Chapter 6 – Sentencing And Aftermath Final

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Last Updated on October 7, 2024 by Mary Phagan

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Because Judge Roan feared a public uprising against Leo Frank, he secretly brought Frank and the other principals together in the courtroom for the formal sentencing. The sentence read:

Whereupon, it is considered, ordered and adjudged by the Court that the defendant, Leo M. Frank, be taken from the bar of this court to the common jail of the county of Fulton, and that he be safely there kept until his final execution in the manner fixed by law. It is further ordered and adjudged by the Court that on the 10th day of October, 1913, the defendant, Leo M. Frank, shall be executed by the Sheriff of Fulton County in private, witnessed only by the executing officer, a sufficient guard, the relatives of such defendant and such clergymen and friends as he may desire, such execution to take place in the common jail of Fulton County and that said defendant, on that day, between the hours of ten o'clock a.m. and two o'clock p.m., be by the Sheriff of Fulton County hanged by the neck until he shall be dead, and may God have mercy on his soul. In Open Court, this 26th day of April, 1913.

Frank addressed the Court: "Your Honor, I say now as I have always said, I am innocent. Further than this, my case is in the hands of my counsel."

The trial of Leo Frank had been the longest and most expensive trial in Georgia history at that time. The steno-graphic record itself was 1,080,060 words. The state's star witness, Jim Conley, had been on the witness stand longer than any other witness in state history, and it was the first time that a black man's testimony helped to convict a white man.

Upon its conclusion Rosser and Arnold said: "We deem it not amiss to make a short statement, as the attorneys of Leo M. Frank to the public.

"The trial which has just occurred, and which has resulted in Mr. Frank's conviction, was a farce and not in any way a trial. In saying this, we do not make the least criticism of Judge Roan, who presided. Judge Roan is one of the best men in Georgia and is an able and conscientious judge." (Judge Roan was Rosser's senior law partner from 1883 to 1886.)

"The temper of the public mind was such that it invaded the courtroom and invaded the streets and made itself manifest at every turn the jury made; and it was as impossible for this jury to escape the effects of this public feeling as if they had been turned loose and had been permitted to mingle with the people.

"In doing this we are making no criticism of the jury. They were only men and unconsciously this prejudice rendered any other verdict impossible.

"It would have required a jury of stoics, a jury of Spartans, to have withstood this situation.

"The time ought to come when this man will get a fair trial, and we profoundly believe that it will.

"The final judgment of the American people is a fair one. It is sometimes delayed in coming, but it comes.

"We entered into this case with the profound conviction of Mr. Frank's innocence. The result has not changed our opinion. Every step of the trial has intensified and fortified our profound conviction of his innocence."

A series of appellate moves followed.

Frank's lawyers began to prepare their appeal immediately after the sentencing. One hundred and three points were covered in this appeal, including affidavits about the alleged prejudice toward Leo Frank of two members of the jury, A. H. Henslee and M. Johenning. "They are going to break that Jew's neck," Henslee was quoted as saying to Dr. W. L. Ricker, who later swore an affidavit filed with Judge Roan prior to the trial. "He stated that Frank was guilty of murder," Ricker's testimony continued. The family of H. C. Lovenhard swore that on meeting Marcellus Johenning on the street before the trial he had told them "I know he is guilty."

Other points raised included the jurors being influenced by the crowd's demonstrations outside the court-room, that Conley's allegation of Frank's immoral activities should not have been allowed into evidence, and that the evidence did not support the verdict.

Solicitor-General Dorsey argued that the trial had been fair and countered with affidavits from eleven jurors who swore they did not hear or see demonstrations from crowds outside the courtroom and had reached their decisions solely because of the weight of the evidence. Both jurors who had been deemed prejudiced by the defense denied the charges.

Rosser and Arnold made a final plea to Judge Roan. Arnold said "It is the most horrible persecution of a Jew since the death of Christ."

On October 31, 1913, Judge Roan denied the defense's motion for a new trial, but he commented: "I am not convinced of the guilt or innocence of the defendant, but I do not have to be convinced. The jury was convinced and that was enough."

The ruling was affirmed by the Georgia Supreme Court on February 17, 1914, by a unanimous decision. However, two judges, Beck and Fish, dissented on the question of admissibility of Jim Conley's testimony as to Frank's sexual perversion, but did not find the evidence in question sufficient cause to alter the guilty verdict.

Not long after the Georgia Supreme Court decision, the Atlanta Journal reported that the state biologist who examined the body of Mary Phagan had concluded after microscopic analysis that the hair found on the lathe which the prosecution had cited as a major factor in its case was not Mary Phagan's. The biologist told Solicitor-General Dorsey, who when later confronted by the Journal's reporters said "I did not depend on the biologist's testimony. Other witnesses in the case swore that the hair was that of Mary Phagan, and that sufficed to establish my point."

Several prosecution witnesses retracted their original testimony. The first was Albert McKnight, who now said he hadn't seen Frank the day of the murder; Mrs. Nina Formby related that the police had filled her with liquor and unduly influenced her to invent the story that Frank had phoned her on the murder night asking for a room for himself and a girl. A third, George Epps, Jr., a friend of Mary Phagan's, now said he and Mary had not had a conversation aboard the trolley she rode to the factory on the day of her murder. Other witnesses conveyed that they had invented or lied about evidence because of the pressure brought by police detectives and/or Solicitor Dorsey. Later many of these same people repudiated their retractions.

In addition to repudiated testimony, the defense lawyers restudied every aspect of the Frank case. Henry Alexander, one of the defense team, made a study of the murder notes allegedly written by Conley at Frank's direction in an eight-page pamphlet “Some Facts About the Murder Notes in the Phagan Case.”; March 8, 1914, during the appellate review to the Supreme Court.  Since these were written on old carbon pads, Alexander studied the dateline which read 190-. He concluded that the pads were at least four years old. They had been placed in the basement in 1912 along with the records of H.F. Becker, the master of machinery who signed them and was no longer employed by the company.

