“McNab, Victorian, Flounders”—Bart Haley on the first day of jury deliberations, December 2, 1921

A few weeks ago, we reprinted one of Bart Haley’s reports from the first Arbuckle trial, which originally ran a century ago in the Philadelphia Evening Public Ledger.

Haley’s pieces are more editorials than they are strict reportage and here he discusses the role of the woman jurors in the trial and the problem they presented for Arbuckle’s lead attorney, Gavin McNab.

Ultimately, the first Arbuckle trial ended in a hung jury when one woman, Helen Meany Hubbard, refused to cast a ballot for acquittal. Over and over again she voted to convict Arbuckle of manslaughter in deliberations that dragged over a span of three days, from December 2 to December 4, 1921. She might have been alone had now a fellow juror, Thomas Kilkenny, voted to convict as well.

Haley is prescient in regard to the kind of modern juror whom McNab faced. Mrs. Hubbard, who was the wife of a lawyer, attributed her decision to the prosecution’s logical presentation of the circumstantial evidence, especially the fingerprints that indicated a struggle between Arbuckle and Rappe. Hubbard, too, found Arbuckle’s “Good Samaritan” testimony to be false. But it was Gavin McNab’s courtroom performance that she found particularly offensive. (For more on Hubbard, we suggest reading Joan Myrer’s “Virginia Rappe & the Search for the Mising Juror.”)

Arbuckle Jury Split; Is Locked Up Over Night

Two of Women Jurors Reported Holding Out for Conviction of Comedian
Acquittal May come When Court Meets Today
Fatty and Friends Worried by Delay—Had Hoped for Speedy Liberty
His Wife Breaks Down
Prosecutor Arranges to Guard Actor from Violence in Case He Is Freed

By Bart Haley

San Francisco, Dec. 3.—The jury before which Fatty Arbuckle has been on trial for manslaughter is split and temporarily deadlocked.

Two of the five women members were reported this morning to have been holding out for the conviction. After seven hours of deliberation and seven ballots, the foreman reported at 11:10 last night that no agreement had been reached.

The court had remained in special session. The jury was locked up with orders to go to work again today. The court will reconvene at 10 o’clock. Fatty and his counsel and his friends, who had been hoping and laboring for an immediate and spontaneous acquittal, were shocked.

(It will be 1 o’clock in Philadelphia when the court meets today.)

The big comedian, whose troubles, the first real ones of his life, began with the Labor Day gin-and-orange juice party which Virginia Rappe was carried with mortal injuries, was badly shaken for the news from the jury room. For hours he had waited in an agony of anxiety which he could not quite conceal.

The building was invaded by a curious mob. Judge Louderback had informed the jury that he would wait until 11 0’clock. This decision followed the failure of the jury to reach a verdict in two hours of wrangling that preceded the dinner hour. At 11 o’clock there was no sign of life from the jury room. A deputy sheriff was sent to make inquiries. He returned with the news that a verdict had not been reached and that the jury wanted ten minutes of grace to try again. It tried again and failed.

Fatty stood up in the brilliantly lighted courtroom and reached wearily for his hat. Even the anti-Fattys felt a momemt of pity. Mrs. Arbuckle, who was sitting behind her husband, arose, sat down again, opened her handbag, got out her handkerchief and began to cry.

Only Gavin McNab, chief of Fatty’s counsel, appeared unmoved. The other lawyers looked dismal, but resigned.

“I’m not worried,” said Fatty, “it’ll be all right. But I wish they would hurry.”

There were good reasons why hurry seemed desirable. Doubts and wrangling and delays and the dim possibility of a permanent disagreement were not likely to help toward a calf-killing in the land of films or to make the way easy for the return from Elba, which, to Fatty, is almost as important as liberty itself.

A verdict of acquittal is expected today. Arbuckle, his sisters, his wife, his counsel and the friends who were with him when he went unhappily through the jammed corridors on the way to his hotel felt so sure of an acquittal on the first ballot that they were prepared to leave for Los Angeles this afternoon.

District Attorney Brady and his assistants were not in court last night. They left with the manner of men washing their hands of the whole business at the close of their final arguments and after a day of extremely bitter interchanges with the lawyers for the defense.

But Brady has provided a strong guard to protect the tragic funny man from cranks who have been sending him violent and threatening letters.

