The Day the Laughter Stopped, page 28
Furthermore, Gavin McNab got Alice Blake’s original statement to the police read into the court record. Nowhere was the remark ‘He hurt me’.
And although both Zey and Alice testified that Virginia had said, ‘He hurt me,’ the usefulness of their testimony to the DA’s case was weakened when they both went on to say that the statement had been made after Virginia had torn her clothes, had been stripped, had been suspended naked in midair by Fred Fischbach, and had been dumped in an ice-cold bath by Fred and the girls. The ‘he’ could have been Fred Fischbach instead of Roscoe.
The DA’s next witness was Jesse Norgaard, who in 1919 had been a janitor at Henry Lehrman’s film studios in Culver City and who had an interesting tale to tell. Before he told it, the defence objected strenuously about the relevance of testimony set so far in the past, but Roscoe, who had nothing to hide, intervened and told his counsel to allow Norgaard to testify, even though McNab had been tipped off that Norgaard would give testimony indicating that Arbuckle had attacked Virginia Rappe in 1919.
U’REN: Now, while you were employed as janitor you stated that you had a conversation with the defendant about Miss Rappe. What month and year was this?
NORGAARD: The month of August 1919. I went into his office to get my hat and he says, ‘Have you got the key for Miss Rappe’s room?’ and I said ‘Yes.’ He says, ‘Let me have it; I want to play a joke on her.’ I said, ‘No, sir, you cannot have it.’ He said, ‘I will trade you this for the key,’ and he had a bunch of bills in his hand.
U’REN: Did you see the denomination of those bills?
NORGAARD: Yes, I seen two twenties and one ten.
U’REN: Were there any other bills?
NORGAARD: Yes, there were other bills, too.
U’REN: What did you say to that proposition that he submitted to you?
NORGAARD: I said, ‘No, sir,’ and walked out.
Laughing, Gavin McNab rose and asked U’Ren, ‘Is that the rape that counsel has been talking about?’
U’Ren replied, ‘You know that is not rape, Mr McNab. That is all.’
Under cross-examination Norgaard revealed that this event had lain dormant in his mind, and he had not thought it significant until he ‘read in the papers about this affair’.
Hotel maid Josephine Keza, on the basis of whose police court testimony Roscoe was standing trial, repeated her story about a woman’s voice shouting, ‘Oh my God, no, no, no!’ (the order of the words changed with each telling) and a man’s voice answering, ‘Shut up.’ But it was shown that she had heard this exchange between 2.00 and 2.30 p.m., and prosecution witnesses had established that Virginia had not entered Roscoe’s bedroom before 2.50 p.m.
Miss Keza’s testimony was to confuse matters further. The defence established that when she heard the remarks and heard the girl screaming, she also heard the sound of many people in Room 1219. If one assumes that her estimate of the time was incorrect, then it would seem that what she heard was the other partygoers attending to the sick girl. She was certainly an obliging witness; before she finished she had agreed with the prosecution’s suggestion that although she had first heard the scream at 2.00 p.m., it had continued unabated until 4.00 p.m. However, the assistant hotel manager had supervised the removal of Virginia to Room 1227 at 3.30 p.m.
U’Ren introduced photographs of the dead girl covered with bruises, and insisted that they be shown to the jury – the sole purpose of introducing them.
Even the hotel doors of Room 1219 were brought into court, accompanied by E. O. Heinrich, who claimed to be a consulting criminologist and fingerprint expert. Heinrich had, on Brady’s instructions, ordered the room sealed eleven days after the party had taken place. Apparently one month after Virginia’s death Heinrich removed both doors and transported them to his laboratory in Oakland. Under questioning by U’Ren, Heinrich’s credentials sounded impressive. Then Gavin McNab questioned him.
MCNAB: What cases have you testified in in this state?
HEINRICH: In this state?
MCNAB: Yes.
HEINRICH: None in this state.
MCNAB: So you have never testified in the State of California on fingerprints for any district attorney.
HEINRICH: No, sir.
MCNAB: Where else have you testified in the Superior Court, or a court of criminal jurisdiction?
