The Day the Laughter Stopped, page 21
OPHULS: Well, in the first place on the fact as I stated before that the opening in the bladder wall was not in any way lacerated, but was one single straight tear running more or less parallel to the bundles of the muscle fibres in the wall of the bladder. Then also it seems to me difficult to understand how any metal or glass instrument in going through the wall of the bladder would make just that kind of a tear in the wall, and then a comparatively small perforation in the peritoneum. I think one would imagine that if any such sharp foreign body had travelled through the wall of the bladder, it would have gone through the wall of the bladder and the peritoneum and made about the same kind of a hole in both of them.
We must remember that Dr Ophuls was here giving an opinion. I have consulted members of the medical profession who feel that such a course of events might have occurred. In fact, there are many points on which it would have been interesting to have contemporary medical opinion. For example, Dr Ophuls went on in his testimony to discount the possibility of the spontaneous rupture of the bladder due to overdistention. In his view, there never had been and never would be a spontaneous rupture of the bladder. But in fact, such cases have been recorded.
It was subsequently revealed that Dr Ophuls’s opinions were based not on microscopic examination of the ruptured bladder, but on examination by the naked eye.
And he could not answer the main question: How did Virginia Rappe die?
Dr Rixford and Dr Read, who had been called in to consult at Wakefield Sanatorium just before Virginia Rappe died, each took the witness box and recounted his brief involvement with the case. Then the coroner adjourned the proceedings until Tuesday morning, when he could finally hear from Maude Delmont.
Still to come that Monday evening was the grand jury hearing.
At four o’clock Monday afternoon, DA Brady was able to devote his attention to rebuilding the case against Roscoe. Brady had one advantage: no-one outside his office knew the case had been shattered.
The DA studied the statements of the three partygoers who had ministered to Virginia when she needed help: Maude Delmont, Alice Blake and Zey Prevon. Delmont’s testimony would be worthless. The defence could show easily that the woman was lying. But if the DA could get both Alice Blake and Zey Prevon to swear to some of Maude’s allegations, he would have a solid case. They were the very people the defence would have used to discredit Maude. If they took a position that was damaging to Roscoe in their statements and subsequent testimony, the only person who could discredit their version would be Roscoe. It would be his word against theirs. Brady wanted one vital piece of evidence from the two girls. If he could get it, and the jury accepted it, Roscoe was a dead man.
Maude had stated that when she had rushed into the bedroom, Virginia had shouted, ‘I’m dying! I’m dying! He killed me.’ The rule of evidence requires that if such a dying statement contains an accusation, it is only admissible in evidence if the accused was present at the time it was made. It must have been made within his hearing. When this was pointed out to Maude, she promptly placed Arbuckle in the room and had him replying, ‘You’re crazy; shut up or I’ll throw you out of the window.’ Testimony about the dying Virginia’s accusation in Roscoe’s presence was what Brady needed – not from Maude, but from Alice and Zey. Studying their statements, he realized how big his problem was.
Alice Blake had been interviewed at Tait’s Café shortly after Virginia’s death was reported to the police. Her statement, though full of lurid details about Virginia’s torn clothing (clothing that the police now knew had been torn off by the girl herself), contained nothing about a struggle or a criminal assault. She had declared specifically in her statement that she did not hear Virginia say that Arbuckle had killed her or hurt her. Alice said that all she heard the girl say was, ‘I’m dying, I’m dying! I know I am going to die!’
Alice’s initial statement also contradicted Maude Delmont’s testimony that Roscoe and Virginia had been locked in the room for over one hour. Alice had left the party at 2.00 to attend a rehearsal at Tait’s Café and had returned at 2.30 because the rehearsal was cancelled. The staff at Tait’s confirmed this. Fred Fischbach had returned to confusion just after 3.00, and the assistant hotel manager had probably come to the room at 3.30.
Zey Prevon’s statement was similar to Alice Blake’s. Brady was faced with a problem.
