EDITOR’S NOTE: On the 100th anniversary of its original publication, we are proud to present this, Tom Watson’s hard-hitting article on the Leo Frank case — the case which served as a prototype for modern Jewish propaganda and manipulation, and which inspired the creation of the Defamation League. We present this piece in both text and audio book format. The audio version was recorded by Vanessa Neubauer.
by Thomas E. Watson, Watson’s Magazine, Volume 20 Number 5, March 1915
ON THE 23rd page of Puck, for the week ending January 16, 1915, there is, in the smallest possible type, in the smallest possible space, at the bottom of the page, the notice of ownership, required by law.
Mankind are informed that Puck is published by a corporation of the same name, Nathan Strauss, Jr., being President, and H. Grant Strauss being Secretary and Treasurer. You are authorized, therefore, to give credit to the Strauss family for the unparalleled campaign of falsehood and defamation which Puck has persistently waged against the State of Georgia, her people, and her courts. Inasmuch as the Strauss family once lived in Georgia, and are loudly professing their ardent devotion to the State of their birth, you may feel especially interested in Puck.
Looking over the pages of this Strauss publication, I find a characteristic thing: on page 22, there is an illustrated advertisement of “Sunny Brook Whiskey” which is recommended as “a delightful beverage, and a wholesome tonic.” To give force to the words of testimonial, there is a picture of an ideally good-looking man, and this smiling Apollo is pointing his index finger at a large bottle of the delightful Sunny Brook fire-water.
On the next page, is a strikingly boxed advertisement of “The Keely Cure Treatment,” with references to such nationally known stew-it-out resorts as Hot Springs, Arkansas; Jacksonville, Florida; and Atlanta, Georgia. The advertisement states that the Keely Cure is “John Barleycorn’s Master,” and that during the last thirty-five years half-a-million victims of the drink appetite have been cured.
Therefore, the Strauss magazine is open to contributions from both sides. Those who don’t want the Keely Cure, are told where to get the liquor; while those who have had too much of the liquor, are told where to get the Keely Cure. In either event, the Strauss family continue to do business, and to add diligent shekels to the family pile.
Puck is one of those magazines which indulges in fun, for the entertainment of the human race. You can nearly always tell what sort of a man it is, by the jokes he carries around with him. In parallel column to the ad. of the Sunny Brook Whiskey, Puck places a delicate little bit of humor, like this:
“We stand behind the goods we sell!”
The silver-throated salesman said.
“No! No!” cried pretty, blushing Nell,
“You see, I want to buy a bed!”
Another bit of refined fun, which is so good that the Strauss family went to the expense of a quarter-page cartoon, represents a portly evangelical bishop, seated in the elegant room of a young mother, who is at the tea-table, close by, pouring “the beverage which cheers but not inebriates.” Her little boy sits on the bishop’s knee, and the kindly gentleman, with one hand on the lad’s plump limb, exclaims, “My! My! What sturdy little legs!” and the boy answers, “O, you ought to see mother’s!” and the mother is in arm’s length of the bishop!
The tone of Puck, and its sense of responsibility to its readers, when discussing matters of the gravest public concern, is shown by its treatment of the profoundly serious and important subject of Prohibition. I quote what Puck says, not to exhibit Richmond Pearson Hobson, or the pros and cons of Congressional legislation on that question, but to exhibit the levity and dishonesty of Puck:
Congress was treated to an excellent vaudeville a few days ago as part of the prohibition propaganda engineered by that earnest young white-ribboner, Richard Pearson Hobson. From all press reports of the session, it must have been an inspiring sight.
Mr. Hobson had placed in the “well” of the House—the big space in front of the clerk’s desk—twenty large lettered placards pointing out the alleged evils of the “liquor curse.” Some of those placards were: “Alcoholic Dogs Had More Feeble and Defective Puppies,” “Destructive Effect of Alcohol on Guinea Pigs,” etc.—New York Tribune.
Puck has long pointed out the terrible effects of alcoholic indulgence among our canine friends. It feels, with Mr. Hobson, a heartfelt pity at the picture of a tipsy terrier going home to a boneless doghouse and a hungry litter. But Mr. Hobson’s flapdoodle did not stop here. He rants:
“The national liquor trust in America opened four different headquarters in Alabama and conducted the major part of the great campaign against me, with their one hundred stenographers and eight hundred men on the salaried payroll. I found out also that Wall Street—and I am not guessing—raised a fund which was sent there to defeat me.”—New York Tribune.
Poor old Wall Street! No sooner is it out of the doldrums of an enforced vacation than it is dragged into action to lead that peerless force of “one hundred stenographers and eight hundred salaried men” against Mr. Hobson. It is a heart-rending picture, this spectacle of impoverished financiers passing ’round the hat to collect a fund to be used in behalf of the Demon Rum. Wall Street reeks with whiskey—if we believed the oratory of Prohibition’s Alabama advocate.
But, to continue:
That whiskey is killing daily more men in the United States than the war is taking away in Europe, was one of the statements emphasized by Mr. Hobson.—New York Tribune.
Is it to be wondered that the cause of Prohibition, championed with such rubbish as this, met with a decisive and well-deserved defeat?
The prominent feature of this number of Puck, is another full-page cartoon, by Hy Mayer, representing Leo Frank, this time, as an innocent prisoner barred from his freedom by the symbolic columns of “Wisdom, Justice, and Moderation,” as they appear on Georgia’s coat of arms. The Strauss accusation is, that the State has falsified her own motto, and converted her temple into a Bastille, through whose bars the innocent Frank is gazing outward for the liberty of which he has been so unlawfully deprived.
A paragraph on another page runs thus:
IN SAFE HANDS AT LAST.
Perhaps the Georgia mob that hooted its way to fame outside the court-room where Frank was being tried for his life will now pack up its carpet-bags and journey to Washington.
The Supreme Court of the United States would doubtless be tremendously overawed by a demonstration of mob violence on the part of an Atlanta delegation.
What are people to do, when mercenary detectives, and newspapers, and Hessians of the pen, hire themselves to push a propaganda of libel and race prejudice, in the determined effort to hide the evidence of Frank’s guilt, nullify the calm decisions of our highest court, and substitute the clamor of Big Money for the stern, impartial mandate of the Law?
In this same issue of the Strauss magazine, is another cartoon, by M. De Zayas, labeled, “ALONE IN HER SHAME!” The subject of odium is the State of Georgia, and she is pictured as being pointed at by the scornful fingers of all the other States.
If this kind of thing could work a mercurial public into hysteria, or hypnotize a governor into blue funk, what rich criminal would ever go to the scaffold? If Big Money can hire Hessians enough to fight Frank’s way out of the consequences of his awful crime, what is it that Big Money cannot do?
In the same Strauss magazine for January 30th, there is a still more insulting and defamatory cartoon. We reproduce it, for the information of our readers. It pictures the State of Georgia as a masked ruffian, with a coil of rope in his hand, trying to seize Leo Frank, and lynch him, without a legal trial. The witnesses to the scene are Uncle Sam, and a touring-car full of the other States in the Union! A guide, with a megaphone, is proclaiming the infamy of Georgia.
In all of the months during which William J. Burns has been working these agencies to create sentiment in favor of Frank, not a page of the essential sworn testimony has been given to the public. On the contrary, the wildest rumors, and the most craftily devised falsehoods, have been put into circulation, in the effort to get a favorable verdict from unthinking editors and readers who are slow to suspect that there is a systematic campaign of willful lies.
Excuse me for speaking plainly, the time has come for it.
Let us begin with Collier’s. This is the weekly paper which has sold books in so many peculiar ways, and made a nation-wide campaign against patent medicines—and then stopped quite suddenly.
It is the paper which editorially accused the white women of the United States of squealing on their negro paramours, and thereby causing them to be lynched—to avoid scandal!
The exact language of Collier’s was—
It is well known that many identifications are mere hysteria, often for crimes that were never committed, and many charges and identifications are founded on something worse than hysterical invention; they are the easiest escape from scandal. Now these are not the things to say, no doubt. They altogether lack chivalry and the aristocratic virtues. But perhaps it is time to put justice and truth above “honor,” whatever that may be.
Thus spoke Collier’s editorially in October 1908.
Is Collier’s the kind of publication which you would select for the championship of Truth?
Is Collier’s the weekly that would go to great expense in the Frank case, for the holy sake of Justice?
C.P. Connolly had been with William J. Burns in the McNamara cases, and Burns took up Connolly in the Frank case, to blow some bugles through the Baltimore Sun, the daily paper of the worthy Abells. After the Abells got through with Connolly, Collier’s picked him up, and translated him to Atlanta. What did he do there? With whom did he talk? How did he try to get at the facts of the Frank case?
He did not go over the record, with the Solicitor who was familiar with it, and who proffered his services to Connolly for that very purpose!
If Connolly came for the truth, why did he not listen to both sides? Why did he not read the record? Or if he read it, why did he so grossly misrepresent it?
Let us examine a few of Connolly’s statements—statements which being accepted as true, have poisoned the minds of honest people throughout the Union, just as they were meant to do!
Connolly says—“Leo M. Frank is a young man of whose intellectual attainments any community might well be proud. Atlanta has been combed to find something against his moral character….but without success.”
There you have a flat, positive assertion that the city of Atlanta was diligently searched for witnesses who would testify against Frank’s moral character, and that none could be found.
What will be your amazement and indignation, when I tell you that numerous white girls and white women went upon the witness stand, and swore against Frank’s moral character?
One after another, those white accusers, braved the public ordeal and testified that Frank was lewd, lascivious, immoral!
Frank’s lawyers sat there in silence, not daring to ask those witnesses for the details upon which they based their terrible testimony.
Why did Frank’s lawyers allow that fearful evidence to have its full effect upon the jury, without asking those white women what it was they knew on Frank?
Suppose you had been accused in this case, and those same witnesses had testified against your character, would you have been afraid to cross-examine them?
Only a man who shrank from what those women could tell on him, would have let them go, without a single word! The State could not ask them for specific facts. The defendant alone had the legal right to ask for those—and the defense was afraid to do it.
Among those white witnesses were, Miss Marie Karst, Miss Nellie Pettis, Miss Maggie Griffin, Miss Carrie Smith, Mrs. C.D. Donegan, Miss Myrtie Cato, Mrs. Estelle Winkle, Mrs. M.E. Wallace, Mrs. H.R. Johnson, Miss Mary Davis.
Another white girl who did not know enough of Frank’s general character for lasciviousness, to swear against it, was offered by the State to prove that she went to work in Frank’s factory, and that Frank made an indecent proposal to her, on the second day!
Frank’s lawyers objected to the evidence, and Judge L.S. Roan ruled it out. But if Connolly was eagerly bent on finding the truth as to Frank’s character, he would certainly have heard of Miss Nellie Wood, who doubtless can tell Connolly at any time the exact language that Frank used in his effort to corrupt her.
When you pause to consider that here were many white witnesses, none of whom could be impeached, who took a solemn oath in open court, and swore to Frank’s immoral character—standing ready to bear the brunt of the cross-examination of the crack lawyer of the Atlanta bar—what do you think of Connolly, when he states that no such witnesses could be found? And what do you think of Burns, who pulled off the jackass stunt of afterwards offering “a reward” for any such witnesses?
With reference to his said offer of the $5,000 reward, this impostor, Burns, said on Feb. 3, in the Kansas City Star, which is (disinterestedly, no doubt) giving so much space to the campaign of slander against the people and courts of Georgia:
“Let me tell you this—no man has a more remarkable past than Frank. I investigated every act of his life prior to the accusation against him. There was not a scratch on it. Then I offered a reward of $5,000 to anyone who could prove the slightest immorality against him. No one, not even the Atlanta police, have attempted to claim it.”
Instead of his flamboyant and empty offer of $5,000, why didn’t Burns quietly take Rev. John E. White, or some other respectable witness, with him, and visit the white ladies who had already publicly testified to Frank’s lewd character?
Those white ladies were right there in Atlanta, while that noisy ass, Burns, was braying to the universe. The record showed him their names. If he wanted to know WHAT THEY COULD TELL ON FRANK, why didn’t he go and ask them?
He knew very well that nobody would claim his reward, for he knew that there wasn’t anybody who was fool enough to believe they could ever see the color of his money.
If he wants to learn the truth about Frank’s double life, he can go to those ladies now!
WHY DOESN’T HE DO IT? He can save his imaginary $5,000, and ascertain the truth, at the same time.
The mendacious scoundrel was quick enough to hunt up Miss Monteen Stover, and use his utmost efforts to scare her into changing her evidence. He went so far as to entrap her, in Samuel Boornstein’s office, where the attempt was made to hold her by force.
Other girl witnesses, in the case were subjected to persecution and threats, by these infamous Burns detectives, who wanted to change their evidence, as they did change the fearful evidence of Frank’s negro cook.
Why was Burns afraid to ask Mrs. Johnson, or Mrs. Winkle, or Mrs. Donegan what it was, that caused them to swear that Leo Frank is a libertine? Miserable faker! He didn’t want the truth.
Do William J. Burns and Luther Rosser mean to say that all these respectable white girls and ladies who swore to Frank’s immoral character, perjured themselves? If so, what motive did they have? And if Rosser was satisfied those ladies were swearing falsely, why didn’t he cross-examine them? Why was he afraid to ask them a single question?
Your common sense tells you why. Rosser feared what would COME OUT!
Another statement made by Connolly is, that the face of the dead girl “was pitted and seamed with indentations and scratches from the cinders, a bank of which stretched along the cellar for a hundred feet or more. There had evidently been a struggle.”
Again, Connolly says—
There were cinders and sawdust in the girl’s nose and mouth, drawn in, in the act of breathing, and under her finger nails. Her face had been rubbed before death into these cinders, evidently in the attempt to smother her cries.
Here the purpose of Connolly was, to make it appear that Mary Phagan had been killed in the basement, after a struggle, during which her mouth had been held down in the cinders, to stifle her screams!
In that event, of course, her tongue, her mouth, her throat, and perhaps her lungs would have shown saw-dust, and cinders.
There is absolutely no evidence in the record to support any such theory.
There was absolutely no evidence of any long “bank of cinders,” in the basement. There was, in fact, no such bank of cinders!
(See evidence of Defendant’s witness, I.U. Kauffman, pages 148, 149, 150. Also, evidence of Dobbs, Starnes, Barrett, &c.)
The evidence of all the witnesses is, that the girl’s tongue protruded from her mouth, and that the heavy twine cord had cut into the tender flesh of her neck, and that the blood-settlings showed the stopped circulation—manifest not only in her purple-black face, but under the blue finger nails.
