Another in our series of new transcriptions of contemporary articles on the Leo Frank case.
Atlanta Georgian
August 17th, 1913
Defendant Will Take the Stand Early in Week to Give His Account of His Movements on Day Mary Phagan Met Death in Pencil Factory
ATTORNEYS SEEKING TO ESTABLISH COMPLETE ALIBI
Believed That Case Will Stand or Fall on Efforts of Prosecution to Prove Its Charge of Immorality Against Accused—Many Witnesses Called
BY AN OLD POLICE REPORTER.
The third week of the Frank trial came to an end at noon Saturday.
The defense has not yet concluded its case, but confidently expects to finish within the next day or two.
Its last card, and one of its biggest, will be the defendant’s statement. This statement is scheduled for the early part of this week.
It will mark the climax of the defense’s case, just as Conley’s story marked the climax of the State’s.
It became more and more evident as the case progressed during the past week that the defense is pitting Frank squarely against Conley—that it is to be Frank’s life or Conley’s life for little Mary Phagan’s, snuffed out cruelly nearly four months ago in the National Pencil Factory.
Frank’s statement on the stand, which the law permits him to make, but not under oath, and which may be accepted by the jury, either in whole or in part, in preference to all the sworn testimony, will be matched against the story the negro told so dramatically and with such frightful emphasis soon after the case got under way.
Into the negro’s story, moreover, was injected the question of Frank’s general character, particularly in on unmentionable direction, and this the defense will undertake to offset completely and finally.
More than a hundred witnesses have been summoned to testify to Frank’s good character, and these include men and women from every walk of life, where it could be shown that such witnesses had come in contact with Frank from time to time in such wise as to be competent judges of his general character.
Dalton’s Testimony Impeached.
Already, the one witness (Dalton) so far introduced by the State to corroborate Conley has been successfully impeached by the defense, and it is likely that others introduced to uphold the negro also will be subjected to impeachment proceedings, if the defense suspects that it may successfully inaugurate the same.
The defense seemingly has realized fully the heavy necessity of breaking down Conley’s awful story, not only in direct connection with the murder, but in every phase of it that bears upon the character of the defendant.
As a primary proposition, the advantage in the situation thus set up dwells within the defense.
In the first place, Frank goes to the jury with the presumption of innocence in his favor. The burden is not upon him to make out a case in behalf of himself. It is upon the State to make out a case against him.
Moreover, the only right of appeal attaching to persons indicted for felonies is within the defense. Once the State loses, it is lost forever.
The State must allege and prove the guilt of the defendant “beyond a reasonable doubt,” and fight right up to that limit.
If there remains a reasonable doubt of Frank’s guilt, after the last word has been said to the jury, Frank, under the law, is entitled to it, and if the trial jury fails to award it, a court of review will remedy the legal wrong thus inflicted upon him.
All State Testimony Sworn.
The State, moreover, must submit every bit of its evidence, to the last shred or patch, under oath.
The defense, on the contrary, may clear itself upon testimony not one word of which is sworn to.
The State’s star witness, Conley, also comes into court a confessed accessory after the fact of the murder, a confessed falsifier in numerous conflicting statements as to his knowledge of and connection with the crime, and accompanied by a well established jail record fearfully and wonderfully made up.
His is a much harder story to hold up than Frank’s, viewing the two stories generally and in their broader personal aspects.
Even without Conley, to be sure, the State still has a circumstantial case against Frank that might compel considerable attention and respect, but there are few people who seemingly believe that it alone would be sufficiently strong to convict.
It probably is a realization of the State’s tremendous task, involved in the holding together of Conley’s story, that has caused […]
DORSEY SURE OF CASE AS CRISIS COMES
Solicitor Expects to Prove That Frank Had Life Which He Hid From Relatives and Friends
INTEREST CENTERS ON ATTACK ON CHARACTER
[…] the defense to train its every gun squarely upon it, for upon Conley’s story will the State be forced to stand or fall eventually.
One of the curious things about the Frank case is the way the question of his general character got into the pleadings.
Theoretically, the defense alone may put the defendant’s character in issue—it being contemplated by the law that no man shall be required, without his own consent, to answer more than one charge at one and the same time.
And so far as legal strategy and astuteness is concerned, the State ouegenera the defense in the matter of getting Frank’s character before the jury.
Had Conley, the State’s star witness, be[e]n a man, even a negro, of respectability and approximately good previous record, the necessity of attaching to Frank the charge of utter depravity might not have seemed so pressing. But Frank’s previous good record seemed so well established, and his standing generally was thought to be so high, that it contrasted rather painfully with the record of the main witness of all others (Conley) set up for the defendant’s undoing.
The State doubtless knew that the unspeakable portion of Conley’s evidence was primarily inadmissible, but it also knew that the defense would be taking rather a long chance to move its rejection when tendered.