The ground over which the battle for Fatty’s liberty and rehabilitation has raged furiously and without rest since November 11 was strewn with strange wreckage last night. Mrs. B. Maud Delmont, who was the most conspicuous of the women guests at the fatal Labor Day party, was taken from her hotel last night and placed in jail under a bigamy charge registered by the authorities of Madera County. It was Mrs. Delmont who first accused Arbuckle of being the direct cause of Virginia’s injuries.

Irene Morgan, who was found poisoned in her hotel here on Thursday, returned, still very ill, to Los Angeles this morning. She had brought into court as a witness for the defense. The police and private detectives, after working for twenty-four hours without sleep in an effort to find a man who was presumed to have poisoned Irene, quit the search in disgust.

They had sought high and low for a vehicle called, in the bright idiom of the police, “the poison taxicab”—a taxicab in which Miss Morgan said she rode just before a mysterious gentleman, “appearing much like one of District Attorney Brady’s detectives,” gave her deadly orange juice and poisoned candy. Physicians who were called in frantic haste to the Clift House, where Irene was found, said last night that so far as they could determine, the young woman took a great overdose of headache powders, accidentally or otherwise.

The ante-mortem statement obtained by the physicians when they thought Irene was going to die glistens with the strange poetry of delirium. It is all about love and a noble past and proud ancestors in Sweden and a Duke from Spelice and the dead Virginia.

Mrs. Minnie Neighbours, of Los Angeles, another of the women who gave some of the most helpful evidence for the defense, is waiting here to answer formally to a perjury charge on Monday. District Attorney Brady caused Mrs. Neighbours’ arrest and said that her evidence was wholly false.

Fatty and his counsel have found time from all their other troubles to stand manfully by the refugees. Their doctors treated Miss Morgan. The lawyers will defend Mrs. Neighbours. Mrs. Delmont, who started all the trouble, will seemingly see the last of it. She will be left to shift for herself.

The mill of the trial ground on unhindered by these reports from the outside world or news of stragglers overcome by the wayside. The jury retired at 4:10 after Gavin McNab and Assistant District Attorney U’Ren finished their respective appeals. The courtroom and the corridors were packed and there was a mob in the street. McNab assailed District Attorney Brady by name and the District Attorney assailed McNab.

“No innocent man,” said Mr. U’Ren, “would have kept still as Arbuckle did, until he was driven by the collapse of his counsel’s case to stand in this court and tell a story that is obviously untrue. Through perjury and hypocrisy, he is seeking his freedom.”

McNab again bitterly charged Brady with maintaining a system of organized terrorism in his office. When he was not addressing himself particularly to the women of the jury. McNab made masterly use of the material at his disposal. When he addressed himself to the women, he made it clear, perhaps for the first time, that equal rights of citizenship have created a new dilemma for lawyers.

Should you appeal to the minds or to the emotions of women in the jury box? Mr. McNab appealed proudly to their emotions, to their emotions only, and the experiment—which may become historic—didn’t terminate auspiciously.

Judge Louderback’s charge to the jury sounded almost like a recommendation for conviction. And the first rumors from the jury room indicated that all five women members desired ardently to send Mr. Arbuckle to jail. Stephen Hopkins, a thirteenth juror, who was held as an alternate until the deliberation of the jury began and then released, reflected the other side of the jury’s mind when he said he could see no reason for a conviction.

About the state of mind of the five women of the jury there were from the first differences of opinion as wide as the seas. They were among the first women who ever sat in judgment on a case of the sort which, involving spectacular crimes or spectacular misfortunes of one of their own sex, would normally be decided by the blundering and purely masculine code known in courts as the unwritten law.

The jury had a wide, an almost limitless, latitude for the exercise of its sympathies or its prejudices. Neither the prosecution nor the defense pleaded a clear case. To an impartial eye it was plain that the State’s direct evidence was not sufficient to prove Fatty guilty, in a court or out of it. Neither did Mr. McNab and his associates demonstrate Fatty’s innocence. Only Fatty himself knows what went on in the room from which Virginia Rappe was carried to die.

When, after all the noise and clamor of the closing arguments was over, the lawyers admitted that they had felt, addressing the women of the jury, as if they were talking into a void or appealing to a granite wall. But the jury women toward the last were not merely inscrutable. They were more obviously bored and weary—weary of Fatty and the wrangling of McNab and Brady, of the doctors and the lingo of the clinics, of everybody in the courtroom, of the repeated loud references to gin and orange juice.

