it means inferring from newspaper sources that are, to paraphrase researcher Joan Myers, dicey. But this relative lack of competition allowed the few remaining reporters to focus on details and hope that they could hold the reader’s attention—an expectation that was also placed on three different juries with three different outcomes.

The prosecution and defense virtually repeated themselves in the second and third trials that lasted into spring 1922. Nevertheless, there were subtle changes in strategy. After the second trial ended in a hung jury—10 to 2 for conviction—the defense understood that it could no longer hold back on Rappe’s past. The newspapers reported this as if it were new, but Arbuckle’s lawyers in San Francisco, Los Angeles, and Chicago had started to deconstruct Rappe’s “good girl” image before she was even buried in Hollywood Forever Cemetery.

Ironically, while the press took less interest in the Arbuckle trial, San Francisco District Attorney Matthew Brady and his assistants took more interest in the press—indeed, in the earliest pieces written about the Arbuckle case. Therein, they brought into the light the first statements that Arbuckle made to reporters about his Labor Day party and the death of Virginia Rappe.

Curiously missing was the foundation of Arbuckle’s “Good Samaritan” testimony from the first trial, that he gave aid and comfort to Virginia Rappe after finding her writhing on his bathroom floor in room 1219 of the St. Francis Hotel, leaving it up to the jury and public to see that he should be seen as a decent man rather than an uncaring rapist. The clipped, matter-of-fact testimony that Arbuckle gave was also intended to emphasize that he was alone with Rappe in the bedroom for just eight minutes—a claim that could be corroborated with nothing but circumstantial evidence.

But Arbuckle’s version of events wasn’t heard by anyone but his lawyers until late November, nearly two months after his arrest. Why hadn’t he mentioned his heroics in room 1219 to the two reporters who had contacted him just hours after Rappe’s death and before his arrest? He likely would have saved himself and the motion picture industry a world of grief as it might have prevented the clamor for government regulation of the motion picture industry and de facto the private lives of performers, producers, writers, etc.

Arbuckle’s fantastically opportune testimony came late. It was like the missing piece in a jigsaw puzzle, a story that would dovetail with the established timeline as described by prosecution witnesses and account for the physical evidence that had been presented in court, notably fingerprints.. It rendered Arbuckle an innocent victim of circumstances who had, against the odds, stumbled into a medical emergency and found himself accused of rape and murder. But if this puzzle piece was contrived, carved out of new cardboard, so to speak, as Brady and his assistants believed, it was imperative to attack its cardinal weakness, its timing.

Arbuckle said that his original chief counsel, Frank Dominguez, had ordered him not to say anything in his own defense in September 1921. The public animus against was just too much to overcome in the weeks after Rappe’s death. Arbuckle claimed that he was intentionally silenced. But eventually he had been given the opportunity to speak out and took it.

While he hadn’t been particularly forthcoming when interviewed on the day of Rappe’s death, at the first trial and for the first time Arbuckle inserted an alibi of sorts, that he was intending to get dressed in room 1219 to take a female friend out for a drive in his Pierce-Arrow during the afternoon of September 5 and by coincidence he discovered Rappe on the bathroom floor.

The prosecution believed that what Arbuckle told the two reporters on September 9 was important to have before a jury not for what was said but also for what wasn’t. A close reading, or rather a close hearing of the reporters’ testimony allowed one to infer that Arbuckle was more than a passive participant at the party and his traveling companions were solely to blame for the women, the alcohol, etc. But it was a stretch by the prosecution to believe they could convince a jury that Arbuckle’s omission of discussing his concern for Rappe’s suffering — in light of what he would describe in his sworn testimony two months later — was evidence that he was a man covering up a crime. (see “Arbuckle’s testimony of November 28, 1921).