There was no evidence whatever of cinders, ashes, or saw-dust in her mouth, in her throat, or in her lungs.
There was not a scintilla of evidence that she had met her death in the basement!
(See evidence of Dobbs, Starnes and Barrett.)
The sworn testimony in the record is, that, although the girl’s face was dirty from having been dragged by the heels through the coal-dust and grime, natural to the basement where the furnace was, the negro who first saw her that night, by the glimmer of a smoky lantern, telephoned to the police that it was a white girl. The officers, Anderson and Starnes, so testified!
Sergeant Dobbs swore that the body seemed to have been dragged by the heels, over the dirt and coal-dust, and that the trail led back from the corpse to the elevator. His exact words are, “It began immediately in front of the elevator, at the bottom of the (elevator) shaft.”
The word, “It,” refers to the trail of the dragged body; and the witness swore that the thought the condition of the girl’s face “had been made from the dragging.”
There was the unmistakable sign of the dragged body, as legible as the track of a foot on the soft ground; and the weight of the head and the friction, in dragging and bumping, would naturally cause soilure and abrasions. (The distance was 136 feet.)
W.E. Thomson whose booklet of 32 pages has been generously scattered “from the Potomac to the Rio Grande”—in the evident effort to reach all of his blood-relations who, as he tells us, are dissolutely distributed over the entire region between these two watercourses—W.E. Thomson says, on page 18 of his rambling, incoherent pamphlet.—
“There is not a shadow of doubt that she was murdered in this basement, on this dirty floor. The back door had been forced open by drawing the staple. This door opened out on an alley back of the building. There is every reason for believing that the murderer went out that door.”
Thomson argues that Jim Conley did the work.
But why did Jim Conley have to draw the staple, and leave the building by that door? Conley had the run of the building, was in it that fatal Saturday, was there when the white ladies and girls left, and was gone, in the usual way, when Newt Lee came on duty for the evening, as night watch.
The basement door was not then open. But the crime had already been committed, and the dead body lay there in the gloom. Whose interest would it serve to afterwards draw the staple, and give the door an appearance of having been forced?
When William J. Burns came to Atlanta, last Spring, and began his campaign of thunder and earthquake, he deafeningly shouted to the public at every step he took. His very first whoop was, that a careful examination of the facts in the case showed that the crime had been committed by “a degenerate of the lowest type.” Burns roared the statement, that the guilty man had never been suspected, and was still “at large.”
Burns yelled that this unsuspected criminal of the lowest type was hiding out, somewhere nearer to the North pole than Atlanta; and, with an ear-splitting noise, Burns set out to find that man. Burns said he was “utterly confident” he would find this man—who was expected to wait calmly, until Burns could nab him.
As everybody who read the papers last summer knows, that was precisely the theory upon which Burns started to work. He went on a wild-goose chase, into the Northern States, and was gone for months, working the Frank case. Working it how? Hunting for what?
He didn’t have to go North to find evidence against Jim Conley. Every bit of evidence against Jim was right there, in Atlanta.
Burns has never produced a single witness from the North. Not a scrap of testimony resulted from all his months of labor in the North! What was he doing there?
From day to day, and week to week, he put out interviews in which he declared he was making “the most gratifying progress.”
“Progress,” at what? “Gratifying,” how?
My own idea was, that Burns spent his time chasing around after opulent Hebrews; and that his gratifying progress consisted of relieving the prosperous Children of Israel of their superfluity of ducats. It takes money to stimulate the activities of such a peculiar concern as the Burns Detective Agency.
In one of his many interviews, published in the papers of Cain and Abel, this great detective, Burns, said, “The private detective is one of the most dangerous criminals that we have to contend with.”
I considered that the superbest piece of cool effrontery that a Gentile ever uttered, and a Jew ever printed. You couldn’t beat it, if you sat up of nights, and drank inspiration from the nectar Jupiter sips.
Week after week, Burns pursued the pleasures of the chase, up North, presumably bringing down many a fat Hebrew. He not only got a magnificent “bag” of rich Jews, but, with the unholy appetite of an Egyptian turning the tables on the Chosen People, he spoiled them to such an extent that it was a “battue.”
Having bled these opulent Hebrews of the North until they were pale about the gills, and mangled in their bankbooks, William J. came roaring back Southward, oozing newspaper interviews at every stop of the cars. Burns said he had his “Report” about ready. That Report was going to create a seismitic upheaval. That Report would astound all right-thinking bipeds, and demonstrate what a set of imbeciles were the Atlanta police, the Atlanta detectives, the Pinkerton detectives, the Solicitor-General, the Jury, the Supreme Court, and those prejudiced mortals who had believed Leo Frank to be the murderer of Mary Phagan.
Naturally, the public held its breath, as it waited for the publication of this much-advertised Report. At last, it came, and what was it? To the utter amazement of everybody, it consisted of an argument by Burns on the facts that were already of record. He did not offer a shred of new evidence.
His only attempt at new testimony was the bought affidavit of the Rev. C.B. Ragsdale, who swore that he overheard Conley tell another negro that he had killed a girl at the National Pencil Factory.
So, after all his work in the North, and after all his brag about what he would show in his Report, Burns’ bluff came to the pitiful show down of a bribed witness who was paid to put the crime on the negro.
As Burns said, “the private detective is the most dangerous criminal we have to contend with.” “We” have so found.
Commenting upon the Connolly articles, the Houston, Texas, Chronicle says, editorially:
Collier’s Weekly has espoused Frank’s cause in its usual intense way, and has put the work of analyzing the facts into the hands of a man who does not mince words; and, while one may not be willing to agree with all of its contentions, there is one point on which it hits the bullseye—that of the speech of the solicitor general, or prosecuting attorney.
In what manner had Collier’s hit the bull’s eye?
According to Collier’s, the speech was “venomously partisan,” and the wish is editorially expressed that all lawyers in the United States could read it and let that paper know what they think of it. So presumably it was stenographically reported, and it may safely be assumed that Collier’s quotes correctly. It says the Reuf case, the Rosenthal murder and other crimes in which Jews played a part were dragged into the argument.
Elevating himself to the pinnacle of moral rectitude, the editor of the Chronicle says—
In England, where trials are conducted more nearly along proper lines than they are anywhere else in the world, a crown’s counsel who would make a denunciatory or emotional appeal to a jury would be adjudged in contempt.
With such a speech, and a crowd which had already prejudged the case filling the court house, a fair trial in the meaning of the constitution and the law was impossible.
In England it would have been different, says the Chronicle.
Yes, it would. In England, Leo Frank would have long since gone the way of Dr. Crippin, and suffered for his terrible crime.
But was Dorsey’s speech such a venomous tirade? Was he in contempt of court in his allusions to Reuf and Hummel and Rosenthal? Did Dorsey bring the race issue into the case?
Solicitor General Hugh M. Dorsey’s speech was stenographically reported. It makes a booklet of 146 pages. On pages 2, 3, and 4, Mr. Dorsey deals with the race issue and deplores the fact that the “defense first mentioned race.”
Mr. Dorsey says, “Not a word emanated from this side, not a word indicating any feeling against…..any human being, black or white, Jew or Gentile.
“But, ah! the first time it was ever brought into this case,—and it was brought in for a purpose, and I have never seen two men manifest more delight or exultation than Messrs, Rosser and Arnold, when they put the question to George Kendley at the eleventh hour.
“A thing which they had expected us to do, and which the State did not do, because we didn’t feel it and it wasn’t in this case.
“I will never forget how they seized it, seized with avidity the suggestion, and you know how they have harped on it ever since.
“Now, mark you, they are the ones that mentioned it, not us; the word never escaped our mouth.”
There sat Frank’s lawyers, two of the most aggressive fighters, men who rose to their feet, again and again, during the course of Dorsey’s speech, to deny his statements, and interject their own, but they did not utter a word of denial when he charged them to their teeth, in open court, with bringing into the case the evidence that Frank is a Jew. Nor did they challenge his statement that they had “laid for” him to do it, and had done it themselves when they saw that he did not mean to give them that string to harp on.
Having made his explanation of how the fact of Frank being a Jew got into the case, Dorsey paid this glowing tribute to the great race from which this degenerate and pervert sprung:
“I say to you here and now, that the race from which that man comes is as good as our race. His ancestors were civilized when ours were cutting each other up and eating human flesh; his race is just as good as ours,—just so good, but no better. I honor the race that has produced D’Israeli,—the greatest Prime Minister that England has ever produced. I honor the race that produced Judah P. Benjamin,—as great a lawyer as ever lived in America or England, because he lived in both places and won renown in both places. I honor the Strauss brothers—Oscar, the diplomat, and the man who went down with his wife by his side on the Titanic. I roomed with one of his race at college; one of his race is my partner. I served with old man Joe Hirsch on the Board of Trustees of the Grady Hospital. I know Rabbi Marx but to honor him, and I know Doctor Sonn, of the Hebrew Orphan’s Home, and I have listened to him with pleasure and pride.
“But, on the other hand, when Becker wished to put to death his bitter enemy, it was men of Frank’s race he selected. Abe Hummel, the lawyer, who went to the penitentiary in New York, and Abe Reuf, who went to the penitentiary in San Francisco, Schwartz, the man accused of stabbing a girl in New York, who committed suicide, and others that I could mention, show that this great people are amendable to the same laws as you and I and the black race. They rise to heights sublime, but they sink to the depths of degradation.”
After Rosser and Arnold had dragged the Jewish name into the case, could Dorsey have handled it more creditably to himself, and to those Jews who believe, with Moses, Abraham, Isaac, and Jacob, that crime must be punished?
Read again what Dorsey actually said as stenographically reported, and remember that Connolly pretended to have read it before he wrote his articles, and then sift your mind and see how much respect you have for a writer who tries to deceive the public in that unscrupulous manner.
C.P. Connolly makes two statements about the law of Georgia.
On Dec. 14, 1915, he stated in Collier’s that, “By a constitutional amendment, adopted in 1906, the Supreme Court of Georgia cannot reverse a case on other than errors of law.”
This remarkable statement he varies somewhat, in his article published Dec. 19, 1915.
Under a constitutional amendment adopted in 1906, the Supreme Court of Georgia is not allowed to reverse any capital case where no error of law has been committed in the trial, no matter how weak the evidence may be, and cannot investigate or pass upon the question of guilt or innocence.
Since the days of Magna Charta, it may be doubted whether any State, set up under English principles, could legally deprive reviewing courts of the right to annul a verdict which has no evidence to support it. In such a case, the question of evidence would become a question of law. Without due process of law, no citizen can be robbed of life, liberty, or property; and, while it is the province of the jury to say what has been proved, on issues of disputed facts, it is for the court to decide whether the record discloses jurisdictional facts.
It necessarily follows that, if a record showed that no crime had been committed, or, if committed, the evidence failed to connect defendant with it, the verdict would have to be set aside, as a matter of law.
The constitutional amendment of 1906, to which Connolly refers, had for its main purpose the creation of a Court of Appeals, as an auxiliary and a relief to the Supreme Court. In doing this, the legislature had to divide appealed cases between the two courts. The new law provided that the Supreme Court should review and decide those civil cases which went up from the Superior Courts, and from the courts of ordinary, (our chancery courts) and “all cases of conviction of a capital felony.”
To the Court of Appeals, was assigned those cases going up from city courts, and all convictions in criminal cases less than a capital felony.
The Supreme Court of Georgia in every open case of motion-for-new-trial, is now constantly passing upon the sufficiency of the evidence to support the verdict; and the Court passed upon that very question, in Frank’s first motion for new trial.
I cannot imagine anything that would cause a more universal wave of protest, than an effort to emasculate our Supreme Court, by robbing it of the time-honored authority to review all the evidence in contested cases; and to decide, in the calm atmosphere of the consulting room,—remote from personalities, passions, and the dust of forensic battle—whether the evidence set out in the record is sufficient to support the verdict.
If Connolly’s idea of the change made in 1906 were correct, it would lead to the preposterous proposition, that the Supreme Court might have before it a case of a man condemned to death for rape, when the evidence showed that there had been no penetration. The Court would have to let the man die, because the judge below had committed no error of law! Would it not be the greatest of errors of law, to allow a citizen to be hanged, when there is no proof of a crime? Would it be “due process of law,” to kill a man, under legal forms, without evidence of his guilt?
Those men who alleged that Connolly is a lawyer, also allege that Burns is a detective. Both statements cut a large, and weird figure, in the realm of cheap, ephemeral fiction. If being a lawyer were a capital offense, and Connolly, were arraigned for the crime, the jury would not only acquit him without leaving the box, but would find a unanimous verdict of “malicious prosecution.”
If being a detective were virulent, confluent small-pox, the wildest advocate of compulsory vaccination would never pester Burns. It is as much as Burns can do, to find an umbrella in a hall hat-rack.
A prodigious noise has been made over the alleged statement of Judge L.S. Roan, who presided at Frank’s trial, that he did not know whether Frank was guilty or innocent. All of that talk is mere bosh. What Judge Roan said was exactly what the law contemplates that he shall say! The law of Georgia, constitutes the trial judge an impartial arbiter, whose duty it is to pass on to the jury, in a legal manner, the evidence upon which the jury are to act as judges.
They are not only the judges of the evidence, but the sole judges of it. The slightest expression of an opinion from the bench, as to what has or has not been proven, works a forfeiture of the entire proceeding.
In no other way, can a defendant be tried constitutionally, by his peers, than by clothing the twelve jurors whom he, in part, selects as his peers, with full power to adjudge the facts.
(I am confident that it is the intention of the law to also make these peers of the accused the full judges of the law, to exactly the same extent that they are absolute judges of the facts; but that is a question not germane to the Frank case.)
Now, if Connolly and Collier’s had taken the pains to examine our law, they would have realized that the legal intendment of Judge Roan’s declaration was no more than this:
“It is not for me to say whether this man is innocent or guilty. That is for the jury. They have said that he is guilty, and I find that the evidence sustains the verdict. Therefore, I refuse to grant the motion for new trial.”
In ninety-nine cases out of a hundred, our judges utter some such words as those, in charging the jury, and in passing upon motions for new trial.
I will say further, that a lack of definite opinion as to the guilt or innocence of the defendant at the bar, is an ideal state of mind for the presiding judge.
We are all so human, that if the judge feels certain of the guilt, or innocence of the accused, he will “leg” for one side or the other.
