He was a Northerner. He was an industrialist. He was a Jew. And a young girl was murdered in his factory.
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October 1996
13 years ago By admin
Volume47Issue6
Frank’s trial, in July and August 1913, has been called “one of the most shocking frame-ups ever perpetrated by American law-and-order officials.” The case became, at the time, a cause célèbre in which the injustices created by industrialism, urban growth in Atlanta, and fervent anti-Semitism all seemed to conspire to wreck one man.
Until the discovery of Mary Phagan’s body in the basement of Atlanta’s National Pencil Company factory, Leo Frank led a relatively serene life. Born in Cuero, Texas, in 1884, he was soon taken by his parents to Brooklyn, New York. He attended the local public schools, the Pratt Institute, and Cornell University. After graduation he accepted the offer of an uncle, Moses Frank, to help establish a pencil factory in Atlanta and become both co-owner and manager of the plant. He married Lucille Selig, a native Atlantan, in 1910, and in 1912 he was elected president of the local chapter of the national Jewish fraternity B’nai B’rith. Then, on the afternoon of April 26, 1913, Mary Phagan, an employee, stopped by Frank’s factory to collect her week’s wages on her way to see the Confederate Memorial Day parade and was murdered.
A night watchman discovered the girl’s body in the factory basement early the next morning. Sawdust and grime so covered her that when the police came they could not tell whether she was white or black. Her eyes were bruised, her cheeks cut. An autopsy would reveal that her murderer had choked her with a piece of her own underdrawers and broken her skull. The watchman, Newt Lee, summoned the police; they suspected that he might have committed the murder, and they arrested him. After inspecting the scene, the officers went to Frank’s home and took him to the morgue to see the body. The sight of the corpse unsettled him, and he appeared nervous. He remembered having paid the girl her wages the previous day but could not confirm that she had then left the factory. The police would find no one who would admit to having seen her alive any later.
Shortly thereafter some factory employees told a coroner’s jury, convened to determine the cause of death and suggest possible suspects for investigation, that Frank had “indulged in familiarities with the women in his employ.” And the proprietress of a “rooming house” signed an affidavit swearing that on the day of the murder Frank had telephoned her repeatedly, seeking a room for himself and a young girl. Both these charges were later proved false (many witnesses recanted their accusations later), but newspapers headlined them, fueling talk of Jewish men seeking Gentile girls for their pleasure. The solicitor general, Hugh Dorsey, built a case for the prosecution around Frank’s alleged perversions. Four weeks after the murder the grand jury granted the indictment Dorsey sought.
Unknown to the members of the grand jury, however, another suspect had also been arrested. He was Jim Conley, a black janitor at the factory who had been seen washing blood off a shirt there. He admitted having written two notes found near the body. They read: “Mam that negro hire down here did this i went to make water and he push me down that hole a long tall negro black that hoo it was long sleam tall negro i wright while play with me” and “he said he wood love me land dab n play like the night witch did it but that long tall black negro did buy his slef.”
At first almost all investigators assumed that the author of these items had committed the crime. But Conley claimed to have written them as Frank dictated the words, first the day before the murder occurred, then, according to Conley’s second affidavit, on the day of the crime.
Conley ultimately signed four affidavits, changing and elaborating his tale each time. Originally he said he had been called to Frank’s office the day before the murder and asked to write phrases like “dear mother” and “a long, tall, black negro did this by hisself,” and he claimed to have heard Frank mumble something like “Why should I hang?” But the newspapers found the idea of Frank’s having prepared for an apparent crime of passion by asking a black janitor to write notes about it utterly ridiculous. So Harry Scott, the chief detective, said he then “pointed out things in [Conley’s] story that were improbable and told him he must do better than that.” Another lengthy interrogation led to the second affidavit. It stated that Frank had dictated the notes just after the murder and that Conley had removed the dead body from a room opposite Frank’s office, on the second floor, and taken it by elevator to the basement. (Later evidence showed that the elevator had not been in operation from before the time of the girl’s death until after her body was discovered.) A third affidavit spelled out in greater detail the steps Conley had allegedly taken in assisting Frank with the disposal of the dead girl. The Atlanta Georgian had already protested after the janitor’s second statement that with Conley’s “first affidavit repudiated and worthless it will be practically impossible to get any court to accept a second one.” But Atlantans had been so conditioned to believe Frank guilty that few protested the inconsistencies in the janitor’s tale.