Did Alexander alter the numbers on the notepads by changing the pad number and then photocopying in order to support his theory? 

Alexander claimed that the pads were pre-printed and had a numerical sequence and did not follow the pads used by Frank. The state had photographed the notes and also had in possession the used plates.  Photographer H.M. Defore stated that Alexander told him the print he used that was in the pamphlet had been retouched in the lab.  The implication was clear- Alexander tampered with the evidence.[ Footnote 16 -Oney ATDSR pages 412-413]

"However, evidence presented at the trial indicated that the note pads were never in the basement . Philip Chambers, Frank's former office assistant prior to the murder had stated that Frank's desk along with note pads were brought to the second floor from the basement and stated that an order of the fire insurance inspector [Atlanta Journal, May 4, 1914] that no paper and trash had been stored in the basement as these were burned consistently. 

Mr. Alexander also alleged that the words *"night witch" in the note beside Mary Phagan's body, which had been interpreted to mean night watch or watchman by those who believed the notes had been written under the direction of a white man, actually referred to a Negro folk tale "when the children cry out in their sleep at night, it means that the night witches are riding them and if you don't go and wake them up, they will be found next morning strangled to death with a cord around their necks." This was the theory introduced in an attempt to clarify the note Jim Conley said Frank dictated to him.  There is no evidence of such a negro folk tale but interestingly there is a German tale from the 15th century written lore that night-witch was a reality and a concept among the German people. Leo Frank was German. [Footnote 17:  Norman Cohn, Europe's Inner Demons:  A Enquiry Inspired by the Great Witch-Hunt (New York: New American Library, 1977]

However, at the time the notes were discovered and read in the factory basement early in the morning of April 27, when the detectives read the words "night witch" on two separate occasions, Newt Lee brightly volunteered "that's me." In addition, when Conley was directed to write "night watchman" by police during his interrogation, he promptly wrote down "nigt witch," reciting that that was his nickname for the night watchman whom Conley had never met, and thus could not know that he was in fact a tall, slim black Negro.

On March 7, 1914, Frank was resentenced to die. The scheduled date was April 17, 1914. The day before he was to hang, a stay of execution was obtained on an extraordinary motion for a new trial which was based on newly found evidence. Three witnesses said the state's star witness, Jim Conley, the black floor sweeper, was the killer. They were Conley's ex-girlfriend, a federal prisoner, and Conley's own lawyer. The celebrated private detective, William Burns, got an affidavit from Annie Maud Carter in New Orleans.

This affidavit stated that Jim Conley told her he had called Mary Phagan over as she left Frank's office with her pay envelope, hit her over the head, and pushed her over a scuttle hole in the back of the building. Annie Maud Carter also said Conley told her he wrote the notes found by the body of Mary Phagan to put the suspicion on Newt Lee, the night watchman. She gave the Burns agency some love letters from Conley which the Constitution said were "so vile and vulgar" that they couldn't be published in the newspaper. The defense contended these love letters showed that Conley had "perverted passion and lust." Among the lines pointed to by the defense as evidence of Conley's perversion were: Give your heart to God and your ass to me. Now baby if you don't get out on no bond or if you do get out on bond you have that right hip for me cause if you hold your fat ass on the bottom and make papa go like a kittycat then you have won a good man, that's me. I will try to give you this world, but if you let papa put his long ugly dick up your fat ass and play on your right and left hip, just like a monkey playing on a trapeze, then Honey papa will be done played hell with you. Solicitor-General Dorsey returned Annie Maud Carter to Atlanta and put her in jail. Several days later she refuted the affidavit given to the Burns agency and said that her whole story was a lie. However, it was later alleged that Conley had definitely written the letters.

ANNIE MAUD CARTER, Sworn for the State.