So well is this understood, that the trial judge almost invariably takes pains to say to the jury—
“Gentlemen, the court does not mean to say, or to intimate what has, or has not, been proven. That is peculiarly your province. It is for you to say, under the law as I have given it to you, whether the evidence establishes the defendant’s guilt beyond a reasonable doubt, &c.”
There isn’t a lawyer in Georgia who hasn’t heard that kind of thing, times without number.
If Judge L. S. Roan did, indeed, keep his mind so far above the jury-function in this case, that he did not form an opinion, either way, he maintained that ideal neutrality and impartiality which the Law expects of the perfect judge.
The St. Louis Post-Dispatch is another paper that has taken jurisdiction of the Frank case. It employs another famous detective for the defense, a New York person, named George Dougherty. Every detective who favors Frank is a famous detective, a scholar, a gentleman, a deep thinker and a model citizen—just as Frank is.
Those detectives and police officers who testify the other way, are bad men, the scum of the earth, crooks, rapscallions, liars, and pole-cats.
The famous detective, George Dougherty, appears to have studied the case hurriedly. He says—
And the office in which Frank was charged with having committed immoral attacks was in direct line of possible observation from several people already in the building, whose approach Conley would have known nothing of.
George D. is mistaken. Frank and the other man took the women to a place where they were not “in direct line of possible observation,” &c.
The famous detective again says—
Another point: Conley’s statement is that Frank knew in advance that Mary Phagan was to visit the factory that day for the purpose of getting her pay. There is no reasonable cause for believing this to have been true; no other employee went there that day to be paid. If Frank did not know that Mary Phagan was to be there, Conley’s entire story falls. And, as a matter of fact, there seems to be more reason to believe that he did not, than there is to believe that he did.
Now, what will you think of this famous detective, when I tell you that page 26 of the official court record of this case shows, that Monteen Stover swore she went there to get the wages due her, and was at the office of Frank at the fatal half-hour during which he cannot give an account of himself?
George Dougherty does not even know that Frank, in his statement to the jury, stated that Miss Mattie Smith came for her pay envelope, that Saturday morning, and also for the wages due her sister-in-law; and that he gave to the fathers of two boys the pay envelopes for their sons.
This makes five other employees—two in person, and three by proxy—who were there for the wages due them, on the identical day when Mary Phagan went for her pay, and disappeared—the very day when Dougherty asserts, “no other employee went there that day to be paid!”
(See Frank’s statement, page 179.)
Is it any marvel that the public has been bamboozled, and the State of Georgia made the object of condemnation, when famous detectives write such absurdities, and respectable papers publish them?
The State of Georgia has no press agent, no publicity bureau, no regiment of famous detectives, no brigade of journalistic Hessians. The State can only maintain an attitude of dignified endurance, while this mercenary, made-to-order hurricane of fable, misrepresentation and abuse passes over her head.
All she asks of an intelligent, fair-minded public is, to judge her by the official record, as agreed on by the attorneys for both sides. All that she expects from outsiders is, the reasonable presumption that she is not worse than other States, not worse than Missouri which tried the Boodlers of St. Louis, not worse than California which tried the grafters and the dynamiters; not worse than Virginia, which tried and executed McCue, Beattie and Cluverius, on less evidence than there is against Frank.
The New York World, owned by the Pulitzers, said in its report of the case:
May 24—On evidence of Conley, Frank was indicted for murder.
July 28—Trial of Frank began.
Aug. 24—Conley testified Frank entrapped the girl in his office, beat her unconscious, then strangled her.
Aug. 25—Jury found Frank guilty of murder, first degree.
“On evidence of Conley,” Frank was indicted and convicted, according to the Pulitzers. Of course, the general public does not know that Frank could not have been convicted upon the evidence of Conley, a confessed accomplice. The general public—which includes such lawyers as Connolly—cannot be supposed to know that the law does not allow any defendant to be convicted upon the evidence of his accomplice.
In the St. Louis Post-Dispatch (which I believe is also a Pulitzer paper) there are two recent letters by Wm. Preston Hill, M.D. Ph.D., in which the State of Georgia is violently arraigned.
Wm. Preston Hill, M.D. Ph.D., starts out by stating that “anybody who has carefully read the proceedings in the murder trial of Leo Frank must be convinced…the whole trial was a disgraceful display of prejudice and fanatical unfairness….This whole proceeding is a disgrace to the State of Georgia, and will bring on her the just contempt of the whole civilized world.
“Everywhere thoughtful men will judge Georgia to be filled with semi-barbarous fanatical people of low mentality, and strong, ill-controlled passions, a race to be avoided by anybody who cares for liberty, order or justice.”
Then to show what a thoughtful man is Wm. Preston Hill, M.D. Ph.D., and how carefully he has read the record in the case, he proceeds to state that “Frank was convicted on the unsupported evidence of a dissolute negro of bad character” who was contradicted in 22 different instances!
Then Wm. Preston Hill, M.D. Ph.D., gives himself away by advising people to study the case—how?
By an examination of the record that went up to the Supreme Court?
Oh no! Study it by the paid columns of C.P. Connolly, who got his ideas of the case from the rascally and mendacious poseur, William J. Burns.
In the Chicago Sunday Tribune of December 27, 1914, appears a full page article beginning, “Will the State of Georgia send an innocent man to the gallows?”
The writer of the article is Burton Rascoe. The entire article proceeds upon the idea that poor little Mary Phagan was a lewd girl; that she had been immorally intimate with two employees of the factory; that Jim Conley, drunk and hard-up, wanted her pay envelope; that he seized her, to rob her, and that he heard some one calling him, and he killed her.
Mr. Rascoe says that, ordinarily, juries are instructed that they are to assume the defendant is innocent, until he is proven guilty, but that in Frank’s case, it was just the opposite.
Mr. Rascoe says that, during the trial, men stood up in the audience and shouted to the jury: “You’d better hang the Jew. If you don’t, we’ll hang him, and get you too.”
The Chicago Tribune claims to be “the world’s greatest newspaper,” with a circulation of 500,000 for the Sunday edition.
It is therefore reasonable to suppose that at least two million people will get their ideas of the case from this special article, in which the public is told that Judge Roan allowed the audience to intimidate the jury by shouting their threats, to the jury, while the trial was in progress.
Of course, any one, who will stop and think a moment, will realize what an arrant falsehood that is.
Had any such thing occurred, the able, watchful, indefatigable lawyers who have been fighting nearly two years to save Frank’s life, would have immediately moved a mistrial, and got it.
No such incident ever has occurred, in a Georgia court-room.
And no white man in Georgia was ever convicted on the evidence of a negro!
As a specimen of the misrepresentations which are misleading so many good people, take this extract from the article in the Chicago Tribune:
It has been declared by Burns, among others, that the circumstantial evidence warranting the retention of Conley as the suspected slayer was dropped and Conley was led to shoulder the blame upon Frank in somewhat the following manner:
“What do you know about this murder?”
“Who do you think did it?”
“I don’t know.”
“How about Frank?”
“Yes. I confess. He’s the one who did it.”
“Sure he was. That’s the fellow we want.”
And forthwith Frank was locked up as a suspect.
In fact, the statements of Mr. Rascoe, like those of C.P. Connolly, are re-hashes from Wm. J. Burns.
Does not the Chicago Tribune know that Burns was expelled from the National Association of Police Chiefs?
Does not the Tribune know that Burns’ confidential man in this Frank case, Lehon, was expelled from the Chicago police force, for blackmailing a woman of the town?
Does not the Tribune know that the detectives bribed Ragsdale and Barber, the preacher and the deacon, to swear this crime onto the negro, Jim Conley?
Does not the Tribune know that the official records in the U.S. Department of Justice disclose the fact that Attorney-General Wickersham, and President Taft set aside some convictions in the Oregon land cases, upon the overwhelming evidence that Burns is a crook, and corruptly obtained those convictions?
As already stated in this Magazine, Conley’s evidence is not at all necessary to the conviction of Frank. Eliminate the negro entirely, and you have a dead case against this lewd young man, who had been pursuing the girl for nearly two months, and who, after setting a trap for her, on Memorial Day, 1913, had to use such violence to overcome her struggle for her virtue, that he killed her; and then had the diabolical cruelty to attack her character, after she was dead.
Mr. L.Z. Rosser telegraphed to a Northern newspaper a long statement in which he says—
Leo M. Frank is an educated, intelligent, normal man of a retiring, home making, home loving nature. He has lived a clean, honest, busy, unostentatious life, known by few outside of his own people. In the absence of the testimony of the negro, Jim Conley, a verdict of acquittal would have been inevitable.
If Mr. Rosser believed that Leo Frank was the pure young man and model husband, why did he sit silent while so many white girls and ladies swore to Frank’s lascivious character?
Do you suppose that any power on earth could have produced twenty white women of Atlanta who would have sworn that Dr. John E. White’s character is lascivious? Or that Judge Beverly Evans’ character is lascivious? Or that Governor Slaton’s character is lascivious?
The ex-lawyer from Montana—C.P. Connolly—says in Collier’s:
The State contended that Frank murdered Mary Phagan on the second floor of the pencil factory. There was found four corpuscles of “blood”–a mere iota–on the second floor. The girl was brutally handled and bled freely, not only from the wound in her head, but from other parts of her body.
“Four corpuscles of blood—a mere iota—on the second floor.”
That is what Connolly says. But what says the official record?
On page 26, Mr. R. P. Barrett, the machinist for Frank’s factory, testifies, that on Monday morning, early, he discovered the blood spots, which were not there the Friday before! He says—
“The spot was about 4 or 5 inches in diameter, and little spots behind these in the rear—6 or 8 in number. It was blood.”
Here we have one of Frank’s responsible employees swearing positively to a five-inch splotch of blood, with 6 or 8 smaller spots leading up to the main spot, as large as the lid of the average dinner-pail; and Connolly tells the public that “four corpuscles, a mere iota,” were all that were found!
When a man makes public statements of that kind, after having gone to Atlanta ostensibly to study the record, is he honestly trying to inform the public, or is he dishonestly trying to deceive it?
Mell Stanford swore, “These blood spots, were right in front of the ladies’ dressing room,” where Conley said he dropped the body of the girl, after Frank called on him for help.
Mrs. George Jefferson, also a worker in Frank’s place, swore that they found the blood splotch, “as big as a fan.”
Mrs. Jefferson had been working there five years. She knew paint spots when she saw them, and told of the maroon red, and red lime, and bright red, but she added, in answer to Frank’s attorney, “That spot I saw was not one of those three paints.”
She swore that the spot was not there Friday, April 25th. They found it Monday morning at about 6 or 7 o’clock. “We saw blood on the second floor, in front of the girl’s dressing room. It was about as big as a fan.”
The foreman of the metal room, Lemmie Quinn, also testified to seeing the blood spots, Monday morning. Quinn was Frank’s own witness.
J.N. Starnes, police officer, testified (page 10 of the official record) that he saw the “splotches of blood.” “I should judge the area of these spots to be a foot and a half.”
Capt. Starnes saw the splotches of blood on Monday morning, April 28th, opposite the girl’s dressing room; and they looked as if some white substance had been swept over them, in the effort to hide them.
Herbert Schiff, Leo Frank’s assistant superintendent, also swore to the blood spots. He saw them Monday morning.
These witnesses were unimpeachable. Five of them worked under Frank, and were his trusted and experienced employees. They were corroborated by the doctors who examined the chips cut out of the floor. Those blood-stained chips are exhibits “E.,” in the official record!
Yet, C.P. Connolly, sent down to Georgia to make an examination into actual facts, ignores the uncontradicted evidence, and tells the great American public, that on the second floor, where the State contends the crime was committed, there were found “four corpuscles of blood,” only “a mere iota.”
Upon consulting an approved Encyclopedia and Dictionary, which was constructed for the use of just such semi-barbarians as we Georgians, I find that the word “corpuscle” is synonymous with the word “atom.” Further research in the same Encyclopedia, leads me to the knowledge, that an atom is such a very small thing that it cannot be made any smaller. It is, you may say, the Ultima Thule of smallness. The point of a cambric needle is a large sphere of action, compared to a corpuscle. The live animals that live in the water, and sweet milk, which you and I daily drink, are whales, buffaloes, and Montana lawyers, compared to a corpuscle. The germs, microbes, and malignant bacteria, that swim around invisibly in so many harmless-looking liquids, are behemoths, dragons and Burns detectives, compared to a corpuscle.
The smallest conceivable thing—invisible to the naked eye—is what Connolly says they found, on that second floor; and they not only found one of these infinitely invisible things, but four!
I want to deal nicely with Connolly, and therefore I will say that, as a lawyer and a journalist, I consider him a fairly good specimen of a corpuscle. What he is, as a teller and seller of “The Truth about the Frank case,” I fear to say freely, lest the best Government the world ever saw arrest me again, for publishing disagreeable veracities.
Pardon me for taking your time with one more exposure of the impudent falsehoods that are being published about the evidence on which Frank was convicted. In his elaborate article in the Kansas City Star, A.B. Macdonald says—
The ashes and cinders were breathed before she died in the cellar, while she was fighting off Conley. In his drunken desperation lest she be heard and he be discovered he ripped a piece from her underskirt and tried to gag her with it. It was not strong enough. Then he grabbed the cord.
The testimony proved that cords like that were in the cellar. He tied it tightly around her neck. It was proved at the trial that a piece of the strip of underskirt was beneath the cord, and beneath the strip of skirt were cinders. That proves beyond doubt that both were put on in the cellar.
Having strangled her to death and eternal silence the negro had leisure to carry her back and hide her body at (fig. 12) where it was dark as midnight.
Then he sat down to write the notes. Against the wall opposite the boiler was a small, rude table with paper and pencil. Scattered around in the trash that came down from the floors above to be burned were sheets and pads of paper exactly like those upon which the notes were written. The pad from which one of the notes was torn was found by the body by Police Sergeant L.S. Dobbs, who so testified.
Here we have a graphic, gruesome picture of a fight between the girl and the negro, down in the cellar. He overcomes her, and in her death struggles, she breathes her nose, mouth and lungs full of ashes and cinders. The negro tears off a strip from her clothing, and binds it round her neck. “It was not strong enough. Then he grabbed the cord.”
In the next line, Macdonald tells you that the strip of clothing was so strong that it remained underneath the cord, and that, beneath this strip, were cinders. “That proves beyond a doubt that they were both put on in the cellar.”