He got detailed histories of both girls. Alice Blake came from a wealthy, upper-class family. Well-educated, she would probably be hard to break down. Zey Prevon, though worldly, came from a poor, working-class background. The DA reasoned that she would be a far easier proposition. He gave orders for Zey to be brought in for questioning.
Much of what follows here was not made public until Roscoe Arbuckle’s second trial, but because it was to have so important an effect on the course of events, I relate it here.
Zey had been ‘kept under guard’ in the home of a DA’s staff member since the previous day, ostensibly to protect her from witness-tampering. If the DA expected this to soften her up, he was sadly disappointed. Zey Prevon was asked to sign a statement containing the crucial allegation that she heard Virginia shout, in the presence of Roscoe Arbuckle, ‘I’m dying! I’m dying! He killed me.’
She refused to sign. The whole weight of the DA’s office was brought to bear upon the frightened girl. She was threatened, and subjected to third-degree questioning. She still refused to sign what she knew to be a false statement.
Time was running out for the district attorney. The grand jury hearing was due to begin soon.
The screw was turned tighter. Six men questioned Zey and told her that she had already made a statement containing the allegation. Astonished, she asked to see it. They showed her the statement she had given to Captain Matheson at police headquarters at 10.30 p.m. on Saturday night. It contained the vital remark, but it was not signed. She told them that it was incorrect.
Finally, time ran out. The grand jury hearing commenced with the testimony of Maude Delmont. Then, hoping that a public confrontation might succeed where the private interrogations had failed, assistant DA U’Ren hustled Zey to the stand.
Grand jury testimony is secret. Here for the first time is a verbatim record of the exchange between Zey Prevon and assistant DA U’Ren during the grand jury hearing that took place on the night of 12 September 1921.
U’REN: Then what did you do?
PREVON: We went into the room where Virginia was lying on the bed.
U’REN: What was her condition? What was she doing?
PREVON: She was just lying on the bed and started in to moan. Her hair was all down, I said, ‘What is the matter with you?’ She started to moan, she said, ‘Oh, I am dying. I got pains, I know I am dying.’ I said, ‘You are not going to die, what is the matter with you?’ So then Alice came running in.
U’REN: What did she do then?
PREVON: She didn’t say anything more. She just kept moaning. She got up in bed then and started to tear her clothes off of her, she acted like she was crazy, she started to pull on her waist and started to pull on her cuffs. She pulled her waist nearly all off of her, she pulled her stockings clear off and garters.
U’REN: Did she have her shoes on?
PREVON: Yes, we took her shoes off. She said, ‘I got a pain.’
U’REN: What part of her body was it she referred to?
PREVON: (indicating heart) Right here. She says, ‘I got a pain around my heart.’ Alice says, ‘I think she’s got gas pains.’ Mrs Delmont went to put her dress on in the other room, and I got some carbonate of soda. No, we got her all undressed first, and the bed was all wet, so we took her from one bed to another bed, these two little beds, and laid her on the other bed. She started to rub her stomach and started to scream again; then she went completely out and we tried to put the carbonate of soda down her, and she threw it all up.
U’REN: Did she scream any more?
PREVON: Yes, sir.
U’REN: Were these the words she said – I am reading from a statement you gave to Mr Vernon [a notary public and stenographer] – ‘Oh, I am dying, I am dying; he has killed me’?
PREVON: No, she did not say, ‘He has killed me.’ I did not hear her say that.
U’REN: And did you say, ‘You are not dying, what is the matter with you?’
PREVON: She did say, ‘I am dying. I am dying.’ I said, ‘You are not going to die, what is the matter with you?’, but I did not hear her say, ‘He has killed me.’
U’REN: You know this is a very serious matter, and you know that you are under oath?
PREVON: Yes, sir.
U’REN: Didn’t you upstairs, within the last half hour, in the presence of Judge Brady, state that she said, ‘He has killed me, he has killed me.’
PREVON: No, not ‘He has killed me.’ ‘I am dying, I am dying. I know I am dying.’ But I did not hear her say, ‘He has killed me.’
U’REN: Didn’t you, upstairs, in less than half an hour, say in the presence of Judge Brady and myself, state that she said that?