I was in the Fulton County Jail 6 months. I went there Last October and Jim Conley was in jail when I was put in jail. Whenever Mr. Roberts would go downstairs to empty the slops I would go around to see Jim Conley and give him things to eat, and I think I went the first Sunday in December. I wrote him two or three letters, and he sent them back because he said he couldn’t read them. No, I wrote him three and he wrote me two to my knowing.
There was nothing vulgar in either one of the letters he wrote me, and I sent the letters back to him by Fred Ferguson because I couldn’t real [sic] all of them, and I sent them back to him and went down there at 12 o’clock to see what he wanted and he wanted me to let him have ten cents to get a piece of bread and some sardines, and if there is anything vulgar in any of those letters he wrote, it has been put in there since he wrote them to me by somebody else. Jim Conley told me this last gone Tuesday when I was up there to see Asa McFarland. He asked me if any of Mr. Burns’ men had been to see me, he said first did I know this other girl, where she lived, that had been coming there, and I said I know where she lives, but I don’t know her name, I knew her sister but I don’t know her, and he says I know where she lives, and he said somebody told the sheriff about me talking to Jim and they looked me up about it and I stayed there a week and they found I wasn’t down there at the time they said I was and Mr. Roberts had the sheriff turn me out again, and Jim told me Tuesday that someone took those letters I wrote him and the ones he wrote me and I sent back. I asked him if he had them and he said no that somebody took them sometimes in January, but that he just hated to tell me. I said don’t forget to take those letters out with you, for he told me he was going to get out in May, and then he told me that somebody got them. During Christmas, I was due to go in at 7 o’clock and Mr. Gillem would let me stay out until nine and nine thirty. One day Jim Conley said “are you going to let her come in here Mr. Gillem” and Mr. Gillem said he could not do it then that I had better wait until another time, and I said I don’t want to go in there, and Jim said, “if he will let you in here it will be satisfactory won’t it” and I says “I don’t think that much of you and Jim says “you haven’t been corresponding with me all this time and don’t think that much of me, do you”. But Mr. Gillem told me he would give me $2.00 himself if I would go in there and see Jim Conley. Go. Wren wrote a letter and give it to me, he dropped it first, he said you are going downstairs now and I said yes, and he said you go downstairs and give it to Jim Conley and tell him it just come in through the mail, and I took it down there and Jim said you know I can’t read, maybe it is from my mother and I thought it was devilment in it, and it said in the letter, “Now you know you know all about this, why don’t you tell the truth about it, for you know you are in the hands of your enemies, and I will do this and that to you, and if you don’t tell the truth about it you will be hung by an enemy that is bitterly against you”, and right after that I goes to Mr. Suttles, he can remember the time, he was going down and Jim Conley hid from him because he thought he was a Jew. He went back and got another man, I think it was “Mr. Owens, and he said, “here is another Jew Conley and laughed, and Jim Conley said “I thought you all were Jews at first. Mr. Gillem says to me, “You go in there and talk with him for he will tell you anything, and I went in there one evening at 3 o’clock and stayed until 7:30 and Mr. Gillem told me to find all I could from him. Of course, he said he didn’t believe him was guilty but he believe he knew something. I asked Conley, I
said “I want you to tak[e] an oath and swear to me if you know anything about it” and he said “Yes I knoew [sic] Mr. Frank killed that girl” and I said “what else did he do” and he said “I don’t know but he killed her and made me take her downstairs” and I sais “Is that all” and he said “yes” but he would tell me other things about Mr. Frank being with these different women at the office, and I come out and told Mr. Gillem this, and he said “that is the same thing he tells everybody.” Mr. Gillem tried to get me to go in there, he said “you are not obliged to be with him, I just want to see if he will try to fool with you with his mouth or his privates.” I have asked Conley and he said he wouldn’t do anything like that.
I asked him which he done it and he told me and said he never did anything but in the natural way. I saw him stark naked one day just like he was born, and he looked alright to me, and I asked Mr. Gillem who said Conley was a cock sucker, and he said “Oh, that son of a gun can do it as good as any man.
The first Sunday in December, I was sitting on the second floor, and a Jew came up. Mr. Frank was out there and three or four more Jews. Mr. Pappenheimer was there with him too. This Jew asked me was I out all the time, and I said yes, and he said I want to see you, and I said all right and he said do you know how to get rich right quick, or have you as want, or more than you will ever be able to dispose of.
Do you ever go to talk with Jim Conley, and I says I am on my way there now. And he said I want you to do something for me and state your price. It is dangerous; don’t let get about your food. I want you to take this little vial and put a drop in his food and give it to him and I will guarantee you will have a pot of money and will be a free girl before tomorrow night, and I said he ain’t done nothing to me and he said I know, but it is our man he has got and what do you care about a negro hanging, all you want is money, and I said I don’t want the money and he said if you refuse the money you are a damn fool and walked off. I don’t know his name, but he comes up there with Klein boys. He has black hair and his hair stands up and his hat pulled down on one side.

In 1914, Leo Frank supporters tried to hire a black woman named Annie Maude Carter to slip James Conley some poison while he was in jail waiting to testify at Frank’s hearing for a new trial. She identified the would-be assassins in open court as prominent members of the Jewish community. The plot was exposed in the May 6, 1914 edition of the New York Times.

A black prisoner named *Freeman told his story to the prison doctor who reported that Conley was the killer. Freeman said he and Conley were playing cards in the basement of the pencil factory and that Conley left to go up the ladder to the main floor. Freeman said he had heard some muffled screams, saw Conley wrestling with someone, and became so scared that he fled. He later claimed that he saw Conley with a mesh bag containing the amount of Mary Phagan's pay, $1.20.

The Leo Frank Case; Leonard Dinnerstein, Appendix C

*Freeman’s Tale

An alternate explanation for the murder of Mary Phagan was published in 1923 when alleged data about Jim Conley's participation in the mystery came to light. The information had been received eight years earlier by Governor Slaton, from a questionable, but perhaps important, source. In 1915 a Negro prisoner, identified only by the name "Freeman," thought that he was dying in the federal penitentiary located in Atlanta, and revealed what he claimed to have know about Mary Phagan's death. Freeman made his statement to a prison doctor, who relayed it to Governor Slaton.

The narrated story follows: Freeman recalled playing cards with Jim Conley in the basement of the pencil factory on the day of the murder. Shortly before noon Conley went up the ladder to the main floor. After a short while Freeman heard muffled screams. Inquisitive, he climbed to the first floor and saw Conley struggling with someone. Frightened, Freeman returned to the basement and left the building through a rear door. Later that afternoon, Conley went to Freeman's home and said that he needed $3 but was short $1.80. In return for the money, Conley offered his friend a woman's mesh handbag. Freeman obliged. The following day, however, he read about the murder and Mary Phagan's missing mesh bag which contained her $1.20 wage. Fearing involvement, Freeman gave the mesh bag to a friend and ad- monished her to hide it in a safe place. He then fled the city. Within two months, however, he was convicted of a federal crime and imprisoned in Atlanta.*

• The Baltimore Sun, October 2, 1923, "Frank's Prophesy of Vindication Come True 10 Years After Georgia Mob Hangs Him as Slayer" The Jewish Advocate (Boston), XLII (October 18, 1923), 20; AJ clipping, n.d, probably October 1 or 2, 1923, Frank Papers, Brandeis.

 Why newspapers published Freeman's story for the first time in 1923, or how they obtained this information, was never explained. But former Governor Slaton, the ex-prison doctor, and one of the Georgia Prison Commissioners verified, in 1923, that they had heard the tale in 1915.* An Atlanta Constitution report noted "that proven inaccuracies in [Freeman's] story had discredited it."  Unfortunately, the Constitution did not elaborate.

Amazingly, The Atlanta Georgian had also received part of Freeman's tale, although not identified as such, in June, 1913, before Frank had gone to trial. On June 6, the Georgian headlined a front-page account: "REPORT NEGRO WHO SAW PHAGAN ATTACK," and related how a federal prisoner was about to be returned to Atlanta by a Pinkerton detective. The Negro in question, according to the Georgian, had allegedly been shooting craps with Conley in the factory basement on the day of the murder. Conley, having lost his money and in a half- drunken stuper, then allegedly left the basement and attacked Mary Phagan, who had just come down from Frank's office after collecting her pay. The Georgian could not verify the report and subsequently dropped the story. 