It is sufficient to say that the evidence of Newt Lee, of Sergeant L.S. Dobbs, officer J.N. Starnes, and both the examining physicians, (Doctors Hurt and Harris) totally negatives the statement of Macdonald about the cinders under the girl’s nails, the cinders packed into her face, and the cinders breathed into her nose, mouth and lungs. There was nothing of the kind. Macdonald made all that up, himself, aided by Connolly’s imagination and Burns’ imbecility.
(See official record, pages 3, 4, 5, 6, 7, 8, 9, 10, 11, and evidence of the doctors as per Index.)
But let me ask you to fix your attention on the specific statement of Macdonald, that the cord pressed down upon the strip of clothing, one being under the other, and that the cinders were under this inner choke-strip. Now, turn to page 48 of the official record, and see what Dr. Harris testified. He swore that she came to her death from “this cord” which had been tied tight around her neck. He did not say a word about any strip of clothing around her neck, under the cord, nor a word about any cinders, ashes or dust, under the cord—not one word!
Turn to page 46, and read the testimony of Dr. J.W. Hurt. He said, “There was a cord round her neck, and this cord was imbedded into the skin.” Not a word about any strip of cloth under the cord! Not a word about cinders, ashes, or dust under the cord, or on her neck.
Sergeant Dobbs after saying that “the cord was around her neck, sunk into her flesh,” added that “she also had a piece of her underclothing around her neck.” “The cord was pulled tight and had cut into the flesh and tied just as tight as could be. The underclothing around her neck was not tight!”
Sergeant Dobbs, swearing that the cord had cut into the flesh, shows that there was no cushion of cloth to keep it from doing that very thing. Not a word did he say about cinders under her nails, under the cord, under the strip of underclothing, or in her nose, mouth and lungs.
In other words, the official record shows Macdonald’s version of the evidence to be a reckless fabrication!
Can you picture to yourself, in the sane recess of your own mind, a Southern negro, raping and killing a white girl, and then dragging her body back to a place “where it was dark as midnight;” and then, after all his terrific struggle with his victim, hunting around in the trash to find a pencil and some pads—two different colors—and seating himself, leisurely, at “a small rude table near the boiler,” to scribble a few lines of information to mankind as to how he came to commit the crime?
Can you picture to yourself a common Georgia nigger, killing a white woman in that way, and then seating himself near her corpse, deep down in a dark cellar, to indulge in literary composition?
Jim Conley, you see, had not only murdered the girl down there below the surface, but was writing notes close to where the dead body lay, with the intention of carrying the notes out there to where “it was as dark as midnight,” to lay them by the dead girl’s head.
Then, he meant to get so scared that he would violently break out of the basement door, into the alley, rather than walk out, as usual, up stairs.
Macdonald doesn’t know much about Southern niggers, but he understands us white folks. Just tell us any old ludicrous yarn, and keep on telling it in the papers; and, if nobody denies it, we will all believe it.
There was not a scratch on the nose of the dead girl, and yet all these reckless writers tell the public she was held face downward by her murderer, and that her face was ground into the cinders, to smother her screams. How could the nose escape bruises in such a frightful process, and how could she fail to have cinders and coal-dust in her mouth and nose? There were none!
In the Philadelphia Public Ledger, there is a copyrighted article by Waldo G. Morse, whose legend runs, “Councillor, American Academy of Jurisprudence.” Councillor Morse begins on the Frank case, by asking a question, and quoting himself in reply—
May a mob and a Court scare away your lawyers, a sheriff lock you away from the jury which convicts you, and may the sheriff then hold and hang you? Yes, say the Georgia Courts and so also says the United States District Judge in Georgia. Says the Supreme Court of the United States: “We will hear arguments as to that, and in the meantime we will defer the hanging.”
The fancy picture of a Georgia mob, putting Rube Arnold, Luther Rosser, the Haas brothers, and the governor’s own law firm to ignominious flight, and of the sheriff ruthlessly locking Frank away from the jury—and all this being done with the hearty approval of Judges Roan and Hill, the State Supreme Court, and Federal-judge William Newman—is certainly a novel picture to adorn the classic walls of the American Academy of Jurisprudence.
Councillor Morse proceeds as follows—
This is no mere question of a single life, but one for every man. Shall you be put on trial for your life or your liberty and shall timid or careless lawyers lose or dishonest lawyers barter away your rights?
We wish for the honor of the bar and the dignity of the Court that the lawyers had stood their ground and had braved the mob and that their client had joined in the defiance, inquiring from every juror, face to face, whether the verdict of guilty was the verdict of that individual juror. Such is due process of law.
Was Rosser “timid,” in Frank’s case? I would like to see Rosser, when one of his timid spells gets hold of him.
Were Rosser and Arnold and the Haas brothers not only timid, but “careless?” Councillor Morse, spokesman for the American Academy of Jurisprudence (whatever that is) accuses these Georgia lawyers of cowardice, or culpable negligence, in their defense of Leo Frank!
What? Is nobody to be spared? Shall no guilty Georgian escape? Must the propagandists of this Frank literature slaughter his own lawyers? Is it a misdemeanor, per se, to be Georgian?
“For the honor of the bar.” Waldo Morse wishes that Rosser and Arnold, and Haas, and the governor’s law firm, “had stood their ground.” Then, they did not stand their ground, and they dishonored the bar.
That’s terrible. Surely it is a cruel thing to stand Luther Rosser up before the universe, in this tremendous manner, and arraign him for professional cowardice. What say you, Luther? Are you guilty, or not guilty?
But Waldo Morse relentlessly continues—
Might not the result have been different? Jurors have been known to change their verdict when facing the accused. We hope that the Court may declare that no man and no State can leave the issue of life as a bagatelle to be played for, arranged about and jeopardized by Court and counsel in the absence of the man who may suffer.
So, you see, Frank’s lawyers are accused, in a copyrighted indictment, of playing with their client’s life, “as a bagatelle;” and of jeopardizing that life, with a levity which showed an utter lack of a due sense of professional responsibility.
That’s mighty rough on Rosser, and Arnold, and Haas, and Governor Slaton’s law firm.
What will be your opinion of Councillor Morse, when I tell you that Frank’s lawyers did demand a poll of the jury, and each member was asked whether the verdict was his verdict, and each juror answered that it was.
And each juror, months afterwards, made written affidavit to the same effect, utterly repudiating the charges of mob intimidation.
Councillor Morse proceeds—
Shall a man charged with an infamous crime be faced by a jury of 12 men, each one ready to announce their verdict of his guilt? May he ask each man of the 12 whether the verdict be his? Yes, has answered the common law for centuries. The accused may not even waive or abandon this right.
That’s absurd. The accused may waive or abandon “this right,” and nearly every other. There are Courts in which the accused is constantly waiving and abandoning his Constitutional right to be indicted by a grand jury, and tried by a petit jury. In almost every case, the accused waives his legal right to actual arraignment, oral pleading, and a copy of the indictment. Almost invariably, he waives the useless and perfunctory right of polling the jury. If he likes, he can go to trial with eleven jurors, or less, and he may waive a legal disqualification of a juror. In fact, the accused, who can waive and abandon his right to the jury itself, can of course, waive any lesser right. This may not be good law in the American Academy of Jurisprudence, but it is good law among good lawyers.
Councillor Morse says that “for centuries” it has been the common-law right of the accused to ask each juror “whether the verdict be his.” This cock-sure statement of what the English common-law has been “for centuries,” would have had considerable weight, had the Councillor cited some authorities.
It was in 1765, that Sir William Blackstone published the first volume of his Commentaries; and at that time, the accused, in a capital case, did not even have the right to be defended by a lawyer. At that time, there were upwards of 116 violations of law, punishable by death, some of these capital offenses being petty larcenies, and others, trivial trespasses. In all those terrible cases, the accused was denied a lawyer, at common law; and these fearful conditions were not materially changed, until Sir Samuel Romilly began, his noble work of law reform, in 1808. At that time, it was death to pick a pocket, death to cut a tree in a park, death to filch from a bleachfield, death to steal a letter, death to kill a rabbit, death to pilfer five shilling’s worth of stuff out of a store, death to forge a writing, death to steal a pig or a lamb, death to return home from transportation, death to write one’s name on London bridge. Sir Samuel was not able to accomplish a great deal, before his suicide in 1818; but another great lawyer, Sir James Mackintosh, took up the work, Lord Brougham assisting. It was not until near the middle of the last century, that the Draconian code was stripped of most of its horrors, and the prisoner’s counsel was allowed to address the jury. (See McCarthy’s Epochs of Reform, pages 144 and 145. Mackenzie’s The 19th Century, pages 124 and 125.) Therefore, when any Councillor for an American Academy of Jurisprudence glibly writes about what have been the common-law rights of the accused “for centuries,” he makes himself ridiculous.
As a general rule, a prisoner may waive any legal privilege; and whatever he may waive, his attorney may waive; and this waiver can be made after the trial and will relate back to the time when he was entitled to the privilege. This waiver may be expressed, or it may be implied; it may be in words, and it may be in conduct.
In Blackstone’s Commentaries, nothing is said on the point of the prisoner’s presence, when the verdict comes in. Unquestionably, it is the better practice for him to be in court. But if his attorneys are present, and they demand a poll of the jury, expressly waiving the presence of their client, they have done for the accused all that he could do for himself, were he in court—for the prisoner is not allowed to ask the jurors any questions. The judge does that. Hence, Frank lost nothing whatever by his absence; and when he failed to make that point, as he stood in court to be sentenced and was asked by the judge, “What have you to say why sentence should not be pronounced on you?” he ratified the waiver his lawyers had made. He continued that ratification, for a whole year.
Not until after two motions for new trial had been filed, did Frank raise the point about his absence at the time the verdict came in; and, if he is set free on that point, the world will suspect that Rosser and Arnold, laid a trap for the judge.
Does it seem good law to Councillor Morse, that a man whose guilt is made manifest by the official record, should be turned loose, to go scot free, on a technical point, which involves the repudiation of his own lawyers, and the retraction of his own ratification which had lasted a year? Is there no such thing as a waiver by one’s attorneys and a ratification by one’s prolonged acquiescence?
Now before going into close reasoning on the established facts in the case, allow me to call your attention to this point:
Whoever wrote those notes that were found beside the body seems to say that she had been sexually used. “Play with me.” “Said he would love me.” “Laid down.” “Play like night witch did it,” but that long tall black negro “did (it) by hisself.”
Those words are inconsistent with a crime whose main purpose was murder. Uppermost in the mind of the man who dictated those notes, was quite another idea. Consistent with that idea, and not with murder alone, are the words “Play with me, said he would love me, laid down,” (with me) “and play like the night witch did it.”
All have claimed that the words “night witch” meant “night watch.” It may not be so. For the present, I only ask you to consider that the State’s theory all along, has been that Leo Frank was after this girl, to enjoy her sexually, and that the murder was a crime incident to her resistance.
The girl worked for Frank, and he knew her well. He had sought to push his attentions on her. She had repulsed him. She had told her friend George Epps that she was afraid of him, on account of the way he had acted toward her.
He had refused, on Friday afternoon, to let Helen Ferguson have Mary’s pay-envelope, containing the pitiful sum of one dollar and twenty cents. He thus made it necessary for Mary to come in person for it, which she was sure to do, next day, since the universal Saturday custom is, to pay for things bought during the preceding week and buy things, for the next.
Why did not Frank give Mary’s pay envelope to Helen, when Helen asked for it, on Friday? It had been the habit of Helen to get Mary’s envelope, and Frank could hardly have been ignorant of the fact.
Did he refuse to let Helen have Mary’s pay, because it was not good business?
That hypothesis falls, when we examine Frank’s own statement to the jury. On page 179 of the record, he tells the jury that Mattie Smith came for her pay-envelope on Saturday morning, the 26th of April, and she asked for that of her sister-in-law, also, “and I went to the safe….and got out the package…and gave her the required two envelopes.”
Therefore, Frank himself was in the habit of letting one employee have another’s pay envelope. On that same morning, he gave the pay-envelopes of two of the boys to their fathers, Graham and Burdette. (Page 181.)
Why did Frank make an exception of Mary Phagan, this one time? Why did he discriminate against her, and only her, that week-end?
Be the answer what it may, the girl, all diked out in her cheap little finery for Memorial Day, comes with her smart fresh lavender dress, the flowers on her hat, the ribbons on her dress, her gay parasol, and her best stockings and silk garters—comes into the heart of the great city, about noon, goes immediately to Frank’s office for her one dollar and twenty cents, is traced by evidence, which Frank dared not deny, into his office—and, is never more seen alive.
Is there any reasonable person, on the face of God’s earth, who wouldn’t say Frank must account for that girl?
When a mountain of evidence piled up, on the fact of the girl’s going to him, he then admitted that she did go to him, somewhere around 12 o’clock that day.
He says that a little girl whom he afterwards learned to be Mary Phagan, came to him for her pay-envelope.
He pretended not to know that a girl of her name worked for him, until he consulted the pay-roll! He went through the motion of looking at the pay-roll for the purpose of ascertaining whether such a human being worked in his place! After having found her name on the list, he then admitted that a girl named Mary Phagan had been working there.
What sort of impression does this make on you, in view of the fact that four white witnesses swore they had seen Frank talk to her, and that, in doing so, he called her “Mary?”
Why did Frank, when her dead body was found in the basement, feign not to know her, and say that he would have to consult the pay-roll?
The girl, dressed up for a Holiday, was in Frank’s office, at about the noon hour of that fatal day—and those two were alone!
Frank is driven to that dreadful admission. Inexorable proofs left him no option.
By his own confession, he is alone with the girl, the last time any mortal eye sees her alive!
She is in the flush of youthful bloom. She is nearly fourteen years old, buxom, and rather large for her age. She has rosy cheeks, bright blue eyes, and golden hair. She is well-made, in perfect health, as tempting a morsel as ever heated depraved appetite. Did Leo Frank desire to possess the girl? Was he the kind of married man who runs after fresh little girls? Had he given evidence, in that very factory, of his lascivious character?
The white ladies and girls whose names have already been given, swore that Frank was just that kind of a man; and neither Frank nor his battalion of lawyers have ever dared to ask those white women to go into details, and tell why they swore he was depraved!
Does it make no impression on your mind, when you consider that tremendous fact?
We start out, then, with a depraved young married man whose conduct, in that very place, is proved to have been lascivious. Did he desire Mary Phagan? Had he “tried” her? Did he want to “try” her, again?