Among those who questioned the prosecution’s case against Frank were the members of the grand jury that had originally indicted him. They wanted Dorsey to reconvene them so that they could charge Conley instead. Dorsey refused, so the jury foreman did it on his own. It was the first time an Atlanta grand jury had ever considered a criminal case against the wishes of the solicitor general. Then Dorsey came back before the group and pleaded with them not to indict the black man. Exactly what he told them was not made public, but the next day the Atlanta Constitution reported that “the solicitor did not win his point without a difficult fight. He went in with a mass of evidence showing why the indictment of the negro would injure the state’s case against Frank and stayed with the grand jurors for nearly an hour and a half.”
It is difficult to say why the grand jury ultimately supported Dorsey. Perhaps they accepted the Atlanta Georgian ’s explanation: “That the authorities have very important evidence that has not yet been disclosed to the public is certain.” Or, given Southern values, they may have assumed that no attorney would base his case on the word of a black man “unless the evidence was overwhelming.” In any case, the solicitor prevailed and prepared to go to trial.
Solicitor Dorsey opened his presentation by trying to establish where and when the crime had occurred. He elicited testimony from several witnesses about blood spots on the floor and strands of hair on a lathe that Mary Phagan had allegedly fallen against in the room opposite Frank’s office. (The state biologist had specifically informed the prosecution that the hair was not Mary Phagan’s, and many witnesses testified that the bloodstains could have been merely paint spots; Dorsey ignored them.)
The heart of the state’s case, however, revolved around Jim Conley’s narrative. Although his story had gone through several revisions during the previous weeks—all of them published in the newspapers—his courtroom account mesmerized the spectators. Conley told how he had served as a lookout in the past when Frank “entertained” women in the factory (no such women ever appeared at the trial), how after an agreed-upon signal he would lock or unlock the front door or go up to the superintendent’s office for further instruction. He claimed that on the fatal day Frank had summoned him to his office, and when he arrived there, he had found his boss “standing up there at the top of the steps and shivering and trembling and rubbing his hands.…He had a little rope in his hands.…His eyes were large and they looked right funny.…His face was red. Yes, he had a cord in his hands.…After I got up to the top of the steps, he asked me ‘Did you see that little girl who passed here just a while ago?’ and I told him I saw one.…‘Well…I wanted to be with the little girl and she refused me, and I struck her and…she fell and hit her head against something, and I don’t know how bad she got hurt. Of course you know I ain’t built like other men. The reason he said that was, I had seen him in a position I haven’t seen any other man that has got children.” Conley did not explain that last sentence; instead he went on to detail how Frank had offered, but never given him, money to dispose of the body. He said Frank had then asked him if he could write and, when he said yes, had dictated the murder notes.
When Dorsey concluded his presentation, Frost’s Magazine of Atlanta, which had previously made no editorial comment about the case, condemned both the solicitor and Atlanta’s chief detective for misleading the public into thinking that the state had sufficient evidence to warrant an accusation against Frank. “We cannot conceive,” the commentary read, “that at the close of the prosecution, before the defense has presented one single witness, that it could be possible for any juryman to vote for the conviction of Leo M. Frank.”
Frank had retained two of the South’s best-known attorneys to defend him: Luther Z. Rosser, an expert at crossexamination, and Reuben R. Arnold, a prominent criminal lawyer. Despite their brilliant reputations, they failed to display their forensic talents when they were most needed. Rosser and Arnold cross-examined Conley for a total of sixteen hours on three consecutive days and could not shake his basic tale. He continually claimed to have forgotten anything that tended to weaken the case against Frank, and some observers thought Conley had been carefully coached by the solicitor general and his subordinates. The murder and disposal of the body would have taken at least fifty minutes to accomplish as the janitor described them, yet witnesses corroborated Frank’s recollection of his whereabouts for all but eighteen minutes of that time. Furthermore, much of Conley’s narrative depended on his having removed the body to the basement via the elevator, but floor markings, the absence of blood in the elevator, and other incontrovertible evidence proved that he hadn’t. Why Frank’s attorneys failed to exploit these facts, and why they also failed to request a change of venue before the trial began, has never been explained. But their inability to break Conley undermined their client’s case. A reporter who attended every session of the hearings later observed, “I heard Conley’s evidence entire, and was impressed powerfully with the idea that the negro was repeating something he had seen.…Conley’s story was told with a wealth of infinitesimal detail that I firmly believe to be beyond the capacity of his mind, or a far more intelligent one, to construct from his imagination.”
Rosser and Arnold’s biggest error was probably their attempt to delete from the record Conley’s discussion of times he had “watched for” Frank. For a day the two men got the janitor to talk about Frank’s alleged relationships with other women, hoping to poke holes in the testimony; then they tried to get the whole discussion stricken. Even one of Dorsey’s assistants agreed this information should not have been allowed into the record but added that once Conley had been examined and cross-examined on the subject, it was wrong to try to expunge it. “By asking that the testimony be eliminated,” the Atlanta Constitution noted, the defense “virtually admit their failure to break down Conley.”
