The Trial of Leo Frank: An Account
by Douglas O. Linder (2008)
The National Pencil factory, site of the murder of Mary Phagan
of the body of a
thirteen-year-old girl in the basement of an
Murder that Shocked
Around 3 a.m.
on April 27,
1913, Newt Lee, the night watchman for the National Pencil Factory,
lantern with him to the factory basement to help him light his way to
"Negro toilet." When his light fell upon a prone human form,
The Trial of Leo Frank
As the July 28 date for the opening of the
Fannie Coleman, the mother of Mary,
testified as the prosecution's
witness. She told jurors that her daughter rose about 11:00 on
had a breakfast of cabbage and bread, and left home for the pencil
"about a quarter to 12:00." The witness hid tears behind a
large palm-leaf fan as she identified the blood-stained clothes worn by
the day she last saw her. Fifteen-year-old
George Epps followed Coleman to the
testified that on the day of the murder he rode the streetcar with
stop near the pencil factory, where she disembarked at 12:07.
Prosecutor Dorsey and defense attorney
Rosser fought each
other to a rough draw over the several detectives who took the stand. Dorsey elicited testimony that supported his
theory of the crime. He got officers to
describe where Frank might have obtained a cord such as the one found
Mary’s neck and how Frank might have bolted the second-floor area in
murder might have taken place. He secured testimony concerning red
presumably blood, found on the second-floor near the alleged murder
site. He found a witness to report that
wife had said her husband had downed whiskey on the night following the
crime. For his part, Rosser managed to
raise doubts that the red spots were in fact blood, got detectives to
concede that the basement
crowbarred (suggesting the crime took place in the basement, not the
and produced testimony that a cord similar to that found on Mary
found at many places in the building.
Rosser, however, blew a great chance to
prosecution’s theory of the murder. Rosser argued that Frank and
Conley took Mary’s
the elevator shaft to the basement, and then dumped it in a corner. The opportunity to challenge the theory came
when detective Boots
Rogers testified what happened when they traveled down the elevator to
their investigation: “When we went down on the elevator, the elevator
[human excrement]. You could smell it
all around. It looked like the ordinary
healthy man’s excrement.” In his
statement to police, Jim Conley admitted depositing the excrement in
the shaft—before the time of the murder.
Thus, if Rosser had been on his game, he
might have observed that the elevator, which always touches the bottom
shaft, could not have been used to carry Mary’s body if Conley’s
time line was
accurate. But the moment passed.
Dr. Henry Harris, the doctor who conducted
the autopsy of
Pagan, identified strangulation as the cause of death “beyond a doubt.” He also concluded from nearly intact cabbage
found inside the girl’s stomach that Mary was killed only 30 to 45
finishing her late breakfast at home. Harris
also testified that “an injury had been made in the
little time before death.” He also
claimed to have found “evidence of violence in the neighborhood of the
hymen.” (However, another prosecution doctor on cross-examination
said he "saw no indication of injury to the hymen.")
The most eagerly anticipated prosecution
witness, the witness upon which the whole case ultimately hinged, was
Jim Conley. On the morning of his testimony, a quarter-mile long
line of would-be spectators stretched from the courthouse to the state
usually a man of shabby clothes and
filthy appearance, wore new clothes and sported a neatly combed fresh
as he walked to the witness stand. Dorsey began his
examination: "Do you know Leo Frank?"
A rapt courtroom listened as Conley told his tale of the last hours of Mary Phagan’s life. Conley testified that Frank told him that a girl would be coming by for “a chat” and that he should listen for the superintendent’s foot stomp, which would be his signal to lock the front door. When he heard Frank whistle, he was to unlock the door. Conley told jurors that sometime after Mary arrived and went upstairs, he heard a scream coming from the direction of the metal room. Conley claimed to have then fallen asleep, to be woken by Frank’s stomping foot. Later, after hearing a whistle, Conley said he went up to Frank’s office where he found “Mr. Frank standing up there at the top of the step and shivering and trembling and rubbing his hands.” Conley said his boss “had a little rope in his hands” and “right funny” large eyes. According to Conley, Frank said:
“I wanted to be with the little girl, and she refused me, and I struck her and I guess I struck her too hard and she fell and hit her head against something, and I don’t know how she got hurt. Of course you know I ain’t built like other men.”
