The Case of the Vanishing Juror

by Joan Myers

In September 1921, silent film comedian Roscoe “Fatty” Arbuckle was arrested in San Francisco for the murder of a woman named Virginia Rappe. The murder charge was later reduced to manslaughter, a crime for which Arbuckle was tried three times. The first two trials ended in hung juries; the third and final trial resulted in Arbuckle’s acquittal in April 1922. The Arbuckle trials became Hollywood’s first ultra-sensational “celebrity scandal.”

Arbuckle scandal canon holds that the first trial jury hung due to the malevolence of one woman juror, Mrs. Helen Hubbard. The facts are imperfectly understood and details of the story vary, but they are usually regurgitated thusly: Mrs. Hubbard believed that Arbuckle was guilty and wangled her way onto the jury intending to convict him. Mrs. Hubbard refused to review evidence or trial transcripts during deliberations. Mrs. Hubbard claimed that she would vote Arbuckle guilty until hell froze over. This woman’s obtuseness is such a cherished tenet of Arbuckle scandal belief that the first jury’s final vote is often misreported as eleven to one. But in fact, Arbuckle’s first jury hung by a vote of ten to two.
It seems we’ve mislaid a juror.
This essay reexamines the first Arbuckle trial jury vote, the legendary intransigence of Mrs. Helen Hubbard, and the mysterious disappearance of the second juror. Since jury deliberations are private and not recorded, our only sources for this story are the contemporary newspapers. Using newspapers as sources for historical analysis is problematic, but given the lack of alternatives in this case, use them we must. All sources–no matter how reliable–have limitations, but if approached cautiously both a source and its limitations can be illuminating.

We should properly locate the story within its historical context. Momentous social changes were taking place in 1921. Women, like June, were busting out all over–and not everybody was happy about it. The 19th Amendment, granting women the right to vote, was ratified by Congress on August 26, 1920. California had granted that right nine years earlier, in 1911, but a woman’s right to serve on juries remained in question. Jury composition was determined by the California Code of Civil Procedure, which defined juries as “a body of men”; debate centered upon whether the term “men” included women. Some officials took the position that the right to vote included the right to serve on juries, and accordingly women were summoned for the first time throughout California in October 1911.
This encroachment of women into the civic arena had not gone unnoticed, nor had it gone unchallenged. Convictions handed down by juries on which women had served were often subject to appeal. Following a 1917 appellate court decision (People v. Lensen, 34 Cal App 336), which concluded that women could not legally serve on juries, the California Assembly passed the Women’s Jury Bill in April 1917. This bill specifically granted women jury rights by amending the Code of Civil Procedure to change the definition of a jury from “a body of men” to “a body of persons.”
Not surprisingly, the objections to women serving on juries did not evaporate in the wake of the California Assembly vote. Traditionalists argued that women were by nature and training incapable of the critical, objective thinking required for jury service. Women were ruled by their emotions and would not only vote into office handsome but incompetent men, they would acquit handsome but nefarious criminals. Time spent serving on juries would “unsex” women by removing them from their domestic duties and subjecting them to the salacious evidence often exposed in courtrooms. Women would be sequestered with unsavory male strangers to decide cases. Underlying these objections lurked the unstated but palpable fear that men might find themselves being judged by women. For many citizens the sight of a woman in the jury box must have heralded the imminent scuttling of the ship of state.
By November 1921, when Arbuckle’s first trial began, none of the voiced predictions had yet materialized, but the anxiety had not abated. Media coverage of women on juries simultaneously reflected the societal concern and exacerbated it by keeping the issue on the front burner. Reporters lavished attention on the female jurors, covering age, looks, marital and economic status, attire, responses during voir dire, and votes.
Roscoe Arbuckle’s first trial began on November 14, 1921 amidst more-than-usually intense press speculation that women might be included on his jury. News reports covered the five-day jury selection process in colorful detail, emphasizing the sensational moments. And sensational moments there were. Attorneys for both sides seized every opportunity to try the case during jury selection, hurling accusations and indulging in flights of lawyerly rhetoric. Judge Harold Louderback finally halted the squabbling by ordering attorneys to select a jury and reserve the oratory for the trial.
Mrs. Helen Hubbard, the 46-year-old wife of a San Francisco attorney, was accepted as a juror on November 15, the second day of jury selection. Neither state nor defense perceived any need to challenge her, and her voir dire passed so uneventfully that the newspapers failed to report it altogether. She appears listed as an accepted juror, without editorial comment, in the news reports on November 16. The jury –containing seven men and five women–was completed on November 18, but at the end of that day a juror advised the court that he’d formed an opinion on the case. He was excused, and the next day his seat on the jury was filled by a 54-year-old Geary Street candy shop owner, Mr. Thomas Kilkenny. Mr. Kilkenny’s voir dire also passed without comment from the press. Mr. Stephen Hopkins was then accepted as the alternate juror, and immediately after he was sworn in, the trial began.