It did not matter thereafter that witnesses came in to attest to Frank’s good character and his whereabouts before, during, and after the murder. It also made little difference that Frank’s explanation of his activities on the day of the murder carried, according to the Constitution , “the ring of truth in every sentence.” Conley’s narrative absolutely dominated the four-week trial.
In their summations Arnold and Rosser accused the police and solicitor general of having fabricated the evidence. Arnold stated that “if Frank hadn’t been a Jew, there would never have been any prosecution against him,” and he likened the entire case to the Dreyfus affair in France: “the savagry [ sic ] and venom is…the same.”
But once again Dorsey emerged the winner. The Constitution described his closing argument as “one of the most wonderful efforts ever made at the Georgia bar.” The solicitor reviewed the evidence, praised his opponents as “two of the ablest lawyers in the country,” and then reemphasized how these men could not break Conley’s basic narrative. He went on to state that although he had never mentioned the word Jew , once it was introduced he would use it. The Jews “rise to heights sublime,” he asserted, “but they also sink to the lowest depths of degradation.” He noted that Judas Iscariot, too, had been considered an honorable man before he disgraced himself. The bells of a nearby Catholic church rang just as the solicitor was finishing. Each time Dorsey proclaimed the word guilty the bells chimed, and they “cut like a chill to the hearts of many who shivered involuntarily” in the courtroom.
The jury took less than four hours to find Frank guilty, and the judge, fearing mob violence, asked the defense to keep their client out of court during sentencing. Rosser and Arnold agreed. Solicitor Dorsey requested that they promise not to use Frank’s absence as a basis for future appeals—even though barring a defendant from his own sentencing might constitute a denial of his right to due process of law—and the two defense attorneys assented.
Frank’s attorneys kept their word and ignored the issue in their appeals for a new trial. According to state law, appeals in a capital case could be based only on errors in law and had to be heard first by the original trial judge. Rosser and Arnold based their appeal on more than 115 points, including the alleged influence of the public on the jury, the admissibility of Conley’s testimony about Frank’s alleged sexual activities, and affidavits from people who swore that two of the jurors were anti-Semitic. (One had allegedly been overheard to say, “I am glad they indicted the God damn Jew. They ought to take him out and lynch him. And if I get on that jury I’d hang that Jew sure.”) Dorsey and his associates countered with affidavits from the jurors swearing that public demonstrations had not affected their deliberations. In his ruling, Leonard Roan, the trial judge, upheld the verdict and commented that although he was “not thoroughly convinced that Frank is guilty or innocent. The jury was convinced.”
At this point Frank replaced his counsel. The new attorneys did not feel bound by their predecessors’ promise to Dorsey, and they pressed the argument that Frank had been denied due process by being absented from his sentencing. But the state supreme court responded that “it would be trifling with the court to…now come in and…include matters which were or ought to have been included in the motion for a new trial.”
The new attorneys went on to try to get the United States Supreme Court to issue a writ of habeas corpus, on the ground that the mob had forced Frank to absent himself from the court at the time of his sentencing, and thus he was being held illegally. The Court agreed to hear arguments on that question and, after two months, rejected the plea by a vote of 7-2.
Justice Mahlon Pitney explained that errors in law, no matter how serious, could not legally be reviewed in a request for a writ of habeas corpus but only in a petition for a writ of error. And Frank’s contention of having been denied due process “was waived by his failure to raise the objection in due season.…” In a celebrated dissent, Justices Oliver Wendeil Holmes and Charles Evans Hughes concluded, “Mob law does not become due process of law by securing the assent of a terrorized jury.”
It is difficult for those not well versed in the law to follow the legal reasoning behind such procedural and constitutional questions, especially when judges are not even considering disputes in testimony or blatantly expressed prejudices. Thus many people assumed that the Court was reconfirming the certainty of Frank’s guilt. Afterward his attorneys sought commutation to life imprisonment rather than a complete pardon because they concluded that after all the judicial setbacks they would have a better chance with the governor that way.
Once the case came before him, Gov. John M. Slaton moved with dispatch. He listened to oral presentations from both sides, read the records, and then visited the pencil factory to familiarize himself with the scene of the crime. Since the two sides differed in their arguments on where the murder had actually taken place—the metal-lathe room on the second floor versus the factory basement—and whether the elevator had been used, the governor paid particular attention to those parts of the building. Besides the voluminous public records, Slaton received a personal letter written by the trial judge recommending commutation, a secret communication from one of Hugh Dorsey’s law partners stating that Jim Conley’s attorney believed his own client was guilty, and a note from a federal prisoner indicating that he had seen Conley struggling with Mary on the day of the murder.