Additional corroboration for Freeman's tale came in 1959 when an Atlanta attorney published his memoirs. Relating how he knew of Frank's innocence, the attorney, A. L. Henson, claimed that Conley had confessed to his lawyer that he had been drinking in the factory basement on the day of the murder. According to Henson, Conley had also recalled having seen a girl approach him on the main floor, remembered struggling with her, and then his mind went blank. When Conley revived he was sitting opposite a dead girl in the factory basement, but he could not remember anything that had transpired in the previous few hours. Henson's narrative fits well with Freeman's tale and the story published in the Georgian.

* AC, October 2, 1923, p. 7.

Ibid.

X AG, June 6, 191 3, p. 1; June 10, 191 3, p. 1.

§ Allen Lumpkin Henson, Confessions of a Criminal Lawyer (New York, 1959) *P- 63. Other facts reported by Henson vary from contemporary reports, and I cannot vouch for his accuracy. In an interview with Samuel A. Boorstin, on October 12, 1953, John Slaton admitted that he had been told by one of Hugh Dorsey's law partners that Jim Conley's lawyer believed that Conley committed the murder. Memorandum of a conversation had by Boorstin with Slaton, Anti-Defamation League files, Leo Frank folder, New York City.  * Allen Lumpkin Henson does not mention the name Freeman in his story and it does not match the newspaper accounts

Conley's court-appointed attorney, William Smith, thought Frank was innocent and made a public statement on October 2, 1914, saying so. He said that Conley's testimony was "a cunning fabrication," and thought Conley himself was probably the murderer. This extraordinary revelation, which went against the lawyer-client confidentiality privilege, was extolled by those who believed in Frank's innocence and castigated as being caused by bribery by those who believed him guilty. Smith revealed no new facts to support his beliefs but instead tried to show how the already known facts had been misinterpreted because of Conley's lies. It has been said that Jim Conley confessed to William Smith, and a confession statement, allegedly by Conley, has been published, in, for one, Confessions of a Criminal Lawyer by Allen Lumpkin Henson, who worked in the Georgia Attorney General's office at the time of the Leo Frank trial.

The chapter of Henson's book dedicated to the Frank case contains a thirdhand, or perhaps fourth-hand, account of Conley's supposed confession.

However, Walter Smith, William Smith's son, in an article by Bob Montgomery for the Atlanta Journal in 1932 about Smith's father, denied the authenticity of Conley's "confession," but brought to light facts which had been previously undisclosed regarding William Smith's relationship to his client.

William Smith was reputed to be a very conscientious and ethical lawyer. His prime obligation was to his client. If he was charged to defend a man, he did his best to do so. And he did so in the case of Jim Conley. Smith had been appointed to defend Conley by the court and he worked very closely with the prosecutor, Hugh Dorsey. From the beginning, Smith believed in Frank's guilt, as did just about everyone else. Before Jim Conley went on trial, Smith visited him in his cell and coached him in how to react in the courtroom when he was cross-examined by Frank's defense. Smith acted out the style and gyrations of Luther Rosser to Conley so well, that when the actual trial was in session and Rosser began yelling at Conley and shaking his fist in Conley's face, Conley was not rattled in the least, but, on the contrary, seemed amused. Smith went to great lengths to defend Conley and to dig up facts against Frank.

At some point in the course of the trial, Smith began to doubt that his client had been telling the truth. Because he had an obligation to defend Conley, Smith tried to get him the lightest sentence possible. Conley was convicted as an accessory to the fact and sentenced to one year on the chain gang. Smith, having fulfilled his obligation to his client, and remembering the double jeopardy clause, which assured him that Conley could never be tried for the same crime again, felt morally and legally free to do some investigating and probing on his own. He increasingly felt that Frank was innocent, and that he himself was much responsible for Frank's conviction. And he tried to convince others of Frank's innocence. He felt that he had the blood of an innocent man on his hands.

He launched a thorough investigation which totally convinced him that Frank was innocent, and that Conley was guilty. Smith went to Governor Slaton with his conclusions, and it is quite probable that Smith's story was important in helping Slaton reach the decision to commute Frank's sentence. Smith's conclusions were not made public for some time, but, when they were, he was not very popular. Public opinion went against Smith and his family. William Smith carried a gun for protection when he walked the streets of Atlanta. Smith's life was threatened in so many ways that he and his family were forced to leave Georgia, not to return for many years. He gave up criminal law completely, and for many years worked in a shipyard in New York as a detective for the Burns Agency. Many years later, he practiced civil law.

In the last years of his life, Smith's vocal cords were paralyzed and he could not speak. He carried a pad of paper on which to write messages. In the hospital room just before he died, William Smith was very weak, but he picked up a pad and scrawled the following letters: "In articles of death, I believe in the innocence and good character of Leo M. Frank."

None of this evidence was considered by the Superior Court because in 1906 a constitutional amendment had been passed that the only grounds for reversal of verdicts in the higher court of Georgia were errors of law. Ruling that new evidence was not an indication of procedural errors, on May 8, 1914, Superior Court Judge Ben H. Hill denied the defense motion for a new trial. This denial was affirmed unanimously on October 14, 1914, by the Georgia Supreme Court.

Even before Leo Frank's trial had ended, certain Jewish organizations and groups raised the issue of religious prejudice. Appeals for funds for Frank's defense were made through mailing circulars and newspaper advertisements throughout the country and particularly in the North. This aggravated the already strong feelings against Frank in Atlanta. And it resulted in a virtual reenactment of the Civil War between Northern and Southern newspapers, which increased in intensity as the trial progressed.

At Frank's conviction and death sentence, virtually every Northern newspaper proclaimed a travesty of justice. Detectives and well-known attorneys were sent to Atlanta by some of the Northern newspapers to "review and investigate" the case: many concluded that Leo Frank was innocent, that the trial had been no trial at all.