The trial ended with closing arguments on December 2, 1921. At 4:10 pm, the judge finished reading his instructions and the jury retired for deliberations amid excited press expectation that Arbuckle would be acquitted. Reporters clustered around alternate juror Hopkins, who told them “I had an opinion when I was sworn in as a juror, but I was allowed to remain in the box because one side had no more challenges. I still have that opinion.” Since reporters knew the state had exhausted its challenges this was interpreted as a pro-Arbuckle opinion. (Hopkins later stated that he did not think the state had made its case, but he refused to discuss the matter further.)
But the jury did not immediately return the expected acquittal. Hours–and then days–passed. Defense hopes for a quick acquittal vanished, replaced with presentiments of a mistrial, presentiments fueled by reports of acrimony in the jury room. After forty-four hours of wrangling the jury finally admitted defeat, and the foreman, August Fritze, advised the judge that they were hopelessly deadlocked. The poll on the final ballot stood ten for acquittal to two for conviction. The two jurors who had held out for conviction were Mrs. Helen Hubbard and Mr. Thomas Kilkenny.

Hubbard and Kilkenny refused press interviews and hastened from the Hall of Justice. Eager reporters converged on the remaining jurors. Either they canvassed only the women jurors or only considered the responses of the women newsworthy, because (with the lone exception of juror Arthur Crane) the next day’s reports contain quotes only from the women. The male jurors were, apparently, about as newsworthy as “dog bites man.”
It was learned from these first interviews that during the forty-four hours of deliberation, many ballots were taken and votes shifted between ballots. Hubbard, juror Louise Winterburn, and an unknown juror voted guilty on the first ballot; Kilkenny cast a blank ballot. On the second ballot Hubbard, Winterburn, and Kilkenny voted guilty, and the unknown juror changed his vote to not guilty. Kilkenny shifted his vote to not guilty on the third ballot and stayed there for the fourth; Hubbard and Winterburn voted guilty on both ballots. After discussion the fifth ballot was taken, whereupon Winterburn changed her vote to not guilty and Kilkenny changed his to guilty. From that point on Kilkenny remained unwavering and uncommunicative and there the vote remained until deliberations were halted.
Winterburn told reporters that she was conflicted: “Sometimes I think he is guilty and sometimes I believe him innocent.” Mrs. Kitty MacDonald revealed that the element of reasonable doubt played a large part in the stand of some of the jurors: “We felt that the case had not been sufficiently proved,” she said. “Some of the jurors believed that Arbuckle was innocent, others believed that not enough proof had been presented to warrant a conviction.” She told reporters that Mrs. Hubbard had expressed her belief in Arbuckle’s guilt, delineated her reasons, and would not change her vote. Mr. Kilkenny, she said, refused to discuss his vote at all. Jurors Arthur Crane and Dorothy O’Dea reported that the ten jurors who voted for acquittal tried their best to swing the two opposing votes. “We had some wild times in the jury room before it was over,” O’Dea admitted.[1]
Later that evening, Helen Hubbard broke her silence and gave a lengthy interview to a young friend, Geraldine Sartain of the San Francisco Chronicle.[2] After first expressing surprise that she had been chosen as a juror–as an attorney’s wife, she had assumed she would be challenged–she explained her vote by analyzing the testimony of the witnesses, the forensic evidence, and the legal strategy and arguments. She was unimpressed with both the defense witnesses and Arbuckle’s attorneys. “The entire case in the jury room was the trial of the District Attorney’s office rather than the trial of Arbuckle,” she said.[3]