For twelve days SIaton wrestled with the materials. On the last day he worked well into the night, and at 2:00 A.M., on June 21, 1915, he went up to his bedroom to inform his wife. “Have you reached a decision?” she asked.
“Yes.” he replied, ”…it may mean my death or worse, but I have ordered the sentence commuted.”
Mrs. Slaton then kissed her husband and confessed, “I would rather be the widow of a brave and honorable man than the wife of a coward.”
A ten-thousand-word statement accompanied the governor’s announcement. Slaton appeared thoroughly conversant with even the minutiae of the case. He saw inconsistencies in Conley’s narrative and zeroed in on them. The first significant discrepancy dealt with the factory elevator. Conley had admitted defecating at the bottom of the shaft on the morning before the murder. When police and others arrived the next day, the feces remained. Not until someone moved the elevator from the second floor was the excrement mashed, causing a foul odor. Therefore, Slaton concluded, the elevator could not have been used to carry Mary Phagan’s body to the basement. Furthermore, according to scientific tests, no bloodstains appeared on the lathe or on the second floor—where the prosecution had contended that the murder had taken place—or in the elevator. But Mary’s mouth, nostrils, and fingernails had been full of sawdust and grime similar to that in the basement, not on the second floor.
Privately Slaton told friends that he believed Frank was innocent, and he claimed that he would have pardoned him except that he had been asked only for a commutation and he assumed the truth would come out shortly anyway, after which the very people clamoring for Frank’s death would be demanding his release. Slaton’s announcement of the commutation sent thousands of Atlantans to the streets, where they burned Frank and the governor in effigy; hundreds of others marched toward Slaton’s mansion, where state troopers prevented them from lynching him.
A wave of anti-Semitic demonstrations followed. Many Georgians assumed that the governor’s “dastardly” actions resulted from Jewish pressures upon him. Atlanta Jews feared for their lives, and many fled the city. Responding to these actions a few days later, Slaton declared: “Two thousand years ago another Governor washed his hands of a case and turned over a Jew to a mob. For two thousand years that Governor’s name has been accursed. If today another Jew were lying in his grave because I had failed to do my duty I would all through life find his blood on my hands and would consider myself an assassin through cowardice.”
But the mob would not be thwarted. A fellow inmate at the state prison farm cut Frank’s throat. While he was recovering in the hospital infirmary, a band of twenty-five men, characterized by their peers as “sober, intelligent, of established good name and character—good American citizens,” stormed the prison farm, kidnapped Frank, and drove him 175 miles through the night to Marietta, Mary Phagan’s hometown, where, on the morning of August 17, 1915, they hanged him from an oak tree. Although most of the people in Marietta knew who the killers were, a coroner’s jury concluded that Frank had been lynched by persons unknown. The Pittsburgh Gazette restated that finding: “What the coroner’s jury really meant was that Frank ‘came to his death by hanging at the hands of persons whom the jury wishes to remain unknown.’”
Many of Frank’s friends and later defenders attributed the hanging to unbridled mob passions, but the explanation cannot suffice. “The very best people,” a local judge opined at the time, had allowed the Frank case to go through all the courts, letting the judicial process take its course. Then, after every request for a new trial had been turned down, the governor had outrageously stepped in. “I believe in law and order,” the judge said. “I would not help lynch anybody. But I believe Frank has had his just deserts.”
Over the years scores of people have wondered why many Georgians were loath to suspect that a black man might have committed the murder. The answer may have come from the pastor of the Baptist church that Mary Phagan’s family attended. In 1942 the Reverend L. O. Bricker wrote: “My own feelings, upon the arrest of the old negro night-watchman, were to the effect that this one old negro would be poor atonement for the life of this little girl. But, when on the next day, the police arrested a Jew, and a Yankee Jew at that, all of the inborn prejudice against the Jews rose up in a feeling of satisfaction, that here would be a victim worthy to pay for the crime.”