In that event, a sinister and certainly dangerous impression would have been left upon the mind of the jury.
So the State deliberately drew out of Conley the unmentionable charge, which, in addition to the murder charge, undoubtedly made absolutely necessary the injection of Frank’s character in issue.
The defense, in not objecting to the admission of the evidence last cited when it was first offered, may have been moved by the idea that it would, in the cross-examination of Conley, so break him down that it still might save itself the necessity of pleading Frank’s good character—that it would even be able to make the frightful charge of perversion act as a boomerang on Conley!
Defense’s Delay Gives State Victory.
Seemingly, that idea, if it ever existed, was dissipated as the Conley cross-examination proceeded, however, for eventually the defense DID move to strike out the evidence, but at that time it was too late.
Having walked into the trap set by the State, if it indeed was a trap, the defense could not very well extricate itself save by pleading Frank’s complete good character, and thus in a sweeping way dispose of the specific charge lodged against Frank by Conley, in addition to the murder charge.
Once committed to the necessity of establishing Frank’s good character, however, the defense went at it in no half-hearted way.
It summoned, indiscriminately every employee of the National Pencil Factory, male and female, old and new, and with a unanimous voice they testified willingly and thoroughly that the defendant’s general character is good.
In addition to these witnesses, business men, former college professors and classmates, and dozens of others fell into line with the same line of evidence.
The State now stands, therefore, where it must close up the gap between its primary allegation, dependent alone upon Conley’s word so far, and the absolute proof of his sinister story.
If the State in rebuttal is able to prove conclusively that Frank is the thing Conley has labeled him, the State’s case will go to the jury dangerously formidable.
If it fails to substantiate and corroborate Conley, it will go to the jury greatly weakened.
To overcome the fine showing as to Frank’s good character made by the defense the State must bring forth witnesses in rebuttal that can not be impeached.
The impression throughout Atlanta is that to fail in the establishment and corroboration of Conley’s story by witnesses of integrity and standing will be to fail in a crisis heavily important to the State now.
Strange to say—there are so many strange things to say in this surprisingly strange Phagan story—one of the State’s apparent weaknesses is proving, in one direction, to be one of its greatest elements of strength.
The defense’s strenuous insistence that Conley’s remarkable story is impossible is one reason why a lot of people are saying that it is impossible. Conley may have manufactured it out of the whole cloth.
If it is a lie, it is a lie too devilishly cunning for a negro of Conley’s limited mentality to conjure or carry in his own mind in such remarkable detail, these people hold. If the negro were only less sure of everything, if he had wabbled dangerously under the terrific grilling administered by Luther Z. Rosser, if he had broken down or contradicted himself in any essential detail once he got to the witness stand, it now would be an easier thing for many people, fair-minded enough, too, to believe the negro’s tale a mass of lies from start to finish!
And the danger to the defense here is that if Conley’s story sticks in the minds of the jury, even in fractional part, it probably just as well stick in its entirety, so far as the hope of acquittal upon this trial is concerned.
Whole Story Must Be Torn Asunder.
In other words, many people are arguing to themselves that the negro, no matter how hard he tried and no matter how generously he was coached, still never could have framed up a story like the one he told, unless there was somewhere in it some foundation in fact.
And if there remains the impression of even a little foundation in fact, the defense is damaged beyond repair.
And so it gets back to where it started, and to where it will end—it is Conley pitted against Frank!
The State, with the burden of proof to carry, appears to have considerably more of an uphill fight on its hands than the defense has, and yet the very nature of both fights—uncompromising, and neither asking nor giving quarter—makes it something of a toss-up, really, as to which actually, and as a matter of fact, has the harder task to perform.
Undoubtedly, the defense expects to profit much through its insistence that the time element, as set up in Conley’s story, constitutes a most vital and compelling factor in determining the truth or falsity of the entire story.
It is rather odd, too, that the defense should be relying upon the State’s witnesses in this matter quits as much as upon its own. It will seek to use generously the State’s witnesses to the State’s embarrassment—through the discrediting of Conley’s story—in several different directions.
The defense is seeking to show how utterly absurd Conley’s story is from Frank’s point of view, by setting up these incompatible things:
Time Element Again Enters Case.
That Mary Phagan (Conley’s testimony) reached the pencil factory sufficiently well in advance of Monteen Stover (Conley’s testimony) to go up to Frank’s office, get her pay, be lured to a room in the rear and killed, notwithstanding the fact that Miss Stover (Conley’s and Miss Stover’s testimony) reached the factory at 12:05. And this despite the fact that Mary Phagan could not have been in the factory before 12:12, in any event, as shown by Mrs. Coleman (Mary’s mother), George Epps, a motorman, and a conductor.
