Can Jury Obey if Told to Forget Base Charge?

Another in our series of new transcriptions of contemporary articles on the Leo Frank case.

Atlanta Georgian
August 6th, 1913

By James B. Nevin.

“Gentlemen of the jury, having heard from James Conley, the blackest, most damning story ever told in Atlanta by one human being against another, having sat there and listened as he smudged with unspeakable scandal the defendant in this case, Leo Frank, although it is irrelevant, immaterial, and has nothing to do with this case, you will kindly forget it, being on your oaths as jurymen to consider the evidence declared competent!”

And the jury, being like most other juries, in one way or another, and having heard all the things as aforesaid, will promptly proceed to do as instructed about forgetting it—NOT!

I have heard juries told too many times to “forget” things—such, for instance, as that there is no such thing as “unwritten law” in this land of the free and home of the brave—and I have seen too many times those very same juries proceed to “forget”—NOT!

Juries are, after all, composed of mere human beings, and things such as Conley said to the Frank jury can NOT be forgotten, and will NOT be disregarded by the average jury.

Merely Question of Belief.

It is merely a question of whether the jury BELIEVES the negro!

There was something infinitely pathetic in the situation Tuesday, when court met in the afternoon.

For one thing, it brought to the cheeks of the defendant’s wife, always and ever at his side, the first tears I yet have seen fall from her eyes.

She has borne herself with amazing fortitude thus far—the wonder is that she has not long ago collapsed.

When Reuben Arnold, moving to strike from the record the vile story of Jim Conley, paused a second before reading the exact words he desired expunged, looked a moment in the direction of the defendant’s wife, and said, with no show of the spectacular whatever, “Your honor, I would prefer not to read this in the presence of these two ladies, and I therefore pass it to your honor that you may read it in silence!” The moment was tense and tragic!

Weeps For First Time.

I do not know whether it was gratitude to Arnold for the kindness and consideration thus shown, whether it was realization of the weighty purpose of the motion, whether it was the first chilling breath of apprehension, or whether it was just a physical giving way that moved Mrs. Frank. Whatever it was, as Arnold passed the paper along to Judge Roan, the first tear I ever saw from the eyes of Lucille Frank trickled down her cheek and she dropped her head in her hands for a moment or two and sobbed!

Apparently there was nothing in the incident, either upon the part of Arnold or the woman, designed to be the least theatrical. The jury had been removed, the stage settings were wanting.

It merely was a natural and minor incident that tugged, somehow, at the heartstrings and caught at the throat.

In all the packed courtroom there were two women only—beyond that, there was a morbidly hungry crowd of men, ready to grasp greedily at anything sensational.

Arnold denied the crowd for the sake of—the women.

And now the jury has been asked to forget the damning thing that has been said to it, that has been said in the presence of the wife and the mother—and that was too vile to say a second time in the presence of the latter!

Do you think the jury WILL forget—do you think it CAN forget?

Maybe you do—I don’t!

And as to Conley and his story in its entirety—the spectators in that courtroom have been looking for Conley to “break down,” to fall on his knees and confess it all a lie, and all that sort of thing.

There never was any chance that Conley would do that. It should be borne in mind that to “break down” Conley’s story does not necessarily mean to break down Conley—to collapse him.

The point is: Can the defense—has or will the defense—so UNDERMINE Conley’s story that, through the introduction of other evidence, it eventually will fall to the ground as a mass of lies?

Slowly, but persistently, with deadly intent even if with tediousness of method, Luther Z. Rosser for more than two days has attacked the amazing and terrible story upon which the State hopes to convict Leo Frank of the murder of Mary Phagan.

Rosser has been almost maddening in his patience with the negro. He has gone over the same ground, time after time, in his efforts to get Conley’s various stories adjusted to the purpose of the defense.

Conley, rapid-fire enough in direct examination, rattling off his grewsome and frightful story as if it were a recital of an altogether common thing, became quite another Conley under cross-examination.

Where but a few moments ago he had remembered most amazing and inconsequential details—such as the fact that a woman who called to see Frank on Thanksgiving Day wore a blue and white polka dotted dress, a green hat and white shoes and stockings—under cross-examination he could remember nothing at all save after the most persistent prodding.

Time and again Mr. Rosser had to go over the entire ground of an entire situation to draw from Conley one further comment upon it. Questioned on his story under both cross and direct examination, the negro was pat enough in reply—on other points he was as vague, as he possibly could be.

Twenty-one times Tuesday he admitted to Mr. Rosser that he had “lied.” Seven times in addition to that he admitted that he had been “mistaken.”

As the cross-examination progressed, too, it became evident enough that the defense is to hold the entire charge against Frank to be largely a “frame-up,” with Conley as bright and particular star about whom it revolves.

