The following passage is from the narrative of the second Arbuckle trial of January–February 1922, which gets little attention in other books. In Spite Work, however, this trial is the pivot between the first and third trial in regard to defending Arbuckle and defaming Virginia Rappe. There are also witnesses who took the stand only at the second trial. The actress Helen Crawford Hansen, whom Virginia met through Al Semnacher, either as a talent manager or in a more risqué capacity. Although Miss Hansen is a footnote in the contemporary reportage, the trial transcript provides a glimpse of her and the real Virgnia Rappe, as well as their Los Angeles in 1921. The following passage might end up on the cutting floor. (For more about Miss Hansen, there is an earlier post.)
Aerial photograph of the Bernheimer Estate (Library of Congress)
Virginia Rappe’s temporary companion Minnie Buck of 1920 missed her train. This left Helen Hansen as the only witness who arrived in time from Los Angeles ready to testify on Saturday morning.13 She gave her married name to the court reporter, not her real and professional name of Helen Crawford. She had to consider the casting directors, as well as her association with Al Semnacher, who no longer could do anything for his clients as long as he was tied to Arbuckle’s fate. Fortunately, Milton U’Ren did not ask about her motion picture career, only about Virginia’s health during the eight weeks that they were “besties,” from July 1 to September 2, 1921. But he did not use our latest word for such instant friendships. He asked if their “acquaintanceship” had been “casual or intimate.”
A. Intimate. Q. How often did you see her? A. Every day.
During that time, Helen never knew Virginia to be ill. Her health was very good. Then Helen described the eight-mile walks they took together up into the Hollywood Hills, that they went as far as the Bernheimer Gardens, when it was still a private estate in the Pacific Palisades. Helen did not need to say anymore, that Virginia had a long affinity for those hills when she could see them from the Hotel Hollywood. Helen did need to mention that she and Virginia could have charmed their way onto the grounds, to admire the bronze statues, the waterfall, the pools, the swans, as well as the Japanese pavilion and garden that would be lost to a landslide in 1936. U’Ren only wanted to make sure the walks sounded real in the summer heat of Los Angeles..
A. From about six in the morning until some time between eight and nine. Q. Were they confined to the level? A. No, sir. Q. Just describe to the jury the paths that you took, as being upon the level upon the hills, or whether it would be steep or otherwise. A. Well, we went uphill mostly—anything that was a hard walk. Q. Did Miss Rappe appear to you to be fatigued after these walks? A. No, she did not.
U’Ren did not ask any personal details reported in the newspapers in September, that Helen was supposed to go with Virginia to San Francisco. Nor did he ask anything about the crepe silk French underwear that Helen helped Virginia sew together. For this trial, Virginia could only be this picture of health rather than a bladder in a jar of formaldehyde. Nevertheless, the jury surely apprehended something about the real person. Finally, U’Ren asked his standard questions about convulsions, fainting spells, shrieking with pain, and so on, to which Helen answered no, no, no . . .
Gavin McNab passed on cross-examining this witness of whom he knew very little, who probably knew more about those weeks before Miss Rappe left Los Angeles without Helen—and what they had to do to get in front of a camera. As for Helen Crawford, she was newsworthy again in San Francisco, when she sued her husband for an annulment. But she could only get bit roles, that petered out by 1925, when she played a maid in The Little Firebrand, an Edith Thornton vehicle. (By that time, using her own name would have been eclipsed by the rising stardom of Joan Crawford.)
13People vs. Arbuckle, Second Trial, “Testimony of Miss Helen Hansen,” 2052–58.
Helen Hansen was newsworthy once more in April 1923 (Newspapers.com)
In defending the indefensible, so to speak, a plausible explanation had to be invented for Roscoe “Fatty” Arbuckle’s wearing silk pajamas and a purple bathrobe as he greeted female guests in his suite at the St. Francis Hotel on Labor Day 1921. After all, two assistant district attorneys, in their closing arguments for convicting Arbuckle of manslaughter in the death of Virginia Rappe, had made a special point of making the comedian out to be so debauched, so louche, in still wearing his pajamas after emerging from room 1219 with the fatally injured actress lying on a bed saturated with his perspiration. And for those with less than a longer memory, the journalist Adela Rogers St. John in “Love Confession of a Fat Man,” a feature interview published in the September 1921 issue of Photoplay, devoted some ink to the same or similar pajamas that Arbuckle wore in her presence at the same time of day.
We were lunching together in his bedroom. I shall never be able to estimate just what percentage of effect they had on me—those pongee pajamas. Of course, I had seen men in pajamas before. If you read the ads in the magazines you can’t help but see men in and out of most anything. But I’d never interviewed in them before. And I love pongee pajamas. I suppose it is only fair to my husband to state that the bedroom was a set—on stage three, at the Lasky studio. That the pajamas and the dressing gown and even the bath slippers were only his costume for a scene and that we were almost aggressively chaperoned by seventeen stage carpenters, thirteen electricians, a few stray cameramen, and a troop of studio cats. And Oscar. The colored gentleman that “tends to” Mr. Arbuckle.
Nevertheless, those pongee pajamas were exceedingly—intrigante, if you understand French. That is to say, one really can’t talk to a man in his pajamas without feeling more or less—well, sympathetic and well-acquainted, so I may have taken too lenient a view of his view for a confessor.[1]
The interview is strange in that Arbuckle is not single but rather married. And the interview is conducted in a bedroom. That is even stranger, for it required that Mrs. St. John make up an excuse for the pajamas by saying that the comedian had just been working in front of the camera, which, of course, invites the question: Did Arbuckle’s contract provide for a bedroom rather than a dressing room attached to the set? In any event, he did wear such a costume in Leap Year, the last Arbuckle vehicle to be filmed in the late summer of 1921. He would not make another comedy until a decade later.
That said, the same excuse could not be made for the Labor Day debauch. It took another motion picture magazine piece to explain away the pajamas and bathrobe, this time attributed to the wife who goes unmentioned in the love confessions, Minta Durfee, assisted by Paramount’s publicity department and Arbuckle’s lawyers.
“Not long before the trip to San Francisco, Mr. Arbuckle was accidentally burned with muriatic acid,” Minta disclosed in Movie Weekly in late December 1921, three weeks after the end of the first trial and as many weeks before the start of the second.[2] The injury required that Arbuckle wear thick cotton dressing, which naturally, conflicted with his vanity.
He always had his clothing made rather tightly fitting in order to keep him from looking any fatter than he is, and tight clothing over the burn was anything but comfortable. Whenever he could, he wore loose clothing, and that was why he was dressed in pajamas on the day of the party.[3]
This excuse, or rather alibi, was then put to good use at the second trial. During the cross-examination of two prosecution witnesses, Zey Prevost and Alice Blake, Arbuckle’s chief counsel Gavin McNab made a special point of asking each one if Arbuckle had asked them if he did not request their pardon for being dressed the way he was during the early afternoon of September 5.
Q. Miss Blake, did Mr. Arbuckle make any explanation to you about his reason for receiving young ladies in his room in his dressing gown and pajamas? A. Why, I believe he did mention it, he said something about a burn or something.
Q. What? A. He said something about a burn.
Q. Did he apologize to all of you young ladies and say that the reason that he had to receive you in that way was that he had had a serious accident. A. Yes, sir.
Q. And that he could not be comfortable otherwise than this gown? A. Yes, sir.[4]
Assistant District Attorney Leo Friedman objected on the ground that “this is a collateral matter” and hearsay—and he likely knew better. And there would be no doubt after the long and contentious testimony of Zey Prevost, whose memory failed to the point at which the prosecution wanted to the court to declare her a hostile witness. As Friedman’s colleague, Milton U’Ren pointed out, “She had been under other influences since the last trial.”[5]
When it was Zey’s turn to vouch for Arbuckle’s excuse, Friedman objected once more “on the right of counsel to broach brand new matters in a leading and suggestive manner.”[6] And argument took place over several pages before Zey could answer as desired that Arbuckle made apologies, “that he was sitting in some acid, or something, in a machine [i.e., an automobile], and burned himself, and that he was more comfortable in his pajamas and bathrobe, than he was in his clothes.”[7] What followed, however, was another line of questions that is why we want to close read what Friedman called “a hullaballoo over nothing.”