Warden Woolard of the Los Angeles Times was one of the two who interviewed Arbuckle after the news broke about Rappe’s death and he testified at both the second and third trials. Due to the abbreviated coverage of these trials, we can only infer that he repeated his original reportage of Saturday, September 10, 1921, to one of the two assistant district attorneys who conducted the examination. To him Arbuckle seemed to be a man unconcerned about the problem that Rappe’s death presented and confident he could straighten the matter out with the chief of police in San Francisco. But the prosecution would question why many of the details Arbuckle later testified to were not mentioned on September 9. Woolard’s interview with Arbuckle happened at Grauman’s Million Dollar Theater which may sound innocuous but was at the time a seat of power in Hollywood so it’s likely Arbuckle was being counseled by Frank Dominguez or Milton Cohen to arrange for it as damage control. We can infer that the prosecution framed the arrangement of this interview as an indication that Arbuckle’s comments were something less than extemporaneous.

Unfortunately, Woolard’s testimony revealed little beyond what he had originally reported. At the second trial, however, he added that although Arbuckle denied hurting Rappe, he had pushed her down on the bed to keep her quiet. Arbuckle also said that there were no locked or closed doors at the party all afternoon. In regard to Maude Delmont’s description of the party being “rough,” Arbuckle responded that the only thing rough about the party was Delmont herself.

After Woolard left the stand, the jury heard Arbuckle’s first trial testimony read into the record of the second by Assistant District Attorney Leo Friedman, who was known for the insinuating tone he added to such readings.

Woolard said that he was prompted to seek out Arbuckle on September 9, 1921, hours after Rappe’s death, because he had read a San Francisco Chronicle wire that, apparently, had been written by someone who had heard Delmont’s side of the story as well as earlier comments by Arbuckle. The San Francisco reporter of these accounts was George R. Hyde. He took the stand at the third trial on March 25, 1922—just after Woolard presumably repeated much of his testimony from the second trial.

We have little to work with regarding Hyde’s testimony, only one detail emerges, that he made a long-distance telephone call to Arbuckle’s house and that someone he presumed to be Arbuckle answered his questions. Unlike Woolard, however, Hyde was asked to provide a carbon copy of his interview notes to the defense though it appears that they provided any useful revelations. That said, we must infer that either Leo Friedman or his colleague, Milton U’Ren, treated Hyde’s published interview as a de facto deposition that could be used to challenge statements Arbuckle later made under oath, such as his declaration that he was never alone with Rappe and that doors were never locked in the suite. Like so many paper cuts, the inconsistencies would not be fatal in themselves but could add up if the jury had the patience to process them.

Neither Woolard nor Hyde were cross-examined. The defense elected not to do so as not to give their stories any more time on the stand . To do otherwise risked calling attention to them, imprinting them on the jurors’ minds. Arbuckle’s lawyers did, however, argue that the two reporters’ testimony should be inadmissible. But the court allowed the testimony. It was then followed by another reading of Arbuckle’s first trial testimony on Monday, March 27 by Leo Friedman.

Warden Woolard, 10 February 1947, city editor of the Los Angeles Herald Examiner
at the time of the Black Dahlia case (Calisphere)

Inexpert witness shopping (Chicago style) and other random thoughts regarding the third Arbuckle trial

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In the wake of the second Arbuckle trial, Chicago lawyer Albert Sabath told the Chicago Tribune that he intended to leave for San Francisco to take part in the upcoming third trial. Undoubtedly, he was waxing in his importance to Arbuckle’s defense. In October 1921, a month before the first trial began, Sabath had deposed a doctor and two nurses on behalf of the Arbuckle defense team, and allowed for highlights of their statements to reach the press. Given other stories out of Chicago at the time, Sabath, too, may have been looking for witnesses who could support the contention that Rappe had a child out of wedlock. San Francisco District Attorney Matthew Brady called this pre-trial reportage propaganda.

The first trial had been a hung jury: 10 to 2 for acquittal. The more that Rappe’s purported past was heard in court, the greater the doubt was among jury members that Arbuckle had committed a crime. If Rappe had cystitis and other gynecological complications caused by being sexually active since adolescence she would seem more of a victim of her own lifestyle. For any rumors or uncorroborated hearsay to have an effect they needed to be published before the jury was chosen. Once selected the jurors would be sequestered in a hotel and any mention of the Arbuckle case would be scissored from their copies of the San Francisco papers.