It is interesting to note that New York Times  nor any other newspaper outside of Georgia DID NOT provide daily coverage of the Leo Frank Trial.  During the trial, New York Times only printed 6 newspaper articles regarding the case:  the trial started July 28, 1913 and ended August 25, 1913.

• May 24, 1913: Politics Enmeshes a Murder Mystery (New York Times)
• May 25, 1913: Indicted for Girl’s Murder (New York Times)
• July 11, 1913: New Phagan Murder Tale (New York Times)
• August 5, 1913: Says Employer Slew Girl (New York Times)
• August 22, 1913: Atlanta Murder Case to Jury Today (New York Times)
• August 27, 1913: Frank Sentence to Die (New York Times)

Was it because that in the Atlanta newspapers, Leo Frank was listed as Leo Frank, superintendent?  No mention of Leo Frank being Jewish in the original Atlanta newspapers of the day.  Media outlets today always state that Leo Frank was Jewish and anti-Semitism was the reason he was convicted and hung.

The New York Times became interested in the case after the conviction of Leo Frank, but they were admonished to print nothing "which would arouse the sensitiveness of the Southern people and cause the feeling that the North is criticizing the courts of the people of Georgia." The New York Times and Collier's Weekly called for a new trial.

Mass rallies were held in United States cities and in London, Paris, and Frankfurt, calling for Frank's life to be spared. Thousands of letters, petitions, and telegrams were sent to Governor Slaton and soon-to-be Governor Nat Harris.

However, the vitriolic exchanges between the Northern and Southern press helped to make the conviction of Frank an article of faith for Southerners. At the same time, the belief in Frank's innocence became the litmus test in the Jewish community of Atlanta for anti-Semitism.

Did Leo Frank have a fair trial?

Monday, August 18, 1913, Night edition of The Atlanta Georgian. Evening Extra.  James Nevin

Consideration has been shown the defendant, the members of his family, and the warm friends constantly in attendance upon him.

The spectators have been orderly, even the hours observed by the court have been adjusted to the accommodation of the lawyers, the defendant, and the jury.

So far as human ingenuity and law can make it so, therefore, the trial of Leo Frank has been fair, I think—as fair as could be asked. And when I say that I mean fair to both the defense and the State.

The presiding judge let in one big, significant line of evidence supposedly unfavorable to the defense. It so happens, however, that later he left in another line supposedly as unfavorable to the State.

There was no possible connection, really, between these two things, of course, for the judge did exactly the thing he though was right in both instances. It merely is a fact that his two biggest rulings cut evenly between the State and the accused—and to that extent is noticeable, in that it makes an even break.

I make the foregoing observation now because looking at the case from the present point of view, in advance of the verdict, I feel that [t]he observation is true—and whatever the outcome of the trial, I for one shall not feel that the case has been unfairly tried.

Judicial error may have crept in—it certainly is not for laymen to say as to that. It perhaps is not right and proper even to speculate upon such a thing.

Whatever judicial error has crept in, however, if any has, it maybe corrected upon review before a court higher up. Either that or the error will redound to the defendant's benefit—for once acquitted, he never can be tried again for the murder of Mary Phagan.

There is on advantage that has come of the long drawn out battle perhaps, and that is in the time it has given the public to weigh carefully and discriminatingly every bit of evidence as it has fallen from the line of witnesses.

There is no reason why any person able to read the English language should be unfamiliar with any detail of the trial.

The newspapers certainly have done their part in spreading the story, as told by each side, before the public from day to day.

On March 10, 1914, the Atlanta Journal editorially called for a new trial- a year after the conviction. The Journal piece was titled "Frank Should Have a New Trial," and it said: . . .

The Journal cares absolutely nothing for Frank, or for those who were engaged in his defense or prosecution. If Frank is found guilty after a fair trial, he ought to be hanged and his case should be made a horrible example to those who would destroy human life, for generations to come.

Leo Frank has not had a fair trial. He has not been fairly convicted and his death without a fair trial and legal conviction will amount to judicial murder.

We say this with a full understanding of the import of our words and the responsibility that rests upon us in making this appeal. We do so, not in disrespect for the court or the lawyers or the jury. They did the best they could with the lights before them. We honor them for faithfully performing a most unpleasant duty as they saw it.

But this we do say without qualification: it was not within the power of human judges and human lawyers and human jurymen to decide impartially and without fear the guilt or innocence of an accused man under the circumstances that surrounded this trial.

The very atmosphere of the courtroom was charged with an electric current of indignation which flashed and scintillated before the very eyes of the jury. The courtroom and streets were filled with an angry, determined crowd, ready to seize the defendant if the jury had found him not guilty. (When the jury returned the guilty verdict, Frank was not in the courtroom. He was at the Fulton Tower.) Cheers for the prosecuting counsel were irrepressible in the courtroom throughout the trial, and on the streets unseemly demonstrations in condemnation of Frank were heard by the judge and jury. The judge was powerless to prevent these outbursts in the courtroom and the police were unable to control the crowd outside.

So great was the danger that the Fifth Regiment of the National Guard was kept under arms throughout a great part of the night, ready to rush on a moment's warning to the protection of the defendant. The press of the city united in an earnest request to the presiding judge to not permit the verdict of the jury to be received on Saturday as it was known that a verdict of acquittal would cause a riot such as would shock the country and cause Atlanta's streets to run with innocent blood. Under such indescribable conditions as these, Frank was tried and convicted. Was a fair trial, under these circumstances, possible?

The evidence on which he was convicted is not clear (the evidence was circumstantial, but on the strong side). Suppose he is hanged and it should develop that the man was innocent as he claims? The people of this state would stand before the world convicted of murdering an innocent man by refusing to give him an impartial trial. Such a horrible thing is unthinkable. And yet it is possible; yea, an absolute certainty, that we are going to do that very thing unless the courts interfere. Ought Frank to have a new trial? The question carries its own answer: Let Justice be done, though the Heavens fall.

