Charles Brennan

Gestational cystitis and Rappe’s Baby Girl: Nurse Roth speaks out, October 28, 1921

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The work-in-progress features a chapter on October 1921. During this time, Roscoe Arbuckle’s defense team and strategy changed. Frank Dominguez, the comedian’s lead counsel in September, allegedly resigned to pursue the interests he had in Los Angeles. But his departure had more to do with his strategy of insinuating that Maude Delmont and Al Semnacher had tried to blackmail Arbuckle with Rappe’s torn undergarments, which they had secreted away to Los Angeles.

Dominguez probably didn’t believe in such a scheme. It only served to further undermine the credibility of Maude Delmont. Once she testified at the preliminary hearing or trial, a masterful cross-examination could destroy the prosecution’s case. No jury would convict Arbuckle after this alleged extortionist, alcoholic, and drug addict was deconstructed in the witness chair.

But this strategy presupposed a crime, that Arbuckle had done something wrong, like raping Virginia Rappe or failing to report a tragic accident that might have happened in an act of consensual intercourse. Such a defense only made the problem worse for Joseph Schenk, Adolph Zukor, Jesse Lasky, and other stakeholders in Arbuckle’s career. They knew that their star comedian had to be completely innocent of any wrongdoing, “squeaky clean,” as his career and reputation were based on a wholesome (though often raffish) screen image. Thus, there had to be a kind of legal, ethical, and situational “estrangement” from the parttime actress and society girl who, until she suffered her fatal injury, was Arbuckle’s friend, “one of the gang.”

Dominguez’s partner and Arbuckle’s personal lawyer, Milton Cohen, was also part of the comedian’s defense team. Cohen authored the strategy of “deconstructing” Virginia Rappe. He had also once been her personal attorney and knew more about her than any of his colleagues. He knew that of the many performers who remade their personas, with their different names and confected backstories, Rappe’s was a nearly blank slate. If she didn’t have any skeletons in her closet, he could put them there.

Dominguez’s successor, Gavin McNab, was on board to develop this strategy with Cohen’s counterpart in Chicago, the lawyer Albert Sabath, a close friend of Rappe’s first boyfriend, Harry Barker. The strategy was simple enough: to blame the victim before Arbuckle’s manslaughter trial in November and get it into the press before jury selection.

Arbuckle’s defense team spent much of October locating witnesses who could tell tales of Rappe’s private life. They had an immense war chest and weren’t shy about intimidating the District Attorney of San Francisco with how much money they had as the postscript below the following news item makes clear.

The news item reprinted below is the capstone to a wave of such articles that DA Matthew Brady dismissed as “propaganda.” These appeared in various forms published by the Hearst syndicate’s International News Service (in contrast to the oft-mentioned animus William Randolph Hearst and his papers allegedly had toward Arbuckle and Hollywood, a meme that has been recycled in many narratives and biographies).

We devote an earlier blog entry to this topic because of the centrality of the cystitis–pregnancy strategy in finally getting Arbuckle acquitted in April 1922. Although we can’t fault the law of diminishing returns after three trials, the money spent on his defense wasn’t enough to convince the public that Arbuckle was the upright person they once had imagined.

Here, we return to the “propaganda” campaign because of the unusual features of this version from the Los Angeles Evening Herald of October 28, 1921. It gives a description of Rappe’s “daughter,” as though she were a tiny clone of the mother. This article, too, was the first to give a name to Rappe’s bladder disease.

Readers should note that premature infants were sometimes used as sideshow oddities in the early twentieth century. Nurse Roth, a self-proclaimed friend and confidante of Rappe, showed no hesitation in mentioning that her dear friend’s alleged child was used in such an exhibit.

NURSE REVEALS RAPPE GIRL’S PAST
TELLS LIFE OF WOMAN IN ARBUCKLE TRAGEDY
Attorneys in Chicago Hear Story of Acquaintance of Actress

By International News Service

CHICAGO, Oct. 28.—Shadowed secrets from the hidden past of Virginia Rappe, dead movie actress, were drawn to light today in an effort to clear Roscoe “Fatty” Arbuckle from responsibility for her death. The dead actress’ early life was revealed with many sordid details by Mrs. Josephine Roth, her lifelong friend.

The revelations included the fact that Virginia had been a mother, her child dying when 5 years old. The most startling statement made by Mrs. Roth was that the actress was in constant danger of a sudden shock.

DRAMATIC STATEMENT

“If I could tell my story to a jury of physicians, ‘Fatty’’ Arbuckle would be freed in 10 minutes,” was her dramatic statement. “Virginia could have died at any time from a sharp fall or even a sudden misstep.”

Her story was told to Assistant State’s Attorney Frank Peska, who represented District Attorney Brady of San Francisco. It was to be repeated later to Attorney Brennan of Arbuckle’s defense counsel, who arrived this afternoon.

Mrs. Roth told her story with tears, in her eyes.

“Virginia’s memory is still so tender,” she said.

CHRONIC AILMENT

She declared that Miss Rappe was a constant sufferer from systitus [sic], a chronic disease of a vital organ. Mrs. Roth, who had acted frequently as nurse to the former model, then described in detail the medical attention given the ailing woman. This treatment had been continued until 1913, when Virginia left Chicago, said Mrs. Roth.

“A baby was born here to Virginia. It was so small and frail, it was placed in an incubator and exhibited at a local amusement place,” said the former nurse.