Sabath had been retained since September 1921, probably by Arbuckle’s personal lawyer, Milton Cohen, soon after Arbuckle’s arrest. Sabath was in a position to help Arbuckle. His law partner was his uncle, U.S. congressman Adolph Sabath, his father, Joseph Sabath, was a Chicago judge, and Albert was well connected in Chicago society and its underbelly given the people his law office represented. Albert Sabath likely also knew Rappe in life. Her one-time fiancé, Harry Barker, had been one of Sabath’s groomsmen at his January 1914 wedding.

Rappe had no living family and few willing to step forward to contradict anything Sabath’s witnesses said. As the Tribune put it, the defense could “tear to fragments the character of Virginia Rappe, who is dead and cannot speak in her own behalf.” Barker, a friend and business partner in the Sabath family’s real estate holdings in California before and during the Arbuckle case, would have known about some of the blank spots in Rappe’s history, which could then be creatively filled to raise doubts among the jury.

“The vote of 10 to 2 for conviction by the last jury,” Sabath said on February 7, “ended the defense polity of shielding the name of Virginia Rappe. It appears 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 she led. We must lay bare every shred of information on her past.”[1]

Arbuckle’s lead attorney Gavin McNab, concerned about keeping the defense under his control, declared “Sabath’s sole service for the defense is the gathering of depositions in Chicago. We know nothing of his intended visit to San Francisco or the witness he is supposed to have found. The defense counsel list will remain the same as in the two previous trials.”[2] But Sabath did arrive in San Francisco and brought with him Virginia Warren, one of the nurses he had deposed in October.

Warren’s story—or rather stories—were already being floated in the press during the third week of October 1922. But now, for the third trial, she would be groomed to take the stand.

We will discuss her again in a post marking the hundredth anniversary of her testimony. For the present, we want to editorialize briefly on the quality of Sabath’s witnesses and why McNab consented to having them deposed.

One reason was to replace Harry Barker, who had testified on behalf of Arbuckle at the first trial (see Bit Player #5: The Sweetheart). District Attorney Matthew Brady had already brought charges of perjury against two defense witnesses and was threatening to do the same to Barker, who had faced a withering cross-examination during the first trial which left him looking like a cad if not an outright liar.

To fill this void, Sabath located three more doctors to add to Dr. Maurice Rosenberg. Rosenberg’s deposition was allowed to be read at the first trial. He said he had treated Rappe for cystitis in 1913. One thing the prosecution skipped over during the cross-examination of Dr. Rosenberg’ was his role as a house physician for an infamous Chicago brothel.

An angle that Brady could exploit was that Chicago was known for corruption and organized crime and any defense witnesses from there would be easy to denounce. Arbuckle’s defense understood this as well so they had to be wary of the quality of witnesses Sabath deposed. One such case was John “Butch” Carroll, whose criminal background went back at least to an 1896 murder during a burglary attempt gone wrong.

“Butch” Carroll’ was best known for the saloons he operated on the “levee” of the Chicago River or “West Side.” These were known haunts of Chicago’s underworld, where one risked life and limb, as in the 1908 case of a salesman from Cincinnati who was killed by a stray bullet meant for another man’s wife in a domestic argument.

Carroll’s bars also offered entertainment, typically young, pretty singers wearing short skirts. His Palm Garden, at 948 W. Madison St., also featured a “house of ill repute” on the floors above. One Chicago police chief lost his job because of the payoffs that Carroll and other bar owners arranged so that no one shut them down. Chicago newspapers are rife with criminal cases in which Carroll’s name surfaces, sometimes as a defendant. What they don’t report is the names of their attorneys. Even so, one can assume they had the backing to afford the best lawyers, such as Albert Sabath’s firm.

