Defense Not Helped by Witnesses Accused of Entrapping the State

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

Atlanta Georgian
August 1st, 1913


Has the State succeeded in thoroughly establishing the fact that little Mary Phagan’s tragic death was effected on the second floor of the National Pencil Factory, in Forsyth street?

It has not, of course—but it has set up by competent evidence a number of suspicious circumstances, which, if properly sustained later along, will prove damaging in the extreme to Leo Frank.

Unless these circumstances, trivial in some aspects, are braced up and backed up, however, by other much stronger circumstances, they will give the jury, in all probability, little concern in arriving at a verdict.

Thursday was not a sensationally good day for the State, although it was much better than the day before.

Twice Thursday the Solicitor General claimed that he had been “entrapped” by witnesses—and this, with the lamentable fall down of John Black the day before—served to give rise in the minds of some spectators to a faint suspicion that the State didn’t have its case very well in hand.

No Help to Defense.

There is something terribly significant and actually sinister in that little word “entrapped,” however, when hurled at a witness in the presence of a jury, and it would be a mistake to believe that a witness, actually convicted, even in the mere opinion of the jury, of having deliberately misled the prosecution thereby helps the defense.

The witness who entraps, or who is thrown under suspicion of having entrapped, frequently does the party he seems primarily to have hurt a wonderful amount of good.

I believe, for instance, that Witness E. F. Holloway was speaking the truth when, on oath, he reversed his former affidavit to the Solicitor, and said that he left the elevator unlocked on Saturday, whereas he before had sworn that he locked it Friday and did not unlock it Saturday—the last inferentially, at least.

This point will mean a good deal later, when it is reached in developing the defense’s case, and if Holloway’s last story, apparently satisfactorily explained, holds together, well and good—but how can tell what the jury thinks about that contradiction upon the part of Holloway, particularly when he has been so deliberately accused by the Solicitor of entrapping him?

Holloway is an employee of the pencil factory—was before and has been since the murder. If the jury gathers the impression that he has been tampered with since his first statement, and by friends of Frank, to clear up seemingly damaging circumstances against Frank, it likely will be an aggravating thing, when the jury comes to make up its findings.

Will Hurt Frank’s Case.

Just as I thought, and still think, that Dorsey made a tactical mistake—for which he paid the full price, moreover—when on Wednesday he exclaimed “plant,” thereby accusing the defense of unfair and grossly indecent methods of bolstering up its cause, so I think the constant suggestion of witnesses changed in opinion and testimony, and in favor of Frank, will hurt Frank’s case, rather than help it, if sustained.

Mr. Dorsey failed utterly to bolster up his charge of “planted” evidence, but he didn’t fail, in anything like the same degree, to say the least of it, in attacking Holloway.

Or, anyway, there is a grave probability that he didn’t fail in the minds of the jury.

In short, my idea is this, as it has been all along: The public, and presumably even more the jury, will resent anything that savors of unfair methods employed either by the State of the defense.

Steadily, though slowly, the defense seems to be pulling away from the prosecution in the Frank trial, and the impression apparently is gaining ground gradually that the State likely is fighting a losing battle.

All of this may be changed in a moment—one witness on behalf of the State may serve to win back all the ground it may have lost.

Nothing More Uncertain Than Verdict

And, of all things, there is nothing to speculate upon quite so uncertain as the verdict a jury will hand in.

The jury is sitting there, its attention confined to the development of the evidence. It reads no newspapers; it converses with no outsiders.

It can not get up, run across the street and swap ideas with somebody in the corner drug store.

It took charge of the case, under its deliberately assumed oath that it was “perfectly impartial between the State and the accused,” and it is seeing things in its own way—and that way may not be the way outsiders are seeing it.

So far, however, the State’s witnesses alone have been introduced. Whatever advantage the defense has obtained of them has come in two ways – either in their failure to testify directly to the State’s benefit or through circumstances and admissions brought out in favor of the defense, under the merciless cross-examination of Luther Rosser.

It is a good deal to say, nevertheless, that at this stage of the trial the defense apparently has scored heaviest, for such points as it has won necessarily have been wrung from the State’s own witnesses, and not the witnesses of the defense. In other words, wherever the State fails to score, the defense scores.

How Points Have Been Scored.

If the defense made little, if anything, of Lee, it lost little, if anything, because of him.

It almost, if not quite, broke even on Rogers—and it most certainly scored tremendously on Black.

Scott, if damaging in a way, was also helpful in a way, in that he practically admitted suspicion of the negro Conley quite as as strong as suspicion of Frank.

Monteen Stover swore that Frank was not in his office for, at least, a period of some five minutes, immediately after 12 o’clock on the day of the murder; at least, if he was, he was where she could not or did not see him. Grace Hix undoubtedly helped Frank. Dr. Smith helped the State.

R. P. Barrett swore he found a piece of a pay envelope under Mary Phagan’s machine three or four days after the murder, and that he found blood spots near the dressing room door three or four days after the murder.

Mell Stanford swore that the spots near the dressing room were not there Friday, and were there Monday, but he could not swear the spots were blood. Holloway helped the defense, probably.

There is nothing new in most of this testimony, however, save that of Barrett conceding the piece of envelope, and the defense presumably is ready, therefore, to meet it.

State Faces Hard Task.

The mere finding of a piece of pay envelope somewhere near Mary Phagan’s machine, is not, of itself, highly important; but it might serve as a link in an otherwise strong chain forged to connect Frank directly with the killing.

But if the state has succeeded in setting forth the fact that Frank may possibly have committed the crime, it yet has a long road to travel before it proves “beyond a reasonable doubt” that he DID do it.

Indeed, Frank’s attorneys have never combated the idea that he was in the factory at a moment when the killing of Mary Phagan MIGHT have been effected—and beyond that fact the State has been unable to proceed very far to date.

It must be remembered, too, that while the State now is engaged in weaving a web, real or imaginary, about Frank, the defense expects to weave a much more terrible and substantial web about Conley.

But even at that, mere suspicion alone will serve to convict neither.

Much Depends on Conley.

After all is said and done, and it generally gets back to this, the preliminary chain of circumstances against Frank likely will hold together tightly or fall apart hopelessly, according to the fate of James Conley on the witness stand.

If Conley stands the test of exhaustive cross-examination, then the circumstances leading up to and away from Conley’s connection with the case will stand or fall.

He is, and has been, at all times both the hope and the despair of the State, no less than the hope and despair of the defense.

He is the star witness about whom the entire Frank case revolves, about whom it has revolved for weeks, and about whom it must revolve to its end.

Of course, there ever is the chance that the State has something sensational, new and significant up its sleeve—and there is the remoter chance that the defense has some big surprises in store.

As the fifth day of the trial drags on, however, the impression has deepened almost into a conviction in the mind of the public that neither the State nor the defense has much to let out that already hasn’t been let out, in whole or in substantial parts.

Spirit of Fairness Everywhere.

And the public is waiting for Conley’s evidence before making up its mind.

More and more I notice in the casual comment of people about town a spirit of fairness and an inclination to await the full developments of both the State and the defense.

The public largely still is open-minded. It is “from Missouri”—and, after all, that is the way the public mind should be in this matter, for it is a very grave matter, and its final effect will be far-reaching and full of significance, no matter which way the verdict comes finally.

There is one point that Undertaker Gheesling cleared up, on oath, and the public should take careful note of it. He swore that Mary Phagan’s body was NOT mutilated in the way street rumor and gossip had it mutilated, just after the crime was committed.

That ugly story undoubtedly was accountable for some of the primary prejudice against Frank—but it was an untrue rumor, and in all fairness, now that it has been exploded it should be borne in mind.