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The Trial of Leo M. Frank

While anti-Semitism played a role in the lynching of Leo Frank, it does not appear to have been a factor in his trial. Read part two in a three-part story.

As far as I can tell, the popular case runs something like this:

Leo Frank was charged with murdering for two reasons: He was a Jew, and he was the last person known to have seen her alive. Anything else was just icing on the cake.

He was then railroaded by a prosecution, judge and jury made up of anti-Semitic Georgia bigots who trusted the word of a black man over that of a rich Jew.

After the inevitable conviction, Gov. John Slaton, seeing the case for the travesty that it was, stepped in and commuted Frank’s sentence. In reaction to this, an angry mob of Mariettans, determined to see justice done, snatched Frank from his prison cell and hanged him from the nearest tree.

As evidence for the popularity of the mythical version, I wish to present Exhibit A: my very own Marietta Patch. On Aug. 17, the 96th anniversary of the lynching, Patch published a short to commemorate the occasion. The blurb said, “Frank was convicted of the murder at the National Pencil factory in a prosecution rife with anti-Semitism.” But it is precisely this point, that Frank’s conviction was driven by anti-Semitism, that I wish to dispute.

Please do not misunderstand me; anti-Semitism definitely was a factor in the lynching of Leo Frank. But the anti-Jewish sentiment and rhetoric began after his conviction, during the two years between the trial’s end and Frank’s lynching Aug. 16, 1915. There is virtually no evidence that it played any part in the initial investigation or the trial itself.

To support my claim, I appeal to Steve Oney’s book And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank. Oney, a senior editor at Los Angeles magazine and former writer for the Atlanta Journal-Constitution, used newspaper accounts of the day along with the official record to build the most thorough and detailed history of the case to date.

According to Oney, the first mention of anti-Semitism came from Frank’s defense team during closing arguments. Defense attorney Reuben Arnold said, “I tell everybody, all within the hearing of my voice, that if Frank hadn’t been a Jew, he never would have been prosecuted.” This assertion was, in Oney’s own words, “shocking.”

It was shocking because it was the first mention of Frank’s religion in anything other than a positive light. Earlier in the trial, the defense had spoken of it as an indication of Frank’s good character, pointing to his prominence as a leader in the B’nai Brith organization and a member of Atlanta’s respected German-Jewish elite.

The question that I am frequently asked, then, is this: Why else would an all-white jury in 1913 convict a Jewish man of murder based largely on the testimony of an uneducated black man with a known criminal record? In short, why did the jury believe Jim Conley and not Leo Frank?

The answer is this: Jim Conley’s testimony was both riveting in its lurid detail and unwavering in the face of relentless cross-examination, something few people at the time would believe possible from a Negro who was lying. But this was not because Conley was telling the truth; it was because he had repeatedly rehearsed his testimony under the coaching of attorney William Manning Smith.

Attorney for the Witness

William Manning Smith was a bright young attorney who had made a name for himself as a champion of black civil rights. Although he was friendly with lead prosecutor Hugh Dorsey (who would later become governor of Georgia), Smith was never an official member of the prosecution. Instead, Smith had been hired by The Atlanta Georgian, a newspaper owned by the Hearst Corp., to protect the rights and interests of the state’s star witness.

Smith readily accepted. Like any ambitious attorney in Georgia, he was eager to be a part of the case, which was already garnering national attention. Furthermore, he had a genuine concern for Conley. He knew all too well the fate that could befall a black man involved in the murder of a white girl. Smith was also well acquainted with lead defense attorney Luther Rosser and feared that he would tear Conley apart on the witness stand.

Smith was concerned that Conley, who was enjoying his newfound attention, was talking far too much. Fearing that he would be tricked into either perjury or self-incrimination, Smith had Conley moved from the county lockup to a restricted-access cell in the Atlanta police headquarters. Here, only visitors approved by Smith were allowed access to Conley.

Spending hours alone with Conley, Smith prepared him for the trial that lay ahead. They rehearsed Conley’s testimony over and over, with Smith role-playing the parts of Luther Rosser and Reuben Arnold.

Smith anticipated Rosser’s strategy very well and even imitated his tone of voice and style of cross-examination. By the time he was called to the stand, Conley was prepared.

Salacious Testimony

For days of testimony and cross-examination, Conley held the courtroom transfixed. He told in great detail about how Frank had enlisted his help in disposing of the corpse of Mary Phagan. According to Conley, the murder had not been premeditated but was the result of a botched attempt by Frank to seduce the 13-year-old girl, who was, by all accounts, exceedingly pretty and well-developed for her age.

But Conley did not stop there. He clarified how he came to work for Frank in such a capacity through increasingly salacious testimony in which he portrayed Frank as a libertine of the highest order.

Conley claimed that he had served on many occasions as a lookout for Frank, who allegedly used the factory on weekends for sexual rendezvous with various women. Conley went so far as to describe having witnessed certain sexual acts in graphic detail.

When Rosser cross-examined, Conley held his ground. When he could, he resorted to humor, playing the “poor ignorant Negro” in an attempt to pander to the condescendingly paternalistic attitudes of his white audience. When he was unable to answer satisfactorily, he would simply hang his head and pretend ignorance.

All of this was in keeping with the strategy developed by Smith, the gist of which was that, if Conley was to survive, he must stick to his testimony and, beyond that, keep his mouth shut.

But Conley was not the only one who would testify that Frank was a libertine, and herein we find a second reason why Frank was ultimately convicted.