One white girl swore that she had seen Frank with this hand on Mary’s shoulder and his face almost in hers, talking to her. One white boy swore that he had seen Mary shrinking away from Frank’s suspicious advances. Another white boy swore that Mary said she was suspicious and afraid of Frank. Another white girl swore she heard him calling her “Mary,” in close conversation.
How many witnesses are necessary to prove that the licentious young Jew lusted after this Gentile girl?
The record gives you four.
(See the evidence of Ruth Robinson, J.M. Gantt, Dewey Howell and W.E. Turner.)
Why, then, did she continue to work there?
She needed the money, and felt strong in her virtue: she never dreamed of violence.
She kept on working, as many poor girls do, who cannot help themselves. Freedom to choose, is not the luxury of the poor.
But let us pass on. The fatal day comes, and Mary comes, and then her light goes out—the pretty little girl who had dressed up for the Holiday and gone out, radiant with youth and health and beauty, to enjoy it, as other young girls all over the South were doing. She goes into Frank’s own private office, and that’s the last of her.
What became of her? Tell us, Luther Rosser! Tell us, Herbert Haas! Tell us, Nathan Strauss! Tell us, Adolph Ochs! Tell us, Rabbi Marx! Tell us, William Randolph Hearst!
What became of our girl?
YOUR MAN, FRANK, HAD HER LAST: WHAT DID HE DO WITH HER?
So far as I can discover, the only theory advanced by the defenders of Leo Frank, is hung upon Jim Conley. They claim that Jim darted out upon Mary as she stepped aside on the first floor, cut her scalp with a blow, rendered her unconscious, pushed her through the scuttle-hole, and then went down after her, tied the cord around her neck, choked her to death, hid the body, wrote the notes, and broke out by the basement door.
If the defense has any other theory than this, I have been unable to find it. And they must have a theory, for the girl was killed, in the factory, immediately after she left Frank’s private office. There is the undeniable fact of the murdered girl, and no matter what may be the “jungle fury” of the Atlanta “mob,” and of the “semi-barbarians” of Georgia, these mobs and barbarians did not kill the girl.
Either the Cornell graduate did it, or Jim Conley did it.
Did Jim Conley do it? If so, how, and why? What was his motive, and what was his method?
The defense claims that he struck her the blow, splitting the scalp, on the first floor, where he worked, immediately after she left Frank’s office on the second floor.
They claim that the negro then dragged the unconscious body to the scuttle-hole, and flung her down that ladder.
What sort of hole is it? All the evidence concurs in its being a small opening in the floor, with a trap-door over it, and only large enough to admit one person at a time. (It is two-feet square.)
Reaching from the opening of this hole, down to the floor of the basement, is a ladder, with open rungs.
Now, when Jim Conley hit the girl in the head, and split her scalp, they claim he pushed her through the trap-door, so that she would fall into the basement below.
But how could the limp and bleeding body fall down that ladder, striking rung after rung, on its way down, without leaving bloodmarks on the ladder, and without the face and head of poor dying Mary being all bunged up, broken and cut open, by the repeated beatings against the “rounds” of the ladder?
How could that bleeding head have lain at the foot of the ladder, without leaving an accusing puddle of blood? How could that bleeding body, still alive, have been choked to death in the cellar, leaving no blood on the basement floor, none on the ladder, none at the trap-door, none on the table where they claim the notes were written, and none on the pads and the notes?
Not a particle of the testimony points suspicion toward the negro, before the crime. He lived with a kept negro woman, as so many of his race do; but he had never been accused of any offense more grave than the police common-place, “Disorderly.” (His fines range from $1.75 to $15.00.)
He was at the factory on the day of the crime, and Mrs. Arthur White saw him sitting quietly on the first floor, where it was his business to be. After the crime, there was never any evidence discovered against him. He lied as to his doings at the time of the crime, but all of these were consistent with the plan of Frank and Conley to shield each other. Frank was just as careful to keep suspicion from settling on the negro, as the negro was to keep it from settling on Frank.
You would naturally suppose that the white man, reasoning swiftly, would have realized that the crime lay between himself and the negro; and that, as he knew himself to be innocent, he knew the negro must be guilty.
Any white man, under those circumstances, would at once have seen, that only himself or the negro could have done the deed, since no others had the opportunity.
Hence, the white man, being conscious of innocence, and bold in it, would have said to the police, to the detectives, to the world—
“No other man could have done this thing, except Jim Conley or myself; and, since I did not do it, Jim Conley did. I demand that you arrest him, at once, and let me face him!”
Did Frank do that? Did the Cornell graduate break out into a fury of injured innocence, point to Conley as the criminal, and go to him and question him, as to his actions, that fatal day?
No, indeed. Frank never once hinted Conley’s guilt. Frank never once asked to be allowed to face Conley. Frank hung his head when he talked to Newt Lee; trembled and shook and swallowed and drew deep breaths, and kept shuffling his legs and couldn’t sit still; walked nervously to the windows and wrung his hands a dozen times within a few minutes; insinuated that J.M. Gantt might have committed the crime; and suggested that Newt Lee’s house ought to be searched; but never a single time threw suspicion on Jim Conley, or suggested that Jim’s house ought to be searched.
Did the negro want to rob somebody in the factory? Could he have chosen a worse place? Could he have chosen a poorer victim, and one more likely to make a stout fight?
Mary had not worked that week, except a small fraction of the time, and Jim knew it. Therefore he knew that her pay-envelope held less than that of any of the girls!
Did Jim Conley want to assault some woman in the factory? Could he have chosen a worse time and place, if he did it on the first floor at the front, where white people were coming and going; and where his boss, Mr. Frank, might come down stairs any minute, on his way to his noon meal?
No negro that ever lived would attempt to outrage a white woman, almost in the presence of a white man.
Between the hour of 12:05 and 12:10 Monteen Stover walked up the stairs from the first floor to Frank’s office on the second, and she walked right through his outer office into his inner office—and Frank was not there!
She waited 5 minutes, and left. She saw nobody. She did not see Conley, and she did not see Frank.
Where were they? And where was Mary Phagan?
It is useless to talk about street-car schedules, about the variations in clocks, about the condition of cabbage in the stomach, and about the menstrual blood, and all that sort of secondary matter.
The vital point is this—
Where was Mary, and where was Frank, and where was Conley, during the 25 minutes, before Mrs. White saw both Frank, and Conley?
Above all, where was Frank when Monteen Stover went through both his offices, the inner as well as the outer, and couldn’t find him?
She wanted to find him, for she needed her money. She wanted to find him, for she lingered 5 minutes.
Where was Frank, while Monteen was in his office, and was waiting for him?
THAT’S THE POINT IN THE CASE: all else is subordinate.
Rosser and Arnold are splendid lawyers; no one doubts that. They were employed on account of their pre-eminent rank at the bar. I have been with them in great cases, and I know that whatever it is possible to do in a forensic battle, they are able to do.
Do you suppose for one moment that Rosser and Arnold did not see the terrible significance of Monteen’s evidence?
They saw it clearly. And they made frantic efforts to get away from it. How?
First, they put up Lemmie Quinn, another employee of Frank, to testify that he had gone to Frank’s office, at 12:20, that Saturday, and found Frank there.
But Lemmie Quinn’s evidence recoiled on Frank, hurting the case badly. Why? Because two white ladies, whom the Defendant put up, as his witnesses, swore positively that they were in the factory just before noon, and that after they left Frank, they went to a café, where they found Lemmie Quinn; and he told them he had just been up to the office to see Frank.
Mrs. Freeman, one of the ladies, swore that as she was leaving the factory, she looked at Frank’s own clock, and it was a quarter to twelve.
Mrs. Freeman testified that as she passed on up the stairs in the factory building, she saw Frank talking to two men in his office. One of these men was no doubt Lemmie Quinn. At any rate, after she had talked to the lady on the fourth floor (Mrs. White) and had come down to Frank’s office to use his telephone, the men were gone; and when she met Quinn at the café, he told her that he had just been up to Frank’s office. Hence the testimony of Mrs. Emma Clarke Freeman, and Miss Corinthia Hall, smashed the attempted alibi. And of course the abortive attempt at the alibi, hurt the case terribly.
Let me do Mr. Quinn the justice to say, that he merely estimated the time of day, by the time it would have taken him to walk from his home; and that he admitted he had stopped on the way, at Wolfsheimers, for 10 or 15 minutes—all of which is obvious guess-work. He frankly admitted that when he met Mrs. Freeman and Miss Hall at the Busy Bee Café, he told them he had just been up to Frank’s office.
Secondly, the able lawyers for the defense endeavored to meet Monteen Stover’s evidence by the statement of Frank himself. This statement is so extraordinary, that I will quote the words from the record:
“Now, gentlemen, to the best of my recollection, from the time the whistle blew for twelve o’clock until after a quarter to one when I went up stairs and spoke to Arthur White and Harry Denham, to the best of my recollection, I did not stir out of the inner office, but it is possible that to answer a call of nature or to urinate I may have gone to the toilet. Those are things that a man does unconsciously and cannot tell how many times nor when he does it.”
Here then was the second of the two desperate, but futile, attempts to account for the whereabouts of Frank, at the fatal period of time when he and Mary are both missing.
Pray notice this: Frank’s first statement made a few hours after Mary’s corpse was found, made no mention of Lemmie Quinn’s coming to the office after Hattie Hall left. The effort to sandwich Quinn between Hattie Hall and Mrs. White, was a bungle, and an afterthought. It showed he felt he must try to fill in that interval and the failure showed his inability to do it. Hence he is left totally unaccounted for, during the half-hour when the crime was committed.
Frank’s final statement—the one he made to the jury—hurt him another way: he said he was continuously in his inner office, after Hattie Hall left, whereas Mrs. Arthur White on her unexpected return to the factory surprised him in his outer office where he was standing before the safe with his back to the door. He jumped when she spoke to him, and he turned round as he answered.
He did not explain what he was doing at the safe at that time 12:35, and the State’s theory is, that he had been putting Mary’s mesh bag and pay-envelope in the safe.
The only material thing about it is, that he was out of his inner office at 12:35, and not continuously in it up to nearly 1 o’clock, as he declared he was. And he had never even attempted to explain why he was at the safe at that time.
The fact that Conley may have been missing too, is secondary, and more doubtful. Monteen did not come there to look for him. Her mind was not on Jim Conley.
Monteen’s mind was on her money and the man who had it. She went there to find Frank. She says—“I went through the first office into the second office. I went to get my money. I went in Mr. Frank’s office. He was not there.
I stayed there 5 minutes, and left at 10 minutes after 12.”
Mrs. Freeman and Miss Hall had already been there; Lemmie Quinn had already been there; and these visitors, having gone up to Frank, came down again. Next comes pretty Mary Phagan, and she goes up to Frank, and Frank receives her in his private office; and when Monteen comes up into that same office, in her noiseless tennis shoes, at 5 minutes after twelve, neither Mary nor Frank were to be heard or seen. O! where were they, THEN?
To the end of time, and the crack of doom, that question will ring in the ears and the souls of right-feeling people.
Frank says he may have unconsciously gone to the toilet. Then he has unconsciously PUT HIS FEET IN THE MURDERER’S TRACKS!
The notes make Mary Phagan go to the same place, at the same time; and the blood spots and the hair on the lathe show that she died there!
On page 185 of the official record, Frank says—
“To the best of my knowledge, it must have been 10 or 15 minutes after Miss Hall left my office, when this little girl, whom I afterwards found to be Mary Phagan, entered my office and asked for her pay envelope. I asked for her number and she told me; I went to the cash box and took her envelope out and handed it to her, identifying the envelope by the number.
“She left my office and apparently had gotten as far as the door from my office leading to the outer office, when she evidently stopped, and asked me if the metal had arrived, and I told her no. She continued her way out, &c.”
Note his studied effort to make appear that he did not even lift his eyes and look at this rosy, plump and most attractive maid. He does not even know that she stopped at his inner office door, when she spoke to him. She evidently stopped, apparently at the door; he does not know for certain; he was not looking at her to see. She spoke to him, and he to her, but he does not know positively that she stopped, nor positively where she was, at the time. He did not recognize her at all. She gave him her number, and he found an envelope to match the number, and he gave it to the little girl, whom he afterwards found to be Mary Phagan! “Found,” how? By looking at the pay-roll, and seeing that Mary’s name corresponded with the number that was on the pay envelope!
Let me pause here long enough to remind you that J.M. Gantt, Dewey Howell, W.E. Turner and Miss Ruth Robinson, all swore positively that Frank did know Mary Phagan, personally, by sight and by name.
But what follows after Mary leaves Frank’s office?
He says—“She had hardly left the plant 5 minutes when Lemmie Quinn came in.”
But Miss Corinthia Hall, and Mrs. Emma Clarke Freeman, and Quinn himself, made it plain that Quinn had already been there and gone, before they arrived.
When did they arrive? And when did they leave?
They came at 11:35 and left at 11:45! They were Frank’s own witnesses, and they demolished the Lemmie Quinn alibi and Frank’s own statement!
What can be said in answer to that? Nothing. It is one of those providential mishaps in a case of circumstantial evidence, that makes the cold chills run up the back of the lawyer for the defense.
I know, for I have had them run up my back; I know them, of old.
See if you get the full force of the point. Remember that Frank’s lawyers put up Mrs. Freeman and Miss Hall, to account for Frank at the fatal period when he seemed to be missing. Evidently, they were expected to account for Frank up to Lemmie Quinn’s arrival, and after that, Lemmie was to do the rest. But Mrs. Freeman and Miss Hall not only arrived too soon, but got there after Lemmie! When they left at 11:45, by the clock in Frank’s office, they went to the café, and who should be there but Lemmie, and Lemmie, in the innocence of his heart, said he had just been up to Frank’s office.
Mary Phagan, as all the evidence shows, was at that time on her way to the fatal trap!
The evidence of Frank’s three witnesses, Miss Hall, Mrs. Freeman and Lemmie Quinn, proves that he told the jury a deliberate falsehood when he said that Quinn was with him, after Mary Phagan left.
That’s the crisis of the case!
Desperately he tries to show where he was, after the girl came; and, desperately, he says that Quinn came after Mary left, and that Quinn knows he was there in his office, after Mary had departed.
Ah no! The great God would not let that lie to prosper!
Mrs. Freeman, Miss Hall, and Quinn put themselves in and out—there and away, come and gone, before Mary came—and where does that leave Frank?
The plank he grabbed at, he missed. The straw he caught at, sunk with him. When Lemmie Quinn fails him, he sinks into that fearful unknown of the half hour when the unexpected Monteen Stover softly comes into the outer office, goes right on into Frank’s inner office, seeking her money, and cannot find Frank!