As time passed, people no longer remembered the specific facts of the case, but they told the story of Mary Phagan and Leo Frank to their children and grandchildren. As with all folktales, some details were embellished, others were dropped; however, as the first three verses of “The Ballad of Mary Phagan” unfold, no listener can have any difficulty knowing what happened:
People have argued the Frank case again and again, but usually without specific knowledge, falling back on hearsay to support their positions. However, in 1982 a dramatic incident put the case back in the public spotlight. Alonzo Mann, who had been a fourteen-year-old office boy in the Atlanta pencil factory in 1913, swore that he had come into the building on the day of the murder and witnessed Jim Conley carrying Mary Phagan’s body toward the steps leading to the basement. The janitor had warned him, “If you ever mention this, I’ll kill you.” Lonnie Mann ran home and told his mother what he had seen and she advised him to “not get involved.” He obeyed her but eventually began telling his tale to friends. Finally, in 1982, two enterprising reporters filed the story in the Nashville Tennessean .
Mann’s revelations stimulated a renewed effort to achieve a posthumous pardon for Leo Frank. Newspapers editorialized on the need to clear his name, public-opinion polls showed a majority in Georgia willing to support a pardon, and the governor of the state announced in December 1983 that he believed in Frank’s innocence. But three days before Christmas the Board of Pardons and Paroles denied the request. It asserted that Mann’s affidavit had provided “no new evidence to the case,” that it did not matter whether Conley had carried the body to the basement or taken it via the elevator, and that “there are [so] many inconsistencies” in the various accounts of what had happened that “it is impossible to decide conclusively the guilt or innocence of Leo M. Frank.”
Once again a storm broke as editorials and individuals excoriated the Board of Pardons and Paroles. The Tenuesscan said that “the board turned its back on the chance to right an egregious wrong.”
The Tennessean , and others that were so certain about what the board should have done, had the advantage of hindsight. While this historian believes there is no question that Frank was an innocent man, the fact is that his case was much more complex than those who have read about it afterward recognize. One should not dismiss the impact of Jim Conley’s performance on the witness stand or the electrifying effects of the innuendoes and charges in the courtroom that Frank might have engaged in improper sexual activities with the young people who worked in the pencil factory. Aside from the defendant’s partisans, most people who heard the evidence or read about it in the newspapers during the summer of 1913 accepted its truthfulness. No reporter who attended the proceedings daily ever wrote of Frank’s innocence. Long after the trial ended, O. B. Keeler and Herbert Asbury, newspapermen who covered the case, still regarded him as guilty; Harold Ross, another writer and later the founding editor of The New Yorker , stated merely that the “evidence did not prove [Frank] guilty beyond that ‘reasonable doubt’ required by law.”
Another factor is the ineptitude of Frank’s counsel. They failed to expose the inaccuracies in Conley’s testimony, and they blundered by asking him to discuss occasions when Frank had allegedly entertained young women. This opened the door for a great deal of titillating but irrelevant material and allowed Dorsey to bring in witnesses to corroborate Conley’s accusations. The defense attorneys demonstrated their limitations once more by ignoring relevant constitutional questions in their original appeal to the Georgia Supreme Court. Thus a reinvestigation of the case in the 1950s led one observer to write that “the defense of Leo Frank was one of the most ill-conducted in the history of Georgia jurisprudence.”
Still another consideration is the environment in which the trial took place. Today judicial standards have been tightened, and it is unlikely that any court proceedings would be conducted in so hostile an atmosphere as that in which Frank met his doom. But that does not necessarily outweigh the effect of the witnesses’ testimony and the subsequent crossexaminations. To be sure, many of the jurors feared going against popular opinion, but perhaps they might have reached an identical judgment in a hermetically sealed chamber.
There is no reason to doubt that Alonzo Mann’s affidavit is accurate. Had he ignored his mother’s advice and gone to the police with his information right away, Conley would surely have been arrested, the police and district attorney would not have concentrated their efforts on finding Frank guilty, and the crime would most likely have been quickly solved. But by the time the trial began, in July 1913, Mann’s testimony might hardly have even seemed important.
The struggle to exonerate Leo Frank continued, and in March 1986 the state Board of Pardons and Paroles reversed itself and granted a pardon. It had been granted, said the accompanying document, “in recognition of the state’s failure to protect the person of Leo Frank and thereby preserve his opportunity of continued legal appeal of his conviction, and in recognition of the state’s failure to bring his killers to justice, and as an effort to heal old wounds.”
Not, that is, because Frank was innocent.
In the late 1980s a Georgia citizen, firmly convinced of Frank’s guilt, vehemently underscored the point in a letter to the Marietta Daily Journal : “The pardon expressly does not relieve Mr. Frank of his conviction or of his guilt. Rather, it simply restored to him his civil rights, permitting him to vote and serve on juries, activities which, presumably, at this date are meaningless.”
Meaningless they may be. Still, Leo Frank’s unquiet spirit continues to vex the conscience of many Georgians eightyone years after he died on an oak tree in Marietta.