Q. Miss Prevost, you have had no conversations with counsel for the defense since the district attorney first saw you in the other case, or with any of the defense counsel up to this time, have you? A. No, sir.
[. . .]
Q. You are not under the influence or duress of anybody? A. No, sir.[8]
Of course, while the prosecution could no longer keep Misses Blake and Prevost incommunicado as they had done before the first trial—because they could not be trusted—they had surely been tailed by police detectives and that both women had made contact with Arbuckle’s lawyers and knew what to say so as not to perjure themselves and to no longer be effective witnesses for the prosecution of the comedian.
[1] Adela Rogers St. John, “Love Confessions of a Fat Man,” Photo Play, September 1921, 22.
[2] The excuse seemed to resonate with another—and quite plausible one—for the carbuncle he suffered for months in 1916–’17. Rather than having it treated, he let if fester and relied on morphine injections—and very likely heroin—to dull the pain. The comedian was negotiating and ultimately signing a contract with Paramount Pictures and he could ill afford to be hors de combat—out of action. By the time he arrived in New Yor City in March 1917 for a series of dinners marking his million-dollar deal with Paramount, Arbuckle was on crutches and could barely walk without assistance.
[3] Minta Durfee, “The True Story about My Husband,” Movie Weekly, December 24, 1921.
[4]People vs. Arbuckle, Second Trial, “Testimony of Alice Blake,” p. 882.
The narrative of the second trial will not have the same blow-by-blow detail as the first in Spite Work. The second trial, which could be called the “medical trial,” saw more emphasis on the medical expert evidence (rather than the “moral” evidence of the third), for both sides had more time to digest the report of the court-appointed committee of three pathologists who examined specimens taken from Virginia Rappe’s preserved bladder under a microscope. This is why the second trial begins with the testimony of those physicians. They found no pathological cause for a reptured bladder. They did find chronic cystitis at its base (i.e., the trigone region). Technically, legally, the bladder was “diseased,” but not in any that could have contributed to a rupture, spontaneous or with the application of external force. The three pathologists testified one after the other on at the second trial. They were followed by Dr. Arthur Beardslee, the St. Francis Hotel physician discussed in an earlier blog, who treated Virginia and was the first to suspect that her bladder had ruptured. His testimony at the preliminary investigation and the first trial surely fascinated jurors because there was the remote chance that she might have been saved. They also had to wonder just what kind of people were making decisions for her welfare that prevented timely, even heroic surgery. One might think her death was a group effort.
During the second trial, Dr. Beardslee had to explain once more a term that only he used, “surgical abdomen.” That is, prompt surgical intervention to treat underlying pathologies such as infections, perforations, as well as obstructions. He reasoned that
The symptoms and signs were those of a—that referred to the bladder, and as I said, were classical of a ruptured bladder. The only—one thought would be to get a case like that to the hospital, to get it into the operating room, and open the abdomen, and sew up the bladder or do whatever was necessary.[1]
As the lawyers led Dr. Beardslee through his examination and cross-examination, he was not allowed to repeat conversations with Virginia, her companion Maude Delmont, or the “people,” on the twelfth floor of the hotel, who undoubtedly were informed that surgery was a real opition. “Whatever was necessary,” however, risked notoriety, police, reporters. Those people, who would have included Roscoe Arbuckle, the actor Lowell Sherman, the comedy director Fred Fishback, and the person who became the comedian’s minder during the Labor Day party, Mae Taube (Bebe Daniels’ bestie for lack of a better designation), all of them, likely had a say. They all surely ignored Dr. Beardslee’s suggestion.
Gavin McNab
We can only guess what the hotel physician said through Mrs. Delmont, who acted as an intermediary between rooms 1227 and 1220. Dr. Beardslee’s delivery likely lacked any melodramatic urgency. A certan deference was afforded to celebrity guests as well as discretion. Arbuckle’s lawyers, however, wanted to hear about another conversation that Dr. Beardslee heard. Gavin McNab, the comedian’s lead counsel, made an impassioned speech about being allowed to cross-examine Beardslee on this point as an offer of proof. As you read the following, there is no mystery in his delivery. McNab had a pronounced Highland accent that tended to leave jurors and reporters awestruck in 1921.
If the court please, as part of the very history of this case, this witness, the State’s witness, the medical assistant sent for this young girl in distress, he calls there, under the most solemn and sacred circumstances, under circumstances in which she would reveal to him, or this person for her, in her presence, would reveal her condition, and this being necessary question to the history of the case, did she ask her if anybody injured her, so he himself therefore could apply the remedies that would cure this girl; that was, under these solemn circumstances, the heart of the case, the history of the case; it was one of the most solemn pieces of testimony, one of the most direct pieces of testimony, and one of the most convincing pieces of testimony, the statement of the girl herself, or somebody for her, given at that time, which can be presented to this jury.[2]
The rhetorical investment here is impressive and served a purpose: to get Arbuckle acquitted as cleanly and efficiently as possible. This was a trump card flashed early and the prosecutors knew the reason. Their witness, Dr. Beardslee, had been compromised into saying that he had asked Virginia Rappe directly and to the effect, “Did someone hurt you?” This would have destroyed the case against Arbuckle then and there. To obviate McNab’s offer of proof, the prosecutors objected on the grounds that “hearing from the girl herself” would be hearsay. But if McNab wanted to present such a conversation, he could resort to calling Mrs. Delmont to the stand. She was not a State’s witness. The prosecutors deliberately kept her off the witness stand, save for the earliest venues (the Grand Jury, the Coroner’s Jury). Spite Work examines the reasons for doing so, even though Mrs. Delmont signed the murder complaint against Arbuckle. Let’s just say for now that she would have added a certain complexity to the case that would cause both sides a lot of problems, like exposing the conversations Dr. Beardslee had with Arbuckle and his people through the woman in the middle. The evidence, which any jury, whether now or a century ago, would have to be struggled through to arrive on a verdict. So the K.I.S.S. principle of case design had to be employed.
In any event, the prosecutors defused McNab’s offer by reminding him that Mrs. Delmont was “available to him.”
[1]People vs. Arbuckle, Second Trial, “Testimony of Dr. Arthur Beardslee,” p. 793.
A new version of the arguments is being drafted (as I write) delivered before the jury near the end of the first Arbuckle trial of November–December 1921. The first draft had been based on very detailed reportage. The trial transcripts, however, differ markedly from the paraphrased versions in published in newspapers.
Roscoe Arbuckle with his female interest throwing herself in front of him. (He wears one of his capacious bathrobes, perhaps even the one worn at his Labor Day Party. As a further aside, the more militant feminists who panned Gavin McNab’s bible readings were far outnumbered in court by young women who, not unlike this one, stood up for the comedian.)
What follows is the end of the section devoted to Gavin McNab’s defense of “Fatty” Arbuckle.[1] Its title is derived from the Rev. James Gordon, the same Rev. Gordon whom Sidi Spreckels called to Virginia Rappe’s bedside. The clergyman, writing in his new column, described McNab’s speech as a “Celtic prose poem” after McNab’s rich Highland accent, which made him sound as much like a Presbyterian divine as a lawyer.[2] The man who followed McNab, with closing argument for the People, Milton U’Ren, was not as sanguine. To him the Good Samaritan described below was a “moral leper” and inspired another kind of outburst of faith: “Thank God, he will never make the world laugh again.”[3]
Had it not been for Maude Delmont being an unreliable witness, there would be no reliance on Zey Prevost or Alice Blake. All three women, for men who remembered the Preparedness Day bombing, always posed the risk of blowing up the People’s case. Every one of the district attorneys had a hand in planting those bombs in their own case, most of all Isadore Golden, who had come up with the compromise “hurt.” Still, that is what those showgirls undersigned. And, lest anyone forget, the “unfortunate circumstances,” the “wine party” as McNab put it, that event still resulted in murder to the prosecutors. They just needed to bide their time for a little longer and weather the dated lawyerly magniloquence of the 1800s autodidact showing off for the jury.