The place is silent; the place is deserted; she waits five minutes, hears nothing, and sees nobody. Then she leaves.
Where were you, Leo Frank?
And where was our little girl?
Desperately, he says he may have gone to the closet.
Fatefully, the notes say Mary went to the closet.
Fatally, her golden hair leaves some of its golden strands on the metal lever, where her head struck, as Frank hit her; and her blood splotched the floor at the dressing room, where Conley dropped her.
What broke the hymen? What tore the inner tissues? What caused the dilated blood vessels? What laceration stained the drawers with her vaginal blood? How came the outer vagina bloody?
Who split her drawers all the way up? Who did the violence to the parts that Dr. Harris swore to?
The blow that bruised and blackened, but did not break the skin, was in front, over the eye, which was much swollen when the corpse was found. The blow that cut the scalp to the bone and caused unconsciousness, was on the back of the head.
Who struck her with his fist in the face, and knocked her down, so that, in falling, the crank handle of the machine cut the scalp and tore out some of her hair?
How did anybody get a chance to hit her in the back of the head, and not throw her on her face? Would a negro go for a cord with which to choke a white woman he had assaulted? Would a negro have remained with the body, or cared what became of it, and taken the awful risks of getting it down two floors to the basement? Would a negro have lingered by the corpse to write a note on yellow paper, and another note on white paper? Would a negro have loafed there to compose notes at all? What negro ever did such a thing, after such a crime?
Place in front of you a square piece of blank paper, longer than it is broad; an old envelope will do. This square piece of paper, longer than it is broad, will represent the floor of the building—the second floor, upon which Mary Phagan was done to death.
Draw a line through the middle of the square, from top to bottom, cutting the long square into two lesser squares. These will sufficiently represent the two large rooms into which the second floor was divided by a partition. Mark a place in the center of the partition, for the door which opens one room into the other.
Where was Frank’s office?
It was at the upper right-hand corner of the room, to your right, as the square lies lengthwise before you.
Mark off a small square at that corner, for Frank’s office.
Mark off a small square, in the left hand corner of the second room, and run a line through it, to divide this small closet, into two divisions. One of these small divisions was the water-closet of the men; the other, of the women! You cannot crumple a piece of paper in the one, without being heard in the other!
We naturally turn to Frank, and we naturally ask him—
What did Mary do, after you gave her the pay-envelope? Where did she go?
He cannot answer.
But thereupon we take it up, another way, and we ask him this question—
Where were YOU after Mary left? Did you stay in your office? Did you go anywhere, and do anything?
Now, follow the facts closely:
Frank’s own detective, Harry Scott, in his energetic efforts to find the criminal, pinned Frank down, as to where he was, after 12 o’clock.
Frank told Harry Scott, in the hearing of John Black, that he was continuously in his office, during the 45 minutes AFTER MARY HAD COME AND GONE.
The white lady, Mrs. Arthur White, returned at 12:35, and found Frank in his office, standing before the iron safe. He jumped nervously, when he heard her.
Now, then: Monteen Stover went to Frank’s office, after Mary had gone away from it, AND BEFORE MRS. WHITE CAME BACK, AT 12:35.
Where was Frank, then?
Right there, in that fateful half-hour, lies the crime.
Who is the criminal?
If Frank had been in his office, Monteen would, of course, have seen him when she went to it—and he would have seen her.
He did not see her, and therefore did not know that she had been there, until after he had told Harry Scott, positively and repeatedly, that he was in his office, THEN.
It was afterwards, when the unimpeachable Monteen told what she knew, that Frank saw how he had boxed himself up.
Then it was, that such a persistent and desperate effort was made to get Monteen’s evidence out of the way.
Then it was, that Burns in person tried first to persuade, and then to bulldoze her.
(Why don’t some of Frank’s paid champions dwell on that ugly phase of his case?)
The enormous weight which Frank’s lawyers and detectives (Burns and Lehon) attached to Monteen’s evidence, is the best proof that Monteen’s evidence clinches the guilt of Frank. When Frank told Scott and Black that he was in his office, continuously, after Mary left, he knew the vital necessity of accounting for his whereabouts, at that particular time.
He knew it, even then!
His definite, positive placing of himself, during that particular half-hour, shows that he knew it.
BUT HOW CAME HE TO KNOW IT?
If some one else made away with the girl, he did not THEN know when the deed was done.
If he was as innocent as you and I, he did not then know, any better than you and I then did, the vast materiality of his whereabouts, at any one half-hour of that fatal day.
How came he, at that time, to be so extremely careful to account for himself, for that special half-hour, and why did he lie about it?
He does not deny what he told Scott and Black; he does not accuse Monteen of a perjury for which she had no motive; he stated to the jury that he might have gone to the water-closet, on a call of nature, which he curiously said is an act that a person does “without being conscious of it.”
If Frank told Scott and Black a deliberate falsehood as to his whereabouts, that is a powerful circumstance against him.
If he was actually out of his office, just after Mary left, that, also, is a powerful circumstance against him, provided he cannot tell where he was.
If, in giving the only possible account of himself, he puts himself at the water-closet, then the crime gets right up to him, provided Mary was ravished and killed, in that same room.
Now, where was Mary ravished and killed?
The blood-marks and the hair say, in that same room!
And the notes say, in that same room!
The blood-marks tell where she was; and if Frank went out of his office, to go to the closet, he went right there!
The notes make Mary say that she went to the closet, “to make water,” and, if she did, she went right there.
If a negro seized her, raped her and killed her, he had to be right where Frank says he was, when absent from his office.
But if Frank was in his office, and Monteen is a liar without motive, how could a negro come up from the lower floor (where Mrs. White saw him,) and commit the crime, without Frank hearing, or seeing a single thing to excite his suspicion?
Where is the negro who would go that close to a white man’s office, when he knew the white man was there, to commit such a fiendish crime upon a white girl? And how did the negro, by himself, get the body from the second floor, down to the basement?
Mary’s body was found on the night of Saturday the 26th. It appeared to have been dead a long time. “The body was cold and stiff.” The notes were lying close by.
Newt Lee went on duty for the night, as usual, that Saturday night, and it was he who found the body on that night, at about 3 o’clock.
Therefore, you have a clear case of murder, on Saturday, sometime after the noon hour, and before Newt Lee came on duty as night-watchman, at 6 o’clock.
Conley was not back in the building that day, after 1 o’clock. Frank was. The record shows this.
The circumstances conclusively prove that somebody did the deed, during the half-hour following Mary’s coming to Frank’s office.
Frank admits that he is the last white person with whom she was ever seen. The blood and the notes say she was assaulted on Frank’s floor, near the closets, which she and Frank both used.
The notes make her go to the closet, to answer a call of nature, immediately after she left Frank!
She did not go up stairs; she had no work to do in the factory, that day; and if she went to the toilet at all, she went there from Frank’s office.
She never again appeared down stairs; or out of doors.
If she had gone up stairs, Mrs. White and others would have known it. If she had gone down stairs, both Frank and Conley would know it.
Yet at 12:35, Mrs. White saw Frank, but did not see the girl.
She had disappeared, during the very time that Frank disappears; and when Frank gets back into his office, at 12:35, that little girl is out there near the toilet, in the next room, choking to death.
It was Frank who was close to her; it was the negro who was down stairs.
No wonder Frank “jumped,” when Mrs. White came up, behind, and spoke.
No wonder he hurried Mrs. White out of the building, hesitated to allow J.M. Gantt to go in for his shoes, and refused to let Newt Lee enter.
By all the evidence, Frank and Jim were the only living mortals in that part of the house, at that time. Mary undoubtedly was there, at the time, by Frank’s own line of defence.
There was one short sentence Capt. J.N. Starnes’ re-direct examination, that did not rivet my special attention at first. That sentence was—
“Hands folded across the breast.”
That simple statement came back, again and again, knocking at the door, as if it were saying, “Explain me!”
How did it happen that a girl who had been raped or murdered—or both—was found with her hands folded over her breast?
How could a girl who had been knocked in the head, on the first floor, and tumbled down into the basement, through a scuttle-hole, and over a ladder, as Defendant claims, have her hands resting quietly on her bosom?
Frank’s theory represents Jim as attacking Mary on the first floor, finishing her in the basement below, then writing the notes, breaking the door, and speeding away.
That theory does not account for those folded hands.
A girl knocked on the head, into unconsciousness, and then choked to death with a cord, does not fold her own hands across her bosom. O no!
In the agony of death, her arms will be spread out. And if, hours later, those arms are found across her bosom, the little hands meeting over the pulseless heart, be sure that somebody who remembers intuitively how the dead should be treated, has put those agonized hands together!
There were the indisputable and undisputed facts: a bloody corpse, with a wound in the head, torn underclothing, privates bloody, a tight cord sunk into the soft flesh of the neck, the face blackened and scratched by dragging across a bare floor of cinders and grit, and yet when turned over and found “cold and stiff,” the testimony curtly adds—
“Hands folded across the breast.”
How did that happen? Who folded those little hands across the heart which beat no more?
In vain, I searched the evidence. Nowhere was there an explanation. In fact, nobody had seemed to be struck by that brief, clear statement of Capt. Starnes, which everybody conceded to be strictly true:
“Hands folded across the breast.”
Mind you, when she was found in the basement, she was lying on her face, not directly on her stomach, but so much so that they had to “turn her over,” to see her face, and wipe the dust and dirt off, for the purpose of recognition. (See official record, pages 7, 8 and 9.)
Lying on her face! Had to turn her over, and “the body was cold and stiff.” But the frozen hands—where were they? “Folded across the breast.”
Then, they had become rigid in that position! They had not come off the bosom, even when the body was turned over! They had remained across the breast, while the body was being dragged.
Dr. Westmoreland and Dr. Harris would probably agree, for at least one time, and both would say, as competent experts, that those hands, (to remain fixed under those circumstances,) had been placed across the girl’s bosom, before the stiffness set in.
Death froze them there!
You may read every line of the evidence on both sides, as I did, and you will not find any explanation of those folded hands—hands folded as no murdered woman’s were ever found before, except where somebody, not the murderer, instinctively followed universal custom, and folded them!
Can you escape that conclusion? No, you can’t. At least, I couldn’t, and I have been reading and trying murder cases, nearly all my life.
Then, as a last resort, in my efforts to satisfy myself about that unparalleled circumstance of the folded hands, I decided to turn to Jim Conley’s evidence, saying to myself, as I did so, “If that ignorant nigger explains that fact, whose importance he cannot possibly have known, it will be a marvelous thing.” So I turned to Conley’s evidence, searching for that one thing. On page 55, I found it. Here it is:
“She was dead when I got back there, and I came back and told Mr. Frank, and he said ‘Sh-sh!’….The girl was lying flat on her back and her hands were out, this way. I put both of her hands down, easy, and rolled her up in the cloth….I looked back a little way and saw her hat and piece of ribbon and her slippers, and I taken them and put them all in the cloth.”
The girl was lying flat on her back, hands out this way—and he illustrated. “I put both of her hands down.” Then, they were not only out, but up—as if the pitiful little victim had been pushing something, or somebody, off!
Those dead hands are fearful accusers of the white men who now say that Mary Phagan did not value her virtue.
Only the other day, there was issued by the Neale Publishing Company, a new book of war experiences, written by a Philadelphia surgeon, Dr. John H. Brinton; and he relates some vivid incidents showing the rapid action of the rigor mortis—the “instantaneous rigor,” following mortal wounds received in battle. He made a special study of the dead, on the field which the North calls Antietam. (Our name for it is, Sharpsburg.)
On page 207, Dr. Brinton speaks of the cornfield and sunken road, so famous to the literature of the War; and he says, “Dead bodies were everywhere…..Many of these were in extraordinary attitudes, some with their arms raised rigidly in the air….
I also noticed the body of a Southern soldier….The body was in a semi-erect posture….One arm, extended, was stretched forward…..His musket with ramrod halfway down, had dropped from his hand.”
This Southern soldier had been lying in the road, had half risen to load and shoot, had been shot while driving the ramrod home, and the gun had dropped; but the soldier himself remained, face to the foe, half-erect, with “one arm extended, and stretched forward.”
Brave Southern soldier! Death itself could not rob him of the proofs of his unfailing heroism.
Brave Southern girl! Death itself would not rob Mary Phagan of the proofs, that she fought for her innocence to the very last.
Shame upon those white men who desecrate the murdered child’s grave, and who add to the torture of the mother that lost her, by saying Mary was an unclean little wanton.
Jim Conley had no motive to describe her hands as being uplifted; and he, an ignorant negro, could not have realized the stupendous psychological significance of it.
Providence was against Frank in this case. The stars in their courses fought against him, as they fought against Sisera. His lawyers must have felt it.
Providence was against him, in the time of Monteen Stover’s unexpected visit to his office.
Providence was against him, in the unexpected return of Mrs. White.
Providence was against him, in the fatal break-down of his alibi.
Providence was against him, in the apparently trivial fact that Newt Lee’s call of nature, Saturday night, did not occur on any of the floors above the basement—all of which had closets—but occurred in the basement, where the closet was close to the dead girl.
Providence was against him, in the fact that Barrett worked that crank handle, the last thing on Friday evening, and was thus able to credibly swear that it had no woman’s hair on it, then.
Providence was against him, in that Stanford swept the whole floor Friday, and was thus able to credibly swear that there was no blood on it, then.
Providence was against him, when he was forced into explaining his absence from his office by unwittingly putting himself at the place of that woman’s hair and those fresh blood spots.
Providence was against him, when that cold and stiff girl was found in the basement, with “hands folded across the breast,” for that fact—apparently little—imperiously demands explanation!
And when you start out to hunt for the explanation which you know must exist, you search every nook and cranny in the case without finding it, until you read a line or two which the negro did not understand the meaning of—and which, so far as I can learn—has never been the subject of comment, on either side.
It happened to flash across me, that I had recently read something similar, in the book which Walter Neale had sent me for review; and then I saw the meaning of Mary’s hands being in such a position upward, that Jim had to put them “down.”
No negro could have invented that. No negro could have known the importance of that. Apparently, the lawyers did not pay any attention to it. Am I mistaken in doing so? Am I wrong in saying that this little fact absolutely establishes the truth of the State’s theory?
How, else, do you account for the hands folded across her breast, so rigidly that when her body had been dragged, and then turned over, the rigid posture of the hands was maintained, by the frozen muscles?