Mary Phagan was dead. Conley
claimed Frank said “there would be money in it for
me” if he
helped dispose of the body. He claimed
to have rolled the girl up in cloth and, with Frank’s help, took the
the basement by way of the elevator. The
murder notes were Frank’s idea, Conley testified. “Frank
dictated the notes to me,” Conley
claimed. He testified that Frank looked
to the ceiling and said, “Why should I hang? I
have wealthy friends in
Conley testified that Mary Phagan was not
the first female he had known Frank to approach sexually:
"I had seen...a
lady in his office, and she was sitting down in a chair and she had her
clothes up to here, and he was down on his knees, and she had her hands
on Mr. Frank. I have seen him another time there in the packing
room with a young lady lying on the table..."
Over three days
and for sixteen hours, the defense hammered away at Conley. They
succeeded in getting Conley to admit they he had lied several times to
investigators and demonstrated that his memory, except for events
specifically asked about by the prosecutor, was exceptionally
poor. Still, however, for all of Luther Rosser's assumed prowess
as a master cross-examiner, Conley remained unshaken when it came to
the key parts of his testimony.
The defense had
several goals. First, they hoped to cast serious doubt on the
prosecution's time line and show that Frank had no opportunity to
the murder at the time Conley said he did. Second, the defense
planned to produce a series of character witnesses who, it hoped, would
convince the jury that Leo Frank was not the type of man to assault a
thirteen-year-old worker at his plant. Third, it hoped that by
putting Frank himself on the stand they could present a more plausible
account for Phagan's murder, laying the deed squarely on Frank's
principal accuser, Jim Conley.
defense's time line witnesses managed to account for all but about
eighteen minutes (from 12:02 to 12:20) of the period of time in which
the Phagan murder had to have taken place. Witnesses directly
contradicted Conley's account by placing Frank at his home around 1:30
on the day of the murder.
Over one hundred
defense witnesses either attested to Frank's good behavior or Conley's
bad behavior. Nearly twenty witnesses testified that Conley had a
reputation for lying. The prosecution's attempted to undercut the
defense effort by posing questions so outrageous that even if met with
a firm denial by the witness (as they almost always were) they might
damage Frank's reputation. For example, Dorsey asked one witness
if he'd ever heard of Frank taking a young girl to a park, setting her
on his lap, and "playing with her"? (This question prompted an
outraged Lucille Frank to rise and defend her husband, shouting at the
prosecutor: "No, nor you either--you dog!") Another witness was
asked whether he had heard stories of Frank "playing with
nipples." Dorsey also hinted through his questions on
cross-examination that Frank was a homosexual, such as when the
prosecutor inquired of a young office boy whether Frank had made
improper sexual advances toward him.
On August 18, 1913, a pale Leo Frank, with hands clasped, began four hours of testimony that included a personal history and explanation of his supervisory duties at the pencil factory. On the day of the murder, Frank said, he checked a large number of invoices to ensure their accuracy. He was so occupied when Mary Phagan visited his office to collect her pay envelope. Frank told jurors that at the time, he didn't even know her name: "I only recognized this little girl from having seen her around the plant." Phagan took her paycheck and left his office. Frank told jurors that he never saw Mary alive again. He admitted to being "completely unstrung" by the discovery of the body. He said the sight of "that little girl on the dawn of womanhood so cruelly murdered" was "a scene that would have melted stone." Frank called Conley's testimony "a tissue of lies from first to last" and said the story of women coming to him "for immoral purposes is a base lie." He finished his testimony with the words, "I have told you the truth, the whole truth."