McNab’s had a working lunch. He met with his colleagues to discuss his performance and to go over the record and what had not been covered. There had been no mention of Jesse Norgaard, whose testimony suggested that Arbuckle had been obsessed with Virginia and that he disrespected her as well, and women in general, given whatever joke he intended to play.
Nat Schmulowitz surely and tactfully expressed a concern for the way medical evidence had not been exploited thoroughly. McNab had only burnished the reputations of Dr. Shiels and Collins brighter. And he had yet to draw on the Chicago affidavits, Albert Sabath’s contributions. One had been read into the record—and three doctors the day before certified that Miss Rappe was diseased. She had cystitis, which, to these conferees who had been holding back on leaving her reputation alone, was virtually a junior venereal disease in keeping with the late junior vamp.
And so, when the trial resumed at 1:45 p.m., McNab linked the medical commission’s report to “the testimony of Dr. Rosenberg of Chicago.” This evidence revealed that the defense had been right in contending that the young woman’s bladder had “defects,” that it was not the “perfect organ” the prosecution contended. Even that realization elicited another opportunity to preach to the jury as if it were the choir. “It would be an assurance trespassing on the domain of Divine Providence for any lawyer to intrude into the mysteries of nature and say what caused that rupture,” McNab intoned.
But the disease for which we have contended had been established. Whether that contributed materially to the disorder, we do now know, nor have any of the medical men on either side who have appeared before you pretended to tell you what did. All they could say to you was that many things might have done so. This leaves it with you of any direct testimony, outside of the medical and of the surgical demonstrations, to determine what probably brought about this young woman’s demise.
McNab, of course, did not want jurors to glance knowingly at Arbuckle’s girth—the District Attorney’s murder weapon that had been turned against the comedian. And so jurors who had already made up their minds, the reporters, as well as Arbuckle and Minta who knew better, now heard McNab deliver a paean, a panegyric devoted to the exercise of impartial judgement. “We do not ask you to give him any consideration because he is a great artist,” McNab said, without being ironic again, “or because he had brought joy into the world, or because he has made a success of his life. [. . .] This man without any disfigurement in this case, because there was not the slightest testimony reflecting on his character.”
The prosecution’s case, McNab reasoned, was based entirely on “conjecture.” As for the Arbuckle’s version of events, in response to all that had been made up about him, McNab made it a special point that his side made no objections during “two hours and twenty minutes of crucial cross-examination.” That was unheard of. That only proved Arbuckle’s candidness before the people of San Francisco and the nation. Then McNab waxed into a Cross of Gold speech made of diamonds.
That is the story. And you heard the story in its simplicity of how he tried to help this woman in the distress that had come upon her, and which was a common experience in her life, as is established without a contradiction, and how actuated by the spirit of mercy, you see this picture of this man crucified before you as a wicked character, in speech but not in evidence, carrying the limp body of this injured girl down the corridor of the hotel, staggering with her weight. Was this an unkind man? Doesn’t that tell the story, open for the world there to look at what went on behind the closed but not locked doors? [. . .] And he has told you in simple words what happened, and it exactly corresponds with this great, big, warm-hearted man, this rough diamond, perhaps, but still a diamond, carrying that injured girl down thru the hall; a more pathetic and a more beautiful picture than he ever put on the screen.
“There is to my mind a beautiful thought in connection with this thought,” McNab said in afterthought, that counsel had “not asked about the pictures that this man produced, but has anybody ever suggested that anybody ever saw an unclean picture of Roscoe Arbuckle? I think sometimes that the instincts of childhood is the most accurate of all instincts of the human race.” And yes, McNab really did impress upon the jurors the notion that Arbuckle himself was a juvenile. That gave his lawyer a fitting way to end of his Celtic sermon. “I always am impressed,” McNab said sagaciously,
with that beautiful spiritual suggestion of the Savior, “Suffer little children to come unto me.” And the childhood of the world, the instinct of childhood, had been accurate from that day to this, and this man who has sweetened human existence by the laughter of millions and millions of innocent children comes before you with a story of a frank, open-heated, big American, and submits the facts of this case in your hands.
To this a bored Leo Friedman, speaking for the People, asked McNab if he were done.
[1]People vs. Arbuckle, First Trial, “Argument of Mr. McNab, on Behalf of the Defendant,” 2188ff.
[2] James Gordon, “Minister Tells Highlights in ‘Fatty’ Case,” Los Angeles Evening Herald, December 1, 1921.
[3]People vs. Arbuckle, “First Trial, Closing Argument for the People, by Mr. U’Ren,” 2269ff.
The new manuscript is now well informed by the trial transcripts. The next part of the book still needs to be written, devoted to the Arbuckle–Rappe trials—and they are both on trial in this book. But any verdict will be handed over to the reader with some new ideas to consider. This, I guess, makes the reader a metajuror and, in keeping with that duty, we might look at how one of the original jurors was selected in November 1921. I cannot devote a lot of space to this, even though I am a trial junkie now. You can see how virtually everything is played out in advance of the first day of testimony. Indeed, writing about them will be like writing about a formality.
Let’s look at Mrs. Helen Hubbard. Her single vote of guilty caused a hung jury and forced the Arbuckle case to continue into 1922 and two more trials. The film historian Joan Myers took special interest in Mrs. Hubbard in her essay, “Virginia Rappe & The Search for the Missing Juror,” which, I believe, dates back to before 2013. But Ms. Myers could only go by newspaper accounts.
That Mrs. Hubbard served on the first Arbuckle trial jury stands out because she was the wife of a lawyer. She had once worked for a law office in Toledo, Ohio, before her marriage and worked for her husband’s growing practice, which dealt mostly in civil law. By 1921, however, she preferred to be a homemaker and bridge player. She was good enough to teach other women how to play as well and participate in bridge tournaments.
Mrs. Hubbard proved to be competent on the stand when first examined by Assistant District Attorney Milton U’Ren, her answers were quick and without hesitation, even when tested. She surely knew how to answer a question in such a way as to be disqualified and so avoid such an interruption to her life.
Q. Now, Mrs. Hubbard, if Mr. Hubbard were the District Attorney of the City and County of San Francisco, entrusted with the prosecution of this case, would you like to have him try the case before twelve jurors who were in your present frame of mine? A. Yes, sir. Q. You would think in that cast that he would have a fair and impartial jury? A. I think he would. Q. And if, on the other hand, some person near and dear to you were charged with a crime and placed upon trial, would you be willing to have them—be willing to have that person tried by twelve persons in your present state of mind. A. I would.[1]
Although Mrs. Hubbard later professed a reluctance to serve as a juror, her crisp replies to U’Ren suggest otherwise. Indeed, until her vote, she was seen by the prosecution and defense as an ideal witness. Reporters who kept an eye on her in the jury box couldn’t get a read on her. (The poker face, presumably, owing much to her preferred game.)
Arbuckle’s lead counsel, Gavin McNab, asked different questions, prefaced, interpolated with parentheticals, and more often wrapping around their point. His required much more concentration not only from the juror, from by the other lawyers. McNab, however, had to tease out any female talesmen who might sympathize with women’s groups that wanted “Fatty” Arbuckle punished, namely San Francisco’s Women’s Vigilant Committee.
This organization, in the context of the Arbuckle trials did not police the “immoral” behavior of women but rather served as observers of how female witnesses were respected on the stand. The WVC also wanted justice served if Arbuckle case revealed a high-profile example of violence toward women. Some members of the WVC wanted to see another amendment, as important as the eighteenth, that guaranteed “the right of every woman to become intoxicated in personal safety. [. . .] If a man gets drunk, it is regarded as his liberty. If a woman does the same thing, society, like the Romans of the Coliseum, is willing to turn the wild animals upon her.”[2]
Despite U’Ren best efforts to get in front of the “clubwomen” issue, McNab didn’t waste time with his first question and making them the issue.