When at last the jury left the courtroom at 4 o’clock in the afternoon, Fatty looked after them forlornly and his lawyers crowded about to make cheerful prophecies. Women, they told themselves and their client, were not fools about these things. Women could not be swayed by the befuddling sentimentalism that might cause men to do crazy things in cases like this. Women might be tender-hearted about all the rest of the world, but they were hard-boiled in relation to one another.

So the minutes passed. Fatty’s lawyers watched the clock anxiously and returned to the fear that was rending with them within. McNab, they were sure, had got to the jury. They felt that his address had been very moving. But it was not moving. Upon McNab it fell to initiate the long, long series of experiments which may have to be continued for years before lawyers of the present schools are able to talk effectually to mixed juries.

And upon the site of the Hall of Justice, lawyers of the future may yet erect in gratitude a monument in memory of Fatty’s chief of counsel and inscribe upon it: “On this spot Gavin McNab first demonstrated for posterity the manner in which a jury of the new age should not be addressed.”

McNab was Victorian. He begged the ladies of the jury to have no illusions. Yet he himself seemed full of them. McNab, the winner of a thousand great suits, the wise guide of a political party and mentor of a multitude of young lawyers, floundered when he sought to touch the consciousness of five average women and behaved like a mariner in uncharted waters at night. He began with Bethlehem and ended with “suffer the little children to come unto Me.”

He talked of the millions of children who had laughed at this most unfortunate man and dwelled long and tenderly upon the tradition of an unerring child’s instinct which he recommended as culminating proof of Fatty Arbuckle’s innocence and the cold brutality of the District Attorney’s office. McNab told of the need for a continuous reverence for all women.

At about the same moment, Irene Morgan in a mild delirium was telling them at the Clift Hotel to prepare for Duke of Spelice, who was coming to take her riding, and begging to be told where Virginia Rappe was. Mrs. Neighbours, another Arbuckle witness, was waiting to face a charge of perjury and Mrs. Maud Delmont, the third troubled woman in the case, was being taken to jail.

Fatty’s big car—someone said casually the other day it cost as much as a good-sized church—was waiting outside at the curb. It was not going to hang around the Hall of Justice a moment longer than was absolutely necessary. It was gassed and chauffeured for swift departure from this scene of trouble.

The jury had been out about twenty minutes when one of the Arbuckle counsel, who had passed a door that leads almost directly into the jury room, sat down among his associates and in almost inaudible whisper uttered one word:


Had McNab trusted too greatly to the woman of bright legend, to the woman of books written by sentimental men who make the unwritten law and not enough to the woman who votes? The thought may have occurred to some of the watchers.

It clearly did not occur to Fatty. He was not thinking. The blood was beating in his temples and upon his face fell the look of a man falling endlessly through space. There ensued a period of harrowing suspense until the jury disappeared stolidly to its hotel for dinner.

And the big car turned and rolled slowly down the street, but only to return at 8 o’clock. One salient had been lost. The battle waged for three weeks was not only for the Arbuckle of the present but for the Arbuckle of the future as well. A quick, unhesitating acquittal by the jury had been hoped for by the defense.

After the shock of the first disappointment, Fatty recovered and seemed to feel better. He loafed for a while in the corridor, when he returned, and smoked cigarettes, leaning comfortably against the wall.

“It’ll be all right,” said he. “I’m not a bit worried now, but I wish they’d hurry.”

Roscoe Arbuckle in court, December 1921 (Calisphere)

Bart Haley: Journalism the way it was at the first Arbuckle trial

Bart Haley covered the first Arbuckle trial for Philadelphia’s Evening Public Ledger, one of the few newspapers in the east to assign its own reporter. His pieces delved into the personalities of the men and women who figured in the trial.

The following piece captures the atmosphere of the San Francisco courtroom as the trial was about to go into jury deliberation.

The enmity between the defense lawyers and prosecutors is palpable. So, too, are the indirect ways that the prosecution undermined the performance of Arbuckle’s lead attorney, Gavin McNab, who used his Scottish accent and sarcasm to great effect during all three trials.

District Attorney Matthew Brady’s animosity, however, isn’t only directed at Roscoe Arbuckle. Another reason he pursued justice for Virginia Rappe was to punish the monied interest behind Arbuckle. Hence, the Arbuckle trial can be seen as an exercise in social justice, in step with the progressivism of the era. That is why we find Will Hays and the Production Code as the end result.