Closing Arguments and the VerdictWhile Frank settled into his cell at the Fulton County Tower, his lawyers prepared a motion listing 115 reasons he was entitled to a new trial. The reasons included Judge Roan's decision to leave Jim Conley's explicit sexual testimony in the record and the alleged pre-trial bias of two of the jurors. One of the jurors, buggy salesman Atticus Henslee, was quoted as telling fellow members of the Atlanta Elks Club, two days after the indictment against Frank was returned by the grand jury, "I'm glad they indicted the goddamn Jew. They ought to take him out and lynch him, and if I get on that jury I'll hang that Jew for sure." (The prosecution later countered the defense statement concerning juror Henslee with surprising statements by fellow jurors that Henslee was the lone hold-out for Frank on the first ballot.) The defense motion also focused on the murder notes which Reuben Arnold described, in arguments on the motion before Judge Roan, as "negro notes from beginning to end." Arnold argued that it would make no sense for Frank to have ordered the notes written since, according to Conley, he had also told Conley to burn the body in the basement furnace to prevent its discovery. Arnold concluded his argument with the words, "As God is in the heavens above, I believe that in yonder cell rests an innocent man." Roan rejected the defense motion, but he added an unusual personal statement. Roan said: "Gentlemen, I have thought about this case more than any other I have ever tried. I am not certain of this man's guilt...But I do not have to be convinced. The jury was convinced."
Rebuttal witnesses for the prosecution testified that Frank had a reputation for lasciviousness. Time and time again, Dorsey asked a parade of female former employees at the pencil factory to assess Frank’s reputation concerning “his attitude toward women,” and witness after witness replied, “bad.” Most damaging, sixteen-year-old Dewey Hall told jurors that she saw Frank talking to Mary Phagan “sometimes two or three times a day” and that she also saw him “put his hand on her shoulder.” Another witness reported seeing Frank and a female worker slip into a dressing room and “stay in there fifteen to thirty minutes.” None of what the many female rebuttal witnesses had to say concerned the day of Mary Phagan’s murder, but they left little doubt in jurors’ minds that Frank was hardly a picture of moral rectitude.
In his closing argument for the prosecution, Frank Hooper called Frank a “Dr. Jekyll” who, “when the shades of night come, throws aside his mask of respectability and is transformed into a Mr. Hyde.” He told jurors to secure justice for young Mary Phagan who “went blithely to get her $1.20…not knowing the horrible death that awaited her.” Hooper employed the region’s racial stereotyping to his advantage, arguing “You know these negroes” and suggesting the thought that Jim “would have written those notes by himself is absurd.”
Defense attorney Reuben Arnold argued that
Frank was a
victim of rampant anti-Semitism. Frank’s
great misfortune in this case,
Turning to the prosecution’s evidence,
Luther Rosser followed his defense colleague with an even more venomous, and undeniably racist, attack on the prosecution’s chief witness. Rosser told jurors: “Conley is a plain, beastly, drunken, filthy, lying nigger with a spreading nose through which probably tons of cocaine have probably been sniffed.” The prosecution tutored Conley and tried to “make him look like a respectable negro,” but the jurors shouldn’t allow themselves to be fooled by “a trained parrot.” He concluded by telling jurors that if they believed Jim Conley “it will be a shame on this great city.”
Hugh Dorsey, for the state of
The jury, balloting twice, deliberated less than two hours. Asked by Judge Roan whether the jury had reached a verdict, jury foreman Fred Wilburn replied: “We have, your honor. We have found the defendant guilty.”
People leaving the courtroom were greeted by
spectacle. For blocks around, cheering
people filled the streets of
The next day, Judge Roan pronounced sentence. He ordered that on October 10, 1913, Leo Frank “be hanged by the neck until he shall be dead, and may God have mercy on his soul.”