Q. Mrs. Hubbard, the District Attorney has asked you somewhat extensively about women’s clubs and their part in the case. It does not create any prejudice in your mind because the defendant and his counsel prefer to be tried by a sworn jury, and his Honor presiding, rather than the emotions of any club? A. No, sir.
U’Ren did not let this go. “Well, we submit that is an improper question, if your Honor please, and argumentized,” he said to Judge Harold Louderback. “We do not know what is in the heart or mind of the defendant. It is understood he is to be tried by a jury.” The judge allowed for the question but said it was “rather farfetched” and admonished McNab for not framing his inquiries “so as they could be answered with less trouble.”
McNab abided by this warning and simply asked questions about “the mechanics of a trial.” Then he asked her a question that was posed to every talesmen, which foreshadowed the strategy Arbuckle’s lawyers took. (The so-called “blackmail plot” involving Bambina Maude Delmont had long since been cast aside. I have a theory for canard in the book—and it is a canard.)
What McNab did here was to try the case in a set-piece, presenting the defense’s theory about Virginia Rappe’s fatal injury as self-induced over many years of illness and immorality, despite promises made to the contrary.
Q. In the trial of the case, Mrs. Hubbard, it may be the duty of the defense to present evidence as to the physical condition of this young girl at various times in her life. She came to her death through a ruptured organ, an ordinary physiological occurrence, and it may—the defense may present testimony covering many years, to show that her condition, that that might haven at any time—
“Just a minute,” U’Ren interrupted from his end of shared counsel table (which weren’t divided into two in 1921). “We are going to object to that question, because, first, it is involved and complex and in the second place, if your Honor please—”
Then U’Ren was interrupted himself by Nat Schmulowitz, McNab’s chief assistant. “If you will just wait until the question is completed—
“Mr. McNab is conducting the examination,” replied U’Ren condescendingly, “and I am attempting to make an objection, and I thought the question had been completed, but the vice of the question is apparent already, when counsel says that the ruptured bladder is an ordinary physiological condition. I do not know whether he really meant that, or not, but that is assuming something that is not true.”
And so it went for Mrs. Hubbard. The examination of the jurors was, as many reporters pointed out, had all the hallmarks of the trial to come. There were also many curiosities for us to parse. McNab used the words “wine party” to describe the drinking of good scotch and questionable gin at Arbuckle’s Labor Day party. The word “wine” was a polite way to refer to the comedian’s violation of Prohibition. But the word, in an obsolete sense, also meant any fermented concoction. So, U’Ren would not have objected. He did question Mrs. Hubbard again in a brief redirect and one of his questions was no less longwinded than his counterpart’s—and McNab prompted it when he asked, “You understand that no one is supposed to own a witness, neither side, Mrs. Hubbard?”
This was in reference to the District Attorney Matthew Brady’s controversial policy of isolating his star witnesses, Alice Blake and Zey Prevost, for nearly two months prior to the trial, so as to prevent them from being influenced by Arbuckle’s lawyers through third parties. The prosecution had to ferret out problem jurors who might take to heart McNab’s statements “as evidence that these witnesses were put in cold storage or upon the grill”—yet another feature of all three trials, reaching a crescendo of sorts in the second trial, when much of the local press was aligned against the prosecution.[3]
Q. Now, if it should appear in this case, Mrs. Hubbard, that the District Attorney had certain information which led him to believe that certain of the witnesses who were to be called to testify for the State, were being approached by someone with propositions to change their testimony, and with their consent, he took the precaution of placing them in the care of an estimable lady in this city and count, would the fact that the District Attorney had taken such precautions prejudice you against their testimony? A. No, sir.
Not all of Mrs. Hubbard’s answers were so yes and no. She did give a few personal details in some. She liked to go to the picture shows and was familiar with Arbuckle comedies, albeit not particularly a “fan.” That he played “funny parts” didn’t make her think that he was incapable of committing a criminal act on a woman.
I’m not so sure.
A still from Fatty’s Wine Party (1914)
[1]People vs. Arbuckle, First Trial, “Examination of Talesmen,” pp. 248ff.
[2] Alma Reed, “Right of Women to Personal Safety Urged by Club,” San Francisco Bulletin, September 15. 1921.
[3] There really should have been no controversy, for McNab himself was able to meet with Miss Blake after her mother took her home in early November. This forced Brady to let Prevost go home as well.
Assistant District Attorney Milton U’Ren interviewed Josephine Keza, a Polish immigrant and hotel maid, in room 1220 of the St. Francis Hotel on September 16, 1921, one week after Virginia Rappe’s death. Her statement, read into the record of the first Arbuckle trial, provides a different take on Virginia Rappe’s arrival at the Labor Day party.
Mrs. Keza had been going in and out of all three rooms of the Arbuckle suite—1219, 1220, and 1221—throughout the late morning of Monday, September 5. Arbuckle, Fred Fishback, and Lowell Sherman let her work around them. Missing in her account is Ira Fortlouis, the gown salesman, whose sighting of Rappe in the Palace Hotel resulted in her invitation to Arbuckle’s suite and what happened to her during the course of the afternoon.
Keza noticed Arbuckle shaving in room 1219’s bathroom. She paid special attention to a man named “Freddie,” the comedy director Fred Fishback, Arbuckle’s roommate in 1219. She heard him trying to telephone Rappe from the room’s telephone and getting no answer. If so, it adds another link in the chain of events. It means that (1) Fishback didn’t need Fortlouis to tell him what he already knew, that Rappe was staying at the Palace; and (2) Fishback tried her room first before having her paged in the hotel dining room.
Keza also saw that Fishback was in charge of the liquor supply, keeping it under lock and key in room 1221’s closet. In her rambling account, she may have seen him drinking, too. (During the three Arbuckle trials, Fishback was adamant about shunning both alcohol and cigarettes.)
U’Ren, of course, wanted to know what Arbuckle did, which wasn’t easy, given Keza’s Polish accent and command of English. She was, nevertheless, observant. The party proved to be a rich source of gossip for her workmates below.
To Keza, the comedian and the actress were on familiar terms when she entered the reception room, 1220, shortly after Rappe’s arrival. She knew Fishback and Arbuckle’s friend, the actor Lowell Sherman, who had also come from Los Angeles for the long weekend in San Francisco. At first, they were the only ones in the room.
Q. And then Mr. Arbuckle came in? A. Yes, sir, then he came out from the bathroom and he come right straight to Miss Virginia and he talked to her very closely. I can’t say if he kissed her, or he spoke to her. They were talking very quiet. I didn’t listen. [. . .] Q. Did you hear the sound of a kiss? A. No.
Whether Arbuckle planted a kiss is moot. But other guests saw that he and Rappe paired off and that she enjoyed his company.
Understanding Keza was one thing. Getting the sequence of events from her must have been maddening. U’Ren wanted to hear what the other witnesses had told him. Arbuckle had been disturbed in whatever he was doing to Rappe on his bed in 1219. As soon as he left the room, his guests tried to help Rappe. As she eavesdropped from an adjacent room, Keza only heard a certain disregard, even resentment.
Q. Did you hear a crowd in 1219 while you were in 1218? A. Yes. I was in 1218. There was a whole bunch talking and hollering and they go back to the parlor and holler and were dancing and that girl was crying. Q. Did you hear anybody knocking on the door [of 1219] before the crowd went into the room. A. No, sir. Q. Did you hear anybody say, “Open the door”? A. No, I didn’t hear that.
This had to frustrate U’Ren, who was, perhaps, more than just enthusiastic about taking on the Arbuckle case. Keza wasn’t corroborating what the other guests were saying, especially the women he intended as state witnesses.
Keza heard people laughing as Rappe screamed “Oh my God! No, no, no!” Continuing to listen to the hubbub of the guests inside Arbuckle’s suite, Keza caught a glimpse of a partially clad couple running between one room and another.