When Sabath showed “Butch” Carroll photographs of Virginia Rappe, he recognized her. He said she sang in his bar in 1911—which would have been the Palm Garden. It was not the kind of establishment that Harry Barker described taking Rappe to during their courtship, but we can’t discount Carroll’s claim out of hand. Although Rappe wasn’t known for her voice, she could dance. Our research shows that she had an early theatrical career that would have required her to sing as well. Conversely it’s known that her mother, Mabel Rapp, a familiar face among Chicago’s demimonde, had steered her daughter away from this kind of life.

Although he identified Rappe in photographs, whatever else “Butch” Carroll added to Rappe’s history or legend is unknown. His deposition wasn’t used. But what he succeeded in doing for Sabath and for Arbuckle was further assert in newspapers that Rappe was an immoral young woman years before she arrived in the comedian’s suite in the St. Francis Hotel. Achieving the effect of tarnishing her reputation would require more than just one witness and one angle. It also required the temporal space in which to work. Sabath found 1914 to be particularly useful for it is the one year in which Rappe disappears from newspapers after her arrival from Europe in early January 1914. (The last reportage being about her dress, which exposed her underwear from the ankles to just above her knees as she danced the tango with her female companion in an ocean liner’s ballroom.) In that year Dr. Fred A. Van Arsdale claimed he delivered Rappe’s baby. Sabath also deposed two more doctors who claimed to have advised Rappe to stop drinking alcoholic beverages because of abdominal pain. Sabath also found two witnesses who attended a drinking party at which Rappe went into hysterics—rather than anything to do with obstetrics.

Another Sabath witness—or phantom witness—was Estelle Wyatt, described as a “negress” and the “widow of a preacher”. She was quoted, before boarding a train in Cincinnati for Chicago, as having “nursed” Rappe in a South Side Chicago hospital twelve years earlier. She said that Rappe was so grateful for her service that, “up until five years ago, she frequently sent her presents to show her appreciation.”[3]

We took interest in Wyatt since we, the authors, are both from Cincinnati and this is one of two connections that the Arbuckle case has to our hometown. (The other is the resting place of Albert Royal Delmont, Maude Delmont’s first husband.) People of color are mostly absent from the Arbuckle case., except for Wyatt and a contingent of African American clubwomen who had attended the preliminary investigation and may have attended Arbuckle’s subsequent trials. Also, as we noted in a previous blog entry, Virginia Warren was possibly an African American who passed for white given her census data.

Mrs. Wyatt, however, doesn’t have a verifiable Chicago connection and that would make “her” claim about Virginia Rappe suspect. But Wyatt’s existence isn’t. An Estelle Wyatt lived in Cincinnati in 1922 given her real estate transactions in College Hill, which is still a largely middle-class African American suburb a century later. She was a widow according to U.S. Census records from 1930 onward. Her occupations were listed as nursemaid (1930) and seamstress (1940). Her two sons were born in Ohio in 1911 and ’13, respectively and their World War II draft cards indicate Cincinnati as their birthplace.

Our reason for the “scare quotes” is the possibility that the identical stories published in hundreds of newspapers about her leaving Cincinnati to be deposed in Chicago was likely planted—perhaps without her knowledge, consent, or the payoffs that Matthew Brady believed were used to create the battery of Chicago witnesses and depositions he faced.[4]

Photomontage of Roscoe Arbuckle pouring himself (or a revenant Virginia Rappe) a glass of gin, ca. 1921 (Calisphere)

[1] The original wire story appeared variously credited to the Associated Press, Hearst International News Service and the Chicago Tribune-New York Times, idated February 7, 1922.

[2] “New Artuckle Case Witness,” Salt Lake Tribune, 9 February 1922, 14.

[3] “Negro Woman Going to Testify Behalf ‘Fatty’ Arbuckle: Negress Says She Nursed Virginia Rappe and That Actress Grateful,” York Daily News-Times, 11 March 1921, 1. This is just one example of many.

[4] An Illinois state attorney and commissioner were present for Sabath’s depositions. We are currently investigating the possibility that these still exist in the state’s archives.