New Evidence and Appeals
On February 17, 1914, the Supreme Court of Georgia, in a 142-page decision, rejected Frank's appeal by a 4 to 2 vote. The two dissenters concluded that Conley's testimony about Frank's sexual encounters was designed "to prejudice the defendant in the minds of the jurors and thereby deprive him of a fair trial."
In the weeks after the bad news from the Georgia's Supreme Court, Frank took heart from developments that pointed towards his eventual vindication. First came word that the hair found near Frank's office which the prosecution claimed came from the head of Mary Phagan actually came from another girl. The doctor who performed the microscopic examination of hair specimens told reporters that he had informed the prosecution of his findings before the trial, but that Hugh Dorsey said "he would let the matter end there." Then came retractions. Nina Formby, who had in a May deposition said that Frank had called her seeking a room for a romantic liaison with a girl, admitted that no such call was ever made and claimed that two detectives had encouraged her to swear falsely. Young George Epps also said that he was urged by investigators to testify that Mary had told him that she was worried about Frank's sexual advances. Also strengthening the defense case was a statement by a pencil factory worker that Conley had attempted to sexually assault her, but that she managed to escape by jumping to the stairs "and running as fast as I could." At his March sentencing hearing, Frank confidently told the judge, "I am innocent of this crime and the future will prove it."
Newspapers, previously silent on the question of Frank's guilt, began to take sides. The Atlanta Journal ran a headline, "Frank Should Have a New Trial." The New York Times crusaded for Frank's cause, running twenty-five articles on the case over the course of a month, including one headline that read: "Frank Convicted by Public Clamor." Meanwhile, Tom Watson, publisher of a populist (and popular) magazine campaigned non-stop for Frank's execution. Watson argued that Frank, the "decadent offshoot of a great people," was suggesting that he was getting special treatment "because of his race."
While the debate over Frank's guilt or innocence intensified, Jim Conley was tried and convicted for his role as an aider and abettor in the Phagan murder. Conley received a one-year sentence.
Based on the new evidence, the defense filed what was called in Georgia practice an extraordinary motion. The defense motion cited the recent wave of retractions, the revelation about the hair evidence, and an affidavit by Annie Maude Carter, who said that in return for her accepting his jailhouse offer of marriage, he confessed to murdering Mary Phagan. Carter said that Conley admitted to striking Mary with his fist, "knocking her down" and "dropping her through the [scuttle] hole" to the basement, and then hitting on a plan to lay the blame on the night watchman, Newt Lee. A statement by the pastor at the Plum Street Baptist Church was also included in the defense document. The pastor said that he had overheard Conley confess his crime to another man in an alley two nights after the murder. Unfortunately for the defense, the pastor later admitted that his statement was false and that he offered the statement because defense attorneys and investigators "were just handing money out." The fiasco with the pastor, and the resulting publicity concerning the techniques of defense investigators, doomed the defense's extraordinary motion. On appeal, the Georgia Supreme Court upheld the denial of a new trial. One dissenting justice found merit in the defense claim that the enforced absence of Frank from the courtroom at the announcement of his verdict (a move proposed by Judge Roan to protect the defendant's safety from the mob) violated Frank's right to due process of law.
The defense's next step was to file for a writ of habeas corpus in federal court arguing that the prejudicial courtroom atmosphere and Judge Roan's exclusion of Frank from the courtroom violated the U. S. Constitution's Fourteenth Amendment. Following the expected rejection of the writ in federal district court in Georgia, the United States Supreme Court agreed to hear the case. On April 19, 1915, the Supreme Court ruled that errors of law, such as cited by the defense in its brief, could not be reviewed by habeas corpus. Justice Oliver Wendell Homes and Chief Justice Charles Evans Hughes dissented. The dissenters found "the presumption overwhelming that the jury responded to the passions of the mob." Holmes wrote that "Mob law does not become due process of law by securing the assent of a terrorized jury."