HEINRICH: In the State of Arizona and the State of Washington.
MCNAB: How often have you testified on fingerprints in the State of Washington?
HEINRICH: Once.
MCNAB: How often in the state of Arizona?
HEINRICH: Once.
MCNAB: We challenge the expert as an expert.
U’Ren then offered to have Heinrich take the fingerprints of every member of the jury, have them secretly numbered by the court reporter, shuffled, then handed to Heinrich, who would be able to tell which fingerprints belonged to which juror. McNab had a better idea. ‘I will accept it on this basis, if the Court please: that the fingerprints be put upon a door; that a chambermaid take a rough cloth and rub them every day for eleven days …’
The courtroom erupted in laughter, but the judge overruled McNab’s objection and allowed Heinrich’s testimony. U’Ren began calling his witness ‘Professor’.
The professor had discovered some fingerprints on the doorknob of Room 1219. He believed that one of them was Virginia’s. Superimposed on it, according to Heinrich, was Roscoe’s fingerprint. The implication as elicited by U’Ren was clear: a desperate struggle at the door.
During a recess, McNab asked Roscoe if he accepted that they were his and Virginia’s fingerprints. Roscoe’s reply was short and to the point. ‘I’m damned if I do. They’re trying to say I screwed the poor girl against the door.’
In cross-examination, McNab drew from Heinrich the admission that he could not positively say that the fingerprints on the door belonged to Virginia and Roscoe, merely that they were ‘similar’.
In an attempt to establish that Virginia Rappe had been healthy upon her arrival at the party, the state produced Mrs Hardebach and Joseph Rideaux.
Mrs Hardebach had been Virginia’s housekeeper in Los Angeles. Her testimony described an athletic girl. Not a minute went by, according to Mrs Hardebach, without Virginia going for three-mile walks, dancing, or tossing medicine balls around the living room. Virginia also did gymnastics and never had a moment’s sickness.
Under cross-examination by Milton Cohen for the defence, Mrs Hardebach remembered that there had been an abscess of the girl’s vagina, which had cleared up after a few days of flaxseed poultices.
Joseph Rideaux was a masseur and physical-culture trainer who had taken five-mile walks and thrown medicine balls with Virginia. In the witness box, Rideaux went through a series of medicine-ball exercises that he had done with his late client. He said they had also performed ‘muscle-resistant exercises’ together – sometimes on tables, sometimes on the floor – and had done many breathing exercises together. His testimony indicated that Virginia was a ‘powerful and resistant woman, with a fine pair of lungs’.
At this point in the trial, the prosecution asked that the jury be taken to see Roscoe’s suite at the St Francis, and that Judge Louderback appoint a medical commission to examine Virginia Rappe’s bladder.
And that was the case for the People of the State of California against Roscoe Arbuckle.
On the afternoon of Thursday, 23 November, Gavin McNab rose to make his opening statement on behalf of Roscoe Arbuckle. Within minutes he observed, ‘It is the duty of the State, as you have heard, to present a case beyond any reasonable doubt. That burden, we feel, the State has miserably failed to perform.’
Assistant DA Friedman took exception to this, and the judge advised McNab to confine himself to what he intended to prove.
McNab went on. ‘Well, I will give you in part what we propose to prove. We intend to show you by the best evidence that it is possible to produce, the words of the dead girl at or about the time of the sad events, exonerating this defendant. We will present a witness whose testimony will be direct in his communication with the young girl, and we shall ask the district attorney to produce a sworn statement of that witness given to him at the beginning of these proceedings …’
After another interruption by Friedman, he again picked up his thread. ‘We will show you by physical facts; you will see the rooms of the St Francis tomorrow; you will see the small room in which nobody could have uttered an exclamation whatever that could not be heard on either side …’
This time U’Ren interrupted to complain that McNab was being argumentative. The judge agreed. Roscoe’s attorney went on.
We will show you the St Francis rooms. We will prove to you that the door entering into the hallway was open at all times of that day, that the window of that room faced another open window, and that it was open the whole day long; and that people from one side could look in and people from the other side could go in and out.