To save your life, you cannot explain it, except by saying that somebody, almost immediately after the girl’s death, put her hands in that position. She didn’t do it.
Who was that somebody?
Not the man who killed her, you may be dead sure.
But the nigger says, he did it.
Then you may stake your life on the proposition, that the nigger didn’t kill her.
Negroes who assault and murder white women, don’t loiter to fold hands, write notes, and pick up hats, ribbons and slippers.
Negroes who assault and murder white women, have never failed to hit the outer rim of the sky-line, just as quick as their heels can do it.
But as it was the nigger who put down the girl’s hands, and folded them across her breast, soon after her life went out, who did kill her?
THE ONLY OTHER POSSIBLE MAN, IS FRANK.
Was it Frank, and not the nigger, who was “lascivious,” at that factory? Twelve white women swore, “Yes.”
Was it Frank, and not the nigger, who had been after this little girl. Three white witnesses swear, “Yes.”
How many more witnesses do you want, than fifteen white ones?
And yet the Burnses, and Connollys, and Pulitzers, and Abells, and Ochses, and Thomsons and Rossers are still telling the outside world that the virtuous Frank was convicted on race prejudice, and the evidence of one besotted negro!
Was any State ever so maligned, as Georgia has been?
Let me call your attention to another little thing in the negro’s evidence which there was no need to “make up.” It is his statement that he wrote, at Frank’s dictation, four notes before Frank was satisfied. Why say four, when only two were found? The negro in testifying at the trial, knew that only two notes were found, yet he swore to writing four.
At least, I so understand his words, which were—
“He taken his pencil to fix up some notes….and he sat down and I sat down at the table and Mr. Frank dictated the notes to me. Whatever it was, it didn’t seem to suit him, and he told me to turn over, and write again, and I turned the paper and wrote again, and when I had done that, he told me to turn over and write again, and I turned over and I wrote on the next page, and he looked at that, and kinder liked it, and he said that was all right. Then he reached over and got another piece of paper, a green piece, and told me what to write. He took it and laid it in his desk.”
If that doesn’t make four notes, I don’t understand the language in the record; and if it means four, when only two were found and introduced into the case, it shows, at least, that the negro was not making up a tale to fit the known facts.
The negro said another thing that he could not have “made up,” because he does not even yet realize the meaning of it. The lawyers made no allusions to it. Jim said—“When I heard him whistle (the signal Frank had often used when he had lewd women with him) I went…on up the steps. Mr. Frank was standing up there at the top of the steps, and shivering and trembling, and rubbing his hands like this—.
He had a little rope in his hands—a long wide piece of cord. His eyes were large and they looked right funny…..
He asked me, “Did you see that little girl who passed up here a while ago?”
Jim told him he had seen two go up, and only one come down.
Mind you, Frank had not heard Monteen Stover, whose tennis shoes made no noise; and Frank knew nothing of her visit at all. When he asked Jim if he had seen that little girl, Frank meant, “Did you see the Phagan girl?”
Frank’s purpose was, to learn whether Jim had seen the little girl, who was then lying out there in the metal room, with a piece of that cord around her neck. If the negro had answered, “No, I didn’t see any girl,” Frank would never have said another word to him about her. It was only after he found out that Jim had seen her go up, but not come down, that he had to take Jim into his confidence one more time.
Much has been said about the improbability of Frank making a confidante out of a negro of low character. Does an immoral white man make a confidante out of a negro of high character? Will a respectable negro act as go-between, procurer, or watch-out man, for a white hypocrite who is one thing to his Rabbi and his Bnai Brith, and quite a different thing to the cyprians of the town?
Suppose I can show you from the official record that Frank’s lawyers knew that the murder was committed on Frank’s floor, back there where the blood and hair were found, won’t you be practically certain that they also knew Frank to be guilty?
Come along with me, and see if I don’t prove it to you:
Leo Frank employed Harry Scott, a detective, to ferret out the criminal, and Scott went into the case with great vigor. In fact, he soon showed altogether too much vigor to suit Frank, and Herbert Haas. Herbert became alarmed—why? And Herbert told Scott to first report to him, Herbert, whatever he might discover, before letting any one else know. Herbert Haas was chairman of the Frank Finance Committee, and he was one of the lawyers for the defense.
Scott did not like to be shut off from the police, and confined to a Herbert Haas investigation, and so he remonstrated with the Chairman of the Finance Committee.
But before Scott was fired, he had drawn from Frank two material statements. One was, his alleged continuous presence in his office after Hattie Hall left; and the other was, his answer to Mary Phagan, when she asked him if the metal had come.
Frank told Scott that when Mary asked him whether the metal had come, he replied, “I don’t know.” At that time, Frank was not aware of the fact that Monteen Stover could prove that he was absent from his office when Mary was being murdered.
What did Mary’s question about the metal prove? That her mind was on her work. She had lost nearly the whole week, because the supply of metal had run out. They were expecting more. If it had come, she could go back to work in that metal room, next Monday. Therefore, when she asked Frank, “Has the metal come?” her thoughts were on her work and she was eager to know whether she could return on Monday to resume it. “Has the metal come?” Equivalent to, “Will there be any work for me next week? Must I lose another week, or can I come back Monday?”
This was the meaning of the question. What was the meaning of Frank’s answer?
If he said, “I don’t know,” the girl would naturally suggest, or he would, that they go back there, to that metal room, and see.
Can you escape this conclusion? If he didn’t know whether the metal was there or not, the only way to tell for certain, was to go and look. If he was doubtful, the girl would want to go and look to see if it was there, for the girl wanted to resume her work.
Now, if that answer, “I don’t know,” were allowed to stand, Rosser realized, quick as lightning, that it led to the inevitable conclusion that the girl went back to the metal room to see about it, and was assaulted there!
Consequently, Frank not only changed his answer of, “I don’t know,” into a positive, “No;” but Rosser went at Scott, hammer and tongs, to badger him into saying that he may have been mistaken, and that Frank may have said, “No,” instead of, “I don’t know.”
But the point is this: If Rosser had not felt certain that the blood and the hair proves that Mary was killed on Frank’s floor, near Frank’s closet, and at about the time Frank puts himself at the closet, what would Rosser have cared whether Mary went to the metal room, or not?
If Jim Conley killed Mary on the first floor, or in the basement, it did not at all matter whether she went to the metal room, either with Frank, or by herself.
The strenuous effort of Rosser to escape from that answer of “I don’t know,” proves what he knows. He knows very well that the girl was killed on the second floor. Otherwise, you cannot understand why Frank was made to change his statement, and why such herculean strength was used to get a change out of Harry Scott.
The difference between “No,” and “I don’t know,” is a difference between tweedledum and tweedledee, unless Mary was murdered on Frank’s floor.
Rosser knew, just as you must now see, that if Frank told the girl, “I don’t know,” he might just as well have admitted that he and Mary went back there together, where the blood and hair were found.
The answer of, “I don’t know,”—suggesting as it did, an inspection of the room, to see about the metal—is the only plausible way to account for the girl’s being back there, unless indeed the notes speak the truth about her going to the closet.
(See Harry Scott’s evidence in record.)
Rosser’s desperate struggle to get away from the “I don’t know,” is wonderfully illuminating as to what was in Rosser’s mind. If he had placed the slightest reliance on the theory that the negro killed the girl, he would not have cared a button whether Frank went with Mary to see about the metal. If Rosser had not been absolutely certain that the girl was attacked and killed, back there, he would not have struggled so hard to keep her and Frank away from there. If Rosser had believed for a moment that Mary went on down stairs, after she left Frank, and was killed by the negro down stairs, he wouldn’t have wasted a breath over that question of whether Frank said, “No,” or said, “I don’t know.”
If the girl was killed down stairs, it would not have hurt Frank’s case in the least, if he had boldly admitted that, after telling Mary, “I don’t know,” he had gone back there with her to see. It is to be presumed that he, as well as she, wanted the work to go on; and therefore he, also, would be interested in the matter, with a view to her return on Monday.
Suppose he had said, “Yes, Mary came to my office, got her money, and we went back to the metal rom to see if the expected metal had come; and, after that, she went on down stairs, and I went back into my office, and saw no more of her.”
Where would have been the danger of his saying that? She was with him in the office; he admits that, after the evidence forces him to it; but why not go a little farther, and admit that he and she went to the metal room, before she left his floor?
Ask Rosser to tell you the answer to that question. Ask your own intelligence! What danger, was to be dreaded, in allowing Frank to say that he and Mary went to the metal room, even for one single minute?
If she was killed on the first floor—no matter who did it—there was no danger in letting Frank admit that he went to the metal room with her.
If she was killed in the basement—no matter who did it—there was no danger in the admission that she and Frank went to the metal room.
But Rosser’s desperate drive, to remove the very idea of her going to the metal room with Frank, proves the immense importance he attached to it. He could not allow it, he dared not allow it! Mary and Frank must not for an instant be allowed in the metal room, during that fatal half-hour!
Is there any possible answer, but the one? And that is—Mary’s tress of golden-brown hair is hanging out there in that room, on the crank of Barrett’s machine; and Mary’s life-blood is out there, on that recently swept floor!
Rosser said in his heart, “I dare not let Frank go there!”
When you test the theory that Conley alone did the deed, you have no evidence to rest it on. Jim never bothered those white girls, did not act like a negro who had committed the unpardonable crime on a white woman, did not try to lay suspicion on anybody, and went about his work as usual, on Monday and Tuesday.
There is absolutely no evidence against the negro, upon which the State could have made the shadow of a case.
When you test in your mind the hypothesis that Frank and Jim both committed the crime, you make some slight headway, for Jim and Frank shielded each other, until Frank was jailed. But this is not enough to implicate both, in the actual crime. It is enough to prove a common guilty knowledge of the crime, but it does not shut out the idea of Conley’s being accessory to the fact, after the deed was done.
It is only when you test in your mind the theory that Frank alone committed the crime, that all proved circumstances harmonize, and interlink to make the chain.
Twelve white girls swore that Frank had a lascivious character; and they learned what he was, inside this very factory.
One of his own witnesses, a white girl, swore to this immoral conduct, inside this very factory.
Conley mentioned the names of the white women and the white man who came into this very factory, to engage in vice with Frank, and one of these persons corroborated Conley on the witness stand.
White witnesses swore that Frank had been after little Mary, ever since March, inside this very factory.
Frank laid a trap for Mary, by forcing her to come back inside this very factory, when he might have sent her money by Helen Ferguson.
Mary walks into the trap inside that factory, and it closes on her.
God in Heaven! was guilt ever plainer, and more deliberately diabolical?
And are we to be dictated to by mass-meetings in Chicago, and by circular letters from New York and New England, when this awful crime stares us in the face?
Nothing corroborates Frank when he says that Conley alone committed the crime; and every undisputed fact is against that hypothesis.
Everything corroborates Conley, when he says that Frank did it, and he himself became mixed up in it, afterwards.
And if there is one feature of the case more convincing than another it is, that Frank was at least as careful to shield Conley from suspicion, AT FIRST, as Conley was, to shield Frank.
Until Frank himself was arrested, he tried to set the dogs on Lee and Gantt, BUT NEVER ONCE ON JIM CONLEY!
At first, Frank and Conley both acted like a pair who held a guilty secret between themselves.
Ah, it is a heartrending case. Big Money may muzzle most of the papers, hire the best legal talent, and bring remote popular pressure to bear upon our governor, but all the money in the world cannot destroy the facts, nor answer the arguments based on those facts.
Let me refer to the negro’s explanation of how it happened—my reference being confined strictly to facts where there is abundant corroboration.
Jim says he heard steps of two persons going back to the metal room; and Frank himself, states that Mary inquired about whether the metal had come, which would give her more work next week. What more natural than that Frank, when the girl asked, “Has the metal come?” should say, “Let’s go back there and see?”
What more natural than that she should go? And what more in keeping with Frank’s proved character, and his proved desire for this girl, than that he should make indecent advances to her, back there, where no one is in sight or hearing?
Jim says Frank called him by their agreed signal of stamping on the floor, and whistling, and that when he went up, Frank, looking wild and excited, told him, in substance, that he had tried the girl, that she had refused, that he had struck her, and he guessed he had hit her too hard; she had fallen, and in falling had hit something; she was unconscious.
Jim says he went back there where the girl lay, at the lathe, where her hair was found in the handle; and she was lying motionless with the cord around her neck. “The cloth was also tied around her neck, and part of it was under her head like to catch blood.”
All the witnesses swore to the strip of cloth; and the hair on the metal handle of the lathe was as fully identified as Mary’s, as hair could be under those circumstances. Frank’s own witness, Magnolia Kennedy testified that the hair looked like Mary’s; and Miss Magnolia was herself the only other girl there whose hair was at all like the golden brown of Mary Phagan’s.
Frank’s own machinist found the hair on the metal handle, and swore positively it was not there when he quit using that very machine—handle and all—Friday night, before the Saturday of the crime.
Mr. Barrett, the machinist, found the hair on the handle when he went back to the machine Monday morning. He was not at the factory Saturday. No one is shown to have been in that room Saturday. How did that long, golden-brown, woman’s hair get on that metal crank, where Barrett found it?
No girl or woman could be produced who pretended she was in the metal room on Saturday. No girl or woman could be found who could explain about the hair. Why not? Half-a-dozen of Frank’s own employees, several of them his own witnesses, swore to finding the hair, soon Monday morning; and they swore that it was not there Friday.
Why couldn’t it be accounted for?
The only answer is, Mary in falling, after Frank struck her and gave her that bruise on the eye, hit the metal handle, and it ripped her scalp and tore out some of her hair.
In no other way under the sun can that hair on the machine be explained.
Then the blood on the floor at the dressing room, some 23 feet from where the girl fell: whose blood?
All the witnesses say it was not there Friday when they quit work. Mell Stanford had swept the whole 2nd floor, and tidied up, generally; and he swore positively the blood spots were not there Friday. Barrett swore they were not there Friday. But the blood spots were there early Monday morning, seen by numbers of the employees, and denied by none. Schiff, the assistant superintendent, admitted it, Quinn admitted it, the men saw it, the women saw it, chips were cut out of the floor, and the doctors saw it.
Whose was it?
Not there Friday evening, right there Monday morning, whose was it?
If not Mary’s blood, produce your explanation! If not Mary, somebody else bled there. Who bled there, between Friday and Monday, if not Mary Phagan?
The question can not be answered, save in one way. You know quite well that if money or skill, or hard work, could have accounted for those guilty stains on that floor, the man or the woman who bled there would have been produced.