BEAUTIFUL CHILD

“The child was very beautiful. She had Virginia’s black hair and big black eyes. She died when 5 years of age.”

Other depositions were taken during the day from Miss Virginia Warren, also a nurse; Jay Abrams and a prominent theatrical producer, whose name was withheld.

REPORT UNLMITED FUND AT DISPOSAL OF FATTY ARBUCKLE

SAN FRANCISCO, Oct. 28—The fight to save Roscoe “Fatty” Arbuckle from prison today assumed a wider scope with the circulation of the rumor that unlimited money for defense purposes has been placed at the comedian’s command. Lawyers, picked not for price but for the success they have achieved in San Francisco courts, have been engaged to conduct the defense. A nation-wide search for evidence, admittedly costing heavily, was underway today.

Gavin McNab, recently named chief counsel for Arbuckle, has frankly stated a group o{ men with investments in motion pictures have employed him. It was generally believed here that McNab’s fee went high into five figures and perhaps six.

Charles Brennan, another of Arbuckle’s lawyers, expected to reach Chicago tomorrow, in his search for evidence. Later, Brennan is expected to go to New York and Washington, where other witnesses are believed located.

Among those he will see in the east will be Lowell Sherman, Broadway favorite and picture star, who was a guest at Arbuckle’s party preceding Virginia Rappe’s death. The entire story of Virginia Rappe’s life Is being pieced together by the defense as a foundation for a theory that she died from unavoidable causes for which Arbuckle had no responsibility.

Source: Los Angeles Evening Herald, 28 October 1921, A3.

Nurse Josephine Rafferty Roth, infant, and onlooker, ca. 1910s (Private collection)

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: Arbuckle’s lawyers state they will not defame Virginia Rappe, October 31, 1921

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After spending a week in Chicago, lawyer Charles H. Brennan of San Francisco had secured depositions from three witnesses, among them Josephine Rafferty Roth, a midwife and nurse. All three claimed that Rappe had given birth to a premature baby in 1908 and again in 1910 and treated more than once for the “same trouble,” meaning the chronic cystitis that was evidenced in her autopsy.

Nevertheless, Brennan reassured reporters in Chicago, “The defense has no intention of defaming the character of Miss Rappe after she is dead. We are merely trying to establish the fact that Miss Rappe had been suffering from organic trouble for a long time. Arbuckle, we contend, was not responsible for the rupture which caused her death.” The introduction of a “fallen woman” trope, however, was undoubtedly intended. If Rappe was to blame, then Arbuckle was the unfortunate victim of a coincidence.

Fallen woman? Virginia Rappe in Redbook, August 1912

100 Years Ago Today: The Grand Jury meets to hear witnesses, September 12, 1921

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Given that Arbuckle was the highest paid actor in 1921 and made millions more for hundreds of theater owners and others, District Attorney Matthew Brady grasped the magnitude of the case and his greatest fear was witness tampering. He knew that, as Roscoe Arbuckle waited for the Oakland Ferry for the last stretch of their trip, his lawyer Frank Dominguez had made a telephone call to the police, assuring that Arbuckle would turn himself in. But he suspected another call was made, to Arbuckle’s new lawyer in San Francisco, Charles Brennan, to learn of any developments that they would need to get ahead of.

What has gone under-appreciated in the early days of the Arbuckle case, indeed, in the hours after Rappe died on September 9, is how quickly Arbuckle responded to the possibility of his arrest and the accusation of murder against him. By midnight, a strategy meeting convened in the office of Sid Grauman’s Million Dollar Theater, attended by two lawyers, a friendly journalist from the Los Angeles Times as well as three men who attended the ill-fated party.

In the annals of crisis communications, what was accomplished for Arbuckle could be the first modern example.

One aspect of this was to neutralize the witnesses who might inflict the most damage to the defense by making them aware of the risk–reward of doing so.

For an aspiring entertainer, Zey Prevost was just such a person. She had made a statement to police on Saturday, September 10, the day Arbuckle and his team spent driving from Los Angeles to San Francisco. Two days later, on the day the Grand Jury was to meet, she asked to change her story and remove any testimony that could be used to make Arbuckle responsible for the injury that led to Virginia Rappe’s death. Later, she testified in another venue that she had been approached by another of Arbuckle’s lawyers, Charles Brennan, on Market Street in San Francisco.

Q: What did Mr. Brennan say to you?

A: Just asked me if I had a lawyer—if I needed a lawyer, to tell him. I said “Sure.”

Q: Did he ask you anything further about remaining in town, or going out?

A: He asked me about staying in town. I said “I may stay in town a few days until this thing is over.”[1]

This was all she said of her conversation with Brennan. But she went away from it committed to undermining Brady’s case against Arbuckle before it even got off the ground. Only a threat of perjury and jail time convinced her to keep to her original statement. In any event, the defense, over time, was able to convince jury members to vote for acquittal in part because Brady allegedly coerced his witnesses to say what he wanted to hear.

If Prevost was somehow rewarded for her loyalty, it didn’t amount to much. She was signed as a vaudeville act a few weeks after the third trial. But that was short-lived and her career as a comedienne was soon over.

Alice Blake, a friend of Zey Prevost, was also seen as a “coerced” witness (Calisphere)

[1] See People vs. Arbuckle, 316–317.