Alice Blake breaks down on the stand, March 23, 1922

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The reportage for the third trial was not as detailed as the first trial. The legion of reporters had been cut back as public interest in the Arbuckle case waned. Oscar Fernbach of the San Francisco Examiner soldiered on though and noted some important turning points as the trial unfolded—mostly lost opportunities for the prosecution.

As we pointed out in yesterday’s blog post, District Attorney Matthew Brady’s star witness, Zey Prevost, had fled to New Orleans beyond the reach of his subpoena power. She and showgirl Alice Blake were in roughly the same place at the same time while at the Labor Day Party. Both women had entered room 1219 after Roscoe Arbuckle had exited while Virginia Rappe was lying semiconscious in one of the room’s beds. Blake had heard Rappe “accuse” a male of hurting her and that she felt like she was dying. Her earliest statements are hardly ambiguous. But whether her statements had been fine-tuned by her interrogators has to be scrutinized. Nevertheless, like her friend Zey Prevost, Blake was less than enthusiastic about testifying against the comedian and was almost declared a hostile witness during the second trial. Like others who attended the party, Blake was in the “in crowd” and probably felt some kindred loyalty to the group. As an entertainer she would have also been aware of the possible impact her cooperation with the prosecution could have on her career.

Until March 23, 1922, Alice Blake had maintained her composure but her reluctance to testify was often apparent in the way she spoke almost in a whisper and, by degrees, ceased remembering details of what happened on Labor Day 1921—with the exception of being one of Rappe’s first responders.

Girl Checks State Attack upon “Fatty”
Alice Blake Denies She Heard Virginia Rappe Say “He Killed Me”; Breaks Under Fire

Oscar H. Fernbach, San Francisco Examiner, 24 March 1922

With every inch of the battle ground hotly contested, the fight being waged in Judge Louderback’s court to establish Roscoe Arbuckle’s guilt or innocence of the manslaughter of Virginia Rappe proceeded yesterday.

Tears and temper, accusations and recriminations, insults and apologies all contributed to the sensational features of the trial.

Alice Blake, star witness for the prosecution, broke down under the grilling cross-examination of Gavin McNab, became hysterical, and was led weeping from the witness stand, while an enforced recess was taken to give her time to compose herself. She could not stand the strain of McNab’s attempt to expose what he termed “fabricated testimony, produced under duress,” his accusations being directed more against the district attorney’s office than against the girl on the stand.

It was all about Alice Blake’s direct testimony to the effect that she had heard Virginia Rappe exclaim as she lay in agony upon the bed in Arbuckle’s room: “I am dying; he hurt me.” By producing the original statement, which the witness had given to the police on the day following the death of Virginia Rappe [September 10, 1921], McNab established the fact that Alice Blake at the time had not included the words, “He hurt me,” and the attorney proceeded to insinuate that District Attorney Brady and his assistants had subsequently tried to compel the witness to testify as she did. The girl explained yesterday [March 22, 1922] that when she was questioned in Brady’s office she was told that Zey Prevost had declared that Virginia Rappe had used the words, “He killed me,” and had informed Brady and [Assistant District Attorney] U’Ren that Alice Blake had heard her so exclaim.

“I told them I did not hear her say so,” was the emphatic testimony of the witness yesterday. And she went on to say that at the time she had expressed the belief that Virginia Rappe, if anything, might have said, “He hurt me.”

[Assistant District Attorney] Leo Friedman, who conducted the direct examination, had a hard time with his witness. The value of her statements to the prosecution seemed to have become inversely proportional to the number of trials to which Arbuckle is being subjected. She reached a strage yesterday where she “could not remember.” In vain did Friedman show her the record of her testimony in the police court and at two preceding trials. It merely refreshed her memory to the extent that she could recollect nothing.