PREVON: No, because you wrote another paper today.
U’REN: I am not asking about any other paper. In the last half an hour upstairs – you made a statement last Saturday in the police headquarters?
PREVON: Yes, but they were all firing questions. I don’t know what I said.
U’REN: Did you make a statement to me in the presence of Mr Howard Vernon, alone, at a little table, just the three of us, where you made a statement as to what occurred?
PREVON: I don’t remember hearing ‘He killed me’.
U’REN: I am asking you about last Saturday night.
PREVON: I don’t remember of that.
U’REN: Don’t you remember a statement last Saturday night?
PREVON: When I made a statement there, I don’t remember.
U’REN: You did make a statement, yes or no?
PREVON: I don’t remember.
U’REN: You don’t remember whether you made a statement last Saturday night or not?
PREVON: Yes, sir.
U’REN: You were downstairs in police headquarters, were you not?
PREVON: Yes, sir.
U’REN: Don’t you remember talking to me in the presence of Mr Vernon?
PREVON: I don’t know who Mr Vernon is.
U’REN: The gentleman you saw upstairs just a few minutes ago.
PREVON: Yes, sir.
U’REN: To whom have you talked about this case since last Saturday night?
PREVON: No-one.
U’REN: Who has told you you did not have to sign any statement in this case?
PREVON: Nobody.
U’REN: Nobody?
PREVON: No.
U’REN: Who has told you you did not have to testify in this case unless you wanted to?
PREVON: I knew I have to testify. I was here as a witness.
U’REN: Who has told you you did not have to testify in this case?
PREVON: There was nobody told me I didn’t have to testify, they told me I didn’t have to sign anything.
U’REN: Who told you that?
PREVON: My folks told me.
U’REN: What folks?
PREVON: My mother. I have a mother.
U’REN: That is the only person you have talked to?
PREVON: My mother or my brother.
U’REN: You have talked to nobody since last Saturday night respecting this case, except your brother and your mother?
PREVON: That’s all.
And so it continued, with the assistant DA pounding away at the frightened young woman. Since Saturday Zey Prevon had either been closely followed, had been at home with her house surrounded by police, or had been in police custody. So the assistant DA knew precisely to whom she had talked in that period of time. He knew, for example, that she had had a brief conversation with Charles Brennan, one of Roscoe’s lawyers.
As U’Ren’s examination of Zey Prevon continued, she told the grand jury of the events that followed Virginia Rappe’s collapse at the party. Again and again her testimony was interrupted by the assistant DA. If he could not get the testimony he desired from the girl, he was determined that the grand jury should hear it some way, often through the technique of starting a question with, ‘Didn’t you tell me downstairs that …’ Again and again he returned to the crucial piece of evidence, Virginia Rappe’s so-called dying allegation. Again and again he told the grand jury that Zey Prevon had stated she heard the accusation. But he could not break Zey Prevon down. Doggedly she clung to the truth. She had not heard the remark. She had not stated to anyone that the remark had been made.
A man’s life hung in the balance in that grand jury room. Questions came at Zey Prevon from two assistant DAs, U’Ren and Golden, and from several grand jury members. Her resistance began to break.
U’REN: Now, I am going to ask you again, if you did not upstairs this evening, in the presence of Mr Howard Vernon, a notary public, state that in Mr Arbuckle’s presence, in Room 1219, Miss Rappe was yelling, ‘I am dying, I am dying; you killed me’?
PREVON: No, she did not say, ‘You killed me.’ ‘I am dying, I am dying. I know I am dying. I am going to die.’
U’REN: I asked you if you did not tonight, upstairs in this building, in the presence of myself and Mr Howard Vernon, state that in Mr Arbuckle’s presence in room 1219 Miss Rappe was yelling, ‘I am dying, I am dying; you killed me’? Did you make that statement, or not?
PREVON: I did not say, ‘You killed me …’
At this point Zey Prevon broke down and sobbed. No-one went to her assistance. She had no attorney in the room, no friend, no relation. The grand jury and the district attorney’s staff waited. Still sobbing, Zey went on.