A. [. . .] I couldn’t catch it quick, because I was taking my towels, or something, from the closet, but I saw a man come through the room [i.e., the hallway], but I couldn’t say whether from 1219 or 1220, but he came out from one of those two rooms, and then I saw a woman, undressed, go out and run quick to number 1220. She was undressed, she had nothing on, just a combination suit, what you call it.[2] Q. She could have come from 1220 and run in[to] 1221? A. She didn’t go to 1221, she go to 1220, the parlor. I didn’t see where she came from, but I saw her right in the hall. She sneaked as quick as she could. First the fellow get up, then she was the next one, then they slammed the door. Q. First a fellow, then a girl? A. The fellow first. Q. How was the fellow dressed? A. I didn’t see. I just saw the bare feet of a man. I saw the shoes— Q. (Interrupting) Was the girl in her bare feet? A. She had her shoes and stockings on.
U’Ren intended to leave the mysterious couple out of his direct examination of Josephine Keza. He had also left out other details so that he could make Rappe’s utterances into a single one, more like a woman suddenly afraid of being hurt, of being raped, after Arbuckle had her cornered in his bedroom, on the other side of 1219’s hallway door. This was how a messy case was cleaned up by district attorneys, to make the crime easy to understand for a jury.
Arbuckle’s lawyers knew what U’Ren did. They considered him a dirty prosecutor for his neat work. And U’Ren hardly protested when Gavin McNab, the comedian’s lead counsel, had him hand over Keza’s statement to be read aloud to jurors. They had more evidence to consider, not only did Rappe’s cries of pain extend over a period of time. They had a few snapshots of what the real Labor Day party was like along with the straightened versions on the part of both the prosecution and the defense.
[1] This is from Keza’s statement, where she quotes an exchange she heard between two women in room 1221. “S.B.” was likely the stenographer’s abbreviation for “stupid bitch,” in reference to Rappe.
[2] A “combination suit,” a single undergarment, consisting of a camisole and panties.
“The American Sherlock takes the stand,” published here last August, is still quite informative about the pioneer criminologist Edward O. Heinrich. This new note simply shares some first impressions after reading his testimony in the transcripts of People vs. Arbuckle. These show how the science of dactyloscopy—of taking and identifying fingerprints—contributed to the prosecution of Roscoe Arbuckle for causing the death of Virginia Rappe. They also invite a long-overdue reinvestigation.
Heinrich obviously relished the opportunity to explain what fingerprints were, that the pattern of ridges in the form of loops and whorls on fingers and palms were unique to every person from cradle to grave. He explained how fingerprints were lifted from a surface and compared to those taken from a living or dead subject. Heinrich even lectured the jurors on the history of fingerprints. He also described how fingerprints were developed using aluminum powder and the tedious process of using different kinds of microscopes, enlarging photographs, and performing mathematical computations to rule out any doubt. Ultimately, the process came down to probability and points of similarity. Ten or more points were considered a match, based on Scotland Yard’s standard adopted by the identification bureaus of virtually every American police department.
Heinrich also described his work in various police departments, his summer session lectures at the University of California-Berkeley, his memberships in applicable professional organizations, and so on. He provided a list of books by fingerprint “authorities.” But, like many criminologists in the early twentieth century, fingerprint analysis was not his specialization. More often than not, these early practitioners were called upon to analyze handwriting samples. Nevertheless, for Heinrich, a proper criminologist had to make the jump from examining the downstroke of a lowercase f, say, and the hypnotic whorl in a fingertip.
Such evidence wasn’t new to American courts in 1921. Police departments, federal and state governments, even businesses were collecting and keeping fingerprint files. But to the layperson, the science behind them was almost as controversial as natural selection. To criminal defense lawyers and defendants, circumstantial fingerprint evidence was hard to overcome if jurors found it convincing.
Heinrich—and the assistant district attorney who was his handler, Milton U’Ren—had to convince juries that he had been long at work on his own methodology and that fingerprints were hardly a sideline for him. He was presented as a professor, even though he his real title was lecturer at the University of California-Berkeley. He reeled off everything he had done professionally, including taking the fingerprints of enemy aliens during the First World War. He also conducted many experiments, including the application and detection of fake fingerprints. But Heinrich’s work on identifying the faded latent fingerprints of Roscoe Arbuckle and Virginia Rappe on a hotel door was his first real test as an expert witness. The defense quickly apprehended this and that he was mostly self-taught. They pulled out all the stops to discredit not only his findings but his person as well.
During the first trial, Arbuckle’s chief counsel, Gavin McNab, tried to convince the jury that the fingerprints were “spooks,” inferring that criminologists who dealt in fingerprints were as phony as Victorian spiritualists. McNab and his colleagues also never missed a chance to note that Heinrich wasn’t a tenured professor, forcing him to admit that he was only a lecturer at Berkeley.
The defense lawyers scored points with the press for their entertaining cross-examinations, which turned Heinrich into an “egghead”—his pattern baldness made him look the part. But after the first trial ended in a hung jury, in part due to Heinrich’s thoroughness in revealing that room 1219 had not been thoroughly cleaned and wiped down, new tactics were adopted in the second trial.
Arbuckle’s longtime personal lawyer, Milton Cohen, took over grilling Heinrich. He was better prepared. He had pored over the literature and cleverly cherrypicked paragraphs to assert that Heinrich had violated protocols and standards in taking fingerprints, photographing them, and developing them using aluminum powder. The most heinous thing that Heinrich and the prosecution did was not handing over the hotel room door to the police and storing it in the property (i.e., evidence) room. This line of attack, however, only revealed that the district attorneys didn’t trust the police, that some members of the department, even the chief, were cooperating with Arbuckle’s lawyers. (Heinrich also disclosed that he had been followed in the St. Francis Hotel.)
Other avenues of attack included the way that Heinrich glibly introduced his assistant and secretary, Salome Boyle, a senior at Berkeley, to the St. Francis deskman. Heinrich called her “my Watson,” implying that he was some sort of Sherlock Holmes. But Heinrich wasn’t being vain but rather self-deprecatory, indeed, self-conscious of his own appearance and what he looked like in the company of a young woman. Cohen also tried to bait Heinrich with an insinuations that wasn’t reported in the newspapers: the seeming impropriety of a professor locking himself away with a coed in a hotel bedroom well into the night, leaving the jurors to think she couldn’t just be there to hold his flashlight.
Heinrich attempting to deflect misspeaking about Miss Boyle at the third Arbuckle trial. (Courtesy of the San Francisco Public Library)
The alleged “struggle” between Arbuckle and Rappe, entirely based on circumstantial evidence, was an important theme in the unsuccessful prosecution of the comedian. Most books about the Arbuckle case place little credence in Heinrich’s work. But, given today’s sophisticated scanning technology and computer analysis, perhaps a latter-day criminologist might stress test Heinrich’s results. It would provide a puzzle piece that certainly would force one to take every version of events apart and start over again.
This is an addendum to our previous post. Newspaper archives can also be a valuable source for medical and legal precedents as they relate to the Arbuckle case. We found one source that is worth noting. It further supports the hypothesis that the fatal injury that Virginia Rappe suffered had to involve violence or, at least, physical mistreatment approximating the same. And this nineteenth-century case is one that so far comes closest to People vs. Arbuckle. We found it in The Household Narrative of Current Events by Charles Dickens.
The author of A Christmas Tale, David Copperfield, Oliver Twist and so many other classics also published magazines in the 1850s. Bound annual volumes existed. But you wouldn’t find them in Dickens’ collected works. So, as well-read as some of the Arbuckle trial reporters and lawyers were—Gavin McNab, Arbuckle’s chief counsel, was an autodidact who could quote Shakespeare from the vast library his father amassed—we can’t expect anyone in 1921 to know about Dickens very Victorian reportage from seventy years in the past.