Conley says he dropped the girl on the floor, and that the blood spattered where those spots were found. Take that explanation, or go without one, for I assure you the court record offers no other. Frank in his own statement could only offer the explanation that Duffy or Gilbert when injured in the metal room, months before, might have bled there. Gilbert went on the stand and swore to his cut finger, but said none of the blood had dropped anywhere near those spots.
The futile effort to account for the blood, only deepens the significance of the fact that it was there, and adds fearful weight to the evidence of R.P. Barrett and Mell Stanford, that it was not there on Friday.
Jim says he and Frank carried the body down, in the elevator, to the basement. He says they had wrapped her up in a cloth which was taken off in the basement. He said that Frank made him promise to return to the plant, that afternoon, to help him dispose of the body, but he did not go back.
I have on purpose left out everything but the barest outline. Conley did go home and did not return, whereas Frank was back—we don’t know exactly when—and sent Newt Lee away at 4, when Newt wanted to go in and sleep.
A white man, whose character is not assailed, swears that he wanted permission to go into the factory at 6 o’clock, and that Frank not only first tried to dodge back out of sight into the gloom of the building, but lied to him about the sweeping out of the shoes, and then sent a negro to watch him.
Then the negro who was a trusted night-watchman—and whom Frank detailed to watch Gantt—swears that when he went down into the basement at 7 o’clock in the course of his regular rounds of the big building, less than an hour after Frank had gone, the light that had always been kept burning brightly there, by Frank’s own orders, had been turned down. “It was burning just as low as you could turn it, like a lightning bug. I left it Saturday morning burning bright.”
Who turned that light down?
Who went into that basement, after Newt went off duty early Saturday morning? Who was there during Saturday? What was the motive, in turning the light down and leaving it so? The motive was, to prevent Newt from seeing that corpse.
Not a single employee of the plant said that he or she had been in the basement that day. The light could not turn itself down. It was not a case of gas burning dim and low, for it burned brightly again when turned up.
Somebody turned down the light—who?
Over the telephone came the inquiry to Newt—“How is everything?” That was an hour or so after Frank had left. He had never done that before. He does not even claim that he had. But he explains it by saying he wanted to know whether Gantt had gone! What danger did he apprehend from Gantt?
Why was Gantt on Frank’s nerves? Newt swears that Frank did not mention Gantt, but simply asked. “How is everything?”
Was it not the jangling nerves and haunting suspicions, whose question really meant, “Have you found anything? Have you seen the dead girl? Is the murder out?”
Minola McKnight’s repudiated affidavit is in this terrible record, and in those statements which she verified and swore to in the presence of Mr. George Gordon, her attorney, she tells of that night of horror at Frank’s home.
You will probably suspect that if Newt Lee had not had occasion to go to the closet in the basement that night, Mary Phagan’s body never would have been found, for the going to the closet took him close to the corpse, and he saw it!
Frank did not intend for the corpse to be found; and he meant to creep back into the basement next day, and bury that girl in the dirt floor!
That door worked on a slide. It did not open, as door shutters usually do. It was locked and it was barred, usually. On Saturday night, Newt looked that way, and it was closed. He did not notice the bar, or the staple. On Sunday morning, the door was subjected to close examination. The witnesses say the staple had been drawn, and the bar taken down. But the door was completely closed!
Would a frightened, fleeing negro rapist and murderer, have pried out the staple, lifted off the bar, and then carefully, from the outside, pushed the door to, on the slide?
Why should Jim Conley break the basement door, when he could walk out, in front, on the first floor where he was sitting when Mrs. White saw him?
And why should any frightened and fleeing negro, too scared to walk out of the unlocked doors, break that door, and then carefully close it?
To me, it looks like a careful plan for somebody, to go in, without being seen. To me, it looks as if somebody, who had the run of the plant, came down there, pried out the staple, and lifted the bar, without opening the door at all. The opening was to be from the outside, next day.
Jim Conley could have unlocked that door easier than he could draw the staple. He could have lifted the bar and gone out, without violence, easier than he could go out by a burglarious breaking.
It wasn’t a question of going out; it was a question of coming in!
Do you say that Frank could have left the door unlocked, with the bar merely lifted off? The answer to that is, had he done so, he would have had to involve persons who had the keys!
To unlock from the inside, there must be an unlocker, on the inside.
Now, if Frank had unlocked the door, as well as removed the bar, the crime would have come home, right then, to one of the men who toted the keys. And a narrowing circle would have brought that search right up to him and Conley—for all the others could easily account for themselves at the exact half-hour of the crime.
Frank’s defenders claim that Conley broke open the basement door to get out.
What will you think of their sincerity and honesty, when I tell you page 21 of the agreed record shows that the negro was sitting near the front door, up stairs on the 1st floor, at about 1 o’clock, when Mrs. J.A. White passed him and went out at the front door?
What hindered the negro from walking out of the front door? The crime had been committed; the corpse was in the basement; and there was Jim sitting between the upper stairway and regular entrance door.
What need for him to squeeze through that scuttle hole, return to the basement, and break out the back way, in the alley? All he or Frank had to do, to get out, was to do what Mrs. White did—walk out. But if somebody wanted to come back around the back way, and glide into the basement unseen, then a sliding door, left in such a manner that it could be pushed back, from the outside, was necessary.
Another queer thing is, that Jim said that they left the corpse on the floor in front of the elevator, but that he flung the ribbon, hat and slippers into the trash-heap near the furnace, where Frank wanted body and all burnt that afternoon.
Now, when the body was found, it had been dragged from the elevator back to near the basement door, the ribbon, slippers and hat were at the same place, and only two notes—a white one and a yellow one—were lying near the girl’s head. Did Frank, who is a small man, drag that body away from the elevator? Did he gather up all her things and lay them by her? Did he select two of the notes, and destroy the other two? Did the other two notes go with her mesh bag and pay-envelope?
It is certainly a peculiar detail that Newt Lee, when an accident took him to the toilet near the corpse, saw the leg, first. In being dragged by the feet, and on the side face, at least one of the legs would be exposed.
Nobody but Frank and Conley are entrapped by that providential clockwork of the fatal half-hour.
Conley admits himself caught, and is being punished for it.
But it catches Frank, also; and where two criminals are involved in a crime against a white girl, the white man is the more apt to be the leader, the principal, especially in a case like this where ten white women swore to Frank’s lewd character, and three white witnesses swore that he had been after this very girl.
What is a demonstration of any man’s guilt, on circumstantial evidence? It is that degree of moral certainty which arises from the evident fact that, under those circumstances, no one else could have committed the crime.
Given a murder, and a state of facts which excludes everybody except the accused, and the accused is the guilty man, necessarily.
When it is admitted that somebody committed a crime, and the testimony shows that nobody but the Defendant could have done it, human Reason is satisfied, and so is the Law.
Let your mind rest upon one other very significant fact.
The ignorant negro who is accused of the crime, stood, a terrific cross-examination, lasting eight hours. The strongest criminal lawyer of the Atlanta bar wore himself out on Jim Conley, without damaging Jim’s evidence in the least.
On the contrary, the educated white man who is accused of the crime made a statement covering 45 large pages of closely printed matter, and refused to offer to answer one single question!
His defenders paint him as a man of intellectual gifts of which any community should be proud, as a man of spotless morals, as a man who is unjustly accused, foully convicted, and eager for vindication.
Why, then, did he shrink from a cross-examination? Why did he fear an ordeal through which the illiterate negro triumphantly passed?
In its tenderness to the accused, our law will not permit an examination of the defendant, unless he voluntarily consents. So just was the horror of our ancestors against that system of torture to compel confessions which popery had introduced into Europe, that they swung the pendulum back to the other extreme, and screened the prisoner from any question, whatever.
It is an unwise thing to give to the guilty an immunity from answering fair questions, for no innocent man could ever be hurt by it. But leaving all that out, a defendant can say—and often does say—“Ask me any fair question, and I will answer it.” Such an offer always makes a most favorable impression. The jury and the public at once begin to feel confident of the innocence of an accused, when he shows confidence in it himself.
Here was a college graduate, an intellectually superior man, environed by a terrible array of suspicious circumstances, with the whole republic looking on at his trial, with a mother and father intensely agitated, and the Hebrews of the Union, profoundly concerned.
What a magnificent opportunity for an innocent man to rise before the court and country, panoplied in the armor of conscious rectitude, and say to the State of Georgia—
“I have nothing to conceal. There are no guilty secrets in my soul. The more carefully you open my book of life, the more clearly will my innocence be seen. If I have not spoken to your satisfaction, and given a full account of myself, ask me about it! Put your questions. I am not afraid. No answer of mine can uncover a guilt that does not exist. Therefore I do not fear your questions: ask them!”
Wouldn’t that have been the attitude and the feeling of Nathan Strauss, for instance, had he been in Frank’s place?
What, then, is the net result of all this evidence, direct and circumstantial? It is this:
Leo Frank was a lecherous hypocrite, a moral pervert; a model, to Rabbi Marx, but a rake—and something more—to women would allow it;
He wanted this little girl, and the opportunity came on Saturday, April 26th, 1913;
She goes into his possession, and is found in his possession—but when she goes in, she is alive and well, and when found, she is cold and stiff, with the dried blood matted in her golden hair, and a tightly tied cord cutting into her soft neck.
Alive and dead, she is that day in Frank’s possession, and he cannot trace her out of it! To say that the negro shared that possession with him, may be true, but it does not help Frank.
At most, that gives him an accomplice, and the negro is even now being punished for that!
Mary goes into Frank’s house alive; she is soon afterwards found there, dead, cold and stiff; no mortals had the opportunity to assault and kill her, save Frank and Conley.
Say that the negro did the deed without the white man, and you cannot travel at all; no evidence whatever supports the theory.
Say that the white man did it, and then called for the negro’s help in getting rid of the body—and all the evidence harmonizes, facts link into facts, to make the iron chain of conviction.
On the great Knapp case, the fame of Daniel Webster, as a criminal lawyer, mainly rests; and in that case of circumstantial evidence the verdict of “Guilty” had no stronger support than was given to the verdict against Frank. In the Knapp case, the prosecution aided the State of Massachusetts by employing the greatest lawyer and forensic orator the American bar could boast. In the Frank case, the young Solicitor stood alone, and fought the strongest team of attorneys that money could enlist. Against Frank’s dozens of lawyers, detectives, press-agents, &c., the State of Georgia has arrayed nobody, save her regular officers of the Law.
In the Knapp case, Mr. Webster indignantly answered the friends of the defendant, who claimed that a popular clamor had been excited against the accused. He turned upon these too-zealous champions of the prisoner and exclaimed—
“Much has been said, on this occasion, of the excitement which has existed, and still exists, and of the extraordinary methods taken to discover and punish the guilty. No doubt there has been, and is, much excitement, and strange indeed were it, had it been otherwise. Should not all the peaceable and well-disposed naturally feel concerned, and naturally exert themselves to bring to punishment the authors of this secret assassination? Was it a thing to be slept upon or forgotten? Did you, gentlemen, sleep quite as quietly in your beds after this murder as before? Was it not a case for rewards, for meetings, for committees, for the united efforts of all the good, to find out a band of murderous conspirators, of midnight ruffians, and to bring them to the bar of justice and law? If this be excitement, is it an unnatural or an improper excitement?
“It is said that even a vigilance committee was appointed….They are said to have been laboring for months against the prisoner.
“Gentlemen, what must we do in such a case? Are people to be dumb and still, through fear of overdoing? Is it come to this, that an effort cannot be made, a hand cannot be lifted, to discover the guilty, without its being said, there is a combination to overwhelm innocence?
“Has the community lost all moral sense? Certainly a community that would not be roused to action, upon an occasion such as this was, a community which should not deny sleep to their eyes, and slumber to their eye-lids, till they had exhausted all the means of discovery and detection, must, indeed, be lost to all moral sense, and would scarcely deserve protection from the laws.”
Thus thundered Daniel Webster, rebuking those men of New England who blamed the people of Massachusetts for being aroused over the murder of an old man.
Great God! What would Webster have said to those New York preachers, and those Northern papers, who are so fiercely misrepresenting and denouncing the people of Georgia, for being aroused over the murder of a little girl?
Nobly expounding the purpose of the penal law, Mr. Webster said—
“The criminal law is not founded on a principle of vengeance. The humanity of the law regrets every pain it causes, every hour of restraint it imposes, and more deeply still, every life it forfeits. But it uses evil as the means of preventing greater evil. It seeks to deter from crime, by the example of punishment. This is its true, and only true main object. It forfeits the life of the murderer, that other murders may not be committed. When the guilty, therefore, are not punished, the law has, so far, failed of its purpose; the safety of the innocent is, so far, endangered. Every unpunished murder takes away something from the security of every man’s life.”
In pressing the case on Leo Frank, the State of Georgia has been free from any hostility toward a Jew; the State has sternly prosecuted him because he is a murderer.
In pressing the case against Leo Frank, we have felt none of the fury of prejudice and race hatred; we have demanded his punishment as a protection to other innocent Mary Phagans, as well as a vindication of the law, to strike terror into other Leo Franks.
We respectfully ask the other States of the Union to usurp no further jurisdiction over us than a high court of review would have—and that would be to examine the official record, as agreed upon by the attorneys on both sides, and judge us by that record.
If the sworn testimony supports the verdict of the jury, quit abusing us. If that sworn testimony not only sustains the evidence, but rendered any other verdict humanly impossible, quit talking about the semi-barbarians of Georgia, accusing them of Jew baiting, mob methods and jungle fury.
Unless Frank is entitled to immunity because he is a Jew, let the lightnings of Sinai strike him!
A married man, he was false to his young and buxom wife. A member of the Synagogue, he was false to the creed of his church. An educated Hebrew of splendid connections, he was false to the higher standards of his race. A citizen of Georgia, he was false to her Society, a canker and a pest. Subject to her laws, he broke them repeatedly, with shameless effrontery, in his place of business; and when one Gentile girl whom he lusted after persisted in repulsing him, he laid in wait for her, assaulted her, killed her, leaving her blood and her corpse in his place of business.
O my lords and gentlemen, what must we do to be saved from such men as these? Every race has them. Every State has them. Every nation has them.
Please God, I have written an argument that will vindicate our State, justify her courts, defy refutation, and stand unshaken to the end of time. That my work has been done voluntarily and without reward, or the remotest hope thereof, will not lessen its merit.
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Transcribed by Penelope Lee. Published with permission of the American Mercury.