PREVON: I don’t remember.
A JUROR: Did you notice any marks on her neck?
PREVON: No, sir, I did not.
ANOTHER JUROR: How long have you known Mr Arbuckle?
PREVON: I met Mr Arbuckle three or four times, but he did not remember me, because he has met so many people, but I told him who I met him through when I went up to the St Francis, but I knew Fred Fischbach.
ANOTHER JUROR: Are you in the movie business?
PREVON: I used to be, not now.
ANOTHER JUROR: Has anybody approached you and told you how you should testify before this jury?
PREVON: No, sir.
JUROR: Has anybody told you, after you gave certain testimony in the district attorney’s office that they claim you did, has anybody said you should not give that testimony?
PREVON: No, sir.
JUROR: Do you mean to say that the district attorney’s office is telling an untruth when they make that statement?
PREVON: No, they are not telling an untruth.
JUROR: The gentleman says you made such a statement tonight?
PREVON: Maybe I made a mistake myself, but the district attorney’s office didn’t.
JUROR: You made a certain statement Saturday night. Now you deny it? Did you make a false statement Saturday night?
PREVON: I never made any statement. I never wrote anything down. Maybe I did make a mistake when I said a few things.
JUROR: You never signed any statement whatever?
PREVON: No, sir.
JUROR: Did anybody approach you and tell you how you should testify?
PREVON: No, sir. Not a soul.
JUROR: Any friend of Mr Arbuckle’s, or anybody?
PREVON: No, sir, nobody; that is true.
ANOTHER JUROR: What clothes were on Miss Rappe when you went into the room?
PREVON: She had all her clothes on.
JUROR: A skirt?
PREVON: A skirt and a little green blouse and a little white blouse underneath it.
JUROR: All her clothes were on?
PREVON: Yes.
ANOTHER JUROR: Was she intoxicated?
PREVON: No, she was not intoxicated.
U’REN: Last Saturday night, about the hour of 10.30 or 11.00, did you in the office of the captain of detectives, on the first floor of the Hall of Justice, in the City and County of San Francisco, didn’t you tell me in the presence of Mr Howard Vernon, a stenographer, that after you had kicked on the door, that Miss Rappe said, in the presence of Roscoe Arbuckle, ‘I am dying, I am dying; he has killed me. I am dying.’ Did she say that?
PREVON: She said, ‘I am dying, I am dying, I know I am going to die,’ but I don’t remember her saying …
U’REN: (interrupting) I am putting the direct question whether or not you did not tell me that under the circumstances that I have related?
PREVON: No. Well, if I did, it is a mistake.
U’REN: Just answer yes or no, if you made that statement to me?
PREVON: If I did, I don’t remember, because I don’t remember her saying, ‘He killed me.’
U’REN: I ask you the direct question, yes or no, whether she made that statement in the presence of Roscoe Arbuckle?
PREVON: I don’t remember whether Roscoe Arbuckle was in back of me, or whether he was in the other room at the time, because I was so busy attending to her I don’t know whether he was there in the room back of me, or whether he was in the other room, I don’t know.
U’REN: I am going to ask you whether tonight in the Hall of Justice in Room 12 on the fourth floor you did not state to me in the presence of Judge Brady and Howard Vernon that Miss Rappe screamed and yelled in the presence of Roscoe Arbuckle in Room 1219 of the St Francis Hotel on Monday, 5 September, as follows: ‘I am dying, I am dying; you killed me.’ Didn’t you make that statement tonight in this hall?
PREVON: Tonight?
U’REN: Tonight. Answer yes or no.
PREVON: No.
U’REN: What?
PREVON: No, I did not say, ‘You killed me.’ There is a statement there I gave to Mr U’Ren, he just wrote it up in his own hand on yellow paper upstairs.
U’REN: I am not talking about any statement written out, I am talking about an oral statement you made tonight so that your recollection may be entirely fresh, an oral statement you made?
PREVON: She said, ‘I am dying, I am dying, I know I am going to die,’ but I didn’t hear her say, ‘You killed me.’