But it can be found with the right keywords. In the October 1854 number The Household Narrative, Dickens described a case of spontaneous rupture of bladder in a female victim. The young woman, Matilda Jane Lodge, had been invited aboard the hulk of the HMS Victorious, a former ship-of-the-line reduced to a floating barracks for the Royal Marines, by a lieutenant serving aboard the steamer HMS Dauntless, also at anchor on the Thames.* Miss Lodge and her friend Emma White had spent the day drinking brandies and water with the lieutenant. He eventually lured them to the Victorious, and took them to his quarters. There the two women drank brandy—without water. Miss Lodge had port wine as well. Thinking that port might be drugged, Miss White departed, while Miss Lodge continued to drink. She eventually entered the gun room and entertained the lieutenant and his friends. She sang songs. She recited Shakespeare. She began to scream. She felt sick. She became hysterical. She was carried back to the lieutenant’s bedroom, from which she was said to have fallen.
The next day she was rowed back ashore, with the sleeves and front of her dress torn off. She was virtually topless as a ferryman pushed her in a wheelbarrow to the police station
The constables could see the many bruises on her arms, legs, and torso. She had a pronounced black eye. She had been severely beaten. But she was evasive. What she did say over and over again was that “I am dying”; “I am a murdered woman.” She was right. In a few days, she was dead and the criminal investigation began.
An autopsy was performed. Her bladder had ruptured at the fundus (the “crown”). Lodge had died of rupture attributed to a distended bladder.
You can read Dickens’ version below. His narrative is so close to what confronts us in People vs. Arbuckle that it must serve admittedly as too-clever, too-consciously literary, as poignant indirection to set up the story we tell over many more pages, a like “disgraceful scene.” But we do use paragraphs unlike our eminent Victorian below.
*A careful reading of the original accounts in the London newspapers archived in the British Museum reveals that Dickens had elided over this and other details in digesting the story from various and conflicting sources.
NARRATIVE OF LAW AND CRIME
A Disgraceful Scene attended with Fatal Consequences, took place on board the hulk Dauntless, in Portsmouth Harbour. On Sunday evening, the 17th ult., two young women of loose character, Matilda Lodge and Emma White were taken on board the vessel by two officers, one of whom was Lieut. Knight, of the marines; arrived on board, they went into Mr. Knight’s cabin, and were supplied by him with wine and brandy and water, through the half open door leading from the gun-room where the officers were drinking. The girl Lodge became intoxicated, and ran singing into the gun- room among the officers. Afterwards she became violently ill, and after remaining for some hours, screaming in great agony, she was put into a boat and sent on shore, her companion having previously left the ship. Lodge was found by her mother at the police station in a dying state, and expired two days afterwards. An inquest was held on her body. Her companion detailed the circumstances till she left the ship at one o’clock in the morning. A marine on duty stated that the deceased screeched fearfully and lay screaming on the floor, until she was carried into Knight’s cabin and placed on his bed. She continued screeching at intervals up to four o’clock. The officer in command had wished to have her removed from the ship; but the surgeon thought this dangerous. Lieutenant Jervis, who had gone to bed early, was waked up by her screeching and the knocking she made against the bulkheads: he visited her twice, and behaved with great kindness: Lieutenant Knight was sleeping, with his head on a pillow, on the table. Matilda Lodge fell twice out of bed. The boat- man who rowed her ashore, said that her hair was hanging all about; her dress was torn at the shoulder, and in a terribly ruffled state. She was not sensible. The police inspector stated that when brought to the station she was insensible, and smelt strongly of port wine; her dress was much disordered, and she had nothing but her shift sleeve on her arm; her hair was hanging loose down her back. Her mother gave the following evidence: “I found Matilda in the station- room, her clothes much disordered, the sleeve torn out of her gown, and her scarf very dirty. I said to her. ‘My dear girl, where have you been to get served like this?’ She appeared to be very ill. I tried to lift her up. She said, ‘Don’t mother; I cannot move. Mother, I am dying; I shan’t live long. I have received my death-blow.’ I said, ‘You must go home.’ She said, ‘I can’t.’“ She took her home, however. “I said to her, ‘You have been cruelly ill treated.’ She rejoined, ‘Yes, mother, I have; I shall die.’ She said something to me besides concerning the outrage, but I told her to lie quiet, and when she got better we would talk it over. I told her, ‘I hear you were on board of a ship.’ She said, ‘Yes, mother, and Emma was there too; we went together.’ She said, ‘After Emma left I was unconscious.’ I said, ‘I think you must have been drugged.’ She replied, she did not recollect anything about it. Her arms were black in places, one of her eyes was blackened, her cheek was all colours, and she had a bruise under her chin. She was sensible from the time I first saw her at the station house until the time of her death, between twelve and one o’clock on Wednesday last. My daughter was about twenty-two, a single woman.” Lieutenants Seymour, Knight, and Jervis, and Assistant- Surgeon Roche, tendered their evidence; and it would lead to the belief that the girl having got drunk, hurt herself by falling about. They declared positively that there was no fighting in the gun-room, and no violence of any kind offered to the young woman. The medical evidence, after a post-mortem examination, was to the effect that her death had been caused by rupture of the bladder. The coroner’s jury returned the following verdict—”We find that, according to the evidence given by the medical men, we are bound to return a verdict that Matilda Jane Lodge died a natural death from rupture of the bladder; but we also find, from the evidence given before us, that death was mainly accelerated by ill-treatment which she had received on the night of Sunday the 17th of September 1854, in the ward-room on board of the hulk of her Majesty’s ship Dauntless, lying in Portsmouth Harbour; to which we respectfully call the attention of the authorities.” A further inquiry took place before the Portsmouth magistrates on a charge of manslaughter against Lieutenants Knight and Seymour. The result was, that both the prisoners were acquitted of that charge. In announcing the judgment of the magistrates, the mayor carefully went over the whole case; dismissing the charge against Lieutenant Seymour with the remark, that he left the court without his character being affected by the charge; but censuring Lieutenant Knight, while he dismissed the criminal charge against him,—for having taken the woman on board, and for having shown so little interest in her fate as to allow her to be put in a boat without seeing her off. There was not, he said, evidence sufficient to justify the sending of Lieutenant Knight for trial. Mr. Knight was therefore discharged by the magistrates; but he remained under arrest, awaiting the pleasure of the Lords of the Admiralty, on his own application for a court-martial.—Courts-martial were held on the 10th and 11th inst., on Lieutenant Knight, Lieutenant Jervis, and Lieutenant Elphinstone, who was in command of the vessel when the affair happened. The charges against Mr. Knight were: 1. That on the 17th September he brought “on board her Majesty’s hulk Dauntless two improper women; and did act improperly towards such women, in supplying them with wine and spirits in immoderate quantities when so on board the said hulk; the same being scandalous actions, in derogation of God’s honour and in corruption of good manners;” 2. that he suggested to Mr. Robert Hancock, Midshipman, falsely “to inform the chaplain of her Majesty’s ship Dauntless, that the women which he, the said first lieutenant Frederick Charles Knight, had so brought on board the said hulk, were sisters of him, the said first lieutenant; he the first lieutenant well knowing at the time that such was not true; the same being a scandalous action, in derogation of God’s honour and in corruption of good manners;” 3. that he appeared without “his proper uniform; and without having obtained the requisite permission, dispensing with the wearing of such uniform;” 4. that he was drunk on the night of the 17th and the following morning.—Lieutenant Knight was acquitted of the second and fourth charges, and found guilty of the first and third; but, in consideration of his previous high character, the sentence of the court- martial was, that his name should be placed at the bottom of the list of the lieutenants of the Royal Marines. The charge against Lieutenant Jervis, was, that he, being in command at the time, had suffered two women of improper character to remain on board after sunset; and that, having become aware of their presence between one and four o’clock, he did not report the same to the commanding officer. Lieutenant Jervis was acquitted of these charges. The charges against Lieutenant Elphinstone, were, that he, while senior officer on board the Victorious hulk, did permit the women to remain on board after sunset; did not report the fact to his superior officer; and allowed wine and spirits to be supplied to the women from the ward-room in immoderate quantities. After evidence had been heard on the three charges, Lieutenant Elphinstone read a brief address in defence. He pleaded that he was ignorant of his responsibility at the time, not knowing he was senior officer; that the liquor was passed to the women too quickly for him to prevent it, after he had protested against it; and that it was only after he had left the ward-room, and while undressing, that he found from what fell from Lieutenant Woodman, that he himself had been the commanding officer while in the ward-room. Lieutenant Woodman deposed to the last fact.—The Court deliberated for an hour, and then pronounced this decision—”The Court is of opinion that the charge is partly proved against Lieutenant Buller Elphinstone, inasmuch as, although he remonstrated against the disgraceful proceedings mentioned in the charge, he did not with sufficient promptitude ascertain whether he was or was not the senior officer at the time he was applied to by the chaplain; and that he did not, as such senior officer, prevent by the exercise of his authority, such disgraceful proceedings. And the Court doth adjudge that the said Lieutenant Elphinstone be admonished; and the said Lieutenant William Buller Elphinstone is hereby admonished accordingly.”