The Howard Street Gang rapes, referenced in the article, occurred in 1920 and the trial that followed in early 1921 became a cause célèbre for feminists and Matthew Brady, the newly elected D.A. The trial was noteworthy for the reluctance of the victims to speak out against the men who assaulted them. Their reluctance is what influenced Brady to put two of Arbuckle’s female guests, Zey Prevost and Alice Blake, in protective custody—albeit against their will. As entertainers always looking toward their next gigs, it’s presumed that if they could they would have avoided testifying against “Fatty” and, by proxy. the movie industry.

Regarding Haley, he began as an illustrator for such publications as The Saturday Evening Post. In 1919, together with another writer for the Evening Public Ledger, the humorist Christopher Morley, Haley coauthored the Prohibition Era satire In the Sweet and the Dry (1919). Haley died in 1932 at the age of fifty-one.

Arbuckle’s Fate Hinges on Report on Girl’s Health; Both Sides Anxious as to What Commission of Physicians Will Disclose; Free Gangsters If Fatty Is Cleared, Cries Brady; Comedian’s Case Expected to Be Placed in Jury’s Hands by Tomorrow

By Bart Haley

San Francisco, Dec. 1. – The case of the people of California and the pursuing fates and the Women’s Vigilant Committee of San Francisco against Fatty Arbuckle will be given into the hands of a weary jury of five women and seven men tomorrow.

Before Saturday morning Mr. Arbuckle should know whether he is to be out of the trenches by Christmas or tragically and irretrievably out of what, in the language of the superstitious, is called luck.

It is considered probably that the lawyers will struggle to the bitter end without hurling their leather-bound books at each other. But the air about the counsel tables is heavily weighted with thunders and lightnings that seem to be held in check with increasing difficulty.

Yesterday, for example, Matthew Brady, the District Attorney, uttered the bitterest comment ever heard west of the Rockies from a prosecutor in the midst of a criminal case.

“If this jury acquits Arbuckle,” he said, “I shall at once formally ask the Parole Board to release the Howard street gang. I can see no reason why the Howard streeters should stay in jail if Arbuckle is to go free.”

In San Francisco, where for a whole week the Howard street gang made headlines a foot thick and caused groans in all editorial columns, the afternoon newspapers fled gasping to press hours ahead of schedule time to give this news to the eager people. The gang to which Brady referred is generally supposed to be the toughest in the known world.

About ten of its leaders got fearfully drunk not long ago, dragged two young girls into a shack, assaulted them and turned them half dead into the street. The gang is now in San Quentin Prison, and it was Brady who put it there.

The reaction of Fatty’s lawyers to this pronouncement from the prosecution was suggestive of a cataclysm of nature. They fled into a special conference. When they emerged it was only Gavin McNab who would trust himself to speak at first. He was just in time to read the corrected version of Brady’s statement.

“The first report,” said Brady in print, “does not properly reflect what I said—”

“Aha,” murmured McNab. “He’s taking it back.”

“What I said,” proceeded the District Attorney’s revised communique, “was not that I’d free the Howard street gang if Arbuckle is turned loose. I haven’t power to free anybody. But I can ask for the release of the Howard street gang and I shall do so if there is a failure to convict in this case.

“There are many points of similarity in the crime charged against Arbuckle and that charged against the Howard street gang. Heavy drinking was the primary cause of the trouble in both cases. The Howard streeters came into court without a cent. Arbuckle arrived here with a million-dollar array of counsel.

“I’ve been around this Hall of Justice for seven or eight years and I have been forced by experience and observation to believe that it is a serious crime in this country to be poor. I want to feel that this view is not justified and that is one of the reasons why I want to see Arbuckle convicted. Convicted he will be if I can help it. Moreover, I intend to put a stop to the use of manufactured and perjured evidence in cases of this sort.”

“I shall be glad indeed,” said Mr. McNab in a low and terrible voice, “if Mr. Brady, ‘putting a stop to manufactured and perjured evidence,” begins his admirable work in his own office. He impounded Zey Prevost and Alice Blake, did he not? Yet I was unable to see that that work helped him in the least to manufacture a case against Roscoe Arbuckle.”

“I’ll tell you,” said Mr. Schmulowitz, of Fatty’s counsel, knowingly, “he’s merely trying to get black headlines in the newspapers, which the jury will be able to read at a distance when it goes to the hotel or to lunch.”

Brady, hearing of this, laughed sarcastically.

“They know what I’m trying to do,” said he. “I’m trying to put their little Mr. Arbuckle in a jail and they aren’t so sure that I’m not going to succeed.”

