Another in our series of new transcriptions of contemporary articles on the Leo Frank case.
August 14th, 1913
By O. B. KEELER.
Right in the first jump, please understand that (1) this is merely the opinion of a layman, unlearned in the law; that (2) he may be the only layman in existence who feels this way about it; and (3) the Frank trial is not being singled out in the following comment, except as it is a fair example of the great criminal trials of this country.
In following the trial of Leo Frank, two points keep prodding me with increasing fervor.
These are the points:
(1) That the prosecution’s efforts are centered on producing evidence that will convict Leo Frank.
(2) That the efforts of the defense are devoted to producing evidence that will acquit Leo Frank.
Now, having read thus far, you probably are smiling to yourself at the idea that anybody should undertake to write a newspaper story about a great trial, basing it on such an absurdly simple and obvious observation.
State’s Evidence All Damaging.
That (you say) is something every body knows.
That (you say) is taken for granted.
Nevertheless (I say) that doesn’t make it right.
I sat in Judge Roan’s courtroom, right at the edge of the jury box, and I heard the State present its case.
Every bit of the State’s evidence was damaging to Leo Frank.
If the State of Georgia knew anything good about Leo Frank, or had any evidence that tended to cast a doubt on his guilt of a horrid crime, the State of Georgia kept that information strictly to itself.
I heard the defense begin attacking the evidence offered by the State, and offering (in turn) evidence that tended to show the innocence of Leo Frank.
If the lawyers of the defense knew, down in their hearts, that certain points made by the State were true; if they realized that certain facts were unshakable, if in their investigation they had found certain things that tended to fasten on their client the murder of Mary Phagan—if any of this was in the mind of the defense, it did not get out where the jury could see it.
How About Investigation?
Well (you say), it would be a pretty kind of defense that would produce evidence that would hang the defendant. And (you added) isn’t that what the State of Georgia pays its prosecutors for?
That was the most unmerciful of the prodding points.
Of course, now, the State’s attorneys in the Phagan case say they believe Frank is guilty, and equally, of course, the lawyers for the defense declare they are convinced of the innocence of their client. But that is always the case in important murder cases, and furthermore, as I have said, I am not talking about the Frank trial as much as about a system of justice.
I asked a lawyer about it; a widely-read and learned lawyer, with something in his head besides the law he has absorbed.
“Honestly, now—isn’t this system of criminal prosecution all wrong? Oughtn’t the State have investigators instead of prosecutors? Why should the accused have any defending counsel, if the State were not prosecuting but making a fair and impartial investigation?”
I thought the idea was highly original.
I learned something, right away.
The widely-read and learned lawyer informed me, kindly but firmly, that that was an Original Idea a good many hundred years ago. That it was THE original idea of dealing with criminal cases, in fact. That it was pretty nearly fixed in the basis of good old English law.
He went on to explain that in the early days when a crime was committed, the proper officer—I forget what his title was—the proper officer started an investigation. If a man apparently was implicated by the first evidence brought to light, that man was detained. If he had already “beat it,” that was added to the suspicious circumstances against him, and the pursuit began.
But if he was well in hand, and the case was a regular mystery, the investigator for the Crown, or whatever it was, went into that case exactly like a certified accountant examining a set of books, suspected by the firm of not being correct.
Auditor Has No Interest.
The auditor doesn’t care a whoop whether he finds the suspected bookkeeper guilty or innocent. That is, he has no interest at stake. He is paid for making a correct audit. He is paid by the job. Probably, unless his liver is out of whack, he would rather see the poor bookkeeper cleared. But he has no interest in the matter.
Well, it seems from what the lawyer told me, that was the original plan of criminal prosecution by the State.
The State didn’t prosecute. It just investigated. If the facts produced by the investigation warranted a jury in “sticking” the accused, well and good, if the evidence warranted the jury in turning him loose, also well and good.
The accused had no “counsel,” the way we understand it. If he was a rich person, or had rich friends, he was privileged to employ an investigator, or investigators, who would assist the public investigator in his investigation.
Hired Help Might Convict.
But it was understood that if the hired help turned up anything damning, the damning thing would be allowed to go ahead and damn as hard as it could, without concealment or mitigation or the part of the assistant investigators.
Wherefore, it was the prudent part of guilt to employ additional investigators.
And now, reverting to the enlightened present, what have we on exhibition?
Not singling out the Frank trial, you understand, but in it, as in every big criminal trial in this country, where the accused is able to employ talented counsel, we have the spectacle of two sets of able lawyers, fighting each other with all the resources of their learning and shrewdness and ability.
The life and honor of the accused may be at stake—the prosecution, once committed to its task, will seek no evidence but what will incriminate him.
The high claims of justice are at stake—the defense must permit no shred of evidence to be presented, saving only what will tend to clear their client.
And He Didn’t Explain Why.
It is no fault of the prosecutor that this is so.
It is no fault of the lawyers for the defense.
And as to the system?
Well, this is just the opinion of a layman, you remember. It may be that there is a good reason in law why the investigator has become a prosecutor, and is paid as such; and why the defendant may employ expensive counsel to combat the investigation—or prosecution—at all points.
There may be a good reason for all this.
Only, my friend, the lawyer, didn’t explain it to me.
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