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.

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[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.