Another in our series of new transcriptions of contemporary articles on the Leo Frank case.
August 13th, 1913
With Judge, Jury and Councillors Performing Duty Well, Square Deal Is Assured.
By Jas B. Nevin.
In considering the Frank trial, particularly with respect to the length of it, and the thoroughgoing exhaustiveness of the hearing, it must be borne in mind that the establishing of justice is the main object of both sides, and that, therefore, patience and poise are absolutely necessary in those who would be fair—fair not only to Frank, but to the State also.
With the average citizen, the home-loving and upright citizen, the Frank trial should be largely an abstract proposition.
As Frank Hooper himself has said, State’s counsel that he is:
“It is not so much a question of convicting Leo Frank, as it is a question of convicting the murderer of Mary Phagan.”
The Solicitor General, Hugh M. Dorsey, is entitled to full and complete praise for the careful and painstaking labor he has put into the case.
It must be conceded that he is utterly conscientious and sincere in his endeavor to convict Frank. Frank has been duly indicted—Dorsey is the Solicitor General.
It is the duty—the sworn duty—of the Solicitor to prosecute with ALL the vigor and resourcefulness at his command all indicted persons. If he did not do that in the Frank case, the State would not be getting a square deal. And it is quite as much the province of Dorsey to see that the State gets a square deal as it is that Luther Rosser and Reuben Arnold see to it that Frank gets a square deal.
Dorsey Given Credit.
The Solicitor has made out a most impressive case against Frank, moreover.
With such circumstances and positive facts as he thinks he possesses—be they sound or otherwise, and that is for the jury to say—he has established a charge against Leo Frank that can not, and will not, be overcome without difficulty and circumspection of effort.
The Solicitor has handled himself extremely well—he deserves ungrudging credit for that.
He has abundantly proven himself to be a good man—an exceptionally able man—in a position that sometimes is the most trying of all official positions in Georgia.
No man can make me believe that Hugh Dorsey would, for an instant, seek to fix upon Leo Frank the awful charge brought against him, if Dorsey did not BELIEVE Frank guilty.
As much may be said of Frank Hooper, Dorsey’s splendidly equipped assistant.
In making out his case against Frank, Dorsey took his time—he employed ten days establishing his contentions, before he closed.
He was right in doing that, if it required, in his matured judgment, that much time. It was clearly in order for Frank’s friends, his relatives, and for Frank himself, to possess their souls in patience while the State’s counsel—the people’s advocate—was doing his duty.
No Quibbling Over Expense.
The defense will take quite as long—perhaps longer—and that, too, is as it should be, however much we may wish to see things hurried a bit.
Neither the State of Georgia nor the county of Fulton will quibble about the expense of the trial, nor the time of it, particularly in view of the stake in issue—a human life, a man’s reputation and good name, an erstwhile happy and united household, and all of that—nor raise a protesting hand, in the circumstances.
In the cases of the kind now being tried in the Fulton County Court both the State and the defense does well to make haste slowly.
The State, under the direction of the Solicitor, has built about Frank’s mighty wall of circumstances, the which to scale it will require the ultimate ingenuity of the defense.
I do not know whether the defense can scale that wall or not—maybe it can. It has made marked progress—thus far, at least, so it seems—and it may get completely over. It isn’t over YET, nevertheless.
The best thing to do is to keep your mind honestly open—to keep it “perfectly impartial between the State and the accused,” as the jury is required to do.
The well-balanced citizen will be prepared to say, after the hearings are completed and the verdict has been rendered: “Well, that is the TRUTH of the matter, for it is a finding brought about through a process of law evolved of a thousand years of Anglo-Saxon civilization, which is an ever progressing civilization, and it approximates justice and right to the final extent that human ingenuity is able to approximate it!”
Dorsey and Hooper may be right, they may be wrong—Hooper and Arnold may be right, and they may be wrong. It isn’t so much for you to say, reader, nor for me—the saying finally is the jury’s business.
Isn’t that right?
So many people, in undertaking to analyze and consider intelligently a case such as the one Judge Roan now is hearing, make the all too frequent mistake of jumping at conclusions.