We will show you by the clock itself, by the testimony of the facts, because there is no more inexorable fact in nature than time, that this man could not have been in the room more than ten minutes.
McNab said the defence intended to produce every person who had attended the party. He continued.
MCNAB: We will present you a solemn line of facts, and after all it is facts that run the world; truth is the strongest and most just thing in the world.
JUDGE LOUDERBACK: Mr McNab, you are getting into argument.
Gavin McNab called his first witness, the hotel detective George Glennon, who had interviewed the sick girl a short while after her collapse at the party. The detective’s testimony could have given a powerful boost to the defense case. In his statement to the police, Glennon had told of an interview with Virginia Rappe that he had recorded in his notebook the night of the St Francis party:
GLENNON: Did Mr Arbuckle hurt you?
RAPPE: No. He never hurt me.
GLENNON: Then who hurt you?
RAPPE: I do not know. I may have been hurt by falling off of the bed.
Not only had the DA suppressed Glennon’s statement, but Captain of Detectives Matheson had threatened to prosecute the hotel detective for ‘dereliction of duty as a special policeman drinking on duty’, and he had been fired by the St Francis Hotel. When Glennon realized that the prosecution was not going to use his statement, he took it to McNab.
Now he was sworn in, and Gavin McNab began his examination. Glennon recalled that on the day of the party he had made two visits to the bedside of Virginia Rappe and that he had had a conversation with her in the presence of Maude Delmont. That was all he was allowed to recount. The DA objected to the details of the conversation as well as to details of his statement to the DA being given in evidence because they were ‘incompetent, irrelevant, immaterial, hearsay evidence’. Despite McNab’s pleas, Judge Louderback ruled in favour of the DA.
George Glennon was not allowed to give crucial testimony about his notebook entries either at this point or later.
The next defence witness provided light relief. Kate Brennan, a hotel maid, gave the judge and jury a demonstration of door-polishing, the object being, Heinrich or no, to prove that fingerprints could not possibly have remained on the door of Room 1219 after Kate Brennan had finished with it. She had cleaned the room after the party, and, if she had not been physically restrained, would have cleaned the fingerprints off the exhibit door in the courtroom.
The resident of the room next to Roscoe on that fateful day had been located. This woman had been in her room with her daughter for the entire period of the party and had heard considerable noise from Roscoe’s suite. She had heard phones ringing and being answered, but she had not heard the remarks that Miss Keza, the chambermaid, said she had heard, nor did she hear Virginia call out, ‘He hurt me’ or ‘He killed me’.
When a Nurse Martha Hamilton testified for the defence, the prosecution was again successful in stifling testimony. Nat Schmulowitz, one of Roscoe’s lawyers, tried to question the nurse about the vaginal discharges of the sick girl. The testimony was not allowed. Absurdities about medicine balls and five-mile walks were admissible evidence. Relevant information that the detective and nurse had obtained directly from Virginia Rappe during the last week of her life was not. Similarly, conversations that Dr Olav Kaarboe, the first physician to attend Virginia, had had with both her and Maude Delmont, were not allowed.
Then Fred Fischbach took the stand and told of his involvement at the St Francis party. Under cross-examination he was asked how he had grabbed Virginia to remove her from the bath. He turned and, advancing on Judge Louderback, said, ‘I grabbed her by the arm. May I show you?’ The judge swung round on his chair and ducked, saying loudly, ‘No, you illustrate on someone else.’ Obligingly, Fred left the witness box, picked up the court reporter and, dangling him in midair, went on testifying as the reporter (I am told) wrote shorthand in a suspended position. The excitement became too much for one juror, who asked to be excused for a moment.
When Dr Melville Runwell testified, U’Ren and Friedman fought again to keep out vital testimony concerning the doctor’s conversations with Virginia Rappe. For once they failed. It was established that at no time had the sick girl told the doctor that Roscoe was to blame for her condition. It was also established that after several days’ attendance on the girl, Dr Rumwell concluded that whatever else she was suffering from, she had a venereal disease, gonorrhoea.