Several of the factory girls came forward to testify that Frank routinely poked his head into the women’s dressing room without warning, catching them in various stages of undress.

Moreover, several girls testified that Frank not only knew Mary Phagan, but that he called her by name, despite his own statements to the contrary, and that he had been seen talking with her and even putting his hands on her shoulders.

According to one such witness, Mary had confided that she was afraid of Frank.

It must be stated here that several factory girls called by the defense testified to Frank’s good character. It must also be pointed out, here as it was to the jury, that Frank was on trial for murder and not for sexual misconduct, and evidence of the one does not prove the other. Indeed, many have argued that such behavior had become commonplace in a time when men were placed in management over an increasingly female workforce.

Nevertheless, the testimony about Frank’s alleged indiscretions, whether true or false, gave greater credibility to Conley’s story.

The Crowd Without

A third factor contributing to the conviction of Leo Frank, and which should have resulted in Frank’s being granted a new trial, was the crowd gathered around the courthouse.

Not only was the courtroom itself filled to capacity, but the grounds around the courthouse overflowed. People sat on walls and on top of cars and buggies. They perched in the low-hanging branches of trees, hoping to catch bits of testimony coming through windows left open in the August heat.

The crowd was decidedly against Frank, for once the state had chosen the man they were to prosecute, the outraged public seemed to countenance no other outcome than a conviction. As the trial wound down to its final days, the crowd was heard cheering the prosecution when they felt a point had been scored. This continued despite the admonishments of Judge Leonard Roan.

That the presence of the crowd and their clear sentiment had an effect on the jury is virtually undeniable. When the time came for the verdict to be read, Judge Roan, in private consultation, suggested to the defense that Frank should not be present when the verdict was read, which in itself was a violation of Frank’s constitutional rights.

Judge Roan feared that, no matter what the verdict, the overzealous crowd might react in drastic measure and that Frank might be torn forcefully from the courtroom by the mob of onlookers.

Thus it was that on Aug. 26, with Leo Frank not present, the jury read its verdict: guilty.

Also not present was Conley’s attorney, William Smith. In fact, since Smith was officially a part of neither team, he had only been in court on those days his client had testified.

But in 1914, after examining the evidence and the trial transcripts, Smith would reverse his position, concluding that his own client, Jim Conley, had in fact been the killer. From that point on, he would work tirelessly to clear Frank’s name.

Smith now believed that, despite the nobility of his intentions, his work with Jim Conley had simply enabled a murderer to lie and had sent an innocent man to his death, a fact that would haunt him for the rest of his life.

Mark Cohen October 03, 2011 at 06:43 PM
On Monday morning, April 28, 1913, in the police interrogation room, Leo M. Frank was surrounded by a team of police, investigators, detectives, a government stenographer & his own two lawyers Luther Z Rosser & Herbert Haas. Leo M. Frank told the police, Mary Phagan entered his office between 12:05 and 12:10 PM on April 26, 1913. His stenographed statement became State's Exhibit B at his murder trial. For the 3 month period between his arrest and trial, Leo Frank swore he never left his office between noon & 12:45PM on April 26, 1913. During the Leo Frank murder trial, 14-year old witness Monteen Stover, testified she entered Leo Frank's office to collect her pay envelope at 12:05 PM, not seeing Leo Frank in either his inner or outer office, she waited there until 12:10PM and left. To counter this alibi breaking trial statement by Monteen Stover & explain why he was not in his office from the time between 12:05 & 12:10PM, Leo Frank dropped a bombshell & told a stunned court room, he might have "unconsciously" gone to the bathroom inside the metal room during this time lapse. This newfangled testimony given by Leo Frank on August 18, 1913, gave the State's prosecution team a grand slam home run victory, because it amounted to a virtual murder confession. The state's prosecutor, the solicitor general Hugh M. Dorsey had spent 29-days trying to convince the Jury that Leo M. Frank had murdered Mary Phagan in the "metal room" between 12:05 & 12:10PM on April 26, 1913
Mark Cohen December 15, 2012 at 05:28 AM
You wrote, "According to one such witness, Mary had confided that she was afraid of Frank." You are referring to newsie and former employee of the National Pencil Company, George W. Epps. This testimony was given to the police on Monday, April 28, 1913, and also at Coroner's Inquest days later, but I don't recall this evidence restated by him at the Leo Frank trial (see Brief of Evidence, 1913), because it would have been hearsay for Epps to tell the Jury that Phagan confided her increasing fear of Leo M. Frank. You said: "Thus it was that on Aug. 26, with Leo Frank not present, the jury read its verdict: guilty." The verdict was given on Monday, August 25, not Tuesday, the 26th. It was August 26, 1913 that Judge Leonard Roan approved the Jury's verdict given the day before and sentenced Leo Frank to hang on October 10, 1913. Leo Frank appealed to Judge Roan on more than 100 frivolous grounds for a new trial but each ground was specifically denied with written explanations by Roan, tending to indicate the Judge felt Leo Frank had a fair trial. Your article gives the impression the State of Georgia surreptitiously decided Leo Frank was the killer, when it was clearly the evidence gathered during the Mary Phagan murder investigation that indicted him. I encourage you to actually read the Leo Frank Trial Brief of Evidence (1913) and the three newspapers Atlanta Constitution, Georgian and Journal from April 26, 1913 to August 31, 1913, to learn what really happened.

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