The outbursts in the courtroom and that the police were unable to control the crowds outside were events that all three newspapers had not printed during the trial. The Journal remained quiet about these events for a year. The Atlanta Georgian, which also was silent during the trial, later called for a new trial.

This sudden announcement by the Journal brought Tom Watson into the controversy. Watson had been defeated for Vice President of the United States on the Populist ticket in 1896 and afterwards devoted most of his time to writing history and editing his weekly newspaper, the Jeffersonian, and his monthly publication, Watson's Monthly Magazine. He immediately launched a scathing attack against those criticizing the results of the Frank case. Watson referred to Frank as being a "Jew pervert." More of his vitriol was directed to Frank's being a member of and having access to wealth, thereby denying, he said, justice to the family of a "poor factory girl," a view shared by a substantial number of Georgia's population. In fact, an informal poll indicated that four out of five individuals believed in Frank's guilt.

The fact that the Atlanta Journal was edited by Watson's political enemy, Hoke Smith, did not endear its editorial opinions to Watson, and he claimed the paper's demand for a new trial was an effort by Smith to drag the case into politics. Repeatedly, Watson asked the questions, "Does a Jew expect extraordinary favors or immunities because of his race?" and "Who is paying for all this?" Watson described Mary Phagan as "a daughter of the people, of the common clay, of the blouse and overall, of those who earn bread in the sweat of the face and who, in so many instances, are the chattel slaves of a sordid commercialism that has no milk of human kindness in its heart of stone."

Employment of Burns Detective Agency by Frank supporters after the trial further inflamed Georgians. Burns offered a thousand-dollar reward to anyone who could provide evidence that Frank was a sexual pervert. No one came forward. The reward was increased to five thousand dollars. No one came forward. Burns also brought forth evidence given to him by the Reverend C.B. Ragsdale, pastor of the Atlanta Baptist Church, who told the story of overhearing two black men, one of whom confessed to killing "a little girl at the factory the other day." Later Ragsdale repudiated his statement.

A Burns' operative, Mr. Tobie, had earlier been retained by members of the Phagan family and their neighbors to investigate the murder and discover the murderer. After several weeks of investigating, Tobie at length re-signed from the matter, but announced that he, like Scott of the Pinkerton Agency, the detectives of the Atlanta Police Department, and Dorsey's staff, had concluded that Frank was the guilty party.

Dorsey alleged in court that Burns tried to bribe witnesses to give false testimony and finally Burns' connection was dropped.

The hearing on extraordinary motion for a new trial was based on the absence of Frank at the reception of the verdict. This absence was agreed on by the defense, prosecutors, and Frank. This motion was denied on June 6, 1914, and the denial was affirmed unanimously by the Georgia Supreme Court on November 14, 1914. On December 7, 1914, a writ of error was taken to the United States Supreme Court and was denied.

On December 9, 1914, Frank was sentenced to be hanged on January 22, 1915. Frank's attorneys then filed an application for a writ of habeas corpus to the United States Supreme Court. On April 19, 1915, this was dismissed by a seven-to-two vote and was the last judicial avenue for Frank. The two justices who dissented were Oliver Wendell Holmes and Charles Evans Hughes. They dissented on the basis that a lower court hearing should have been held to determine the validity of the defense affidavits asserting mob pressure on the jury. "The impression at the time created by the publicity given to Justice Holmes dissent which was out of all proportion to that accorded the majority opinion that Frank had been the outset been the marked victim of mob terrorism." [Guilty or Not Guilty, Francis X. Busch; 1952 page 69-70]

Justice Holmes wrote: "The single question in our minds is whether a petition alleging that the trial took place in the midst of a mob savagely and manifestly intent on a single result is shown on its face. . . . This is not a matter for polite presumptions. We must look the facts in the face. Any judge who has sat with juries knows that in spite of forms they are extremely likely to be impregnated by the environing atmosphere. And when we find the judgement of the expert on the spot, of the judge whose business it was to preserve not only form but substance, to have held that if one juryman yielded to the reasonable doubt that he himself later expressed in court as the result of most anxious deliberation, neither prisoner nor counsel would be safe from the rage of the crowd, we think the presumption overwhelming that the jury responded to the passions of the mob.

Of course we are speaking only of the case made by the petition, and whether it ought to be heard. Upon allegations of this gravity in our opinion it ought to be heard, whatever the decision of the state court may have been. . . . It may be that on a hearing a different complex-ion would be given to the judge's alleged request and expression of fear. But supposing the alleged facts to be true, we are of opinion that if they were before the Supreme Court [of Georgia] it sanctioned a situation upon which the Courts of the United States should act, and if for any reason they were not before the Supreme Court, it is our duty to act upon them now and to declare lynch law as little valid when practiced by a regularly drawn jury as when administered by one elected by a mob intent on death."

The only hope left for Frank was Governor John Slaton. Frank's attorneys appealed to Slaton for a commutation of his sentence from hanging to life imprisonment. Slaton referred this request to the State Prison Commission and asked them to pass their recommendation to the governor. Meanwhile, Frank's attorneys filed an appeal for a clemency hearing before the three-man Georgia Prison Commission. The hearing date was scheduled for May 31, 1915.

On May 31, 1915, out-of-state and in-state delegations appeared to plead for Frank's life. They asked that his life be spared in the name of Georgia's honor, decency, and God. They had submitted voluminous documents to convince the Commission an error had been made. Included was a letter by Presiding Judge Leonard Roan written shortly before his death on March 23, 1915.