To get around this state of things, set up for the most part by the State’s own witnesses, the State already has suggested, by a line of examination probably to be amplified, that the car upon which Mary Phagan came into town on Saturday, April 26, was running AHEAD of scheduled time, and that the little girl did, as a matter of fact, reach the factory before 12:12, and that the clock in the factory, by which both Miss Stover and Conley testified as to the time, was running SLOW on the day of the crime.
In other words, to meet its own witnesses’ statements, the State will move backward the time of the street car and move forward the time of the office clock!
If the State can do that, which looks like a big job, it will eliminate the dangerous time element in one direction, at least; but if it can not do that, it will find itself in a most trying position.
And whether it now can get away from its own established time element is one of the very prettiest problems involved in the entire case thus far!
Again, the defense will insist that the time element cuts in another direction most favorably in Frank’s behalf, when it will show by Conley’s evidence that the disposing of the Mary Phagan’s body began at 12:56, but that Frank was seen at the corner of Alabama and Whitehall streets at 1:10, waiting for a car. The latter fact is testified to by Miss Helen Curran positively, and she is unimpeachable.
Every Second Has Important Bearing.
The defense contends that the body of Mary Phagan could not have been disposed of, and the things done that Conley alleges were done, within the fourteen minutes of time thus allowed, between the beginning of the work, according to Conley, and the time of Frank’s presence two blocks and a half away.
Conley would have been obliged to dispose of the body in the remarkable way he says he did, have written the notes, remained in the wardrobe eight minutes or more, all within the fourteen minutes.
According to the State’s own witnesses, Conley was in the wardrobe eight minutes and used six minutes framing the notes. This would have consumed the entire fourteen minutes, without the dead girl’s body ever having been touched.
It is admitted among lawyers generally that there is no defense so completely effective as a sustained alibi—which means that the crime alleged was committed in the absence and without the knowledge of the alleged principal to it, or, more properly stated, perhaps, that the crime could not have been committed by the defendant because it would have been a physical impossibility for him to have effected it in the circumstances of it.
The past week, of course, was the defense’s day in court, and it is but fair to say that it made good use of it.
Evidence Really Challenge to State.
It has frankly and aggressively urged Frank’s character as a vital fact in his favor, and it thereby challenged the State to do its very worst by way of breaking that character down, if it can.
This attitude upon the part of the defense undoubtedly has had a steadying effect upon the public, too, for it seems at least to have suspended judgment pending the State’s rebuttal.
In addition to its insistence upon Frank’s good character, the defense unquestionably has given the State serious concern in the way it has brought forward the time element, and that in two separate and distinct directions.
If it successfully maintains either one of its time theories, it will have greatly discredited Conley’s story. If it successfully maintains both theories, it will have about discredited the Conley story to the point of complete collapse.
As it was out of order to conclude at the end of the second week of the Frank trial, however, that the State had made out a case that could not be broken down, so it now is out of order to conclude that the defense has broken down the State.
The State for one thing does not appear to be particularly alarmed, either by the injection of Frank’s character or by the turning of the time element against the Conley story.
The State, it must be remembered, has not yet entered or disclosed its rebuttal, either of the character evidence or the undermining of its own witnesses as to the time elements stated.
Dorsey Seems All Confidence.
It is perfectly confident of its ability to show that Frank’s character is not good, despite the opinions of his friends, business associates and acquaintances; and it will insist, indeed, that as in other depraved characters of the sort it claims Frank to be, his business acquaintances, his relatives and his social intimates would be the very last people of all to discover the truth concerning him.
The State, in seeking to prove Frank a dissolute character, may be forced to the summoning of dissolute characters, with whom he is alleged to have been associated in degrading practices, in order to prove its contention.
Thus witnesses brought out by the State to establish Frank’s depravity are apt to be easier marks for impeachment proceedings than witnesses of the ordinary sort, and to that extent the breaking down of Frank’s character is pregnant with difficulty.
Nevertheless, the State proposes to establish the fact of Frank’s degeneracy by witnesses of sufficient credibility, particularly in the nature of the charge sought to be proved, to get by at least in sufficient numbers to overwhelm the defendant.
If the State can put up even one or two witnesses that can weather the gale of the defense’s rights of impeachment, it will have put Frank in a most unenviable position before the jury. If, therefore, it puts up 50 witnesses, and 48 of them get knocked out, there still will remain the two that stood the test!
Here, then, is another pretty problem to be thrashed out: Can the State, in sustaining a charge of degeneracy against Frank, bring forth witnesses to prove it absolutely, and at the same time not bring forth witnesses so much a party to Frank’s offense that they will run serious risks in testifying themselves?
A witness who is willing to swear that he saw Frank do thus and so, or was a party to Frank’s doing thus and so, if the thus and so is particularly reprehensible, is apt to get on pretty thin ice himself, if he isn’t very careful!