The negro said he at first refused to speak of the crime at all, and when he did speak deliberately lied because he “wished to protect Mr. Frank.”

“He was my young superintendent—I would have done anything to save him,” said the negro—whether with sinister cunning or genuine sincerity, the jury must say.

Showed How Negro Lied.

And yet, with Conley’s own lips Rosser showed how, time and again, he deliberately lied about his movements on the fatal Saturday that was Mary Phagan’s last on earth—after he had said that he had looked in vain for help from Frank, and was then determined to tell “the whole truth!”

After Conley’s excuse of protecting Frank had been shattered by the negro’s own “confession,” he had to make three subsequent and different “confessions” before he got things shaped to his liking—and ever time he readjusted his story it was changed to meet the ever bobbing up objections to the story of the day or two before.

Continuously Mr. Rosser referred to the fact, always admitted by the negro, that his various affidavits were changed “at police headquarters,” in the presence of officers, “after being released from jail and carried to headquarters.”

There are dozens of puzzling inconsistencies to be bridged over in Conley’s story—scores of things yet to be explained and straightened out.

And yet—

In the average mind I doubt whether Conley’s story has been seriously discredited in the main.

There are people who admit, readily enough—hundreds of them—that Conley is a liar, a thousand times over, a loafer, and an utterly undesirable citizen.

Doubt Slowly Crystallizing.

They will say thus and so to his disparagement, but—

Fateful, suggestive, profoundly melancholy “but” for Leo Frank!

It bespeaks a widespread and crystallizing doubt that is dangerously incompatible with Frank’s hopes for life and liberty and the restoration of his good name.

With all the undermining and incongruities of Conley’s story that the most subtle ingenuity of the defense can conjure to its aid, the jury has been given a story which, if so much as 5 per cent of it sticks, likely will serve to convict.

The primary circumstances—these might be swept aside like chaff before the wind, if only Conley’s story might be crushed to earth and made absurd.

But there is the story in all its abundance of sinister detail—the comings and goings of questionable men and women, the negro, time and again, on watch downstairs, responding to signals, the connivance of the negro with the white man in unnatural and perverted practices, the coming of innocent little Mary Phagan, the pattering of anxious feet above, the suppressed scream, the call to Conley for further assistance in consummating unlawful deeds with women—this time, murder—the removal of the body, and the promise to pay on some subsequent day!

Will the story thus given to the jury, unless completely and altogether broken down, ever be removed from its mind entirely? And unless it is removed entirely, can Frank hope for acquittal?

If it is, in its essentials, the truth, what will the jury care about the exact time at which Conley bought some whisky on Peters street; or whether he went straight from Peters street to the laundry; or whether he remembers the mythical “woman in green who went up the factory steps,” no matter how vitally important these things may be to the sustained truth of Conley’s story.

Conley may lie in a dozen details of his story, he may have readjusted it continuously under the direction of Tom, Dick, or Harry, he may be everything he ought not to be—and yet, if one BIG detail in his awful story sticks in the minds of that jury, Leo Frank is undone hopelessy.

If the story Conley tells IS a lie, then it is the most inhumanly devilish, the most cunningly clever, and the most amazing sustained lie ever told in Georgia!

Every little detail, as finally adjusted—and not then until Conley went upon the stand Monday—fits the necessities of those bent upon Frank’s conviction. If it is, as the defense contends, a “frame-up,” it is a diabolically smart “frame-up”—one can not escape that conclusion!

Girl’s Visit Dovetails In.

Even the coming and going of Monteen Stover, the five minutes of time in which the primary circumstances might be made to dovetail into the Conley story, is cited by the witness Conley as the very period of time wherein Conley, sitting in the dark hall below, heard pattering footsteps above, the faint scream, and immediately after Miss Stover went out, the tiptoeing of Frank to the front, and then the story of the death upstairs.

Monteen Stover could not have chosen a more exact and useful moment to wander in—and yet, she heard no scream, although she did not see Frank in his office during the few minutes she remained upstairs.

If the Conley story is a lie, if it has been TOO CLEVERLY “framed up”—if and thousand other “ifs”—what matters that?

It matters this: If it be a lie, it MUST break down, somewhere, sometime; if be the truth. It will stand against ALL the assaults made upon it!

It has come to the point where one, seeking the truth and justice, and the right to all men at all times and in all circumstances, can only say he will leave it to the jury—and that the JURY will speak the TRUTH!

* * *

Atlanta Georgian, August 6th 1913, “Can Jury Obey if Told to Forget Base Charge?” Leo Frank case newspaper articles series (Original PDF)