Tom Watson commented that Roan was "out of his mind." Some members of Roan's family doubted the authenticity of the letter for years. They indicate that at the time the letter was written, Judge Roan's physical and mental state were critical. They also stated that one of Frank's lawyers went to the sanitorium and it was at this time that the letter was written and signed by Roan. The family also felt that since Judge Roan refused Frank a new trial, the letter causes some questions. However, Roan's rational mental state was attested to by Dr. Wallace E. Brown, owner of the Berkshire Hills Sanitorium:

Nov. 29, 1914

Judge Roan, who presided over Leo Frank’s trial and is now dying of cancer in a Massachusetts hospital, dictates a letter recommending that Frank’s sentence be commuted to life imprisonment, saying:
“I wish to say that at the proper time I shall ask the prison commission to recommend and the governor to commute Frank’s sentence to life imprisonment....
“It is possible that I showed undue deference to the opinion of the jury in this case, when I allowed their verdict to stand. They said by their verdict that they had found the truth. I was still in a state of uncertainty and so expressed myself....
“After many months of continued deliberation I am still uncertain of Frank’s guilt. This state of uncertainty is largely due to the character of the Negro Conley’s testimony, by which the verdict was evidently reached. The execution of any person whose guilt has not been satisfactorily proven to the constituted authorities, is too horrible to contemplate. I do not believe that a person should meet with the extreme penalty of the law until the Court, Jury, and Governor shall all have been satisfied of that person’s guilt.”

COMMONWEALTH OF MASSACHUSETTS

Berkshire, ss: Personally appeared before the undersigned authority, Wallace E. Brown, who being duly sworn, deposes and says on oath, that he is owner and proprietor of the Berkshire Hills Sanitorium, that he has been a resident of North Adams, Massachusetts, practically  all his entire life; that he is now serving his third term as mayor of the city of North Adams.

Deponent says that on Sunday, November 29, 1914, Judge L.S. Roan, of Atlanta, Ga., dictated to Mrs. Wallace E. Brown, who was then Miss Jane Dadie, a letter, a copy of which herinafter follows:

North Adams, Mass.

December, 1914

 

Rosser & Brandon & R.R. Arnold,

Attys. for Leo M. Frank.

Gentlemen:— After considering your communication, asking that I recommend executive clemency in the punishment of Leo M. Frank I wish to say, that at the proper time, I shall ask the Prison Commission to recommend, and the Governor to commute Frank's sentence to life imprisonment. This, however, I will not do until the defendant's application shall have been filed and the Governor and Prison Commission shall have had opportunity to study the record in the case.

It is possible that I showed undue deference to the opinion of the jury in this case, when I allowed their verdict to stand. They said by their verdict that they had found the truth. I was still in a state of uncertainty, and so expressed myself. My search for the truth, though diligent and earnest, had not been so successful. In the exercise of judicial discretion, restricted and limited, according to my interpretation of the decisions of the reviewing courts, I allowed the jury's verdict to remain undisturbed. I had no way of knowing it was erroneous. After many months of continued deliberation I am still uncertain of Frank's guilt. This state of uncertainty is largely due to the character of the Negro Conley's testimony, by which the verdict was evidently reached.

Therefore I consider this a case in which the chief magistrate of the state should exert every effort in ascertaining the truth. The execution of any person, whose guilt has not been satisfactorily proven to the constituted authorities, is too horrible to contemplate. I do not believe that a person should meet with the extreme penalty of the law until the Court, Jury, and Governor shall all have been satisfied of that person's guilt. Hence, at the proper time, I shall express and enlarge upon these views directly to the Governor and Prison Commission.

However, if for any cause, I am prevented from doing this, you are at liberty to use this letter at the hearing. Very truly yours,
:SEAL L.S. Roan

Deponent heard Judge Roan dictate the letter hereinbefore copied and saw him read and sign the same. Prior to the time Judge Roan dictated and signed said letter he had stated to deponent that he was not convinced of Frank's guilt, and that if executive clemency should ever be asked for Frank that he intended to recommend commutation.

Deponent says that Judge Roan became a patient in his sanatorium on the tenth day of July, 1914, and remained there as such until the twenty-first day of February, 1915.

During the entire time Judge Roan was a patient in said Sanatorium, there was positively no doubt that Judge Roan was mentally responsible in every respect.

Deponent is a practising physician of twenty-five years, having graduated from Bellevue Hospital Medical College, New York City, and is now a resident of North Adams, Massachusetts.

(Signed) Wallace E. Brown

Subscribed and sworn to before me, this fourth day of August, 1915, at North Adams, Massachusetts.

(Signed) C.T. Phelps :

SEAL Notary Public

No one had spoken against commutation of Frank's sentence. Finally, the defense's long, hard fight seemed won. But the next morning, some fifty determined-looking prominent men from Cobb County, where Mary Phagan's family lived, marched into the Prison Commission office and demanded the hearing be reopened.

Included in the group were:

Marietta Mayor E. P. Dobbs

Fred Morris, lawyer, former UGA football and track star.

Bolan G. Brumby, president of the Marietta Chair Company.

R.A. Hill, president of the Merchants and Farmers Bank.

Joe Carter, editor of the Marietta Daily Journal.

W.J. Frey, former Cobb County sheriff.

Former Governor Joseph M. Brown.

W.J. Phagan, Mary Phagan's grandfather (died in 1914)

John T. Dorsey, lawyer.

Gordon B. Gann, lawyer, Marietta Mayor.

J.Z. Foster, lawyer.

Bernard Awtrey, lawyer.

W. N. Gantt, businessman.

A.A. Bishop, former Cobb sheriff.

Herbert Clay, solicitor of the Blue Ridge Circuit.

*These 15 prominent Mariettans would form the nucleus of the small group that would later plan Frank's abduction and subsequent lynching. Only two of these men were involved in the lynching. [Bill Kinney, Associate Editor, Marietta Daily Journal, known authority of Leo Frank lynching, guest speaker 1990 Marietta Rotary Club]

Clay spoke for hours against commutation, that Georgia would be dishonored for all time if Frank were spared for his alleged abominable crime. The newspapers reported that "there was no doubting that they really believed with all their hearts" that Frank was guilty.

The Commission re-opened the hearing. The commissioners listened intently and said nothing. At the end of the reopening, they issued a statement that they would offer their recommendation to Governor Slaton in a week.