The State says it can and will rebut Frank’s good character. If it does, Frank is in unutterably bad shape; but if it doesn’t, Frank’s cause must be helped tremendously.
Frank Really Combats 2 Charges.
It is markedly unique in the annals of judicial procedure in Georgia, as it is contrary to the entire theory of the law, that Leo Frank should be engaged now in combating at one and the same time two of the gravest crimes in the catalogue of crime, when he has been indicted for only one.
As extraordinary as the Frank case is in so many of its ramifications, it is extraordinary in nothing more than in that!
And yet, which is additionally unique, the fact that he is answering two charges simultaneously is largely the fault or the misfortune of his own lawyers!
Judge Roan virtually admitted that had the more sinister charge of Conley been objected to by the defense at the proper time, he would not have admitted it. It was not objected to, however, and it, therefore, was left in the record. So, in a way, if not technically, Frank is answering the two charges of his own voluntary motion!
Apparently neither the State nor the defense has hesitated to suggest things calculated to prejudice the minds of the jury whenever either could.
For instance, the examination of Mrs. Rea Frank, the defendant’s mother, as to the extent of her wealth and many details of her private life, and the suggestion that for some reason or other Mrs. Leo Frank refrained from visiting her husband in jail for two weeks or more after his arrest, seemingly were injected more by way of arousing some vague suspicion in the minds of the jury, rather than by way of proving anything definite.
On the other hand, the defense has not hesitated to suggest, wherever it could, that the entire charge against Frank is a police and detective “frame-up,” and that Conley has been used merely as a cat’s paw to convict Frank; the presumption being that the big rewards offered for the arrest and conviction of Mary Phagan’s murderer may later be distributed among these officials.
This suggestion seems to have been thrown out largely in the hope that the jury would assimilate enough of it to throw discredit over the entire case of the State.
Most Bitterly Fought Case in State.
There never has been in this State a case fought so bitterly and so uncompromisingly as this one of the State vs. Leo Frank.
Besides the life and liberty of Leo Frank, the preservation of his home and family circle, the restoration of his erstwhile good reputation, there are big fees a stake, big reputations to be preserved, big prejudices either to combat or pander to—and there is even some politics involved!
All in all, however, the public seems impressed with the idea that the trial has been as fair and square thus far as human ingenuity can make it, and that neither side has been given any undue advantage over the other in any quarter.
Much of the bitterness that has crept into the trial has been occasioned, of course, by reason of the fame and tremendous significance of the case. It is a battle to an everlasting finish, and both sides are pressing it on that exact theory.
Despite the fact that the case now is entering its fourth week, with the end not yet in sight, public interest still is at fever heat over it. No topic is talked so exhaustively about the streets, in the cafes and hotel lobbies, and even in the homes, as the now celebrated Phagan case.
Great crowds throng the stuffy little courtroom daily, and the hours have been few when admission could be obtained without extreme difficulty.
It is not thought likely that the arguments will begin before the end of this week, and probably not until next. It is anticipated that it will require not less than three days for the lawyers to finish their discussion of the case before the jury. Nobody looks for a verdict within the present week, unless the unforeseen happens.
Speculation as to the outcome of the trial is varied and general. The most widespread impression is that the case likely is headed for a mistrial, although there are many people who believe the jury will make a verdict before dissolving.
Newt Lee Falls Into Lazy Ways in Prison.
Newt Lee should worry. Being a prisoner is no the most undesirable occupation in the world for the old negro. There is no work to do, and now that he is safely beyond suspicion in this Mary Phagan case there is nothing for him to bother over.
Altogether, being in jail all day, alternatively sleeping and dawdling from meal to meal, never leaving his cell seems to suit the factory night watchman. Newt Lee has fallen into lazy ways there in the Tower.
The negro has been assigned to a cell almost directly above that of Frank, on the third floor south. He grumbles a bit at the monotony and scantiness of the prison fare, but then it comes safe and certain twice a day.
No More Fat of the Land for Jim Conley.
Time was when Jim Conley lived on the fat of the land. That was when he was the most prominent negro prisoner in Georgia, the vital witness in the case of the State against Leo M. Frank. None of your prison fare for him! They brought his breakfast of thick steaks and chops to his cell. Lawyers were considerate of the negro, and Jim experienced fat days, indeed for a little while.
Against his will, it is declared, they forced on him a cold bath and some good clothes, and he came to court in unwonted fine apparel.
But “sic transit gloria” Jim Conley. The sad fact comes that he is about to be forgotten at the jail. No more are his meals brought to him, and like the other “niggers,” who never even got their names in the paper, he must subsist on prison fare—two meager meals a day.
Jim Conley, in his cell on the first floor north, sulks a little because of the unkind fate that has sent him back to grits and bread and water for breakfast. And he has taken no bath since.
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