The criminologist Edward Oscar Heinrich (1881–1953) was an expert witness enlisted by the prosecution for People vs. Arbuckle. He was pitted against Roscoe Arbuckle’s chief counsel, Gavin McNab, and rebuttal witnesses, all rival experts drawn, for the most part, from Los Angeles.
The following passage is from our working draft, a narrative that covers Heinrich’s first appearance on the stand in November 1921.
Heinrich also discussed in a previous blog entry about the way to properly “see” room 1219 of the St. Francis Hotel on September 5, 1921.
Arthur Conan Doyle’s “The Adventure of the Norwood Builder” in which Sherlock Holmes solves a murder by using his magnifying glass to compare the wax impression of a thumb to a thumb stain on a wall, was inspired by a real crime. A decade earlier, in 1892, a young Argentinian woman murdered her two children so that her boyfriend would marry her. Instead, she became the first person convicted of a capital offense based on a finger print, a single bloody thumb mark left on a wall. But this revolutionary way of solving crimes had begun even earlier, when, ironically, two Indian civil servants needed a way to identify people of color in criminal cases for the British Raj because “they all look alike.” This became the Henry system of finger print classification that was adopted by Scotland Yard and subsequently by police departments in the United States during the first decade of the twentieth century.
In 1910, the first American criminal case to be decided solely on the basis of finger print evidence occurred when Thomas Jennings, an African American, was convicted for the murder of a white homeowner during a botched burglary attempt. For the next ten years, police departments in the United States further perfected their methods of finger print identification—dactyloscopy—and the routine taking of finger prints from criminal suspects and crime scenes.
By 1920, finger print evidence became as much a sensation as DNA evidence is today in solving seemingly unsolvable crimes, especially when there was no other witnesses than the alleged perpetrator, as in the case of Roscoe Arbuckle. Proving that he had fatally injured Virginia Rappe provided a challenging test of the scientific method and the District Attorney of San Francisco took advantage of what was then the epicenter of modern criminology and forensics just across the bay at the University of California in Berkeley.
The first Chief of Police of Berkeley, California, August Vollmer, was already known around the world for his progressive innovations in creating one of the first modern police forces in the country. He had also encouraged the University of California to establish the first program in criminology in the United States, where Brady’s expert witness, Edward O. Heinrich, was hired as the first lecturer in 1919.
Known as “Oscar” to his friends and students, Heinrich started out as a self-trained pharmacist in his native Tacoma, Washington. With nothing but a high school diploma, he earned a degree in chemistry at Berkeley as a special student in 1908.
Edward O. Heinrich, ca. 1919 (Carnegie Library, Denver)
Over the next decade, Heinrich worked as a chemist in Tacoma, a police chief in Alameda, California, and as the city manager of Boulder, Colorado. He returned to Berkeley in 1919 at the invitation of Chief Vollmer to take over the laboratory of the late Theodore Kitka, a handwriting expert and authority on inks and ink stains. Kitka, obsessed with freeing Tom Mooney from prison for the 1917 Preparedness Day bombing, had made important strides in the science of finger print analysis—and Heinrich continued this work.
For Kitka, Heinrich, and other handwriting experts, going from the loops of and downstrokes of a subject’s handwriting to the loops, whorls, and tent arches of finger print analysis was a logical progression. Both disciplines required a practiced eye, patience, an inquiring mind—and a good microscope. In his advertisements in San Francisco’s legal newspaper, The Record, he billed himself as a “Legal Chemist and Microscopist.”
Heinrich’s work had made news when William Hightower was arrested for the kidnapping and murder of a Catholic priest in August 1921. He had shown the court how the word “tuberculosis,” stenciled on Hightower’s tent to ward away the curious from his campsite, was obviously the work of a cake decorator—and matched the lettering of a ransom letter for the dead priest. Although Hightower was a drifter, he was also an itinerant baker. As further proof, Heinrich employed soil analysis, forensic geology, and the microscopic examination of rope and tent fibers as well as nicks on Hightower’s pocketknife.
While Heinrich was still involved in the Hightower case, he was already at work in the Arbuckle suite and had two doors from 1219—the one that connected to the hotel corridor and the one innermost door of the two that connected to room 1220—removed and taken to his Berkeley lab. In a matter of days, between September 17 and 21, he had a general idea that a crime had been committed in the room based on enlargements of finger prints of Arbuckle and Rappe taken by the San Francisco Police.
That the Arbuckle case was Heinrich’s first as a finger print expert wasn’t lost on the defense team but he had to be taken seriously in another way, given that high-profile cases involving finger print evidence were being lost by criminal defense lawyers. Juries that had an ear for the Cross of Gold oratory of the 1890s were now being swayed by science in the courtroom. Nevertheless, a William Jennings Bryan could still beat evolution at the Scopes Monkey Trial—and McNab could be said to have had it easier than his fellow Democrat did in 1925. Milton U’Ren, relying on finger prints alone, was no Clarence Darrow in 1921—and Heinrich was no Darwin. The scientist from Berkeley resembled a solemn-looking young man with a high-forehead and lock of hair falling over it. He spoke in a quiet and reasoned voice, as though to a room full of students rather than jurors already growing bored with the trial, already making up their minds.
Shortly after the Tuesday afternoon session convened, the bailiffs moved two oblong objects, covered with sheets, from behind Judge Louderback’s desk. Spectators gaped at them, including the jury as they filed in and took their seats in the jury box. An easel was set up to display enlarged photographs and placards. Matthew Brady himself, for the first and only time, conducted the examination after Heinrich was sworn in. But reporters barely noticed the rare appearance as the chief prosecutor ceded the floor to the man who had made it possible to visualize what happened in room 1219 on the afternoon of September 5.
Heinrich described himself as a “consulting criminologist,” according to Oscar Fernbach, “declaiming to the jury his many accomplishments like some Pied Piper of Hamelin.” But what Heinrich had learned from room 1219 was extensive and as yet unknown to everyone save the prosecutors. They wouldn’t see the hundreds of notes and equations for probability distribution that Heinrich had made. He had also identified many of the hairs found in room 1219. Under the microscope, he could tell which ones came from men and women, which had been “barbered” or pulled out by the root.
He had pored over her clothes in the evidence room and his lab in Oakland. The “sport suit,” as he called her green outfit, had been torn in various ways. The left arm of her green coat had been torn at the seam for a distance of five inches. The cuff links had been torn out of their cuffs, one of which hung by a few threads. The right sleeve of her shirtwaist had been ripped to the elbow from the back. The white silk underpants of Rappe’s “teddy bear” had been torn down the left side. In his final notes, Heinrich had no opinion about the clothes that Rappe wore into room 1219.
Heinrich had found some stains on the double bed’s quilted pad. Most of these he described these as “seminal in character” but had passed through the hotel’s laundry. When he turned the quilt over, however, he found a fresh blood stain one-quarter of an inch in diameter and near it a semen stain about three-fourths of an inch long and almost as wide. But he decided that these couldn’t be attached to the case even though he suspected a maid had just turned the mattress pad over.