By a two-to-one vote, on June 9, 1915, the commissioners refused to recommend commutation to Governor Slaton. It was now up to the governor.

Governor Slaton held a lengthy hearing for executive clemency.

"Representing Cobb County were former Governor Brown, Solicitor Herbert Clay, and Moultrie Sessions. Governor Brown was the principal speaker, Brown delivered an impassioned argument, buttressed by Scripture, asking for Frank's execution.  His ideas was the court, which had condemned Frank to death, was a divine institution for justice and that no single man ----Governor Slaton----had the right to interfere. The defense argued that the weakness in Governor Brown's argument was that the same document ---The Constitution--- that empowered the courts, also gave the governor pardoning power.  He asked Frank be shown no mercy." [Bill Kinney]

The Appeals of Leo Frank 1913, 1914, and 1915

Leo M. Frank had fully and completely exhausted every possible court appeals process concerning every level of the United States Federal and State Appellate Tribunal System.

Majority and Unanimous Decisions during the Appeals Process Affirm the Murder Conviction Given by the Trial Jury including “extraordinary motion for new trial!”

Slaton, also suggested, that the Jewish Communities charge of race hatred as being the reason Frank was convicted was unfair, as it was certainly not true, because numerous other legal tribunals reviewed the evidence and testimony, and felt it was strong enough to convict Leo M. Frank. None of the appeals courts could be falsely accused of being mob terrorized or antisemitic, as the Jewish community put such false accusations and slander against the murder trial Jury.

 After the Leo Frank murder trial ended August 21, closing arguments began and then ended on August 25 at noon. The jury rendered its decision on August 25 at 4 p.m., and August 26 at 10:00 a.m., the trial judge Leonard Strickland Roan affirmed the jury’s decision. Frank’s lawyers immediately appealed on August 27, 1913.

The appellate process slowly wended its way through the Fulton County Superior Court, Georgia Supreme Court, United States District Court, and United States Supreme Court, more than once. Every court meticulously sifted the murder trial testimony and evidence, and every court affirmed the trial was fair and the jury was not mob terrorized, with only four dissenting judges out of more than a dozen affirming judges. The verdict rendered by Leo Frank’s trial jury was not disturbed at the conclusion of the appeals.

 August 27 to October 31, 1913

As a result of normal procedure during the appeals process, Leo Frank’s execution date set for October 10, 1913, was stayed, pending a retrial hearing. On Friday, October 31, 1913, Judge Leonard Strickland Roan denied the motion by Leo M. Frank’s council for a new trial.

Another motion for a new trial was denied by the Georgia Supreme Court in February 1914 after careful review.

On Tuesday, February 17, 1914, the Supreme Court of Georgia affirmed the verdict of the lower court by a vote of 4 to 2.

On Wednesday, February 25, 1914, the Supreme Court of Georgia unanimously overruled a motion for rehearing the Leo Frank case.

The Presiding Judge Leonard Strickland Roan of the Leo Frank Trial Accused of Strangling Mary Anne Phagan on Saturday, April 26, 1913

1914:

April 22, 1914: Judge B. H Hill, former chief justice of the Court of Appeals, who had succeeded to the Judgeship of Fulton Superior Court, denied the extraordinary motion for a new trial.

April 25, 1914: The day before the anniversary of Mary Phagan’s death, Frank’s sanity was examined and he was declared sane.

Motion to Set the Verdict Aside as a Nullity

Beginning in June 1914, Frank’s defense appealed to the Fulton County Superior Court to set aside the guilty verdict. Fulton County Superior Court denied the appeal, as did the Georgia Supreme Court (December 1914).

November 14, 1914: The Georgia Supreme Court again denied a new trial, basically saying that the original verdict of guilty was correct and still stands.

November 18, 1914: The Georgia Supreme Court refused a writ of error.

November 23, 1914: Mr. Justice Lamar of the Supreme Court of the United States refused a writ of error.

November 25, 1914: Mr. Justice Holmes of the United States Supreme Court also refused a writ.

December 7, 1914: The full bench of the United States Supreme Court refused a writ of error.

December 9, 1914: Frank was resentenced to death to hang on January 22, 1915.

December 21, 1914: United States District Judge W. T. Newman of Georgia refused a writ of habeas corpus.

December 28, 1914: Mr. Justice Lamar granted an appeal and certificate of reasonable doubt to the United States Supreme Court.

1915:

April 15, 1915: The Supreme Court of the United States voted 4 to 2, with Mr. Justices Holmes and Hughes dissenting, and dismissed the appeal. 

November 17, 1915: Judge W.D. Ellis, of the Fulton County Superior Court, heard the Pinkerton Detective Agency's lawsuit against the National Pencil Company (NPC) for nonpayment for services rendered.  It appears that the NPC did not want to pay the Pinkertons because one of their detectives, Harry Scott, was convinced of Leo Frank's guilt, and clearly, wasn't doing his job right per NPC.

Harry Scott:  "There is not a doubt that the negro [Conley] is telling the truth and it would be foolish to doubt it.  The negro couldn't go through the actions like he did unless he done this just like he said...We believe we have at last gotten to the bottom of the Phagan mystery.  Conley's confession fits exactly in with our theory."

Ultimately, Leo M. Frank had completely exhausted every possible court appeals process concerning every level of the United States Federal and State Appellate Tribunal System.

There was only one option left: Executive clemency from the gubernatorial level of the Great Georgia State, but before that could happen, the Georgia Prison Commission would have to review the case.

Georgia Prison Commission Division

As five courts upheld the original decision of the jury in Leo Frank’s case by not disturbing their verdict, Frank then applied for clemency with the Georgia Prison Commission to commute his sentence from death to life in prison.

______________________________________________________

Footnote 16: OneyATDSRpages 412-413]

Footnote 17:  Norman Cohn, Europe's Inner Demons:  A Enquiry Inspired by the Great Witch-Hunt (New York: New American Library, 1977]