This was the first evidence to indicate clearly that Virginia was not a virgin.
Rumwell was followed by a strong defence witness, Irene Morgan. Miss Morgan, a nurse and masseuse, had been employed by Virginia the previous year as a housekeeper-nurse. She had preceded Mrs Hardebach, the old family friend who had come to live with Virginia and who had presented the girl to the court as a healthy, indeed an athletic girl.
Miss Morgan’s testimony presented a different picture of the starlet. She told the court that Virginia had frequently experienced agonizing abdominal pains, which were relieved with hot packs over the pelvic cavities. Virginia would cry out in pain when voiding urine and often had to be catheterized. When the girl was in pain, she would double up, screaming, ‘My God!’
At this, U’Ren rose to his feet, wanting the testimony ruled out as hearsay. It was. Miss Morgan went on to describe Virginia’s condition after she had taken a drink. ‘She would tear her clothes off, virtually all of them. Sometimes she would run out into the street naked. I would have to go after her and bring her back in.’
During the trial, there was a sensation when Irene Morgan was found lying on the bedroom floor of the hotel where she was staying. She had been poisoned. The DA did not complain about ‘witness-tampering’ this time. Fortunately the nurse recovered, but it was rumoured that she had been threatened with both death and kidnapping if she testified on Roscoe’s behalf.
Another witness the defence brought forth to testify about Virginia’s attacks was Minnie Neighbors, who a month before Virginia’s death had been taking the waters at Wheeler’s Hot Sulphur Springs at the same time that Virginia was there. She testified that on several occasions Virginia had had attacks similar to those described by Nurse Morgan. Minnie Neighbors was arrested by DA Brady and charged with perjury, a charge that dangled over her head through Roscoe’s trials and was then dropped as soon as there was a court decision. With the perjury charge as a weapon, Brady had one less defence witness to worry about.
The key issue that had to be resolved was how the bladder of Virginia Rappe had ruptured. To this end a great deal of medical evidence was heard during the trial. Of the sixty witnesses who gave testimony, eighteen were doctors (among those was Dr Sheils, the man who had coined the term ‘Dementia Americana’ in the Harry Thaw murder trial). In fact, the medical testimony was so confusing and contradictory that Judge Louderback had appointed a commission of three doctors to examine Virginia Rappe’s bladder and report back to the court.
The opinions of the eighteen doctors varied enormously: the bladder could have ruptured spontaneously, or due to internal force, or due to external force. It could have ruptured because of the rough handling of Miss Rappe by the party guests as they tried to administer first aid, especially when she was swung upside down by Fred Fischbach, or when she was plunged into the cold bath and her muscles contracted. It could have ruptured when she fell off the bed, or when she vomited, or when she tried to urinate. It could even have ruptured after a violent sneeze.
Dr Ophuls – who at the post-mortem had judged by the naked eye and not after a microscopic examination of the bladder – testified that in his opinion there had never been and would never be a spontaneous rupture of the bladder due to overdistention. But I have consulted members of the medical profession who say there are well-documented cases of spontaneous rupture.
In addition, of course, there was the possibility, which was never pursued after the coroner’s inquest, that Virginia Rappe died as a result of medical malpractice – incorrect diagnoses and inadequate treatment. There was even the possibility that the bladder had been ruptured by a glass catheter. And certainly looking back on the evidence now, one wonders what effect an illegal abortion would have had on the girl’s diseased bladder. Just what did go on at the Wakefield Sanatorium?
The defence set out to establish that Virginia Rappe had suffered from inflammation of the bladder for many years and that this chronic cystitis could have caused the bladder finally to rupture.
The testimony of one defence witness after another indicated that the dead girl had a long history of illness. The defence had done its job well. They were able to cover the girl’s medical history as far back as 1907.
They were forced to fight every inch of the way in introducing the medical history into the trial record. Every piece of evidence that looked favourable to Arbuckle was resisted strongly by the DA’s assistants. Thus it took a legal argument lasting nearly two hours before the defence deposition of a Dr Maurice Rosenberg of Chicago was allowed in as evidence.