You hardly can figure what the controlling effect of a bit of evidence may be, unless you endeavor to apply that evidence in all directions possible, and in the light of your best and most discriminating intelligence.
For instance, the defense is endeavoring to show that Frank on the afternoon of the murder engaged in three hours’ most intricate clerical work, without making a mistake, or showing a sign of unusual excitement in the work.
The defense will argue from this, of course, that Frank is not likely the murderer of Mary Phagan, because, if he had been, the clerical work as aforesaid would have been an impossibility.
The State, however, is endeavoring to show that Frank may have done and did do this work in the morning before the murder, when his mind was free of the guilty knowledge of bloodshed, and cites as a further circumstance to prove that he might have done the work in the morning the fact that he had received an invitation to attend a ball game that afternoon, which he never had declined positively.
How Battle May Turn.
Now, what will be the effect of these two contrary theories upon the mind of the jury?
If the jury believes Frank did the work in the morning, and not in the afternoon, although it be shown that he did not attempt the ball game, the defense’s theory of calmness upon the part of Frank in the afternoon may or may not be upset—for Frank may have been calm in the afternoon, nevertheless. One prop to sustain the defense’s claim of calmness upon the part of Frank would be removed, of course, but not more.
But suppose the jury finally believes that Frank DID do the work in the afternoon, as is claimed, it likely would conclude that he hardly could have done it with the weight of Mary Phagan’s murder upon his conscience, and the State would THEN be in the unfortunate attitude of having combated unsuccessfully a theory of the defense, thereby emphasizing the State’s FEAR of it, and thus necessarily emphasizing its importance!
Here, then, we have a bit of evidence, introduced by the defense and attacked by the State, wherein the State stands to gain not nearly so much in the event it beats down the evidence as the defense likely must gain through the State’s failure to beat it down.
The question naturally arises whether the State might not better have left the defense’s clerical work theory along, because, as important as it may be, in any event its importance is magnified many times if the State attacks it unsuccesfully.
Easy to Miss the Truth.
And STILL, to have left it alone entirely that—
And just after that fashion do juries being composed of mere humans, thrash out these matters!
One never can tell which way evidence, once in, is going to cut!
One can not proceed to the forming of a definite and fixed final conclusion about ANY matter, until after he has weighed carefully ALL the pros and cons—that is, he can not so proceed without grave danger of missing the real TRUTH—the very thing he is trying his best to hit.
You do not know that 2 and 2 make 4, save in that you know—or think you know—that 2 and 3 make 5, and that 2 and 1 made 3.
The two latter things being true, you naturally conclude that 2 and 2 make 4. And that conclusion, being as well perfected as human ingenuity CAN perfect it, we call definite and exact knowledge!
But if mankind’s knowledge had never extended beyond the fact that 2 and 1 make 3, we should not know at all, of course, that 2 and 2 make 4. We would be as apt to guess that 2 and 2 make 5, as that 2 and 2 make 4.
Knowing, however, that 2 and 1 make 3, and 2 and 3 make 5, we conclude that 2 and 2 make 4.
After all, then, is it only through a process of elimination that we know even so much as that 2 and 2 make 4!
Which 2 and 2 Make 4?
Now that is all elementary (my dear Dr. Watson), of course, but it is upon that same theory that murder problems, particularly in cases depending, as the Frank case unquestionably does, largely upon circumstantial evidence, most frequently are unraveled.
The jury will be asked to believe that Frank did thus and so, because, through a process of elimination it will be shown that Frank alone could have done thus and so.
The jury also will be asked to believe that Frank did not do thus and so, because Frank, having done something else could not at the same time have done thus and so.
In other words, the State will insist that its 2 and 2 make 4, and the defense will insist as strenuously that its 2 and 2 make 4.
Both can not be right—figures do not lie!
Either the State’s 2 and 2 make only 3, or the defense’s 2 and 2 make only 3.
Which 2 and 2 make 4, and no mistake about it?
That’s the jury’s business to determine.
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