Governor John M. Slaton, hung in effigy
(above a sign reading "the King of the Jews")
Commutation and the Case's Tragic End
After Georgia's Prison Commissioners voted 2 to 1 to refuse clemency, Frank's last hope lay with Georgia's soon-to-be-departing governor, John M. Slaton. The defense case for clemency was bolstered by the unusual admission by Jim Conley's own lawyer, William M. Smith, that his client had murdered Mary Phagan. Smith said that with his client convicted for a crime that he could not be re-tried, he now saw it as his duty to step forward and try to save an innocent life. Over 100,000 letters requesting commutation poured into the Georgia Governor's office. On the other hand, firebrand Tom Watson warned that if the decision of the jury and the courts were to be undone "there will almost inevitably be the bloodiest riot known in the history of the South." Privately, Watson let it be known to Slaton that he would throw his important support behind a Senate bid if only the governor would let Frank hang.
Slaton, however, took his responsibilities seriously. He carefully reviewed the record and he considered a letter from Judge Roan asking him to rectify the mistake he had made in sentencing Frank to death. He paid special attention to Smith's statement concerning Conley's alleged confession and to Conley's murder notes. Finally, after completing his review, Slaton told his wife: "I may mean my death or worse, but I have ordered the sentence commuted." Before public announcement of his decision, Governor Slaton ordered Frank transported from the Atlanta jail to Georgia's prison farm at Milledgeville, where he believed Frank could be better protected. Slaton's order commuted Frank's sentence to life in prison. Privately, Slaton told friends that he believed Frank was innocent, and that once the public came around to the same conclusion, if would be safe for the next governor to grant Frank a full pardon. When the announcement of the commutation came, protesters demonstrated and burned Slaton in effigy. A dummy hanging in Phagan's hometown of Marrietta bore a sign: "John M. Slaton, King of the Jews and Georgia's Traitor Forever." A battalion of the state militia surrounding the governor's home fended off a stone and bottle-hurling mob.
For four weeks, Frank worked on the prison farm, wrote letters, and dreamed of the freedom that he thought was now sure to come. "Right and justice," he wrote to a friend, would soon hold "complete sway." More immediate concerns soon pressed in when a fellow convict took a butcher knife to the throat of Frank as he slept on a cot. Quick work by prison doctors stopped the flow of blood from the seven-inch long slash wound and Frank, to the surprise of many, survived the attack. Frank declared his recovery "little short of miraculous" and saw it as sign that "the good Lord must have in store for me a brighter and happier day." Such was not to be.
One month after the near fatal attack, on August 16, 1915, a mob of twenty-five men from Marietta stormed the prison farm at Milledgeville. The band included a clergyman, two former judges, and an ex-sheriff. Some men captured and handcuffed the prison's superintendent and warden while others overpowered the two guards on duty. The mob seized Frank and drove several hours through the night to a grove near Marietta. An effort was made to secure from Frank a confession, but the captive continued to protest his innocence to a degree that unnerved some of his captors. The lynching plot might even have been abandoned, several involved later reported, had the problem of driving Frank back to Milledgeville, in the face of a statewide manhunt, not been apparent. Several of the more determined lynchers took Frank to a large oak tree and placed a rope around his neck. Frank refused the offer of a last statement, but removed his wedding ring and asked that it be returned to his wife. The abductors hoisted Frank to the top of a table placed under the tree and then kicked the table out from underneath him. Later, hundreds of people would come to see Frank's suspended body and tear pieces of his nightshirt to save as souvenirs.
The case spurred an interest in forming organizations. A short time after the lynching of Leo Frank, thirty-three members of the group that called itself the Knights of Mary Phagan gathered on a mountaintop near Atlanta and formed the new Ku Klux Klan of Georgia. Meanwhile, members of an outraged Jewish community met to create the Anti-Defamation League to combat anti-Semitism.
The trial also helped catapult Hugh Dorsey to the Georgia governorship in 1916.