On cross-examination, however, Alice Blake made a startling announcement. She confessed that she had left the sitting room of Arbuckle’s suite before either Virginia Rappe or Arbuckle had gone into the bedroom, and did not actually see either of them enter that apartment. This was news—and McNab made the most of it.[1]

True, the witness admitted that before she left to enter the third room [1221] of the suite, she had seen both the comedian and the actress walking toward the door of the bedroom [1219]. But she [Blake] further declared that she had been absent less than fifteen minutes when, upon her return to the sitting room [1220], she found Mrs. Delmont knocking on the bedroom door and calling to Arbuckle to open it. This testimony placed the comedian and Virginia Rappe alone in the bedroom for fall less period of time than hitherto had been inferred from all the testimony.

The story of how Virginia Rappe was found in agony in Arbuckle’s rooms, and the ministrations that were given her, was repeated in detail by Alice Blake. McNab, in turn, sought to convince the jury that the actress had been injured while being given a cold bath, or while being held upside down by Fred Fishback and that her cry, “He hurt me,” referred to the latter and not to Arbuckle. [. . .]

Alice Blake, September 19, 1921 (Underwood & Underwood)

[1] In reality, her initial statement indicates that she left room 1220 for room 1221—Lowell Sherman’s bedroom—as Rappe and Arbuckle entered room 1219. Blake didn’t disclose whether Sherman accompanied her. But this can be inferred from Prevost’s early statements and testimony, where she, Prevost, is alone in room 1220 with Maude Delmont. Here Blake mentions that fifteen minutes passed before she saw and heard Delmont kicking the door and demanding that she be allowed to speak to Rappe. While this seems to fit the defense’s assertion that Arbuckle and Rappe were alone for less than ten minutes, as Fernbach suggests here, it doesn’t. Blake omits here that she returned to room 1221. She was there when Arbuckle finally opened the door of room 1219 and didn’t see him exit. Keeping up with these details and nuances is not only difficult for authors and readers. Imagine what it was like for the prosecutors in 1921 and ’22!

Zey’s great escape; or the fall of a star witness

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Zey Prevost—born Sadie Reiss—and known by various permutations of her professional name, gave statements as well as testified at one preliminary investigation as well as the first two Roscoe Arbuckle trials. During the second trial, her testimony had changed enough to help Arbuckle, so much so that the prosecution wanted her declared a hostile witness. But she had always been hostile save for her earliest statement, which she later claimed was coerced.

We use that statement in our narrative primarily to reconstruct the “life” of Arbuckle’s Labor Day party as well as the condition in which she found Virginia Rappe in room 1219, with important details that hardly seem coerced, just matter of fact (e.g., Rappe’s eyes rolling upward, the wet bed on which she lay, and so on).

During the first days of the Arbuckle case in mid-September 1921, Prevost denied that she had tried to leave for San Francisco for New Orleans. But detectives had heard her say that she had been told to “keep her mouth shut.” And she did admit to meeting one of Arbuckle’s lawyers on the street before her Grand Jury testimony.

From the beginning the San Francisco District Attorney Matthew Brady regarded Prevost as potential hostile witness and successfully detained her for several weeks—a precaution that Arbuckle’s chief lawyer, Gavin McNab, used to assert that anything Prevost said to aid the prosecution’s case was coerced.

Prevost was called an actress and a model. She was undoubtedly a former Mack Sennett bathing beauty who boldly appropriated the name of another and more famous one, Marie Prevost. While her trip to New Orleans may have been arranged by Arbuckle’s lawyers—given her loyalty to the comedian. She may have made the move on her own. In any event, she had undone much of the damage she had done to him by her initial statements and testimony—and she also genuinely pitied him.

The following article comes in the wake of nationwide search for Prevost after she bought that train ticket to New Orleans on February 6, 1922, after the second Arbuckle trial had ended in a hung jury, this time the vote was 10 to 2 for conviction. Several jurors attributed their vote to Prevost’s reluctance to testify on the stand. This didn’t go unnoticed by Arbuckle’s lawyers.