She remained calm through the reporter’s questioning until asked about her treatment in the jury room. She then became angry. She described the behavior and comments of her male counterparts, reserving specific ire for jury foreman August Fritze, whom she accused of abusive behavior in his attempts to induce her to change her vote. Similar behavior was not, she pointed out, directed toward Mr. Kilkenny. The Hubbard interviews are detailed and they are informative. Mrs. Hubbard did not need to “review the evidence” or “read the transcripts” in the jury room because she had heard the evidence in the courtroom. She believed Arbuckle was guilty. And she was not amenable to bullying.
Thomas Kilkenny was never interviewed.
That night Arbuckle’s lead attorney, Gavin McNab, responded to Mrs. Hubbard’s comments: “I will say this about the lady juror, Mrs. Hubbard, that is, that as soon as she was sworn in as a juror the defense counsel were unanimous in the opinion that from the expression of her countenance, that whenever the defense tried to present any matter, she manifested extreme hostility and prejudice. We concluded, therefore, that regardless of the attitude of all or any one of the jurors, that she would hold for the prosecution.” With this statement, McNab places the responsibility for the hung jury solely on Mrs. Hubbard and covers his legal posterior by claiming that Mrs. Hubbard’s manifestations of “extreme hostility and prejudice” occurred only after she was sworn in. No such manifestations were discerned during voir dire by Arbuckle’s five munificently-recompensed attorneys or by the legion of reporters present in the courtroom.

McNab did not comment on Mr. Kilkenny’s manifestations.

Later that evening Arbuckle issued an official response regarding the deadlocked jury (the statement purportedly came from Roscoe Arbuckle himself; although he probably approved it, his lawyers undoubtedly wrote it). The statement opened with: “But for one woman on the jury–of twelve representative men and women–who refused to allow her fellow jurors to discuss the evidence or reason with her, and who would not give any explanation for her attitude, my trial would have resulted in an immediate acquittal.”
Mr. Kilkenny is not mentioned in this statement.

Although the December 5th papers reported the vote as ten to two, coverage then and later centered on Hubbard’s refusal to be guided–or intimidated–by her male peers. Kilkenny’s vote was soon forgotten, all the more quickly because he was intelligent enough to remain completely mum. Also ignored were the jurors who’d voted not guilty due to reasonable doubt rather than any firm belief in Arbuckle’s innocence. Mrs. Hubbard became “the woman who hung the Arbuckle jury,” and the newspapers finally had their “Man Bites Dog.”
That Arbuckle’s attorneys focused on Hubbard to the exclusion of Kilkenny, however, can only be explained as a cynical attempt to exploit public anxiety. McNab later began publicly referring to the first trial vote as eleven to one, completing Mr. Kilkenny’s rout. The ploy was as breathtaking as it was successful, and it provided the public and Arbuckle’s defense team with the archetypal story both wanted: “Woman Bites Man.”
Mrs. Hubbard and Mr. Kilkenny soon vanished from the public eye, (which probably suited them both), although Hubbard continued to be painted as a bugaboo by Arbuckle’s attorneys throughout the trials. Arbuckle’s second trial was heard before a jury of eleven men and one woman; it also ended in a hung jury, the vote this time ten to two for conviction. He was acquitted of the manslaughter charge at the third trial, but both public and press had ceased being interested long before the final verdict, and his career was in ruins.

Time passed. Principals in the scandal died or dropped from sight. Arbuckle died in 1933. Thomas Kilkenny died in 1948; Helen Hubbard in 1952. If either later spoke about their jury experiences, no record remains. The ship of state sailed majestically on; eventually the sight of a woman in the jury box failed to excite comment, and the newspapers went on to the next “end of western civilization” hot-button issue.[4] People forgot to be concerned and then forgot that they had ever been concerned.

But old Hollywood scandals never die. The Arbuckle trials continued to serve as fodder for gossip and the occasional silly article written for the men’s magazines so popular in the 1950s. In 1976, fifty-five years after the events and at another juncture when women were again crossing societal boundaries (and not everybody was happy about it), David Yallop penned The Day the Laughter Stopped, his account of the Arbuckle scandal. Yallop introduces his discussion of the first trial deliberations with the following announcement.
What happens in the confines of the jury room is theoretically sacrosanct, but
during my three years’ research into Roscoe Arbuckle’s life I discovered what
happened that weekend in December, when the jury deliberated about Roscoe’s
guilt or innocence.