It is hardly fair to say that Brady is trying merely to make headlines. The lights in his office and in the offices of his assistants have been burning until 1 o’clock in the morning since the trial of Arbuckle began and his detectives have been sleeping in their clothes.

[. . .]

No one here is disposed to take “Fatty’s own story without a lot of salt. It is doubtful whether the jury’s mind is not yet wide open. Neither the District Attorney nor the defense has established what is ordinarily known as a “strong case.” The evidence against Fatty is merely circumstantial. Virginia Rappe entered one of the rooms of his suite apparently in normal health. Half an hour or an hour later Arbuckle unlocked the door of the room from the inside and admitted others of his guests, who found the girl in an agony of partial delirium and, as it proved later, fatally injured.

[. . .]

So the cause of the girl’s death is still a matter of doubt which neither the prosecution nor the defense has been able to explain or demonstrate away. In the light of all this the final report of the medical commission which is to appear today may be the deciding factor of the whole case.

Eight hours of oratory will follow the commission’s report, and then the jury will retire. It was agreed before the end of yesterday’s sessions that the defense and the prosecution shall each have four hours for the closing addresses to the jury. Mr. McNab suggested that the case be permitted to go to the jury without argument. He informed the Court that the defense was willing to enter into such an arrangement if the prosecution would agree.

“Doubtless,” said Brady, coldly, with a lift of his eloquent eyebrows toward the jury, “but the prosecution will enter into no such plan.”

“He’ll dislocate that eyebrow of his one of these days,” hissed Mr. Schmulowitz to one of his colleagues, “and then he’ll have to have it set.”

A moment later the emotional stress that prevails among all lawyers engaged in the case of Fatty was oddly revealed. There was a long interval of silence and whispered conferences. Fatty was peaceably rolling his little paper balls and appearing more lightsome than he has appeared since his travail began. Mr. Schmulowitz leaped suddenly to his feet and in a voice of great emotion asked that if it pleased the Court the District Attorney and his assistants be ordered to cease heckling the counsel for the defense.

“Heckling?” murmured Judge Louderback, staring hard at Brady’s table for signs of misbehavior.

“I desire formally to object, if it pleases the Court,” cried Schmulowitz in a voice that was like tragic music, “to the various asides indulged in by the State. I mean that there are words and gestures indulged in by the prosecution which are obviously meant to annoy counsel for the defense, and, what is more, to have an effect upon the mind of the jury.”

Mr. U’Ren, one of Brady’s assistants, rose nobly to his feet to observe in a sleety drawl that surely it was no intention of the defense to deny the right of conference to the people.

The fact is that there was something to be said on the side of Mr. Schmulowitz, but he didn’t say it. Perhaps no one could say it. The causes of his outburst are almost too subtle for analysis. Brady uses his shrugs to enormous effect. And Mr. Friedman, his youngest assistant, has a way of looking up and staring with an expression of awe and wonderment and seeming to be transfixed and diverted immeasurably at whatever lawyer of Fatty’s tried by devious methods to turn a tide of evidence of circumstance to the advantage of the accused.

So he looks at McNab and so he looks at Schmulowitz for half an hour at a time, only to turn now and then to smile at the jury as one who would let it participate in the enjoyment of a spectacle, spectacular and humorous.

Somehow or other the weight of the trouble seems to have passed mysteriously from Fatty to his lawyers. Fatty is cheerful at last. He is almost himself again. The change may be due to the succession of mysterious visitors who have been appearing in court to whisper in his ear—spatted and opulent individuals who sit and listen eagerly for a while and vanish as they appear, almost without a sound.

They come from that country from which for the time being the big comedian is exiled. Things, they think, are looking up. Yes, they represent some of the important movie people, one of them remarked. He added that for all one knew this unfortunate business might prove to be the best thing that ever happened to Arbuckle.

You see, Fatty has been getting a lot of publicity. Now, if that publicity can be turned to good account, if it can be shown that the children’s favorite comedian was a victim of most unhappy circumstances, why, this Fatty will be bigger than he ever was before. So it runs, this word from the world of Fatty’s former triumphs.

“Well,” you remark, to change the subject, “he seems to be standing it pretty well. He is far from being a wisp of himself.”

“No,” says the scout of the promoters whose money is tied up in Arbuckle pictures and Arbuckle contracts and Arbuckle plans. “He is not standing it so well as you might think. He’s nervous and wrought up. You see, he’s crazy to get back to work again. When he gets to work, he’ll be all right.”

Source: Evening Public Ledger, 1 December 1921, pp. 1, 4.