Brady responded late on February 11, issuing a “foreign subpoena” for good reason. According to “Miss Tease Dowling,” a burlesque performer and one of Prevost’s girlfriends in New Orleans, said that “if Zey ever got to New Orleans, she’d hike right out to Cuba [. . .] she’s in Cuba by now. Sure ‘nuff.”[1]

Two San Francisco detectives was sent to New Orleans to locate Prevost and bring her back to California. Although they found her living at the Chalmette Hotel registered under the name Zaybelle Elruy, Prevost managed to escape. While two local toughs prevented the detectives from getting inside her room, she lowered herself and her suitcase on a rope into a courtyard and fled.

Eventually Brady received a telegram informing him that Prevost frequented the race track—meaning the Fairgrounds—in New Orleans and that she had no intention of returning to San Francisco for the foreseeable future. And he could do nothing.

He could only complain impotently to the press what he believed or what was true, that Prevost “was living in luxury” in New Orleans, subsidized by Arbuckle’s lawyers, and devoting much time to playing the races. “When the state had her in charge,” he said, “she was begging us for money to buy silk stockings.”[2]

Despite his “foreign subpoena,” California law was clear. Prevost couldn’t be compelled to return to California unless she were facing a criminal charge. With Mardi Gras only days away and the race track still open, Prevost remained ensconced in New Orleans for the duration of the third trial.

Race Track at Fairgrounds, New Orleans (private collection)

P.S. “Lawyers connected with the defense learned this week learned this week that Miss Prevost had made application through the office of Harry Weber, variety booking agent in New York, for a tour in vaudeville. She proposes, it is understood here, to appear in a sketch, together with Mrs. Wally Schang, wife of the catcher for the New York Yankees. Presumably Miss Prevost will trade upon the notoriety given her through the Arbuckle case, and that Mrs. Schang will try to ‘get over’ partly through the prominence of her husband in baseball.” The Knave, “Miss Prevost Heard from,” Oakland Tribune, 28 May 1922, S-8.

Arbuckle to Be Pitied, Says Zey Prevost
Missing Witness in New Orleans Gives Chronicle Views on Case
Not to Return Here
Actress Kept in Southern Metropolis by Lure of Racing Ponies

Special Dispatch to The Chronicle

New Orleans, Feb. 24. – Zey Prevost, missing witness for the state of California in the prosecution of Roscoe Arbuckle on a charge of manslaughter in connection with the death of Virginia Rappe, motion picture artist, is still in New Orleans. Lure of the ponies is the only reason for her continued sojourn in the Crescent city, frankly admits the young woman, who District Attorney Brady of San Francisco would like to see back on the coast.

But for all Zey cares, Brady and the other prosecutors can paddle their own canoes in trying to convict the comedian. Although her testimony at former trials of Arbuckle as to certain details of the party was considered one of the main points on which the state based its hope for conviction, Zey now sings a different tune.

Friday, when greeted on Canal Street by a Chronicle representative, Miss Prevost talked freely of the Arbuckle case.

“If you followed the trial closely, big boy,” she said in a bantering tone, “you know they ain’t no case. The would-be reformers just want to ‘pop it’ to Roscoe, and so they painted him as black as they could.

“The truth about the whole thing is that ‘Fatty’ was just giving a little party like many other persons in the moving picture and theatrical world have been accustomed to give. Fact that Miss Rappe was taken seriously ill at this party and died shortly after naturally was considered to be a result of the party.

“Personally, I think Arbuckle was absolutely innocent of any direct causes of her death. It is true a gay time was had by all, but I do not think the fun-making should have been construed as a wild orgy, for this certainly was not the case.

“Roscoe is more to be pitied than condemned. He was really a victim of circumstances. The fact that he was one of the most famous and most widely known comedians in the world naturally resulted in his being the center of publicity. Had the party been given by some lesser light in all probability little would have been said or written about it.”

[1] “New Orleans Search Proves Fruitless,” Minneapolis Tribune, 12 February 1922, 11.

[2] United Press, “Arbuckle Will Face Third Trial Monday [. . .] Witness Doing Well,” Ft. Wayne Sentinel, 12 March 1922, 1.