Mr. Yallop does not reveal how he discovered what happened that weekend, but he produces no information that isn’t readily available in the newspapers. After misspelling juror Louise Winterburn’s name (“Winterburr”), he eschews analysis, ignores Mr. Kilkenny, and pounces on Mrs. Hubbard: “One woman had prevented a verdict of acquittal.” He supports his thesis by adducing: “She refused to look at the exhibits. She refused to read the trial transcript.” Nowhere in The Day the Laughter Stopped does the name Thomas Kilkenny appear.[5]

Andy Edmonds, who misspells nearly everybody’s name in her 1991 account of the Arbuckle scandal, Frame Up, summarizes the first trial deliberations: “One woman remained firm in her belief that Roscoe was guilty, and she refused to listen to any reasoning or consider any evidence that could prove her wrong.” Nowhere in Frame Up does the name Thomas Kilkenny appear–misspelled or otherwise.[6]

Modern understanding of the events of Roscoe Arbuckle’s trials stem from The Day the Laughter Stopped and Frame Up. Both books opted for the 1921 interpretation of the first trial vote, ignoring both the historical context for that interpretation and the metamorphosis that took place as the story was redacted. Mrs. Hubbard was enshrined as the perverse mirror image of Henry Fonda in Twelve Angry Men and Mr. Kilkenny was consigned to historical oblivion. But is now time for Mr. Thomas Kilkenny, a Geary Street candy shop owner, to take his proper place in the discourse. Roscoe Arbuckle’s first trial ended in a hung jury, but that jury did not hang because of the intransigence of one woman. It ended in a hung jury because two people voted guilty and ten did not.

References
[1] Marjorie C. Driscoll, “Jury 10 to 2 for Acquittal of Movie Star,” San Francisco Chronicle, December 5, 1921, p. 1.


[2] Ishbel Ross, in her biographical sketch of Sartain in Ladies of the Press (Harper & Brothers, 1936), writes that Hubbard and Sartain were friends and that Hubbard granted Sartain the interview to help further Sartain’s career. The interview was Sartain’s first byline; she went on to a 30-year career as a reporter. San Francisco Examiner feature writer Mollie Merrick also seems to have been present for at least part of the same interview. Merrick’s career is not covered in Ladies of the Press. Geraldine Sartain, “Mrs. Hubbard Declares She Did Her Duty,” San Francisco Chronicle, December 5, 1921, p. 1; Mollie Merrick, “I Stood Firm Because I Felt He Is Guilty,’ Says Mrs. H.M. Hubbard,” San Francisco Examiner, December 5, 1921, p. 1.

[3] Sartain.


[4] And I do mean “eventually.” The last state to legally allow women jurors was Mississippi–in 1970.


[5] Yallop, David, The Day the Laughter Stopped, St. Martin’s Press, New York, 1976, pp. 240-241.


[6] Edmonds, Andy, Frame Up, William Morrow & Company, Inc., New York, 1991, p. 240

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10 Comments

  1. Excellent piece of writing and reearch this!

    Reply
  2. Great post Joan! Really loved the use of headlines as well as the solid research. Very interesting discussion on gender and the Arbuckle trial with info and context not usually addressed.

    Reply
  3. This is brilliant material, well researched and clearly stated, as is all the stuff you write. The jury is an interesting layout to use in survey the exploitation of women by the courts.

    Reply
  4. Excellent, excellent. I cannot wait to read all of this story finally put together, as only you are going to be able to. All the best, Joan!

    Reply
  5. Excellent research Joan. I’m sure that David Yallop skipped the extra juror because he was biased, or it didn’t make a good story. And Andy Edmonds was a poor researcher, as her biography of Thelma Todd shows.

    Reply
  6. Anonymous

     /  March 24, 2009

    Great job Joan — you cant beat great research combined with good story telling – cant wait to read more -

    Reply
  7. Los Altos History Museum

     /  April 3, 2009

    Joan, do you have any more information on foreman August Fritze? We are researching the history of his Los Altos home and have only bits and pieces. Any referrals or resources would be most appreciated – please contact us through our website. Thank you! Laura Bajuk, E.D., Los Altos History Museum

    Reply
  8. Well-researched and well-written. An excellent article.

    Reply
  9. Finally, a chance to read this and give it the attention it so richly deserves. I’m even more anxious for a book-length treatise from you – your writing and research are superb.

    Reply
  10. Anonymous

     /  June 22, 2011

    great article. what is most astonishing, though, is that anyone – male or female – would vote “guilty” in a case riddled with so much reasonable doubt.

    Reply

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