One of the doors that Heinrich had brought from the hotel to his laboratory and to the courtroom was the outer door from room 1220 to 1219. He had found the impressions left by Maude Delmont’s shoes. He found scuffs from their toes but, more importantly, the impressions left by the nails and center screws of her French heels. After he conducted his own test with the shoes, strapping them to wooden handles so that they could be pounded like hammers in doors that were, like those of Arbuckle’s suite, either oak or birch. These tests revealed that Maude Delmont had kicked the door as she had said.
By Thursday, September 22, as the preliminary investigation got underway, Heinrich met with Brady, U’Ren, and Golden at the Hall of Justice. He had provisionally identified Rappe’s and Arbuckle’s finger prints on 1219’s bathroom door as well as the door leading into the corridor. Heinrich photographed Delmont’s heel marks on the door between 1220 and 1219 and collected hair samples and bobby pins. Semen stains were found on the comedian’s mattress. But Heinrich deemed them too old. U’Ren agreed to leave them out of the case. Lastly, Heinrich found nothing to suggest Delmont’s claim that Arbuckle had ripped off Rappe’s clothes, a hypothesis that the prosecutors let go.
As a criminologist, Heinrich risked being imprinted by the suppositions of the men who would pay for his meticulous list of expenses and his fee. It was a matter of ethics and academic discipline. Given the prints he had taken from the bathroom door and the inside of 1219’s room door and the hair he had found on the floor, Heinrich wrote in his notes as early as September 17, that
the action under investigation in this case may be interpreted as an opening of the [bathroom] door from without by a push of the man’s hand and an increase of the opening by the shoving aside of the door by the woman running out toward the hallway door; the woman at the time standing at the end of a rug adjusting clothing from which hairs dropped.
As the trial date approached in November, the evidence and testimony would be mostly limited to the prints on the hallway door. The conjectured image of Rappe escaping from the bathroom and making her way to leave room 1219 via the hallway, of turning to face Arbuckle, frantically straightening out her clothes and brushing herself off, wouldn’t find its way into testimony—at least not yet.
As Heinrich unveiled one of the hotel doors, he moved like a photographer positioning it “so that it catches the light at the right angle,” reported Walter Vogdes of the Examiner.
Visible on the door was a brilliant coat of aluminum dust spattered over one of the upper panels. He pointed out two hand prints, one on top of the other. Then, using a series of photographs and diagrams, he explained to the court what he believed these indicated.
First Heinrich revealed where Rappe’s palm had been pressed against the door. Superimposed, as though the fingers were interlaced, were the fingertips of Arbuckle’s hand. Heinrich had also made drawings that methodically, mathematically identified the owner of each set of prints.
As Heinrich spoke, a rival handwriting expert, Chauncey McGovern, and Ignatius McCarthy, a former investigator for the Department of Labor, looked on from the defense counsel’s table. They were not only there to observe and take notes for when they took the stand, but as supernumeraries for McNab’s theater of incredulity.
McGovern and McCarthy expressed their disagreement with Heinrich’s findings. They made faces for the jurors to see. They rolled their eyes and shook their heads. Arbuckle, too, got in on the act. In a courtroom caricature, a cartoonist for the San Francisco Call depicted the comedian studying his hand in mock skepticism. Heinrich is also depicted, engrossed by his own demonstration, working away with a drawing on a large sheet of paper.
Sitting next to the cartoonist, the reporter Edgar T. Gleeson jotted down the notes that later described Heinrich stepping from exhibit to exhibit, pointing out the various differences in the curves, broken contacts, lifelines, and ridges of the prints made by Rappe’s palms and fingers and then compared them to Arbuckle’s. With his eyes “peering, hands clasped, and brow rising and falling,” Gleeson compared Heinrich to “a man from Mars” and a “human thinking machine” on par with “Professor Craig Kennedy,” the popular pulp novel scientist detective.
In the end, Heinrich told the court that his evidence suggested the possibility of a struggle between Rappe and Arbuckle, that the comedian had the young actress pinned to the door leading out to the corridor. This theory neatly fit the voices that Josephine Keza heard, of a woman begging as though for her life as much as her virtue, and the cruel voice of the man’s telling her to shut up. Thus, with a ring of circumstantial evidence closing around the defendant, Matthew Brady handed Heinrich over to Gavin McNab for cross-examination.
The defense counsel didn’t take long to get to a simple question.
“If that door had been wiped would not these finger prints have been obliterated?”
“Surely,” answered Heinrich.
“They can be rubbed out, can’t they?” McNab continued. “Otherwise, in a long period of time, I suppose they would protrude into the room. They don’t have to be taken off with an axe, do they?”
Despite McNab’s sarcasm, Heinrich gave him a proper answer. He said the finger prints could be rubbed off. But he had proved to himself—and likely colleagues as well to stress-test his opinion—that prints he found on the door were Arbuckle’s and Rappe’s. He explained that there were thirteen points of identification in the prints of the dead girl’s fingers and seventeen in those of the defendant. The chances of her finger prints being duplicated by another woman were 393,000 to 1. The chance of any man having the same points as Arbuckle were 3,300,00 to 1.
During the third Arbuckle trial, in early April 1922, the prosecution called a surprise witness to the stand, Lillian Blake, a San Francisco photographer who claimed to have taken a single photograph of Virginia Rappe in September 1914. She testified that Rappe had spent about thirty minutes in her Geary Street studio.
Her purpose was to rebut the testimony of a defense witness, Helen Whitehurst, who claimed that Rappe attended her birthday party in Chicago in October 1914, where she drank an alcoholic beverage and fell ill. Arbuckle’s lawyers hoped to prove that she had a long history of exhibiting such symptoms as abdominal pain, hysterics, and tearing off her clothes, triggered by the effects of alcohol. These were the same symptoms she presented at the comedian’s Labor Day party on September 5, 1921.
Prosecutors contended that Rappe wasn’t in Chicago. Another of their witnesses said she was in New York during the autumn of 1914. A third also said San Francisco. Naturally, Arbuckle’s lawyer, Gavin McNab, used this confusion to his advantage. He asked the jury: How could Rappe be in two places at once? McNab could see the prosecutors were floundering. Their witnesses lacked credibility and the evidence was weak. As further proof that Rappe had been, at least, on the West Coast in late 1914, Blake held up an undated newspaper clipping of her photograph. She didn’t have an original.
We dug deeply for a source for that photo as we began to revise the work-in-progress. The problem was that Rappe wasn’t newsworthy on the west coast in 1914—except when she returned from abroad during the first week of January. She and another model made a splash when they exposed the frills and a good portion of the leggings of their long underwear or “pantalets.” Photographs of the pair aboard the SS Baltic appeared in U.S. newspapers for two months. Then she disappeared, leaving a void that Arbuckle’s lawyers filled with physicians who said they treated her and alleged companions in Chicago whose real lives proved to be, if we could use a contemporary expression, “sketchy.”
In the spring of 1915, however, Rappe’s image was again seen in newspapers across the nation as she began to publicize her new line of clothes. She also appeared in the society pages of some American newspapers in connection to her short-lived engagement to the Argentine diplomat Don Alberto d’Alkaine, who oversaw his nation’s pavilion at the 1915 Panama-Pacific International Exposition.
This made us question whether the prosecution co-opted one of these images to convict Arbuckle? We probably won’t ever know. But thanks to having more recently digitized and searchable San Francisco newspapers archives, we did uncover a little more of Rappe’s deeper connection to San Francisco and it does go back to September 1914. We discovered that Rappe’s liaison with d’Alkaine began around that time. The clue is a story in a front-page feature published in the San Francisco Bulletin in late July 1915. A week later, it was followed by a full-page spread devoted to Rappe’s design collection—and fashion advice.
What one can see below is that Rappe was committed to and invested in designing all kinds of outfits for women. So, why did she give it up—as well as d’Alkaine—for a precarious existence as merely the “best-dressed woman in Hollywood”?
Spite Work: The Trials of Virginia Rappe and Fatty Arbuckle 